G.R. No.

106270-73 February 10, 1994

SULTAN MOHAMAD L. MITMUG, petitioner,

vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO, LANAO
DEL SUR, and DATU GAMBAI DAGALANGIT, respondents.

Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.

Brillantes, Nachura, Navarro & Arcilla for private respondent.

BELLOSILLO, J.:

The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur, was abnormally low.
As a result, several petitions were filed seeking the declaration of failure of election in precincts where less than
25% of the electorate managed to cast their votes. But a special election was ordered in precincts where no
voting actually took place. The Commission on Elections (COMELEC) ruled that for as long as the precincts
functioned and conducted actual voting during election day, low voter turnout would not justify a declaration of
failure of election. We are now called upon to review this ruling.

Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI DAGALANGIT were
among the candidates for the mayoralty position of Lumba-Bayabao during the 11 may 1992 election. There
were sixty-seven (67) precincts in the municipality.

As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49) precincts where the
average voter turnout was 22.26%, i.e., only 2,330 out of 9,830 registered voters therein cast their votes. Five
(5) of these precincts did not conduct actual voting at all. 1

Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the five (5) precincts
which failed to function during election day. On 30 July 1992 another special election was held for a sixth
precinct. 2

In the interim, petitioner filed a petition seeking the annulment of the special election conducted on 30 May
1992 alleging various irregularities such as the alteration, tampering and substitution of ballots. But on 13 July
1992, COMELEC considered the petition moot since the votes in the subject precincts were already counted. 3

Other petitions seeking the declaration of failure of election in some or all precincts of Lumba-Bayabao were
also filed with COMELEC by other mayoralty candidates, to wit:

1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an urgent petition
praying for the holding of a special election in Precinct No. 22-A alleging therein that when the ballot box was
opened, ballots were already torn to pieces. On 14 July 1992, the petition was granted and a special election
for Precinct No. 22-A was set for 25 July 1992. 4

2. SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate, filed a petition to
declare failure of election in twenty-nine (29) more precincts as a result of alleged tampering of ballots 5 and
clustering of precincts. 6 On 16 July 1992, the petition was dismissed. COMELEC ruled that there must be a situation
where there is absolute inability to vote before a failure of election can be declared. 7 Since voting was actually
conducted in the contested precincts, there was no basis for the petition.

3. SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time seeking to exclude
from the counting the ballots cast in six (6) precincts on the ground that the integrity of the ballot boxes therein
was violated. 8Again, on 14 July 1992, COMELEC considered the petition moot, as the issue raised therein was
related to that of SPA No. 92-311 which on 9 July 1992 was already set aside as moot. 9

4. SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty candidate, filed a petition
which in the main sought the declaration of failure of election in all sixty-seven (67) precincts of
Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of voters. 10 On 9 July 1992,
COMELEC dismissed the petition, ruling that the allegations therein did not support a case of failure of election. 11
On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But COMELEC treated the
same as a motion for reconsideration and promptly denied it considering that under the COMELEC Rules of
Procedure such motion was a prohibited pleading. 13

Thereafter, a new board of Election Inspectors was formed to conduct the special election set for 25 July 1992.
Petitioner impugned the creation of this Board. Nevertheless, on 30 July 1992, the new Board convened and
began the canvassing of votes. Finally, on 31 July 1992, private respondent was proclaimed the duly elected
Mayor of Lumba-Bayabao, Lanao del Sur.

On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of failure of election in
forty-nine (49) precincts where less than a quarter of the electorate were able to cast their votes. He also
prayed for the issuance of a temporary restraining order to enjoin private respondent from assuming office.

On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of Lanao del Sur
disputing the result not only of some but all the precincts of Lumba-Bayabao, del Sur. 14

Respondents, on the other hand, assert that with the filing of an election protest, petitioner is already deemed
to have abandoned the instant petition.

It may be noted that when petitioner filed his election protest with the Regional Trial Court of Lanao del Sur, he
informed the trial court of the pendency of these proceedings. Paragraph 3 of his protest states "[T]hat on
August 3, 1992, your protestant filed a Petition for Certiorari with the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation of the herein
protestee. . . ." 15 Evidently, petitioner did not intend to abandon his recourse with this Court. On the contrary, he
intended to pursue it. Where only an election protest ex abundante ad cautela is filed, the Court retains jurisdiction to
hear the petition seeking to annul an election. 16

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

Incidentally, a petition to annul an election is not a pre-proclamation controversy. Consequently, the

proclamation of a winning candidate together with his subsequent assumption of office is not an impediment to
the prosecution of the case to its logical conclusion. 17

Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a verified petition to
declare a failure to elect, notices to all interested parties indicating therein the date of hearing should be served
through the fastest means available. 18 The hearing of the case will also be summary in nature. 19

Based on the foregoing, the clear intent of the law is that a petition of this nature must be acted upon with
dispatch only after hearing thereon shall have been conducted. Since COMELEC denied the other
petitions 20 which sought to include forty-three (43) more precincts in a special election without conducting any
hearing, it would appear then that there indeed might have been grave abuse of discretion in denying the petitions.

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

Sec. 2. Failure of election. If, on account of force majeure, violence, terrorism, fraud or other
analogous causes the election in any precinct has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the voting and
during the preparation and the transmission of the election returns or in the custody of canvass
thereof, such election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission shall, on the
basis of a verified petition by any interested party and after due notice and hearing, call for the
holding or continuation of the election not held, suspended or which resulted in a failure to elect
on a date reasonably close to the date of the election not held, suspended or which resulted in
a failure to elect but not later than thirty (30) days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must
concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was
voting, the election nevertheless results in failure to elect; and, second, the votes not cast would affect the
result of the election. 21

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

Indeed, the fact that a verified petition is filed does not automatically mean that a hearing on the case will be
held before COMELEC will act on it. The verified petition must still show on its face that the conditions to
declare a failure to elect are present. In the absence thereof, the petition must be denied outright.

Considering that there is no concurrence of the two (2) conditions in the petitions seeking to declare failure of
election in forty-three (43) more, precincts, there is no more need to receive evidence on alleged election
irregularities.

Instead, the question of whether there have been terrorism and other irregularities is better ventilated in an
election contest. These irregularities may not as a rule be invoked to declare a failure of election and to
disenfranchise the electorate through the misdeeds of a relative few. 24 Otherwise, elections will never be carried
out with the resultant disenfranchisement of innocent voters as losers will always cry fraud and terrorism.

There can be failure of election in a political unit 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. 25 Thus, even if less than 25% of the electorate in the questioned precincts cast their votes, the same must still
be respected. There isprima facie showing that private respondent was elected through a plurality of valid votes of a
valid constituency.

WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is DISMISSED.

SO ORDERED.

G.R. No. 123169 November 4, 1996

DANILO E. PARAS, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

FRANCISCO, J.:

Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan City who won during the
last regular barangay election in 1994. A petition for his recall as Punong Barangay was filed by the registered
voters of the barangay. Acting on the petition for recall, public respondent Commission on Elections
(COMELEC) resolved to approve the petition, scheduled the petition signing on October 14, 1995, and set the
recall election on November 13,
1995. 1 At least 29.30% of the registered voters signed the petition, well above the 25% requirement provided by law.
The COMELEC, however, deferred the recall election in view of petitioner's opposition. On December 6, 1995, the
COMELEC set anew the recall election, this time on December 16, 1995. To prevent the holding of the recall
election, petitioner filed before the Regional Trial Court of Cabanatuan City a petition for injunction, docketed as SP
Civil Action No. 2254-AF, with the trial court issuing a temporary restraining order. After conducting a summary
hearing, the trial court lifted the restraining order, dismissed the petition and required petitioner and his counsel to
explain why they should not be cited for contempt for misrepresenting that the barangay recall election was without
COMELEC approval. 2
In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled the recall election an
January 13, 1996; hence, the instant petition for certiorari with urgent prayer for injunction. On January 12,
1996, the Court issued a temporary restraining order and required the Office of the Solicitor General, in behalf
of public respondent, to comment on the petition. In view of the Office of the Solicitor General's manifestation
maintaining an opinion adverse to that of the COMELEC, the latter through its law department filed the required
comment. Petitioner thereafter filed a reply. 3

Petitioner's argument is simple and to the point. Citing Section 74 (b) of Republic Act No. 7160, otherwise
known as the Local Government Code, which states that "no recall shall take place within one (1) year from the
date of the official's assumption to office or one (1) year immediately preceding a regular local election",
petitioner insists that the scheduled January 13, 1996 recall election is now barred as the Sangguniang
Kabataan (SK) election was set by Republic Act No. 7808 on the first Monday of May 1996, and every three
years thereafter. In support thereof, petitioner cites Associated Labor Union v. Letrondo-Montejo, 237 SCRA
621, where the Court considered the SK election as a regular local election. Petitioner maintains that as the SK
election is a regular local election, hence no recall election can be had for barely four months separate the SK
election from the recall election. We do not agree.

The subject provision of the Local Government Code provides:

Sec. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall
election only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's assumption to
office or one (1) year immediately preceding a regular local election.

[Emphasis added]

It is a rule in statutory construction that every part of the statute must be interpreted with reference to the
context,i.e., that every part of the statute must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment. 4 The evident intent of Section 74 is to subject an
elective local official to recall election once during his term of office. Paragraph (b) construed together with paragraph
(a) merely designates the period when such elective local official may be subject of a recall election, that is, during
the second year of his term of office. Thus, subscribing to petitioner's interpretation of the phrase regular local
election to include the SK election will unduly circumscribe the novel provision of the Local Government Code on
recall, a mode of removal of public officers by initiation of the people before the end of his term. And if the SK
election which is set by R.A No. 7808 to be held every three years from May 1996 were to be deemed within the
purview of the phrase "regular local election", as erroneously insisted by petitioner, then no recall election can be
conducted rendering inutile the recall provision of the Local Government Code.

In the interpretation of a statute, the Court should start with the assumption that the legislature intended to
enact an effective law, and the legislature is not presumed to have done a vain thing in the enactment of a
statute. 5 An interpretation should, if possible, be avoided under which a statute or provision being construed is
defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered
insignificant, meaningless, inoperative or nugatory. 6

It is likewise a basic precept in statutory construction that a statute should be interpreted in harmony with the
Constitution. 7 Thus, the interpretation of Section 74 of the Local Government Code, specifically paragraph (b)
thereof, should not be in conflict with the Constitutional mandate of Section 3 of Article X of the Constitution to "enact
a local government code which shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization with effective mechanism of recall, initiative, and referendum . . . ."

Moreover, petitioner's too literal interpretation of the law leads to absurdity which we cannot countenance.
Thus, in a case, the Court made the following admonition:

We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill
its purpose and defeat the intention of its authors. That intention is usually found not in "the
letter that killeth but in the spirit that vivifieth". . . 8

The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this case,
must be read according to its spirit and intent.

Finally, recall election is potentially disruptive of the normal working of the local government unit necessitating
additional expenses, hence the prohibition against the conduct of recall election one year immediately
preceding theregular local election. The proscription is due to the proximity of the next regular election for the
office of the local elective official concerned. The electorate could choose the official's replacement in the said
election who certainly has a longer tenure in office than a successor elected through a recall election. It would,
therefore, be more in keeping with the intent of the recall provision of the Code to construe regular local
election as one referring to an election where the office held by the local elective official sought to be recalled
will be contested and be filled by the electorate.

Nevertheless, recall at this time is no longer possible because of the limitation stated under Section 74 (b) of
the Code considering that the next regular election involving the barangay office concerned is barely seven (7)
months away, the same having been scheduled on May 1997. 9

ACCORDINGLY, the petition is hereby dismissed for having become moot and academic. The temporary
restraining order issued by the Court on January 12, 1996, enjoining the recall election should be as it is
hereby made permanent.

SO ORDERED.

G.R. No. 139357 May 5, 2000

ABDULMADID P.B. MARUHOM, petitioner,

vs.
COMMISSION ON ELECTIONS and HADJI JAMIL DIMAPORO, respondents.

YNARES-SANTIAGO, J.:

Whether or not a motion to dismiss, filed after an answer has been filed, is a prohibited pleading in an election
protest pending before the Regional Trial Court is the issue posed in this petition for certiorari with prayer for
preliminary injunction challenging the Resolution of the Commission on Elections (COMELEC) dated July 6,
19991dismissing Comelec Case SPR No. 52-98.

The COMELEC's challenged order summarizes the relevant facts of the controversy thus:

1. Petitioner and private respondent were both candidates for Mayor in the Municipality
of Marogong, Lanao del Sur and voted as such in the last May 11, 1998 national and
local election (sic). Petitioner is a re-electionist and a veteran politician;

2. The election in Marogong functioned on May 11, 1998, and after the voting the ballot
boxes were transmitted to the Kalimodan Hall, Provincial Capitol of Lanao del Sur at
Marawi City where the automated counting of votes and canvass of election returns
were centralized;

3. During the counting of votes, serious irregularities, anomalies and electoral frauds
were committed at the instance of petitioner or his followers in that votes actually casted
(sic) for the private respondent were not counted and credited in his favor thru (sic) the
concerted acts, conspiracy and manipulation of the Board of Election Inspectors,
military, Election Officer and the Machine Operator who happens to be a nephew of the
petitioner;

4. In Precincts Nos. 1A-1A1, 7A1, 8A, 10A-10A1 and 11A about 115 official ballots were
refused or rejected by the counting machine which the private respondent's watchers or
representatives have requested and insisted to be re-fed to the automated machine for
the second and third times pursuant to the provisions of Comelec Resolution No. 3030
but their requests were not heeded by the Election Officer and the Machine Operator,
Solaiman Rasad, who is a close kin of the Petitioner, and instead considered the said
ballots as finally rejected, while in Precincts Nos. 12A, 23A1 and 6A, around 56 ballots
were found therein which were not drawn from the official ballots and were included in
the counting of votes over the objection of the private respondent's watchers or
representatives;
5. Before the termination of the counting of votes and the consolidation of the results,
the machine operator and the Election Officer carried away from the Kalimodan Hall the
diskette and brought the same to the down town without the knowledge of the private
respondent's watchers or representatives;

6. As a result of the foregoing irregularities, anomalies and electoral frauds, the

petitioner was illegally proclaimed as winner because he appeared to have obtained
2,020 votes while the private respondent garnered 2,000 votes with a slight margin of
only 20 votes;

7. After the counting of votes, the ballot boxes were kept at the Kalimodan Hall,
Provincial Capitol, Marawi City guarded and secured by military and PNP personnel
together with the watchers/representatives of the petitioner and the private respondent
and other candidates or political parties until they were transported and delivered to the
respondent court at Malabang, Lanao del Sur sometime on August 13, 1998 by 1Lt.
Napisa AG together with the duly authorized representatives of both parties.

xxx xxx xxx

1. On May 22, 1998, private respondent, knowing that he was cheated and the true
winner for Mayor, filed before this Honorable Commission a petition to annul the
proclamation of petitioner Abdulmadid Maruhom as the duly elected Mayor of
Marogong, Lanao del Sur docketed as SPC No. 98-226.2

2. As precautionary measure to avoid any technicality, private respondent filed on May

25, 1998, an ordinary "Protest ad Cautelam" against the petitioner before the Regional
Trial Court, Branch 11, Malabang, Lanao del Sur entitled "Hadji Jamil D. Dimaporo vs.
Abdulmadid Maruhom" for election protest (Manual Judicial Recount, revision and
reappreciation of ballots) docketed as Election Case No. 11-127.3

3. On June 1, 1998, petitioner Abdulmadid Maruhom filed an answer with counter-

protest in Election Case No. 11-127 special and affirmative defenses and counter-
protest.4 In his answer petitioner prayed to hold in abeyance further proceedings since
the protest is ad cautelam or subject to the petition filed before this Honorable
Commission.

4. On July 2, 1998, before SPC No. 98-228 could be set for hearing by this Honorable
Commission, the private respondent as petitioner therein, filed a motion to withdraw his
petition in said SPC No. 98-228 albeit said case was among those cases the
proceedings of which were ordered to be continued beyond June 30, 1998, under
Comelec Resolution No. 3049 promulgated on June 29, 1998.5 . . . .

5. On July 17, 1998, an order was issued by this Honorable Commission, (First
Division) granting the private respondent's motion to withdraw petition in SPC No. 98-
228 and considered the same withdrawn.6 . . . .

6. Upon receipt of a copy of said order, dated July 17, 1998, private respondent filed an
urgent motion before the respondent court on July 27, 1998, praying for the issuance of
an order directing the proper officials/officers concerned to bring and produce before
said court the ballot boxes subjects of the protest and counter-protest and to set the
case for hearing as mandated by law.7 . . . .

7. After the delivery of the ballot boxes involved in the protest and counter-protest, the
public respondent issued an order, dated August 17, 1998, setting Election Case No.
11-127 for hearing (a) for the creation of the Committee on Revision and appointment of
the Chairman and Members thereof; (b) making of the cash deposit and payment of the
revisor's compensation; (c) partial determination of the case, etc. on September 1,
1998, at 8:30 o'clock in the morning.8

8. When the case was called for hearing on September 2, 1998, a Revision Committee
was created and its membership were duly appointed in open court which committee
was directed by the respondent court to finish the revision of ballots, if possible, within
20 days from the commencement of the revision.9 . . . .
9. After the Revision Committee was directed by the respondent to commence the
revision of ballots, the petitioner Abdulmadid Maruhom thru counsel orally moved for the
dismissal of the protest on the grounds that (1) The ballot boxes containing the ballots
in the protested and counter-protested precincts have been violated; (2) Automated
counting of ballots does not contemplate a manual recount of the ballots; and (3)
Protestant is guilty of forum shopping warranting summary dismissal of the petitioner of
the protest.

10. The private respondent thru (sic) undersigned counsel, vigorously opposed the said
oral motion to dismiss and orally argued that the motion is clearly dilatory having been
made only after the Revision Committee has been ordered to commence the revision of
ballots on September 1, 1998 and maintained that (1) The motion to dismiss is not
allowed in an election protest; (2) The sanctity and integrity of the ballot boxes subject
matter of the protest and counter-protest have been preserved and never violated; (3)
The automated counting of ballots does not preclude the filing of the election protest for
the judicial recount and revision of ballots; and (4) The private respondent is not guilty
of forum shopping because his petition of protest is clearly and explicitly a Protest Ad
Cautelam in view of the pendency of his petition before this Honorable Commission
which was withdrawn by the private respondent before it could be set for hearing or
acted upon by this Honorable Commission.

11. After the oral arguments of both parties, the petitioner's counsel asked that he be
given ample time to file a written Omnibus Motion to Dismiss and the respondent court
thru then Acting Presiding Judge Rasad Balindong, issued an order dated September 2,
1998, giving ten (10) days to Atty. Tingcap T. Mortaba to file an Omnibus Motion in
substantiation of all the oral motions he made, furnishing a copy thereof to the
undersigned counsel for the private respondent who was likewise given an equal period
of time to comment. 10

12. On September 11, 1998, petitioner filed his motion to dismiss 11 and on September
21, 1998, the private respondent filed a vigorous opposition to motion to dismiss. 12

13. During the hearing on the motion to dismiss and the opposition thereto on
September 21, 1998, the petitioner's counsel requested for ample time to file a rejoinder
to the vigorous opposition to motion to dismiss submitted by the private respondent
which was granted by the court and on September 28, 1998, petitioner filed his
rejoinder 1 and on October 5, 1998 private respondent filed his comment 14 thereto and
thereafter all incidents were submitted for resolution of the court.

14. On November 10, 1998, the respondent court thru Honorable Presiding Judge
Moslemen T. Macarambon, issued the assailed order denying the petitioner's motion to
dismiss for lack of merit and ordering the Revision Committee to report to the court on
November 19, 1998, at 8:30 o'clock in the morning for their oath taking and to receive
the instruction of the court in the revision of the ballots and other allied matters. 15

15. On November 18, 1998, the petitioner filed a motion for reconsideration of the order
dated November 10, 1998, 16 and on November 23, 1998, private respondent filed a
vigorous opposition [to motion] for reconsideration. 17

16. Finding no compelling reason to disturb its order dated November 10, 1998, the
respondent court issued the assailed order dated December 1, 1998 which denied the
motion for reconsideration for lack of merit. In the same order, the respondent court
reiterated its previous order to the members of the Revision Committee to take their
oaths before Atty. Raqueza T. Umbaro or Atty. Khalil Laguindab and thereafter to
convene and start the revision of ballots on December 14, 15, 16, 17 and 18, 1998,
morning and afternoon. 18

17. As a diabolical scheme to cause further delay of the proceedings of the case more
specifically the revision of ballots, the petitioner filed on December 10, 1998, the instant
petition for certiorari and prohibition with prayer for preliminary injunction and on
December 11, 1998, petitioner filed an urgent motion before the respondent court
praying that further proceedings in Election Case No. 11-127 be deferred until after
protestee's petition for certiorari and prohibition before this Honorable Commission shall
have been finally resolved, copy of which was served upon the undersigned counsel
 only on December 12, 1998, at 10:50
A.M. 19 . . . .

18. That before the undersigned counsel could file his opposition to said urgent motion
on December 14, 1998 and in the absence of a restraining order or writ of preliminary
injunction issued by (the COMELEC), the respondent judge already issued an order
granting the same motion and ordering the Revision Committee to hold in abeyance the
scheduled revision of ballots on December 14, 15, 16, 17 and 18, 1998, etc. until further
order from the court . . . . 20

Petitioner alleges that in dismissing the petition the COMELEC acted in excess of, or with grave abuse of
discretion, amounting to lack of jurisdiction
in

1.] holding that a motion to dismiss an election protest case filed in the
Regional Trial Court is a prohibited pleading;

2.] holding that the motion to dismiss filed after the answer is not
allowed;

3.] failing to resolve the issues raised in SPR No. 52-98 which are
sufficient legal bases to dismiss Election Case No. 11-127.

In sum, petitioner insists that in refusing to pass upon the three (3) principal issues raised in COMELEC Case
SPR No. 52-98, to wit:

1. Whether or not public respondent acted in excess of, or with grave

abuse of discretion, amounting to lack of jurisdiction in holding that a
motion to dismiss an election protest case in the Regional Trial Court is
a prohibited pleading;

2. Whether or not public respondent acted in excess of, or with grave

abuse of discretion, amounting to lack of jurisdiction, in holding that a
motion to dismiss filed after the answer to an election protest case in the
Regional Trial court is not allowed; and

3. Whether or not public respondent gravely abused its discretion

amounting to lack of jurisdiction, in failing to resolve the relevant
material and substantial issues raised in SPR No. 52-98.

the COMELEC "abdicated its duty under its own rules of procedure and under the Constitution and the
election laws." Such abdication of duty, according to petitioner, amounts to grave abuse of discretion
amounting to lack of jurisdiction.

It must be borne in mind that the purpose of governing statutes on the conduct of elections

. . . [i]s to protect the integrity of elections to suppress all evils that may violate its purity and
defeat the will of the voters. The purity of the elections is one of the most fundamental
requisites of popular government. The Commission on Elections, by constitutional mandate
must do everything in its power to secure a fair and honest canvass of the votes cast in the
elections. In the performance of its duties, the Commission must be given a considerable
latitude in adopting means and methods that will insure the accomplishment of the great
objective for which it was created to promote free, orderly and honest elections. The choice
of means taken by the Commission on Elections, unless they are clearly illegal or constitute
grave abuse of discretion, should not be interfered with. 21

Sec. 2 (1) of Article IX 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." There
can hardly be any doubt that the text and intent of this constitutional provision is to give COMELEC all the
necessary and incidental powers for it to achieve the holding of free, orderly, honest, peaceful and credible
elections.
In accordance with this intent, the Court has been liberal in defining the parameters of the COMELEC's powers
in conducting elections. Sumulong v. COMELEC 22 aptly points out that

Politics is a practical matter, and political questions must be dealt with realistically not from
the standpoint of pure theory. The Commission on Elections, because of its fact-finding
facilities, its contacts with political strategists, and its knowledge derived from actual experience
in dealing with political controversies, is in a peculiarly advantageous position to decide
complex political questions . . . . There are no ready made formulas for solving public problems.
Time and experience are necessary to evolve patterns that will serve the ends of good
government. In the matter of the administration of laws relative to the conduct of election . . . we
must not by any excessive zeal take away from the Commission on Elections that initiative
which by constitutional and legal mandates properly belongs to it.

Succinctly stated, laws and statutes governing election contests especially the appreciation of ballots must be
liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated
by technical infirmities. 2 An election protest is imbued with public interest so much so that the need to dispel
uncertainties which becloud the real choice of the people is imperative, 24 much more so in this case
considering that a mere twenty (20) votes separates the winner from the loser of the contested election results.

The primordial issue to be resolved herein is whether or not the COMELEC gravely abused its discretion in
dismissing SPR No. 52-98.

In support of his cause, petitioner insists that there is "nothing irregular or anomalous in the filing of the motion
to dismiss" after the filing of the answer because in effect he is merely insisting on a preliminary hearing of his
special and affirmative defenses. Thus, he claims that the summary dismissal of his motion to dismiss is tainted
with grave abuse of discretion amounting to lack or excess of jurisdiction.

We disagree.

The filing of the motion to dismiss, in fact, appears to be part of a perfidious plot to prevent the early
termination of the proceedings in Election Case No. 4847 as evidenced by a confluence of events clearly
showing a pattern of delay employed by petitioner to avert the revision ballots. These events, pointed out by
private respondent 25 and borne by the record, show
that

1. It was only on September 1, 1999 after the creation of the Revision Committee and the
appointment of its Chairman and Members and after the said committee was ordered by the
trial court to commence the revision and to render its report within 20 days that the petitioner
orally moved for the dismissal of the case on the flimsy grounds that (1) the ballot boxes subject
of the protest and counter protest have been violated; (2) the automated counting of ballots
does not contemplate a manual recount of ballots; and (3) protestant is guilty of forum-shopping
warranting summary dismissal of the protest;

2. After the oral arguments on the oral motion to dismiss the petitioner requested for ample time
within which to file an Omnibus Motion to Dismiss and over the vigorous opposition of the
private respondent the same was granted by the court and the petitioner was given a period of
ten (10) days to file the same and the private respondent was likewise given a period of ten (10)
days to file his comment;

3. On September 11, 1998, the motion to dismiss 26 and during the hearing on the said motion
and the opposition 27 thereto on September 21, 1998, the petitioner again asked for ample time
to file a rejoinder to the vigorous opposition to motion to dismiss which was again granted by
the court and it was only on September 28, 1998 that said rejoinder was filed;

4. After a denial of the motion to dismiss on November 10, 1998, 28 the petitioner filed a motion
for reconsideration on November 18, 1998; 29

5. When the motion for reconsideration was denied on December 1, 1998, 30 petitioner filed on
December 18, 1998 before the Commission on Elections a petition for certiorari and prohibition
with prayer for preliminary injunction and asked the trial court to defer the proceedings of
Election Case No. 11-27 until after his petition shall have been finally resolved which was
granted by the trial court. Hence, the scheduled revision of the ballots on December 14, 15, 16
and 17, 1998 was cancelled and the proceedings of the case held in abeyance; 31
 6. As the Comelec En Banc did not give due course to petitioner's prayer for writ of preliminary
injunction, the trial court, upon motion of the private respondent, issued an order for the revision
of ballots on February 8, 1999. 32 On said day, neither the petitioner's counsel nor his
designated revisors appeared, instead the petitioner, assisted by his numerous armed men,
numbering around 30 stated (sic) in strategic places, prevented the court personnel to enter the
court premises. Were it not for the maximum tolerance exercised by the PNP personnel and the
intervention of the local datus/leaders, there would have been bloodshed;

7. On February 9, 1999, the petitioner's counsel filed a withdrawal of appearance with the
attached letter-request of the petitioner asking for the deferment of the revision of ballots for at
least two (2) weeks to enable him to engage the services of another counsel. Considering that
the incident was designed to delay the further the early disposition of the case which would
frustrate the ends of justice, the court held in abeyance its ruling on the withdrawal of
appearance of and directed petitioner's counsel to handle the case after the appearance of a
new counsel; 3

8. To further delay the proceedings of the case, the petitioner filed a petition for transfer of
venue of the trial to from RTC, Branch 11, Malabang, Lanao del Sur to Iligan City or in Metro
Manila which the private respondent did not oppose so as not to delay the early resolution of
this Honorable Supreme Court on the said petition;

9. Again, the proceedings of the case was held in abeyance in view of the pendency of the said
petition for transfer of venue;

10. After the dismissal of the petition in Election Case No. 52-98, the petitioner filed the instant
petition for certiorari before this Honorable Supreme Court with a prayer for issuance of
temporary restraining order;

11. As a diabolical scheme to cause further delay of the proceedings of the case, the petitioner
filed an urgent motion before this Honorable Supreme Court praying for the immediate issuance
of a TRO directing the Presiding Judge, RTC, Branch III, Iligan City to cease, desist and refrain
from conducting any further proceedings of Election Case No. 4847 until the instant case shall
have been resolved. This Honorable Supreme Court, without granting the prayer for TRO,
directed the RTC, Branch III, Iligan City not to promulgate any decision in the said election case
until further order[s] from this most Honorable Court. 34

It is clear, given the foregoing facts of this case, that the roundabout manner within which petitioner virtually
substituted his answer by belatedly filing a motion to dismiss three (3) months later is a frivolous resort to
procedure calculated to frustrate the will of the electorate. As pointedly observed by the COMELEC in its
challenged Resolution dated July 6, 1999, 35 petitioner only filed his motion to dismiss "when the results of the
trial appear[ed] to be adverse to him" 36 or right after the creation of the Revision Committee had been ordered
by the trial court. If petitioner truly intended to move for the preliminary hearing of his special and affirmative
defenses as he claims, then he should have simultaneously moved for the preliminary hearing of his special
and affirmative defenses at the time he filed his answer. Otherwise, he should have filed his motion to dismiss
"within the time for but before filing the answer. . ." pursuant to Section 1, Rule 16 of the 1997 Rules of Civil
Procedure.

Suffice it to state in this regard that such a whimsical change of mind by petitioner can not be countenanced
much more so in election cases where time is of the essence in the resolution thereof. Indeed, the Omnibus
Election Code states in no uncertain terms that

Sec. 258. Preferential disposition of contests in courts. The RTC, in their respective cases, shall
give preference to election contests over all other cases, except those of habeas corpus, and
shall, without delay, hear and within thirty (30) days from the date of their submission for
decision, but in every case within six (6) months after filing, decide the same. . . . 37 (emphasis
and italics supplied).

Petitioner further argues that his submissions that a.] the integrity of the ballot boxes has been violated; b.] only
rejected ballots or ballots manually counted are the proper subjects of an election protest; and c.] private
respondent is guilty of forum-shopping, are enough grounds to dismiss the case.

We remain unconvinced.
As aptly observed by the COMELEC in the challenged Resolution, these grounds are "evidentiary in nature and
can be best ventilated during the trial of the case." 38 It needs be stressed in this regard that the purpose of an
election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is really
the lawful choice of the electorate. 39 In an election contest where the correctness of the number of votes is
involved, the best and most conclusive evidence are the ballots themselves; where the ballots can not be
produced or are not available, the election returns would be the best evidence. 40 In this case, the counted
official ballots are available and there is no evidence, other than the bare allegation of petitioner, that the
sanctity of the ballot boxes subject matter of the protest have been violated or the official ballots contained
therein impaired. The best way, therefore, to test the truthfulness of petitioner's claim is to open the ballot
boxes in the protested precincts followed by the examination, revision, recounting and re-appreciation of the
official ballots therein contained in accordance with law and pertinent rules on the matter. Needless to state this
can only be done through a full-blown trial on the merits, not a peremptory resolution of the motion to dismiss
on the basis of the bare and one-sided averments made therein.

Petitioner's reliance on COMELEC Resolution No. 2868 41 to support his restrictive claim that only rejected
ballots or ballots manually counted in case of failure of the automated counting machines are the proper
subjects of an election protest, is just as unpersuasive.

There is admittedly a lacuna leges in R.A. No. 8436 which prescribes the adoption of an automated election
system. However, while conceding as much, this Court ruled in Tupay Loong v. COMELEC, 42 that the
Commission is nevertheless not precluded from conducting a manual count when the automated counting
system fails, reasoning thus:

. . . In enacting R.A. No. 8436, Congress obviously failed to provide a remedy where the
error in counting is not machine related for human foresight is not all-seeing. We hold,
however, that the vacuum in the law cannot prevent the COMELEC from levitating
above the problem. 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." Undoubtedly,
the text and intent of this provision is to give the COMELEC all the necessary and
incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful
and credible elections. Congruent to this intent, this Court has not been niggardly in
defining the parameters of powers of COMELEC in the conduct of our elections . . . In
the case at bar, the COMELEC order for a manual count was not only reasonable. It
was the only way to count the decisive local votes . . . The bottom line is that by means
of the manual count, the will of the voters of Sulu was honestly determined. We cannot
kick away the will of the people by giving a literal interpretation to R.A. 8436. R.A. 8436
did not prohibit manual counting when machine count does not work. Counting is part
and parcel of the conduct of an election which is under the control and supervision of
the COMELEC . . .

. . . Our elections are not conducted under laboratory conditions. In running for public offices,
candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap
judgments to meet unforeseen circumstances that threaten to subvert the will of our voters. In
the process, the actions of COMELEC may not be impeccable, indeed, may even be debatable.
We cannot, however, engage in a swivel chair criticism of these actions often taken under very
difficult circumstances.

Verily, the legal compass from which the COMELEC should take its bearings in acting upon election
controversies is the principle that "clean elections control the appropriateness of the remedy." 4

Be that as it may, the fact is the averments in petitioner's counter-protest and private respondent's protest
already justified the determination of the issues through a judicial revision and recounting of the ballots
pursuant to Section 255 of the Omnibus Election Code which provides that

Sec. 255. Judicial counting of votes in election contest. Where allegations in a protest or
counter-protest so warrant or whenever in the opinion of the court the interests of justice so
require, it shall immediately order the book of voters, ballot boxes and their keys, ballots and
other documents used in the election be brought before it and that the ballots be examined and
votes recounted. (Emphasis supplied)

So too must fall petitioner's procedural objection that private respondent should be faulted for forum-
shopping vis--vis this Court's pronouncement in Samad v. COMELEC 44 which states in no uncertain terms
that
 As a general rule, the filing of an election protest or a petition for quo warranto precludes the
subsequent filing of a pre-proclamation controversy, or amounts to the abandonment of one
earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title
of the protestee or the validity of his proclamation. The reason is that once the competent
tribunal has acquired jurisdiction of an election protest or a petition for quo warranto, all
questions relative thereto will have to be decided in the case itself and not in another
proceeding. This procedure will prevent confusion and conflict of authority. Conformably, we
have ruled in a number of cases that after a proclamation has been made, a pre-proclamation
case before the COMELEC is no longer viable.

The rule admits of exceptions, however, as where: (1) the board of canvassers was improperly
constituted; (2) quo warranto was not the proper remedy; (3) what was filed was not really a
petition forquo warranto or an election protest but a petition to annul a proclamation; (4) the
filing of a quo warranto petition or an election protest was expressly made without prejudice to
the pre-proclamation controversy or was made ad cautelam; and (5) the proclamation was null
and void.

Petitioner's argument that the filing of a motion to dismiss in an election contest filed with a regular court is not
a prohibited pleading is well taken. As we pointed out in Melendres, Jr. v. COMELEC: 45

Neither can petitioner seek refuge behind his argument that the motion to dismiss filed by
private respondent is a prohibited pleading under Section 1, Rule 13 of the COMELEC Rules of
Procedure because the said provision refers to proceedings filed before the COMELEC. The
applicable provisions on the matter are found in Part VI of the Rules of Procedure titled
"PROVISIONS GOVERNING ELECTION CONTESTS BEFORE TRIAL COURT" and as this
Court pointedly stated in Aruelo v. Court of Appeals 46

It must be noted that nowhere in Part VI of the COMELEC Rules of Procedure is

it provided that motions to dismiss and bill of particulars are not allowed in
election protests or quo warranto cases pending before regular courts.

Constitutionally speaking, the COMELEC cannot adopt a rule prohibiting the

filing of a certain pleading in the regular courts. The power to promulgate rules
concerning pleadings, practice and procedure in all courts is vested in the
Supreme Court. 47

The foregoing pronouncement, however, will not extricate petitioner from his predicament because the denial of
petitioner's motion to dismiss was based on the fact that the other grounds relied therein was considered
unmeritorious and not because the said motion is a prohibited pleading in electoral protest cases. While the
challenged COMELEC Resolution may not have been entirely correct in dismissing the petition in this regard,
the soundness of its discretion to accord unto the trial court the competence to resolve the factual issues raised
in the controversy cannot be doubted. Indeed, as reasoned by the COMELEC,
the

. . . Commission assumes the competence of the trial court to handle electoral protest and
cannot encroach on its original and exclusive jurisdiction on electoral protest cases involving
the contested mayoralty seat. To our mind, the trial court should be allowed to resolve the case
on the merits to be able to rule on the factual and legal grounds raised by the petitioner as his
defenses in his Answer. Should the petitioner be dissatisfied with the outcome of the case in the
lower court, he can still appeal, as his relief, to this Commission within the reglementary period
provided by law.

Moreover

At balance, the question really boils down to a choice of philosophy and perception of how to
interpret and apply the laws relating to elections; literal or liberal; the letter or the spirit; the
naked provision or the ultimate purpose; legal syllogism or substantial justice; in isolation or in
the context of social conditions; harshly against or gently in favor of the voter's obvious choice.
In applying elections laws, it would be far better to err in favor of popular sovereignty than to be
right in complex but little understood legalisms. 48

WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.

G.R. No. 120318 December 5, 1997

RICARDO "BOY" CANICOSA, petitioner,

vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF CALAMBA, LAGUNA and
SEVERINO LAJARA, respondents.

BELLOSILLO, J.:

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 filed up in
some precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.e., without
padlocks nor self-locking metal seals; and, (f) there was delay in the delivery of election returns. But the
COMELEC en bancdismissed 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.

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 ports 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 R.A. 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 theOmnibus 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 R.A. No. 7166:

Sec. 10. Annulment of the List of Voters. Any book of voters the preparation of which has been
affected with fraud, bribery, forgery, impersonation, intimidation, force or any other similar irregularity or
which is statistically improbable may be annulled after due notice and hearing by the Commission motu
propio or after the filing of a verified complaint: Provided, that no order, ruling or decision annulling a
book of voters shall be executed within sixty (60) days before an election.

If indeed the situation herein described was common in almost all of the 557 precincts as alleged by
Canicosa, 4then 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. Challenges 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 date
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 certificates 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
that

Sec. 215. Board of election inspectors to issue a certificate of the number of votes polled by the
candidates for an office to the watchers. After the announcement of the results of the election and
before leaving the polling place, it shall be the duty of the board of election inspectors to issue a
certificate of the number of votes received by a candidate upon request of the watchers. All members of
the board of election inspectors shall sign the certificate.

Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646 also require

Sec. 16. Certificate 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.

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. IX-C, 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 administrative of all laws relative to the conduct of elections of the purposes 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 the 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.

The 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
vs. 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.

WHEREFORE, finding no grave abuse of discretion committed by public respondent Commission on Elections,
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.

EN BANC
[G.R. No. 93867 : December 18, 1990.]
192 SCRA 358
 SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as ACTING
CHAIRPERSON of the COMMISSION ON ELECTIONS, Respondent.

DECISION

CRUZ, J.:

The petitioner is challenging the designation by the President of the Philippines of Associate
Commissioner Haydee B. Yorac as Acting Chairman of the Commission on Elections, in place of
Chairman Hilario B. Davide, who had been named chairman of the fact-finding commission to
investigate the December 1989 coup d' etat attempt.
The qualifications of the respondent are conceded by the petitioner and are not in issue in this case.
What is the power of the President of the Philippines to make the challenged designation in view of
the status of the Commission on Elections as an independent constitutional body and the specific
provision of Article IX-C, Section 1(2) of the Constitution that "(I)n no case shall any Member (of the
Commission on Elections) be appointed or designated in a temporary or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio
Quirino designated the Solicitor General as acting member of the Commission on Elections and the
Court revoked the designation as contrary to the Constitution. It is also alleged that the respondent is
not even the senior member of the Commission on Elections, being outranked by Associate
Commissioner Alfredo E. Abueg, Jr. :-c ralaw

The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an
internal matter that should be resolved by the members themselves and that the intrusion of the
President of the Philippines violates their independence. He cites the practice in this Court, where the
senior Associate Justice serves as Acting Chief Justice in the absence of the Chief Justice. No
designation from the President of the Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is necessary in the case of the
Supreme Court because the temporary succession cited is provided for in Section 12 of the Judiciary
Act of 1948. A similar rule is found in Section 5 of BP 129 for the Court of Appeals. There is no such
arrangement, however, in the case of the Commission on Elections. The designation made by the
President of the Philippines should therefore be sustained for reasons of "administrative expediency,"
to prevent disruption of the functions of the COMELEC.
Expediency is a dubious justification. It may also be an overstatement to suggest that the operations
of the Commission on Elections would have been disturbed or stalemated if the President of the
Philippines had not stepped in and designated an Acting Chairman. There did not seem to be any such
problem. In any event, even assuming that difficulty, we do not agree that "only the President (could)
act to fill the hiatus," as the Solicitor General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as
"independent." Although essentially executive in nature, they are not under the control of the
President of the Philippines in the discharge of their respective functions. Each of these Commissions
conducts its own proceedings under the applicable laws and its own rules and in the exercise of its
own discretion. Its decisions, orders and rulings are subject only to review on Certiorari by this Court
as provided by the Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes under that
discretion. That discretion cannot be exercised for it, even with its consent, by the President of the
Philippines.
A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable
at will. No cause need be established to justify its revocation. Assuming its validity, the designation of
the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the
President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the
respondent, having accepted such designation, will not be estopped from challenging its withdrawal.
law libra ry
chanro bles virtual

It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her
permanent position as Associate Commissioner. It is no less true, however, that she can be replaced
as Acting Chairman, with or without cause, and thus deprived of the powers and perquisites of that
temporary position.
The lack of a statutory rule covering the situation at bar is no justification for the President of the
Philippines to fill the void by extending the temporary designation in favor of the respondent. This is
still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed
at all, did not call for presidential action. The situation could have been handled by the members of
the Commission on Elections themselves without the participation of the President, however well-
meaning.
In the choice of the Acting Chairman, the members of the Commission on Elections would most likely
have been guided by the seniority rule as they themselves would have appreciated it. In any event,
that choice and the basis thereof were for them and not the President to make.
The Court has not the slightest doubt that the President of the Philippines was moved only by the best
of motives when she issued the challenged designation. But while conceding her goodwill, we cannot
sustain her act because it conflicts with the Constitution. Hence, even as this Court revoked the
designation in the Bautista case, so too must it annul the designation in the case at bar.
The Constitution provides for many safeguards to the independence of the Commission on Elections,
foremost among which is the security of tenure of its members. That guaranty is not available to the
respondent as Acting Chairman of the Commission on Elections by designation of the President of the
Philippines.
WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as
Acting Chairman of the Commission on Elections is declared UNCONSTITUTIONAL, and the respondent
is hereby ordered to desist from serving as such. This is without prejudice to the incumbent Associate
Commissioners of the Commission on Elections restoring her to the same position if they so desire, or
choosing another member in her place, pending the appointment of a permanent Chairman by the
President of the Philippines with the consent of the Commission on Appointments. : rd

SO ORDERED.

G.R. No. 161265 February 24, 2004

LABAN NG DEMOKRATIKONG PILIPINO, represented by its Chairman EDGARDO J. ANGARA

vs.
THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO

DECISION

TINGA, J.:

The Bible tells the story of how two women came to King Solomon to decide who among them is the babys
true mother. King Solomon, in his legendary wisdom, awarded the baby to the woman who gave up her claim
after he threatened to split the baby into two.

It is fortunate that the two women did not ask the Commission on Elections (COMELEC) to decide the babys
fate; otherwise, it would have cut the baby in half. For that is what the COMELEC exactly did in this case.

On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a registered
political party, informed the COMELEC by way of Manifestation that only the Party Chairman, Senator Edgardo
J. Angara, or his authorized representative may endorse the certificate of candidacy of the partys official
candidates. The same Manifestation stated that Sen. Angara had placed the LDP Secretary General,
Representative Agapito A. Aquino, on "indefinite forced leave." In the meantime, Ambassador Enrique A.
Zaldivar was designated Acting Secretary General. The Manifestation concluded with this prayer:

A. The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are
attached Certificates of Nomination executed by LDP Party Chairman Edgardo J. Angara or by such
other officers of the LDP whom he may authorize in writing, and whose written authorizations shall be
deposited with the Honorable Commission by the LDP General Counsel.

B. The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels [sic] all
Certificates of Candidacy not endorsed by LDP Party Chairman Angara or by such other LDP officials
as may be authorized by him.

C. The Honorable Commission takes [sic] note of the designation of Ambassador Enrique "Ike" A.
Zaldivar as Acting Secretary General of the LDP, and for the Honorable Commission to honor and
recognize the official acts, to the exclusion of everyone, of Ambassador Zaldivar for and in behalf of the
LDP as Secretary General.1
On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman does not have
the authority to impose disciplinary sanctions on the Secretary General. As the Manifestation filed by the LDP
General Counsel has no basis, Rep. Aquino asked the COMELEC to disregard the same.

On December 17, 2003, the parties agreed to file a joint manifestation pending which the proceedings were
deemed suspended. On December 22, 2003, however, only the LDP General Counsel filed an Urgent
Manifestationreiterating the contents of the December 8, 2003 Manifestation. The COMELEC also received
a Letter from Rep. Aquino stating that the parties were unable to arrive at a joint manifestation.

The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing newspaper accounts
that Rep. Aquino had suspended Sen. Angara as Party Chairman.

On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified petition. It turned
out that, two days before, Sen. Angara had submitted a verified Petition, in essence, reiterating the contents of
its previous Manifestations. Attached to the Petition was a Resolution2 adopted by the LDP National Executive
Council, stating:

WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng Demokratikong Pilipino
(LDP) convened and unanimously passed a resolution granting full authority to Party Chairman Edgardo J.
Angara to enter, negotiate and conclude a coalition agreement with other like-minded opposition parties,
aggrupations and interest groups with the sole purpose of uniting the political opposition and fielding a unity
ticket for the May 10, 2004 elections;

WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino (PMP) and the
Partido Demokratiko ng Pilipinas - LABAN (PDP-LABAN) forged a coalition to form the Koalisyon ng
Nagkakaisang Pilipino(KNP);

WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled: "Resolution
Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the Koalisyon ng Nagkakaisang Pilipino (KNP) for
President of the Republic of the Philippines in the May 10, 2004 National Elections";

....

WHEREAS, the process of unification of the political opposition and the actions taken in connection therewith
by Chairman Angara and by other governing bodies of the LDP required the taking of immediate and forceful
action by them to preserve and protect the integrity, credibility, unity and solidarity of the LDP, and ensure the
attainment of unification of the political opposition;

WHEREAS, such immediate and forceful action include those that have to do with pre-emptive efforts to diffuse
the chaos, confusion and disunity projected by the pronouncements and acts of some officers and members to
the general membership of the LDP and the electorate, such as the one taken by the Regional Committee for
Region VI (Western Visayas) on December 6, 2003; the enforcement of order in the LDP through the voice of a
central leadership in command in an otherwise extraordinary and emergency situation, such as the one taken
by Party Chairman Angara on December 6, 2003; the filing of the Manifestation with the COMELEC on the
matter of the authorized signatories for the nominations and, the adoption of resolutions by the regional
committees affirming their trust and confidence in Chairman Angara, and authorizing him to choose the
presidential standard bearer for the May 10, 2004 elections; NOW THEREFORE, BE IT

RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and confirm the
Covenant of National Unity, the Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and all
acts and decisions taken by him to enforce and implement the same;

RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara and other
governing bodies to preserve the integrity, credibility, unity and solidarity of the LDP; and,

RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in, and support to,
the continued efforts of Chairman Angara to unite the political opposition.3

Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the parties on oral
arguments on the same day, after which the case was submitted for resolution.

Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for President was filed
with the COMELEC. The Certificate of Nomination was signed by Rep. Aquino as LDP Secretary General.
On January 6, 2004, the COMELEC came to a decision.

The Commission identified the sole issue as "who among the [LDP] officers [are] authorized to authenticate
before the Commission that the person filing the certificate of candidacy as party nominee for a certain position
is the official candidate of the party chosen in accordance with its Constitution."4

The COMELEC recognized that it "has the authority to act on matters pertaining to the ascertainment of the
identity of [a] political party and its legitimate officers."5 In the same breath, however, it held that "internal
party matters and wranglings [sic] are purely for the party members to settle among themselves and any
unsettled controversy should be brought to the proper forum with jurisdiction." The "question of who was
suspended by whom" was thus left for such proper forum to resolve.6 Noting that "the intramurals in the LDP as
an internal party matter seems to be irreconcilable for the present when the filing of Certificate of Candidacy
and Certificate of Nomination are about to reach the deadline," the COMELEC disposed of the Petition in the
following fashion:

WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and
Oppositor. The candidates for President down to the last Sangguniang Bayan Kagawad nominated and
endorsed by LDP Chairman Edgardo J. Angara are recognized by the Commission as official candidates of
LDP "Angara Wing". The candidates from President down to the last Sangguniang Bayan Kagawad as
nominated and endorsed by LDP Secretary General Agapito "Butz" Aquino are recognized as official
candidates of LDP "Aquino Wing".

Consequently, each faction or "Wing" is entitled to a representative to any election committee to which it may
be entitled as created by the Commission for the May 10, 2004 elections. For the copies of the election returns,
the "Angara Wing" will be entitled to the copies corresponding to odd number of precincts, that is, Precinct Nos.
1, 3, 5, etc., and for the "Aquino Wing" to the even number of precincts, that is Precinct Nos. 2, 4, 6, etc. This is
on the assumption that the LDP or as a party within a registered Political Coalition becomes a recognized and
denominated as a Dormant [sic] Minority Party under the Election Laws. The two LDP "Wings" are further
entitled to and be accorded the rights and privileges with corresponding legal obligations under Election Laws.7

Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason,
Jr. concurred in the Resolution authored by Commissioner Rufino S.B. Javier. Chair Benjamin S. Abalos, Sr.,
joined by Commissioner Mehol K. Sadain, submitted dissenting opinions.

Sen. Angara thus filed the present petition for Certiorari8 assailing the COMELEC Resolution for having been
issued with grave abuse of discretion.

Thereafter, Rep. Aquino filed his Comment.

The Office of the Solicitor General submitted a Manifestation and Motion praying for the granting of the Petition.
The COMELEC thus filed a separate Comment to the Petition.

The COMELEC correctly stated that "the ascertainment of the identity of [a] political party and its legitimate
officers" is a matter that is well within its authority. The source of this authority is no other than the fundamental
law itself, which vests upon the COMELEC the power and function to enforce and administer all laws and
regulations relative to the conduct of an election.9 In the exercise of such power and in the discharge of such
function, the Commission is endowed with ample "wherewithal" and "considerable latitude in adopting means
and methods that will ensure the accomplishment of the great objectives for which it was created to promote
free, orderly and honest elections."10

Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal Party, 11 this Court
held:

that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-021 [involving a
petition to prohibit Eva Estrada Kalaw "from usurping or using the title or position of President of the Liberal
Party"] in view of its powers under Article IX-C, Section 2, of the Constitution to, among others, enforce and
administer all laws relative to the conduct of elections, decide all questions affecting elections, register and
regulate political parties, and insure orderly elections. These powers include the determination of the conflicting
claims made in SP Case No. 85-021, which are likely to cause confusion among the electorate if not resolved.
Additionally, the COMELEC is mandated by the Election Code to inter alia require candidates to specify their
political party affiliation in their certificates of candidacy, allow political parties to appoint watchers, limit the
expenditures of each political party, determine whether or not a political party shall retain its registration on the
basis of its showing in the preceding elections, etc. These matters include the ascertainment of the identity of
the political party and its legitimate officers responsible for its acts and the resolution of such controversies as
the one now before it where one party appears to be divided into two wings under separate leaders each
claiming to be the president of the entire party. [Emphasis supplied.]

Likewise in Palmares v. Commission on Elections,12 to which the assailed Resolution made reference and
which involved the Nacionalista Party,13 this Court ruled

that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the Constitution,
the COMELEC is empowered to register political parties [Sec. 2(5), Article IX-C.] Necessarily, the power to act
on behalf of a party and the responsibility for the acts of such political party must be fixed in certain persons
acting as its officers. In the exercise of the power to register political parties, the COMELEC must determine
who these officers are. Consequently, if there is any controversy as to leadership, the COMELEC may, in a
proper case brought before it, resolve the issue incidental to its power to register political parties.

This Court then proceeded to quote from Kalaw, supra.

The two cited decisions find support in Sumulong v. Commission on Elections14 and Sotto v. Commission on
Elections,15 where this Court, in resolving the issue as to who between the factions of a political party was
entitled to nominate election inspectors, necessarily settled claims to the partys leadership. Both cases were
decided without question on the COMELECs power to determine such claims. In conformity with
jurisprudence, this Court did not identify the COMELECs jurisdiction as an issue when this case was heard on
oral argument.

There is no inconsistency between the above cases on the one hand and this Courts more recent ruling in
Sinaca v. Mula16 on the other. In the latter case, this Court held:

A political party has the right to identify the people who constitute the association and to select a standard
bearer who best represents the partys ideologies and preference. Political parties are generally free to conduct
their internal affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the
constitutionally protected right of free association, serves the public interest by allowing the political processes
to operate without undue interference. Thus, the rule is that the determination of disputes as to party
nominations rests with the party, in the absence of statutes giving the courts [sic] jurisdiction.

Quintessentially, where there is no controlling statute or clear legal right involved, the court will not
assume jurisdiction to determine factional controversies within a political party, but will leave the matter for
determination by the proper tribunals of the party itself or by the electors at the polls. Similarly, in the absence
of specific constitutional or legislative regulations defining how nominations are to be made, or prohibiting
nominations from being made in certain ways, political parties may handle such affairs, including nominations,
in such manner as party rules may establish. [Emphasis supplied.]

Sinaca, unlike previous cases, did not involve the question of party identity or leadership; hence, it was not
necessary for the COMELEC to delve therein. None of the candidates involved in that case were claiming to be
the political partys sole candidate.

In the case at bar, the Party Chairman, purporting to represent the LDP, contends that under the Party
Constitution only he or his representative, to the exclusion of the Secretary General, has the authority to
endorse and sign party nominations. The Secretary General vigorously disputes this claim and maintains his
own authority. Clearly, the question of party identity or leadership has to be resolved if the COMELEC is to
ascertain whether the candidates are legitimate party standard bearers or not.

The repercussions of the question of party identity and leadership do not end at the validity of the endorsement
of the certificates of candidacy of persons claiming to be the partys standard bearer. The law grants a
registered political party certain rights and privileges,17 which, naturally, redound to the benefit of its candidates.
It is also for this significant dimension that Sinaca is not applicable in this case. As conceded in Sinaca itself,
the Court will have to assume jurisdiction to determine factional controversies within a political party where a
controlling statute or clear legal right is involved.18 Verily, there is more than one law, as well as a number of
clear legal rights, that are at stake in the case at bar.

The law accords special treatment to political parties. The dominant majority party, the dominant minority party
as determined by the COMELEC, for instance, is entitled to a copy of the election returns.19 The six (6)
accredited major political parties may nominate the principal watchers to be designated by the
Commission.20 The two principal watchers representing the ruling coalition and the dominant opposition
coalition in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that
precinct.21 Three (3) of the six accredited major political parties are entitled to receive copies of the certificate of
canvass.22 Registered political parties whose candidates obtained at least ten percent (10%) of the total votes
cast in the next preceding senatorial election shall each have a watcher and/or representative in the
procurement and watermarking of papers to be used in the printing of election returns and official ballots and in
the printing, numbering, storage, and distribution thereof.23Finally, a candidate and his political party are
authorized to spend more per voter than a candidate without a political party.24

It is, therefore, in the interest of every political party not to allow persons it had not chosen to hold themselves
out as representatives of the party. Corollary to the right of a political party "to identify the people who
constitute the association and to select a standard bearer who best represents the partys ideologies and
preference"25 is the right to exclude persons in its association and to not lend its name and prestige to those
which it deems undeserving to represent its ideals. A certificate of candidacy makes known to the COMELEC
that the person therein mentioned has been nominated by a duly authorized political group empowered to act
and that it reflects accurately the sentiment of the nominating body.26 A candidates political party affiliation is
also printed followed by his or her name in the certified list of candidates.27 A candidate misrepresenting himself
or herself to be a partys candidate, therefore, not only misappropriates the partys name and prestige but foists
a deception upon the electorate, who may unwittingly cast its ballot for him or her on the mistaken belief that he
or she stands for the partys principles. To prevent this occurrence, the COMELEC has the power and the duty
to step in and enforce the law not only to protect the party but, more importantly, the electorate, in line with the
Commissions broad constitutional mandate to ensure orderly elections.

Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party identity and
leadership as an incident to its enforcement powers, this Court cannot help but be baffled by the COMELECs
ruling declining to inquire into which party officer has the authority to sign and endorse certificates of candidacy
of the partys nominees.

The only issue in this case, as defined by the COMELEC itself, is who as between the Party Chairman and the
Secretary General has the authority to sign certificates of candidacy of the official candidates of the party.
Indeed, the petitioners Manifestation and Petition before the COMELEC merely asked the Commission to
recognize only those certificates of candidacy signed by petitioner Sen. Angara or his authorized
representative, and no other.

To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go so far as
to resolve the root of the conflict between the party officials. It need only resolve such questions as may be
necessary in the exercise of its enforcement powers.

The LDP has a set of national officers composed of, among others, the Party Chairman and the Secretary
General.28 The Party Chairman is the Chief Executive Officer of the Party, whose powers and functions include:

(1) To represent the Party in all external affairs and concerns, sign documents for and on its behalf, and call
the meetings and be the presiding officer of the National Congress and the National Executive Council.29

The Secretary General, on the other hand, assists the Party Chairman in overseeing the day-to-day operations
of the Party. Among his powers and functions is:

(1) When empowered by the Party Chairman, to sign documents for and on behalf of the Party. 30

The Secretary Generals authority to sign documents, therefore, is only a delegated power, which originally
pertains to the Party Chairman.

Rep. Aquino claims that he was authorized to exercise to sign the party candidates certificates of candidacy in
the previous elections. Indeed, the COMELEC found that:

In fact, during the May 14, 2001 elections, oppositor Agapito "Butz Aquino, as LDP Secretary General, was
authorized by the LDP to sign for the Certificates of Nomination of the LDP Senatorial Candidates, including
the Certificate of Nomination for Senatorial Candidate Edgardo J. Angara, a copy of said Certificate of
Nomination and a copy of the Certificate for Senator Edgardo J. Angara are attached as Annexes A and B,
respectively. This action by Secretary General Aquino is in accordance with the Constitution and By-laws of
LDP, not questioned by the LDP signed by its Secretary General. This revocation has not been revoked or
recalled by the National Congress of the LDP which is the one authorized to nominate candidates for President
and Vice-President, respectively.31
Assuming that Rep. Aquino previously had such authority, this Court cannot share the COMELECs finding that
the same "has not been revoked or recalled." No revocation of such authority can be more explicit than the
totality of Sen. Angaras Manifestations and Petition before the COMELEC, through which he informed the
Commission that Rep. Aquinos had been placed on indefinite forced leave and that Ambassador Zaldivar has
been designated Acting Secretary General, who "shall henceforth exercise all the powers and functions of the
Secretary General under the Constitution and By-Laws of the LDP."32 As the prerogative to empower Rep.
Aquino to sign documents devolves upon Sen. Angara, so he may choose, at his discretion, to withhold or
revoke such power.

Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No. 645333 as
basis for the Party Secretary Generals authority to sign certificates of candidacy. Said Section 6 states:

SEC. 6. Certificate of nomination of official candidates by political party. The certificate of nomination of
registered political parties or coalitions of political parties of their official candidates shall be filed not later than
the last day for filing of certificates of candidacy, which is January 2, 2004 duly signed and attested under
oath by the party president, chairman, secretary-general or any other duly authorized officer and shall
bear the acceptance of the nominee by affixing his signature in the space provided therein. [Emphasis and
underscoring supplied.]

Clearly, however, the above provision presupposes that the party president, chairman or secretary-general has
been "duly authorized" by the party to sign the certificate of candidacy. COMELEC Resolution No. 6453 cannot
grant a party official greater authority than what the party itself grants, lest such Resolution amount to a
violation of the partys freedom of association.

Neither does the Party Secretary General have the power to nominate the official candidates of the LDP. That
power resides in the governing bodies of the Party.34 In particular, the National Congress, which is the highest
policy-making and governing body of the Party, has the power

(6) To nominate the official candidates of the Party for President, Vice President, and Senators, and, whenever
the corresponding conventions fail to meet or to make the requisite nominations, to nominate the official
candidates for municipal city, congressional district, provincial and regional elective offices.35

Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on behalf of the LDP but he
would also deny Sen. Angara that power on account of the latters preventive suspension. It seems, however,
that respondent has abandoned this tack by the silence of his Memorandum on the matter.

In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP Region VI Regional
Chairman, filed a complaint with Rep. Aquino against Party Chairman Sen. Angara for disloyalty to the Party,
gross violation of the Party Constitution, and other divisive acts inimical to the interest of the party and its
members. Rep. Aquino, as Secretary General, created a committee composed of three (3) members of the
LDP National Executive Council to investigate the complaint and recommend appropriate action thereon. On
December 12, 2003, the investigating committee issued a resolution placing Sen. Angara under preventive
suspension effective immediately and directing him to refrain from performing acts in behalf of the party until
the committee finishes its investigation and submits its final recommendations.

The authority to create the investigating committee supposedly rests on Section 9 (4), Article VI of the LDP
Constitution, which enumerates the powers and functions of the Secretary General:

(4) With the concurrence of the Party Chairman, to enforce Party discipline. {Emphasis supplied.]

Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of the LDP, neither
does he have the power to enforce Party discipline or, as an incident thereto, to create an investigating
committee, without the Party Chairmans concurrence. Much less does the investigating committee so created
have the power to place the Party Chairman under preventive suspension since its authority stems from a
nullity. Simply put, the spring has no source.

The lack of Rep. Aquinos authority to sign documents or to nominate candidates for the LDP would not result
in the denial of due course to or the cancellation of the certificates of candidacy he may have signed on behalf
of the LDP.36 The exclusive ground for the denial of due course to or the cancellation of a certificate of
candidacy for any elective office is that any material representation contained therein as required by law is
false.37 Since the signature of Rep. Aquino was affixed either prior to, or on the basis of, the
challenged Resolution recognizing his authority to sign on behalf of the LDP, the same would not constitute
material representation that is false. In such case, the candidates are simply deemed as not nominated by the
LDP and are considered independent candidates pursuant to Section 7 of COMELEC Resolution No. 6453:

SEC. 7. Effect of filing certificate of nomination. A candidate who has not been nominated by a registered
political party or its duly authorized representative, or whose nomination has not been submitted by a
registered political party shall be considered as an independent candidate.

COMELEC Commissioner Sadain referred to the above provision in his Dissenting Opinion, and this Court
finds refreshing wisdom so sorely wanting in the majority opinion in his suggestion that:

All other party members representing themselves to be candidates of the party shall not be deprived of their
right to file their respective certificates of candidacy and run for office, if so qualified, but that they shall not be
accorded the rights and privileges reserved by election laws for official nominees of registered political parties.
Instead, they shall be treated as independent candidates.38

From the foregoing, it is plain that the COMELEC misapplied equity in the present case. For all its conceded
merits, equity is available only in the absence of law and not as its replacement.39 Equity is described as justice
without legality, which simply means that it cannot supplant, although it may, as often happens, supplement the
law.40 The COMELEC should have decided the case on the basis of the party constitution and election laws. It
chose not to because of its irrational fear of treading, as respondent Aquino put it, on "unchartered"
territories.41 But, as shown above, these territories have long been charted by jurisprudence and, in any case,
the COMELEC need not have sailed far from the shore to arrive at the correct conclusion. In truth, the
COMELEC Resolution is indecision in the guise of equity.

Worse, the COMELEC divided the LDP into "wings," each of which may nominate candidates for every elective
position. Both wings are also entitled to representatives in the election committees that the Commission may
create. In the event that the LDP is accorded dominant minority party election status, election returns of odd-
numbered precincts shall be furnished the Angara wing and those of even-numbered precincts, the Aquino
wing.

By creating the two wings, the COMELEC effectively diffused the LDPs strength and undeniably emasculated
its chance of obtaining the Commissions nod as the dominant minority party.

By allowing each wing to nominate different candidates, the COMELEC planted the seeds of confusion among
the electorate, who are apt to be confounded by two candidates from a single political party. In Recabo, Jr. v.
Commission on Elections,42 this Court declared that the electoral process envisions one candidate from a
political party for each position, and disunity and discord amongst members of a political party should not be
allowed to create a mockery thereof. The admonition against mocking the electoral process not only applies to
political parties but with greater force to the COMELEC.

By according both wings representatives in the election committees, the COMELEC has eroded the
significance of political parties and effectively divided the opposition. The COMELEC has lost sight of the
unique political situation of the Philippines where, to paraphrase Justice Perfectos concurring opinion
in Sotto, supra, the administration party has always been unnecessarily and dangerously too big and the
opposition party too small to be an effective check on the administration. The purpose of according dominant
status and representation to a minority party is precisely to serve as an effective check on the majority. The
COMELEC performed a disservice to the opposition and, ultimately, to the voting public, as
its Resolution facilitated, rather than forestalled, the division of the minority party.

By splitting copies of the election returns between the two factions, the COMELEC has fractured both wings.
The practical purpose of furnishing a party with a copy of the election returns is to allow it to tally the results of
the elections at the precinct level. Ultimately, it is a guard against fraud. Thus, resort to copies thereof may be
had when the election returns are delayed, lost or destroyed,43 or when they appear to be tampered or
falsified.44 A split party without a complete set of election returns cannot successfully help preserve the sanctity
of the ballot.

It bears reminding respondent Commission of this Courts pronouncement in Peralta v. Commission on

Elections,45which, while made in the backdrop of a parliamentary form of government, holds equally true under
the present government structure:

political parties constitute a basic element of the democratic institutional apparatus. Government derives its
strength from the support, active or passive, of a coalition of elements of society. In modern times the political
party has become the instrument for the organization of societies. This is predicated on the doctrine that
government exists with the consent of the governed. Political parties perform an "essential function in the
management of succession to power, as well as in the process of obtaining popular consent to the course of
public policy. They amass sufficient support to buttress the authority of governments; or, on the contrary, they
attract or organize discontent and dissatisfaction sufficient to oust the government. In either case they perform
the function of the articulation of the interests and aspirations of a substantial segment of the citizenry, usually
in ways contended to be promotive of the national weal."

The assailed COMELEC Resolution does not advance, but subverts, this philosophy behind political parties.

As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a free and open party
system.46This policy, however, envisions a system that shall "evolve according to the free choice of the
people,"47 not one molded and whittled by the COMELEC. When the Constitution speaks of a multi-party
system, it does not contemplate the COMELEC splitting parties into two. For doing just that, this pretender to
the throne of King Solomon acted whimsically and capriciously. Certiorari lies against it, indeed.

WHEREFORE, the assailed COMELEC Resolution is ANNULLED and the Petition is GRANTED IN PART.
Respondent Commission on Elections is directed to recognize as official candidates of the Laban ng
Demokratikong Pilipino only those whose Certificates of Candidacy are signed by LDP Party Chairman Senator
Edgardo J. Angara or his duly authorized representative/s.

SO ORDERED.

G.R. No. 189600 June 29, 2010

MILAGROS E. AMORES, Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and EMMANUEL JOEL J.
VILLANUEVA,Respondents.

DECISION

CARPIO MORALES, J.:

Via this petition for certiorari, Milagros E. Amores (petitioner) challenges the Decision of May 14, 2009 and
Resolution No. 09-130 of August 6, 2009 of the House of Representatives Electoral Tribunal (public
respondent), which respectively dismissed petitioners Petition for Quo Warranto questioning the legality of the
assumption of office of Emmanuel Joel J. Villanueva (private respondent) as representative of the party-list
organization Citizens Battle Against Corruption (CIBAC) in the House of Representatives, and denied
petitioners Motion for Reconsideration.

In her Petition for Quo Warranto1 seeking the ouster of private respondent, petitioner alleged that, among other
things, private respondent assumed office without a formal proclamation issued by the Commission on
Elections (COMELEC); he was disqualified to be a nominee of the youth sector of CIBAC since, at the time of
the filing of his certificates of nomination and acceptance, he was already 31 years old or beyond the age limit
of 30 pursuant to Section 9 of Republic Act (RA) No. 7941, otherwise known as the Party-List System Act; and
his change of affiliation from CIBACs youth sector to its overseas Filipino workers and their families sector was
not effected at least six months prior to the May 14, 2007 elections so as to be qualified to represent the new
sector under Section 15 of RA No. 7941.

Not having filed his Answer despite due notice, private respondent was deemed to have entered a general
denial pursuant to public respondents Rules.2

As earlier reflected, public respondent, by Decision of May 14, 2009,3 dismissed petitioners Petition for Quo
Warranto, finding that CIBAC was among the party-list organizations which the COMELEC had partially
proclaimed as entitled to at least one seat in the House of Representatives through National Board of
Canvassers (NBC) Resolution No. 07-60 dated July 9, 2007. It also found the petition which was filed on
October 17, 2007 to be out of time, the reglementary period being 10 days from private respondents
proclamation.

Respecting the age qualification for youth sectoral nominees under Section 9 of RA No. 7941, public
respondent held that it applied only to those nominated as such during the first three congressional terms after
the ratification of the Constitution or until 1998, unless a sectoral party is thereafter registered exclusively as
representing the youth sector, which CIBAC, a multi-sectoral organization, is not.
In the matter of private respondents shift of affiliation from CIBACs youth sector to its overseas Filipino
workers and their families sector, public respondent held that Section 15 of RA No. 7941 did not apply as there
was no resultant change in party-list affiliation.

Her Motion for Reconsideration having been denied by Resolution No. 09-130 dated August 6, 2009,4 petitioner
filed the present Petition for Certiorari.5

Petitioner contends that, among other things, public respondent created distinctions in the application of
Sections 9 and 15 of RA No. 7941 that are not found in the subject provisions, fostering interpretations at war
with equal protection of the laws; and NBC Resolution No. 07-60, which was a partial proclamation of winning
party-list organizations, was not enough basis for private respondent to assume office on July 10, 2007,
especially considering that he admitted receiving his own Certificate of Proclamation only on December 13,
2007.

In his Comment,6 private respondent avers in the main that petitioner has not substantiated her claims of grave
abuse of discretion against public respondent; and that he became a member of the overseas Filipinos and
their families sector years before the 2007 elections.

It bears noting that the term of office of party-list representatives elected in the May, 2007 elections will expire
on June 30, 2010. While the petition has, thus, become moot and academic, rendering of a decision on the
merits in this case would still be of practical value.7

The Court adopts the issues framed by public respondent, to wit: (1) whether petitioners Petition for Quo
Warranto was dismissible for having been filed unseasonably; and (2) whether Sections 9 and 15 of RA No.
7941 apply to private respondent.

On the first issue, the Court finds that public respondent committed grave abuse of discretion in considering
petitioners Petition for Quo Warranto filed out of time. Its counting of the 10-day reglementary period provided
in its Rules8 from the issuance of NBC Resolution No. 07-60 on July 9, 2007 is erroneous.

To be sure, while NBC Resolution No. 07-60 partially proclaimed CIBAC as a winner in the May, 2007
elections, along with other party-list organizations,9 it was by no measure a proclamation of private respondent
himself as required by Section 13 of RA No. 7941.

Section 13. How Party-List Representatives are Chosen. Party-list representatives shall be proclaimed by the
COMELEC based on the list of names submitted by the respective parties, organizations, or coalitions to the
COMELEC according to their ranking in said list.

AT ALL EVENTS, this Court set aside NBC Resolution No. 07-60 in Barangay Association for National
Advancement and Transparency v. COMELEC10 after revisiting the formula for allocation of additional seats to
party-list organizations.

Considering, however, that the records do not disclose the exact date of private respondents proclamation, the
Court overlooks the technicality of timeliness and rules on the merits. Alternatively, since petitioners challenge
goes into private respondents qualifications, it may be filed at anytime during his term.

Qualifications for public office are continuing requirements and must be possessed not only at the time of
appointment or election or assumption of office but during the officer's entire tenure. Once any of the required
qualifications is lost, his title may be seasonably challenged.11

On the second and more substantial issue, the Court shall first discuss the age requirement for youth sector
nominees under Section 9 of RA No. 7941 reading:

Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative

unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a
period of not less than one (1)year immediately preceding the day of the election, able to read and write, a
bona fide member of the party or organization which he seeks to represent for at least ninety (90) days
preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30)
years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30)
during his term shall be allowed to continue in office until the expiration of his term. (Emphasis and
underscoring supplied.)
The Court finds no textual support for public respondents interpretation that Section 9 applied only to those
nominated during the first three congressional terms after the ratification of the Constitution or until 1998,
unless a sectoral party is thereafter registered exclusively as representing the youth sector.

A cardinal rule in statutory construction is that when the law is clear and free from any doubt or ambiguity, there
is no room for construction or interpretation. There is only room for application.12

As the law states in unequivocal terms that a nominee of the youth sector must at least be twenty-five (25)
but not more than thirty (30) years of age on the day of the election, so it must be that a candidate who is more
than 30 on election day is not qualified to be a youth sector nominee. Since this mandate is contained in RA
No. 7941, the Party-List System Act, it covers ALL youth sector nominees vying for party-list representative
seats.

As petitioner points out, RA No. 7941 was enacted only in March, 1995. There is thus no reason to apply
Section 9 thereof only to youth sector nominees nominated during the first three congressional terms after the
ratification of the Constitution in 1987. Under this interpretation, the last elections where Section 9 applied were
held in May, 1995 or two months after the law was enacted. This is certainly not sound legislative intent, and
could not have been the objective of RA No. 7941.

There is likewise no rhyme or reason in public respondents ratiocination that after the third congressional term
from the ratification of the Constitution, which expired in 1998, Section 9 of RA No. 7941 would apply only to
sectoral parties registered exclusively as representing the youth sector. This distinction is nowhere found in the
law. Ubi lex non distinguit nec nos distinguire debemus. When the law does not distinguish, we must not
distinguish.13

Respecting Section 15 of RA No. 7941, the Court fails to find even an iota of textual support for public
respondents ratiocination that the provision did not apply to private respondents shift of affiliation from
CIBACs youth sector to its overseas Filipino workers and their families sector as there was no resultant
change in party-list affiliation. Section 15 reads:

Section 15. Change of Affiliation; Effect. Any elected party-list representative who changes his political party or
sectoral affiliation during his term of office shall forfeit his seat: Provided, That if he changes his political party
orsectoral affiliation within six (6) months before an election, he shall not be eligible for nomination as party-list
representative under his new party or organization. (emphasis and underscoring supplied.)

What is clear is that the wording of Section 15 covers changes in both political party and sectoral affiliation.
And the latter may occur within the same party since multi-sectoral party-list organizations are qualified to
participate in the Philippine party-list system. Hence, a nominee who changes his sectoral affiliation within the
same party will only be eligible for nomination under the new sectoral affiliation if the change has been effected
at least six months before the elections. Again, since the statute is clear and free from ambiguity, it must be
given its literal meaning and applied without attempted interpretation. This is the plain meaning rule or verba
legis, as expressed in the maxim index animi sermo or speech is the index of intention.14

It is, therefore, beyond cavil that Sections 9 and 15 of RA No. 7941 apply to private respondent.

The Court finds that private respondent was not qualified to be a nominee of either the youth sector or the
overseas Filipino workers and their families sector in the May, 2007 elections.

The records disclose that private respondent was already more than 30 years of age in May, 2007, it being
stipulated that he was born in August, 1975.15 Moreover, he did not change his sectoral affiliation at least six
months before May, 2007, public respondent itself having found that he shifted to CIBACs overseas Filipino
workers and their families sector only on March 17, 2007.16 1avvphi 1

That private respondent is the first nominee of CIBAC, whose victory was later upheld, is of no moment. A
party-list organizations ranking of its nominees is a mere indication of preference, their qualifications according
to law are a different matter.

It not being contested, however, that private respondent was eventually proclaimed as a party-list
representative of CIBAC and rendered services as such, he is entitled to keep the compensation and
emoluments provided by law for the position until he is properly declared ineligible to hold the same.17

WHEREFORE, the petition is GRANTED. The Decision dated May 14, 2009 and Resolution No. 09-130 dated
August 6, 2009 of the House of Representatives Electoral Tribunal are SET ASIDE. Emmanuel Joel J.
Villanueva is declared ineligible to hold office as a member of the House of Representatives representing the
party-list organization CIBAC.

SO ORDERED.

G.R. No. 139801 May 31, 2000

ROBERTO CONQUILLA, petitioner,

vs.
COMMISSION ON ELECTIONS and EDUARDO A. ALARILLA, respondents.

BELLOSILLO, J.:

ROBERTO CONQUILLA assails in this special civil action for certiorari the En Banc Resolution of the
Commission on Elections (COMELEC) dated 7 September 1999 which affirmed the Resolution of its First
Division dated 21 May 1998 dismissing his Petition for Cancellation of Certificate of Candidacy and
Disqualification against private respondent EDUARDO A. ALARILLA 1 for lack of merit.

On 27 March 1998 ALARILLA filed his Certificate of Candidacy with the Municipal Election Officer of
Meycauayan, Bulacan, without however indicating the elective position which he was aspiring for. Thus in the
blank space provided therefor appeared merely

CERTIFICATE OF CANDIDACY

I hereby announce my candidacy for the office of Meycauayan, Bulacan, Republic of the
Philippines, in the May 11, 1998 elections . . . .

However, attached thereto and filed with his Certificate of Candidacy was ALARILLA's Certificate of Nomination
and Acceptance to wit

CERTIFICATE OF NOMINATION AND ACCEPTANCE

I, JOSE DE VENECIA, JR., by virtue of the powers and authority vested in me by the
Constitution and By-Laws of the Lakas National Union of Christian Democrats-United Muslim
Democrats of the Philippines (LAKAS NUCD-UMDP) as its Secretary-General, hereby
nominate:

EDUARDO A. ALARILLA

as the Party's official candidate in the May 11, 1998 elections for the position of MUNICIPAL
MAYOR of the Municipality of Meycauayan in the Fourth District of Bulacan.

WITNESS MY HAND this 18th day of March 1998 in Makati City, Metro Manila.

(signed)

JOSE DE VENECIA, JR.

Secretary-General

xxx xxx xxx

ACCEPTANCE

I hereby accept the foregoing nomination and pledge to work for the total victory of the Party in
my area of responsibility.

(signed)
 EDUARDO A. ALARILLA

On 14 April 1998 CONQUILLA filed with the COMELEC a Petition for Cancellation of Certificate of Candidacy
and Disqualification, docketed as SPA No. 98-132, praying that private respondent ALARILLA's Certificate of
Candidacy be expunged and cancelled on the ground that it was null and void for failing to specify the elective
position he was running for and, consequently, he be disqualified to run for any position n Meycauayan,
Bulacan.

During the pendency of SPA No. 98-132 the Board of Canvassers proclaimed ALARILLA as the Mayor-elect of
Meycauayan, Bulacan. As a consequence, CONQUILLA filed an "Urgent Motion to Annul the Proclamation
and/or to Suspend the Effects of Proclamation" of ALARILLA contending that any decision in SPA No. 98-132
would be pre-empted unless his proclamation was nullified. The records do not show that the motion was
properly acted upon.

On 21 May 1998 the First Division of COMELEC dismissed SPA No. 98-132 for lack of merit. It ruled that
ALARILLA's failure to specify the public office he was seeking in his Certificate of Candidacy was not a fatal
defect because the required information was supplied in the Certificate of Nomination and Acceptance attached
to his Certificate of Candidacy. In addition, the First Division ruled that ALARILLA was able to correct his
omission by filing an Amended Certificate of Candidacy on 21 April 1998 clearly indicating therein that he was
running for the position of Municipal Mayor, Meycauayan, Bulacan.

On 1 June 1998 CONQUILLA filed an "Appeal with Urgent Motion for Annulment and/or Suspension of
Proclamation with Prayer for Issuance of a Restraining Order." He also prayed that the Resolution of the First
Division be set aside. The "Appeal with Urgent Motion for Annulment . . ." was treated as a motion for
reconsideration under Rule 19 of the Comelec Rules of Procedure and accordingly certified to the
COMELEC En Banc pursuant to Sec. 5
thereof. 2

On 7 September 1998 the COMELEC En Banc denied the motion for reconsideration for being pro-forma and
for late filing.3 The COMELEC ruled that under Sec. 9, Rule 19, of the Comelec Rules of
Procedure4 CONQUILLA had only until 31 March 1998, i.e., five (5) days within which to move for
reconsideration counted from the time he allegedly received the questioned Resolution of the First Division on
26 March 1998. Hence, the "Appeal with Urgent Motion for Annulment and/or Suspension of Proclamation with
Prayer for Issuance of a Restraining Order" was late having been filed on 1 June 1998.

CONQUILLA contends that public respondent COMELEC committed grave abuse of discretion: (a) in
affirming in toto the Resolution of the First Division dismissing SPA No. 98-132 for lack of merit; (b) in ruling
that the Certificate of Nomination and Acceptance attached to private respondent's Certificate of Candidacy
could be used as basis in determining the elective position private respondent was seeking; and, (c) in not
resolving the motion to suspend private respondent's proclamation as Mayor-elect of Meycauayan, Bulacan.
Additionally, CONQUILLA contends that COMELEC erred in dismissing his appeal for late filing.

We agree with CONQUILLA that his motion for reconsideration was not filed late on 1 June 1998 considering
that 31 May 1998 was a Sunday, hence, he had until the next working day, which was 1 June 1998, within
which to ask for reconsideration.5 However, we cannot agree that ALARILLA's failure to specify the public office
he was seeking in his Certificate of Candidacy was a fatal defect, for several reasons.

First. As correctly observed by the First Division of COMELEC and affirmed by COMELEC En Banc, the
information omitted in the Certificate of Candidacy was supplied in the Certificate of Nomination and
Acceptance attached thereto specifying that ALARILLA was nominated as the Lakas NUCD-UMDP's official
candidate for the position ofMunicipal Mayor of Meycauayan, Bulacan, and that such nomination had been
accepted by ALARILLA. As the COMELEC itself has clarified, certificates of nomination and acceptance are
procedurally required to be filed with, and form an integral part of, the certificates of candidacy of official
candidates of political parties.

Second. ALARILLA timely rectified the deficiency in his original Certificate of Candidacy by filing an Amended
Certificate on 21 April 1998 specifically stating that he was running for the position of Municipal Mayor of
Meycauayan, Bulacan, in the 11 May 1998 elections. In Alialy v. Commission on Elections6 where petitioners
sought the reversal of a COMELEC resolution denying due course to a certificate of candidacy on the ground
that it was not subscribed under oath by the secretary of the Nacionalista Party as required by Sec. 35 of the
Revised Election Code, this Court ruling on the effectiveness of the amended certificate of candidacy filed to
correct the defect declared that the filing of an amended certificate even after the deadline but before the
election was substantial compliance with the law which cured the defect. The Court further said
 . . . when the Election Law does not provide that a departure from a prescribed form will be fatal
and such departure has been due to an honest mistake or misinterpretation of the Election Law
on the part of him who was obligated to observe it, and that such departure has not been used
as a means for fraudulent practices . . . the law will be held directory and such departure will be
considered a harmless irregularity (Gardiner v. Romulo, 26 Phil. 521, cited in the De Guzman v.
Bd. of Canvassers of La Union and Lucero, 48 Phil. 211, 214-215). For inconsequential
deviations which cannot affect the result of the election, or deviations from provisions intended
primarily to secure timely and orderly conduct of elections, a directory construction is generally
applied (III Sutherland Stat. Const., 3rd Ed. Sec. 5820, pp. 113-114 - cases cited therein). The
same ruling is given on acts not calculated to affect the integrity of the elections (Hunt v. Mann,
136 Miss. 590).

Third. The purpose in requiring a certificate of candidacy (which is to enable the voters to know before the
elections the candidates among whom they are to make a choice) was deemed satisfied not only by the
Amended Certificate of Candidacy filed before the elections but also by the Certified List of Candidates issued
by the Office of the Election Officer, Meycauayan, Bulacan, indubitably listing therein EDUARDO A. ALARILLA
as candidate for the position of "mayor" of said municipality.

Finally, it cannot be denied that ALARILLA was elected Mayor of Meycauayan, Bulacan, in the 11 May 1998
elections. If substantial compliance with the Election Law should give way to a mere technicality, the will of the
electorate, as far as ALARILLA is concerned, would be frustrated.7

WHEREFORE, the petition is DISMISSED. The assailed En Banc Resolution dated 7 September 1999 of
public respondent Commission on Elections which affirmed the Resolution dated 21 May 1998 of its First
Division dismissing the Petition for Cancellation of Certificate of Candidacy and Disqualification filed by
petitioner ROBERTO CONQUILLA against private respondent EDUARDO A. ALARILLA is AFFIRMED. Costs
against petitioner.

SO ORDERED.

G.R. No. 196804 October 9, 2012

MAYOR BARBARA RUBY C. TALAGA, Petitioner,

vs.
COMMISSION ON ELECTIONS and RODERICK A. ALCALA, Respondents.

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

G.R. No. 197015

PHILIP M. CASTILLO, Petitioner,

vs.
COMMISSION ON ELECTIONS, BARBARA RUBY TALAGA and RODERICK A. ALCALA, Respondents.

DECISION

BERSAMIN, J.:

In focus in these consolidated special civil actions are the disqualification of a substitute who was proclaimed
the winner of a mayoralty election; and the ascertainment of who should assume the office following the
substitutes disqualification.

The consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution issued on May 20,
2011 in SPC No. 10-024 by the Commission on Elections (COMELEC), the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered:

1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the Second Division;

2. GRANTING the petition in intervention of Roderick A. Alcala;

 3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as mayor of Lucena
City and CANCELLING the Certificate of Canvass and Proclamation issued therefor;

4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging the functions of the
Office of the Mayor;

5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the proclaimed Vice-
Mayor is ORDERED to succeed as Mayor as provided under Section 44 of the Local Government
Code;

6. DIRECTING the Clerk of Court of the Commission to furnish copies of this Resolution to the Office of
the President of the Philippines, the Department of Interior and Local Government, the Department of
Finance and the Secretary of the Sangguniang Panglunsod of Lucena City.

Let the Department of Interior and Local Government and the Regional Election Director of Region IV of
COMELEC implement this resolution.

SO ORDERED.1

Antecedents

On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M. Castillo (Castillo)
respectively filed their certificates of candidacy (CoCs) for the position of Mayor of Lucena City to be contested
in the scheduled May 10, 2010 national and local elections.2

Ramon, the official candidate of the Lakas-Kampi-CMD,3 declared in his CoC that he was eligible for the office
he was seeking to be elected to.

Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition denominated as In the
Matter of the Petition to Deny Due Course to or Cancel Certificate of Candidacy of Ramon Y. Talaga, Jr. as
Mayor for Having Already Served Three (3) Consecutive Terms as a City Mayor of Lucena, which was
docketed as SPA 09-029 (DC).4 He alleged

therein that Ramon, despite knowing that he had been elected and had served three consecutive terms as
Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in the May 10, 2010 national and local
elections.

The pertinent portions of Castillos petition follow:

1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao Crossing, Lucena City
but may be served with summons and other processes of this Commission at the address of his
counsel at 624 Aurora Blvd., Lucena City 4301;

2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a resident of Barangay
Ibabang Iyam, Lucena City and with postal address at the Office of the City Mayor, City Hall, Lucena
City, where he may be served with summons and other processes of this Commission;

3. Petitioner, the incumbent city vice-mayor of Lucena having been elected during the 2007 local
elections, is running for city mayor of Lucena under the Liberal party this coming 10 May 2010 local
elections and has filed his certificate of candidacy for city mayor of Lucena;

4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and 2007 local elections
based on the records of the Commission on Elections of Lucena City and had fully served the aforesaid
three (3) terms without any voluntary and involuntary interruption;

5. Except the preventive suspension imposed upon him from 13 October 2005 to 14 November 2005
and from 4 September 2009 to 30 October 2009 pursuant to Sandiganbayan 4th Division Resolution in
Criminal Case No. 27738 dated 3 October 2005, the public service as city mayor of the respondent is
continuous and uninterrupted under the existing laws and jurisprudence;

6. There is no law nor jurisprudence to justify the filing of the certificate of candidacy of the respondent,
hence, such act is outrightly unconstitutional, illegal, and highly immoral;
 7. Respondent, knowing well that he was elected for and had fully served three (3) consecutive terms
as a city mayor of Lucena, he still filed his Certificate of Candidacy for City Mayor of Lucena for this
coming 10 May 2010 national and local elections;

8. Under the Constitution and existing Election Laws, New Local Government Code of the Philippines,
and jurisprudence the respondent is no longer entitled and is already disqualified to be a city mayor for
the fourth consecutive term;

9. The filing of the respondent for the position of city mayor is highly improper, unlawful and is
potentially injurious and prejudicial to taxpayers of the City of Lucena; and

10. It is most respectfully prayed by the petitioner that the respondent be declared disqualified and no
longer entitled to run in public office as city mayor of Lucena City based on the existing law and
jurisprudence.5

The petition prayed for the following reliefs, to wit:

WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy filed by the
respondent be denied due course to or cancel the same and that he be declared as a disqualified candidate
under the existing Election Laws and by the provisions of the New Local Government Code.6 (Emphasis
supplied.)

Ramon countered that that the Sandiganbayan had preventively suspended him from office during his second
and third terms; and that the three-term limit rule did not then apply to him pursuant to the prevailing
jurisprudence7 to the effect that an involuntary separation from office amounted to an interruption of continuity
of service for purposes of the application of the three-term limit rule.

In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino, Jr. v. Commission on
Elections,8 holding that preventive suspension, being a mere temporary incapacity, was not a valid ground for
avoiding the effect of the three-term limit rule. Thus, on December 30, 2009, Ramon filed in the COMELEC a
Manifestation with Motion to Resolve, taking into account the intervening ruling in Aldovino. Relevant portions
of his Manifestation with Motion to Resolve are quoted herein, viz:

4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena City, the rule that
where the separation from office is caused by reasons beyond the control of the officer i.e. involuntary the
service of term is deemed interrupted has not yet been overturned by the new ruling of the Supreme Court. As
a matter of fact, the prevailing rule then of the Honorable Commission in [sic] respect of the three (3)-term
limitation was its decision in the case of Aldovino, et al. vs. Asilo where it stated:

"Thus, even if respondent was elected during the 2004 elections, which was supposedly his third and final term
as city councilor, the same cannot be treated as a complete service or full term in office since the same was
interrupted when he was suspended by the Sandiganbayan Fourth Division. And the respondent actually
heeded the suspension order since he did not receive his salary during the period October 16-31 and
November 1-15 by reason of his actual suspension from office. And this was further bolstered by the fact that
the DILG issued a

Memorandum directing him, among others, to reassume his position." (Emphasis supplied.)

5. Clearly, there was no misrepresentation on the part of respondent as would constitute a ground for the
denial of due course to and/or the cancellation of respondents certificate of candidacy at the time he filed the
same. Petitioners ground for the denial of due course to and/or the cancellation of respondents certificate of
candidacy thus has no basis, in fact and in law, as there is no ground to warrant such relief under the Omnibus
Election Code and/or its implementing laws.

6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on the three (3)-term
limitation, respondent acknowledges that he is now DISQUALIFIED to run for the position of Mayor of Lucena
City having served three (3) (albeit interrupted) terms as Mayor of Lucena City prior to the filing of his certificate
of candidacy for the 2010 elections.

7. In view of the foregoing premises and new jurisprudence on the matter, respondent respectfully submits the
present case for decision declaring him as DISQUALIFIED to run for the position of Mayor of Lucena City.9
Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena City in the May 10,
2010 national and local elections, Ramon did not withdraw his CoC.

Acting on Ramons Manifestation with Motion to Resolve, the COMELEC First Division issued a Resolution on
April 19, 2010,10 disposing as follows:

WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly, Ramon Y. Talaga,
Jr. is hereby declared DISQUALIFIED to run for Mayor of Lucena City for the 10 May 2010 National and Local
Elections.

SO ORDERED.

Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010 Resolution of the
COMELEC First Division.11 Later on, however, he filed at 9:00 a.m. of May 4, 2010 an Ex-parte Manifestation of
Withdrawal of the Pending Motion for Reconsideration.12 At 4:30 p.m. on the same date, Barbara Ruby filed her
own CoC for Mayor of Lucena City in substitution of Ramon, attaching thereto the Certificate of Nomination and
Acceptance (CONA) issued by Lakas-Kampi-CMD, the party that had nominated Ramon.13

On May 5, 2010, the COMELEC En Banc, acting on Ramons Ex parte Manifestation of Withdrawal, declared
the COMELEC First Divisions Resolution dated April 19, 2010 final and executory.14

On election day on May 10, 2010, the name of Ramon remained printed on the ballots but the votes cast in his
favor were counted in favor of Barbara Ruby as his substitute candidate, resulting in Barbara Ruby being
ultimately credited with 44,099 votes as against Castillos 39,615 votes.15

Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the suspension of Barbara
Rubys proclamation.16

It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its Law
Department,17gave due course to Barbara Rubys CoC and CONA through Resolution No. 8917, thereby
including her in the certified list of candidates.18 Consequently, the CBOC proclaimed Barbara Ruby as the
newly-elected Mayor of Lucena City.19

On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the COMELEC,20 docketed as
SPC 10-024. He alleged that Barbara Ruby could not substitute Ramon because his CoC had been cancelled
and denied due course; and Barbara Ruby could not be considered a candidate because the COMELEC En
Banc had approved her substitution three days after the elections; hence, the votes cast for Ramon should be
considered stray.

In her Comment on the Petition for Annulment of Proclamation,21 Barbara Ruby maintained the validity of her
substitution. She countered that the COMELEC En Banc did not deny due course to or cancel Ramons COC,
despite a declaration of his disqualification, because there was no finding that he had committed
misrepresentation, the ground for the denial of due course to or cancellation of his COC. She prayed that with
her valid substitution, Section 12 of Republic Act No. 900622 applied, based on which the votes cast for Ramon
were properly counted in her favor.

On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City, sought to
intervene,23positing that he should assume the post of Mayor because Barbara Rubys substitution had been
invalid and Castillo had clearly lost the elections.

On January 11, 2011, the COMELEC Second Division dismissed Castillos petition and Alcalas petition-in-
intervention,24 holding:

In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was the basis for the
proclamation of Ruby on that date. He, however, failed to file any action within the prescribed period either in
the Commission or the Supreme Court assailing the said resolution. Thus, the said resolution has become final
and executory. It cannot anymore be altered or reversed.

xxxx

x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was actually for the
disqualification of Ramon for having served three consecutive terms, which is a ground for his disqualification
under the Constitution in relation to Section 4(b)3 of Resolution 8696. There was no mention therein that
Ramon has committed material representation that would be a ground for the cancellation or denial of due
course to the CoC of Ramon under Section 78 of the Omnibus Election Code. The First Division, in fact,
treated the petition as one for disqualification as gleaned from the body of the resolution and its dispositive
portion quoted above. This treatment of the First Division of the petition as one for disqualification only is
affirmed by the fact that its members signed Resolution No. 8917 where it was clearly stated that the First
Division only disqualified Ramon.

Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not applicable. Ramon was rightly
substituted by Ruby. As such, the votes for Ramon cannot be considered as stray votes but should be counted
in favor of Ruby since the substituted and the substitute carry the same surname Talaga, as provided in
Section 12 of Republic Act No. 9006.

xxxx

Moreover, there is no provision in the Omnibus Election Code or any election laws for that matter which
requires that the substitution and the Certificate of Candidacy of the substitute should be approved and given
due course first by the Commission or the Law Department before it can be considered as effective. All that
Section 77 of the Omnibus Election Code as implemented by Section 13 of Resolution No. 8678 requires is
that it should be filed with the proper office. The respondent is correct when she argued that in fact even the
BEI can receive a CoC of a substitute candidate in case the cause for the substitution happened between the
day before the election and mid-day of election day. Thus, even if the approval of the substitution was made
after the election, the substitution became effective on the date of the filing of the CoC with the Certificate of
Nomination and Acceptance.

There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor of Lucena City, the
counting of the votes of Ramon in favor of Ruby is proper. The proclamation, thus, of Ruby as mayor elect of
Lucena City is in order. Hence, we find no cogent reason to annul the proclamation of respondent Barbara
Ruby C. Talaga as the duly elected Mayor of the City of Lucena after the elections conducted on May 10,
2010.25

Acting on Castillo and Alcalas respective motions for reconsideration, the COMELEC En Banc issued the
assailed Resolution dated May 20, 2011 reversing the COMELEC Second Divisions ruling.26

Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without a hearing as a mere
incident of the COMELECs ministerial duty to receive the COCs of substitute candidates; (b) Resolution No.
8917 was based on the wrong facts; and (c) Ramons disqualification was resolved with finality only on May 5,
2010, the COMELEC En Banc concluded that Barbara Ruby could not have properly substituted Ramon but
had simply become an additional candidate who had filed her COC out of time; and held that Vice Mayor Alcala
should succeed to the position pursuant to Section 44 of the Local Government Code (LGC).27

Issues

The core issue involves the validity of the substitution by Barbara Ruby as candidate for the position of Mayor
of Lucena City in lieu of Ramon, her husband.

Ancillary to the core issue is the determination of who among the contending parties should assume the
contested elective position.

Ruling

The petitions lack merit.

1.

Existence of a valid CoC is a condition

sine qua non for a valid substitution

The filing of a CoC within the period provided by law is a mandatory requirement for any person to be
considered a candidate in a national or local election. This is clear from Section 73 of the Omnibus Election
Code, to wit:

Section 73. Certificate of candidacy No person shall be eligible for any elective public office unless he files a
sworn certificate of candidacy within the period fixed herein.
Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:

Section 74. Contents of certificate of candidacy.The certificate of candidacy shall state that the person filing it
is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of
the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector
which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his
post office address for all election purposes; his profession or occupation; that he will support and defend the
Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws,
legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident
or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of
his knowledge. x x x

The evident purposes of the requirement for the filing of CoCs and in fixing the time limit for filing them are,
namely: (a) to enable the voters to know, at least 60 days prior to the regular election, the candidates from
among whom they are to make the choice; and (b) to avoid confusion and inconvenience in the tabulation of
the votes cast. If the law does not confine to the duly-registered candidates the choice by the voters, there may
be as many persons voted for as there are voters, and votes may be cast even for unknown or fictitious
persons as a mark to identify the votes in favor of a candidate for another office in the same
election.28 Moreover, according to Sinaca v. Mula,29 the CoC is:

x x x in the nature of a formal manifestation to the whole world of the candidates political creed or lack of
political creed. It is a statement of a person seeking to run for a public office certifying that he announces his
candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which
he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated.

Accordingly, a persons declaration of his intention to run for public office and his affirmation that he possesses
the eligibility for the position he seeks to assume, followed by the timely filing of such declaration, constitute a
valid CoC that render the person making the declaration a valid or official candidate.

There are two remedies available to prevent a candidate from running in an electoral race. One is through a
petition for disqualification and the other through a petition to deny due course to or cancel a certificate of
candidacy. The Court differentiated the two remedies in Fermin v. Commission on Elections,30 thuswise:

x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the Omnibus
Election Code, or Section 40 of the Local Government Code. On the other hand, a petition to deny due course
to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that
is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely
prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under
Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.31

Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election Code (i.e., prohibited
acts of candidates, and the fact of a candidates permanent residency in another country when that fact affects
the residency requirement of a candidate) are separate and distinct from the grounds for the cancellation of or
denying due course to a COC (i.e., nuisance candidates under Section 69 of the Omnibus Election Code; and
material misrepresentation under Section 78 of the Omnibus Election Code), the Court has recognized in
Miranda v. Abaya32that the following circumstances may result from the granting of the petitions, to wit:

(1) A candidate may not be qualified to run for election but may have filed a valid CoC;

(2) A candidate may not be qualified and at the same time may not have filed a valid CoC; and

(3) A candidate may be qualified but his CoC may be denied due course or cancelled.

In the event that a candidate is disqualified to run for a public office, or dies, or withdraws his CoC before the
elections, Section 77 of the Omnibus Election Code provides the option of substitution, to wit:

Section 77. Candidates in case of death, disqualification or withdrawal. If after the last day for the filing of
certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is
disqualified for any cause, only a person belonging to, and certified by, the same political party may file a
certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute
candidate nominated by the political party concerned may file his certificate of candidacy for the office affected
in accordance with the preceding sections not later than mid-day of the day of the election. If the death,
withdrawal or disqualification should occur between the day before the election and mid-day of election day,
said certificate may be filed with any board of election inspectors in the political subdivision where he is a
candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the
Commission.

Nonetheless, whether the ground for substitution is death, withdrawal or disqualification of a candidate, Section
77 of the Omnibus Election Code unequivocally states that only an official candidate of a registered or
accredited party may be substituted.

Considering that a cancelled CoC does not give rise to a valid candidacy,33 there can be no valid substitution of
the candidate under Section 77 of the Omnibus Election Code. It should be clear, too, that a candidate who
does not file a valid CoC may not be validly substituted, because a person without a valid CoC is not
considered a candidate in much the same way as any person who has not filed a CoC is not at all a
candidate.34

Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the Omnibus Election
Code may not be substituted. A withdrawal of candidacy can only give effect to a substitution if the substitute
candidate submits prior to the election a sworn CoC as required by Section 73 of the Omnibus Election Code.35

2.

Declaration of Ramons disqualification

rendered his CoC invalid; hence, he was not
a valid candidate to be properly substituted

In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the COMELEC En Banc
that the Castillo petition in SPA 09-029 (DC) was in the nature of a petition to deny due course to or cancel a
CoC under Section 78 of the Omnibus Election Code.

In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on Elections:36

Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material representation that is false, which may relate
to the qualifications required of the public office he/she is running for. It is noted that the candidate states in
his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in
relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the
candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the
law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a
proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal
with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78"
petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning
candidate.

Castillos petition contained essential allegations pertaining to a Section 78 petition, namely: (a) Ramon made a
false representation in his CoC; (b) the false representation referred to a material matter that would affect the
substantive right of Ramon as candidate (that is, the right to run for the election for which he filed his
certificate); and (c) Ramon made the false representation with the intention to deceive the electorate as to his
qualification for public office or deliberately attempted to mislead, misinform, or hide a fact that would otherwise
render him ineligible.37The petition expressly challenged Ramons eligibility for public office based on the
prohibition stated in the Constitution and the Local Government Code against any person serving three
consecutive terms, and specifically prayed that "the Certificate of Candidacy filed by the respondent Ramon be
denied due course to or cancel the same and that he be declared as a disqualified candidate."38

The denial of due course to or the cancellation of the CoC under Section 78 involves a finding not only that a
person lacks a qualification but also that he made a material representation that is false.39 A petition for the
denial of due course to or cancellation of CoC that is short of the requirements will not be granted. In Mitra v.
Commission on Elections,40 the Court stressed that there must also be a deliberate attempt to mislead, thus:

The false representation under Section 78 must likewise be a "deliberate attempt to mislead, misinform, or hide
a fact that would otherwise render a candidate ineligible." Given the purpose of the requirement, it must be
made with the intention to deceive the electorate as to the would-be candidates qualifications for public office.
Thus, the misrepresentation that Section 78 addresses cannot be the result of a mere innocuous mistake, and
cannot exist in a situation where the intent to deceive is patently absent, or where no deception on the
electorate results. The deliberate character of the misrepresentation necessarily follows from a consideration of
the consequences of any material falsity: a candidate who falsifies a material fact cannot run; if he runs and is
elected, he cannot serve; in both cases, he can be prosecuted for violation of the election laws.

It is underscored, however, that a Section 78 petition should not be interchanged or confused with a Section 68
petition. The remedies under the two sections are different, for they are based on different grounds, and can
result in different eventualities.41 A person who is disqualified under Section 68 is prohibited to continue as a
candidate, but a person whose CoC is cancelled or denied due course under Section 78 is not considered as a
candidate at all because his status is that of a person who has not filed a CoC.42 Miranda v. Abaya43 has
clarified that a candidate who is disqualified under Section 68 can be validly substituted pursuant to Section 77
because he remains a candidate until disqualified; but a person whose CoC has been denied due course or
cancelled under Section 78 cannot be substituted because he is not considered a candidate. 1wphi1

To be sure, the cause of Ramons ineligibility (i.e., the three-term limit) is enforced both by the Constitution and
statutory law. Article X, Section 8 of the 1987 Constitution provides:

Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by
law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.

Section 43 of the Local Government Code reiterates the constitutional three-term limit for all elective local
officials, to wit:

Section 43. Term of Office. (a) x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official concerned was elected. (Emphasis supplied.)

The objective of imposing the three-term limit rule was "to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office." The
Court underscored this objective in Aldovino, Jr. v. Commission on Elections,44 stating:

x x x The framers of the Constitution specifically included an exception to the peoples freedom to choose those
who will govern them in order to avoid the evil of a single person accumulating excessive power over a
particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to
vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would
obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another
three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief
executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is
the very scenario sought to be avoided by the Constitution, if not abhorred by it.

To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded from asserting
an eligibility to run as Mayor of Lucena City for the fourth consecutive term. Resultantly, his CoC was invalid
and ineffectual ab initio for containing the incurable defect consisting in his false declaration of his eligibility to
run. The invalidity and inefficacy of his CoC made his situation even worse than that of a nuisance candidate
because the nuisance candidate may remain eligible despite cancellation of his CoC or despite the denial of
due course to the CoC pursuant to Section 69 of the Omnibus Election Code.45

Ramon himself specifically admitted his ineligibility when he filed his Manifestation with Motion to Resolve on
December 30, 2009 in the COMELEC.46 That sufficed to render his CoC invalid, considering that for all intents
and purposes the COMELECs declaration of his disqualification had the effect of announcing that he was no
candidate at all.

We stress that a non-candidate like Ramon had no right to pass on to his substitute. As Miranda v. Abaya aptly
put it:

Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute
presupposes the existence of the person to be substituted, for how can a person take the place of somebody
who does not exist or who never was. The Court has no other choice but to rule that in all the instances
enumerated in Section 77 of the Omnibus Election Code, the existence of a valid certificate of candidacy
seasonably filed is a requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first
place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy,
he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section
77 of the Code. Besides, if we were to allow the so-called "substitute" to file a "new" and "original" certificate of
candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the
law, an act abhorred by our Constitution.47 (Emphasis supplied)

3.

Granting without any qualification of petition in

SPA No. 09-029(DC) manifested COMELECs intention to
declare Ramon disqualified and to cancel his CoC

That the COMELEC made no express finding that Ramon committed any deliberate misrepresentation in his
CoC was of little consequence in the determination of whether his CoC should be deemed cancelled or not.

In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC "be not given due course
and/or cancelled." The COMELEC categorically granted "the petition" and then pronounced in apparent
contradiction that Joel Pempe Miranda was "disqualified." The

Court held that the COMELEC, by granting the petition without any qualification, disqualified Joel Pempe
Miranda and at the same time cancelled Jose Pempe Mirandas CoC. The Court explained:

The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified by the
Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and
cancelled.

The Court rules that it was.

Private respondents petition in SPA No. 98-019 specifically prayed for the following:

WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of
Mayor for the City of Santiago be not given due course and/or cancelled.

Other reliefs just and equitable in the premises are likewise prayed for.

(Rollo, p. 31; Emphasis ours.)

In resolving the petition filed by private respondent specifying a very particular relief, the Comelec ruled
favorably in the following manner:

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition.
Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of mayor of
Santiago City, Isabela, in the May 11, 1998 national and local elections.

SO ORDERED.

(p.43, Rollo; Emphasis ours.)

From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No. 98-019, it
is sufficiently clear that the prayer specifically and particularly sought in the petition was GRANTED, there
being no qualification on the matter whatsoever. The disqualification was simply ruled over and above the
granting of the specific prayer for denial of due course and cancellation of the certificate of candidacy. x x x.49

xxxx

x x x. There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to
deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda (Rollo, pp. 26-31). There
is likewise no question that the said petition was GRANTED without any qualification whatsoever. It is rather
clear, therefore, that whether or not the Comelec granted any further relief in SPA No. 98-019 by disqualifying
the candidate, the fact remains that the said petition was granted and that the certificate of candidacy of Jose
"Pempe" Miranda was denied due course and cancelled. x x x.50
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of cancelling
or denying due course to the CoC prayed for in the petition by not subjecting that relief to any qualification.

Miranda v. Abaya applies herein. Although Castillos petition in SPA No. 09-029 (DC) specifically sought both
the disqualification of Ramon and the denial of due course to or cancellation of his CoC, the COMELEC
categorically stated in the Resolution dated April 19, 2010 that it was granting the petition. Despite the
COMELEC making no finding of material misrepresentation on the part of Ramon, its granting of Castillos
petition without express qualifications manifested that the COMELEC had cancelled Ramons CoC based on
his apparent ineligibility. The Resolution dated April 19, 2010 became final and executory because Castillo did
not move for its reconsideration, and because Ramon later withdrew his motion for reconsideration filed in
relation to it.

4.

Elected Vice Mayor must succeed

and assume the position of Mayor
due to a permanent vacancy in the office

On the issue of who should assume the office of Mayor of Lucena City, Castillo submits that the doctrine on the
rejection of the second-placer espoused in Labo, Jr. v. Commission on Elections51 should not apply to him
because Ramons disqualification became final prior to the elections.52 Instead, he cites Cayat v. Commission
on Elections,53where the Court said:

x x x In Labo there was no final judgment of disqualification before the elections. The doctrine on the rejection
of the second placer was applied in Labo and a host of other cases because the judgment declaring the
candidates disqualification in Labo and the other cases had not become final before the elections. To repeat,
Labo and the other cases applying the doctrine on the rejection of the second placer have one common
essential condition the disqualification of the candidate had not become final before the elections. This
essential condition does not exist in the present case.

Thus, in Labo, Labos disqualification became final only on 14 May 1992, three days after the 11 May 1992
elections. On election day itself, Labo was still legally a candidate. In the present case, Cayat was disqualified
by final judgment 23 days before the 10 May 2004 elections. On election day, Cayat was no longer legally a
candidate for mayor. In short, Cayats candidacy for Mayor of Buguias, Benguet was legally non-existent in the
10 May 2004 elections.

The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted
for, and votes cast for him shall not be counted. This is a mandatory provision of law. Section 6 of Republic Act
No. 6646, The Electoral Reforms Law of 1987, states:

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

counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified
and he is voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong. (Emphasis added)

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification
becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second
is when the disqualification becomes final after the elections, which is the situation covered in the second
sentence of Section 6.

The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the first
situation is categorical: a candidate disqualified by final judgment before an election cannot be voted for, and
votes cast for him shall not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way
before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in Cayats favor are stray. Cayat was
never a candidate in the 10 May 2004 elections. Palilengs proclamation is proper because he was the sole and
only candidate, second to none.54

Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume the position of Mayor
of Lucena City for having obtained the highest number of votes among the remaining qualified candidates.
It would seem, then, that the date of the finality of the COMELEC resolution declaring Ramon disqualified is
decisive. According to Section 10, Rule 19 of the COMELECs Resolution No. 8804,55 a decision or resolution
of a Division becomes final and executory after the lapse of five days following its promulgation unless a motion
for reconsideration is seasonably filed. Under Section 8, Rule 20 of Resolution No. 8804, the decision of the
COMELEC En Banc becomes final and executory five days after its promulgation and receipt of notice by the
parties.

The COMELEC First Division declared Ramon disqualified through its Resolution dated April 19, 2010, the
copy of which Ramon received on the same date.56 Ramon filed a motion for reconsideration on April 21,
201057 in accordance with Section 7 of COMELEC Resolution No. 8696,58 but withdrew the motion on May 4,
2010,59ostensibly to allow his substitution by Barbara Ruby. On his part, Castillo did not file any motion for
reconsideration. Such circumstances indicated that there was no more pending matter that could have
effectively suspended the finality of the ruling in due course. Hence, the Resolution dated April 19, 2010 could
be said to have attained finality upon the lapse of five days from its promulgation and receipt of it by the parties.
This happened probably on April 24, 2010. Despite such finality, the COMELEC En Banc continued to act on
the withdrawal by Ramon of his motion for reconsideration through the May 5, 2010 Resolution declaring the
April 19, 2010 Resolution of the COMELEC First Division final and executory.

Yet, we cannot agree with Castillos assertion that with Ramons disqualification becoming final prior to the May
10, 2010 elections, the ruling in Cayat was applicable in his favor. Barbara Rubys filing of her CoC in
substitution of Ramon significantly differentiated this case from the factual circumstances obtaining in Cayat.
Rev. Fr. Nardo B. Cayat, the petitioner in Cayat, was disqualified on April 17, 2004, and his disqualification
became final before the May 10, 2004 elections. Considering that no substitution of Cayat was made, Thomas
R. Palileng, Sr., his rival, remained the only candidate for the mayoralty post in Buguias, Benguet. In contrast,
after Barbara Ruby substituted Ramon, the May 10, 2010 elections proceeded with her being regarded by the
electorate of Lucena City as a bona fide candidate. To the electorate, she became a contender for the same
position vied for by Castillo, such that she stood on the same footing as Castillo. Such standing as a candidate
negated Castillos claim of being the candidate who obtained the highest number of votes, and of being
consequently entitled to assume the office of Mayor.

Indeed, Castillo could not assume the office for he was only a second placer. Labo, Jr. should be applied.
1w phi 1

There, the Court emphasized that the candidate obtaining the second highest number of votes for the
contested office could not assume the office despite the disqualification of the first placer because the second
placer was "not the choice of the sovereign will."60 Surely, the Court explained, a minority or defeated candidate
could not be deemed elected to the office.61 There was to be no question that the second placer lost in the
election, was repudiated by the electorate, and could not assume the vacated position.62 No law imposed upon
and compelled the people of Lucena City to accept a loser to be their political leader or their representative.63

The only time that a second placer is allowed to take the place of a disqualified winning candidate is when two
requisites concur, namely: (a) the candidate who obtained the highest number of votes is disqualified; and (b)
the electorate was fully aware in fact and in law of that candidates disqualification as to bring such awareness
within the realm of notoriety but the electorate still cast the plurality of the votes in favor of the ineligible
candidate.64 Under this sole exception, the electorate may be said to have waived the validity and efficacy of
their votes by notoriously misapplying their franchise or throwing away their votes, in which case the eligible
candidate with the second highest number of votes may be deemed elected.65 But the exception did not apply
in favor of Castillo simply because the second element was absent. The electorate of Lucena City were not the
least aware of the fact of Barbara Rubys ineligibility as the substitute. In fact, the COMELEC En Banc issued
the Resolution finding her substitution invalid only on May 20, 2011, or a full year after the decisions.

On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from assuming the position of
Mayor of Lucena City. To begin with, there was no valid candidate for her to substitute due to Ramons
ineligibility. Also, Ramon did not voluntarily withdraw his CoC before the elections in accordance with Section
73 of the Omnibus Election Code. Lastly, she was not an additional candidate for the position of Mayor of
Lucena City because her filing of her CoC on May 4, 2010 was beyond the period fixed by law. Indeed, she
was not, in law and in fact, a candidate.66

A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy should be filled
pursuant to the law on succession defined in Section 44 of the LGC, to wit:67

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. If a
permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned
shall become the governor or mayor. x x x
WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS the Resolution
issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the petitioners to pay the costs of suit.

SO ORDERED.

G.R. No. 133944 October 28, 1999

MARCITA MAMBA PEREZ, petitioner,

vs.
COMMISSION ON ELECTIONS and RODOLFO E. AGUINALDO, respondents.

MENDOZA, J.:

This is a petition for certiorari to annul the resolution, dated May 10, 1998, of the First Division of the
Commission on Elections, dismissing petitioner Marcita Mamba Perez's petition for the disqualification of
private respondent Rodolfo E. Aguinaldo as a candidate for Representative of the Third District of Cagayan in
the May 11, 1998 elections, as well as the resolution of the COMELEC en banc, dated June 11, 1998, denying
petitioner's motion for reconsideration.

The facts are not in dispute.

On March 26, 1998, private respondent filed his certificate of candidacy for Representative of the Third District
of Cagayan in the May 11, 1998 elections. Four days later, on March 30, 1998, petitioner, as a voter and
citizen, filed in the COMELEC a petition for the disqualification of private respondent as a candidate on the
ground that he had not been a resident of the district for at least one (1) year immediately before the day of the
elections as required by Art. VI, 6 of the Constitution.

In support of her claim, petitioner presented private respondent's certificates of candidacy 1 for governor of
Cagayan in the 1988, 1992, and 1995 elections; his voter's affidavit 2 which he used in the 1987, 1988, 1992, 1995,
and 1997 elections; and his voter registration record dated June 22, 1997, 3 in all of which it is stated that he is a
resident of Barangay Calaoagan Dackel, Municipality of Gattaran, which is outside the Third District of Cagayan.
Petitioner alleged that private respondent filed an application 4 for the transfer of his registration as voter from
Gattaran, Cagayan (First District) to Tuguegarao, Cagayan (Third District) only on December 17, 1997 and that said
application was approved only on January 7, 1998. Petitioner prayed that in the event the case was not finally
decided before the elections and private respondent obtained the highest number of votes, the latter's proclamation
be suspended. 1w phi 1.nt

In his answer, private respondent claimed that while he had been a resident of Gattaran, Cagayan in 1990, he
transferred his residence to Tuguegarao, Cagayan by renting an apartment at No. 13-E Magallanes St.,
Tuguegarao, Cagayan, in order to hide his mistress from public view because, at that time, his marriage to his
former wife was still subsisting. In support of his claim, he presented the affidavit 5 of the owner of the apartment,
Engineer Alfredo Ablaza, in which it is stated that private respondent had been his lessee since July 1990. In
addition, private respondent presented the contract of lease 6 of another residential apartment at Kamias Street,
Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996, between him, as lessee, and Tomas T.
Decena, as lessor; his marriage license dated January 7, 1997; 7 the marriage certificate between him and his
present wife, Lerma Dumaguit, dated January 18, 1998; 8 the birth certificate 9 of their daughter, Geniah Laureen D.
Aguinaldo; and various letters, 10 all of which show that he had been a resident of Tuguegarao, Cagayan for at least
one (1) year before the May 11, 1998 elections.

On May 10, 1998, the First Division of the COMELEC, in a unanimous resolution, 11 dismissed the petition for
disqualification, finding private respondent Aguinaldo qualified to run as representative for the Third District of
Cagayan.

On May 11, 1998, private respondent was elected Representative of the Third District of Cagayan, with 65,058
votes over his rival Manuel N. Mamba's 58,507 votes. 12 Accordingly, on May 16, 1998, he was proclaimed elected
and, on May 17, 1998, he was sworn in office.

On May 22, 1998, petitioner filed a motion for reconsideration reiterating her allegation that private respondent
lacked the requisite residency in the Third District of Cagayan and arguing that the proclamation of private
respondent was not a legal impediment to the continuation of the hearing on her motion in view of R.A. No.
6646, 6. Her motion was, however, denied by the COMELEC en banc in its resolution of June 11, 1998.
Hence, this petition.
Petitioner contends that the COMELEC committed grave abuse of discretion in holding that private respondent
had been a resident of Tuguegarao, Cagayan since July 1990 when he rented an apartment there in order to
hide his mistress. Petitioner contends that transfer of residence to the place where private respondent is
keeping his mistress cannot amount to a change of domicile because one's domicile is the place where one
and one's legitimate family resides. She also argues that private respondent could not have changed his
residence to Tuguegarao in 1990 considering that his certificates of candidacy for governor of Cagayan in the
1988, 1992, and 1995 elections, as well as his voter registration records, the latest of which was made on June
22, 1997, indicate that he is a resident of Gattaran, which is in the First District of Cagayan. Petitioner avers
that in the absence of clear and positive proof, one's domicile of origin should be deemed to continue and that
to successfully effect a change of domicile, one must prove an actual change of domicile, a bonafide intention
of abandoning the former place of residence and of establishing a new one, and unequivocal acts which
correspond with the intention.

On the other hand, private respondent asks that the instant petition be dismissed. He argues that after his
proclamation on May 16, 1998 and his assumption of office on June 30, 1998, the COMELEC lost jurisdiction
to pass upon his qualifications for the office of Representative. He argues further that this case should have
been filed with the House of Representatives Electoral Tribunal which has jurisdiction over the subject matter of
the case.

In a supplemental pleading, 13 petitioner replies that the COMELEC retained jurisdiction over the case because she
filed the petition for disqualification on March 30, 1998, before the elections on May 11, 1998, and that pursuant to
R.A. No. 6646, 6, the COMELEC could continue the proceedings for the determination of the disqualification of
private respondent.

The threshold issue, therefore, is whether the Court has jurisdiction to entertain the instant petition
for certiorari and eventually pass upon private respondent's eligibility for the office of Representative of the
Third District of Cagayan. Petitioner, in sustaining the affirmative side of the question, invokes the following
provision of R.A. No. 6646:

Sec. 6 Effect of Disqualification Case. Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes
in such election, the Court or Commission (COMELEC) shall continue with the trial and
hearing of the action, inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is strong.

As already stated, the petition for disqualification against private respondent was decided by the First Division
of the COMELEC on May 10, 1998. The following day, May 11, 1998, the elections were held. Notwithstanding
the fact that private respondent had already been proclaimed on May 16, 1998 and had taken his oath of office
on May 17, 1998, petitioner still filed a motion for reconsideration on May 22, 1998, which the COMELEC en
banc denied on June 11, 1998. Clearly, this could not be done. Sec. 6 of R.A. No. 6646 authorizes the
continuation of proceedings for disqualification even after the elections if the respondent has not been
proclaimed. The COMELEC en banc had no jurisdiction to entertain the motion because the proclamation of
private respondent barred further consideration of petitioner's action. In the same vein, considering that at the
time of the filing of this petition on June 16, 1998, private respondent was already a member of the House of
Representatives, this Court has no jurisdiction over the same. Pursuant to Art. VI, 17 of the Constitution, the
House of Representatives Electoral Tribunal has the exclusive original jurisdiction over the petition for the
declaration of private respondent's ineligibility. As this Court held inLazatin v. House of Representatives
Electoral Tribunal: 14

The use of the word "sole" emphasizes the exclusive character of the jurisdiction
conferred. The exercise of the power by the Electoral Commission under the 1935
Constitution has been described as "intended to be as complete and unimpaired as if it
had remained originally in the legislature." Earlier, this grant of power to the legislature
was characterized by Justice Malcolm "as full, clear and complete." Under the amended
1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and
it remained as full, clear and complete as that previously granted the legislature and the
Electoral Commission. The same may be said with regard to the jurisdiction of the
Electoral Tribunals under the 1987 Constitution.

Petitioner's remedies should have been (1) to reiterate her prayer in the petition for disqualification, and move
for the issuance of an order by the COMELEC suspending the proclamation of private respondent pending the
hearing of the said petition and, in the event the motion was denied before the proclamation of private
respondent, file a petition for certiorari in this Court with a prayer for a restraining order to enjoin the
proclamation of private respondent; or (2) to file a petition for quo warranto in the House of Representatives
Electoral Tribunal within ten (10) days after the proclamation of private respondent as Representative-elect on
May 16, 1998. 15 Obviously, neither of these remedies can be availed of now.

In any event, even assuming that the Court has jurisdiction to resolve the instant petition for certiorari, we find
no merit in petitioner's allegation that private respondent is ineligible for the office of Representative of the Third
District of Cagayan.

Art. VI, 6 of the Constitution states:

No person shall be a Member of the House of Representatives unless he is a natural-

born citizen of the Philippines and, on the day of the election, is at least twenty-five
years of age, able to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the election.

The meaning and purpose of the residency requirement were explained recently in our decision in Aquino v.
COMELEC, 16 as follows:

. . . [T]he place "where a party actually or constructively has his permanent home,"
where he, no matter where he may be found at any given time, eventually intends to
return and remain, i.e., his domicile, is that to which the Constitution refers when it
speaks of residence for the purposes of election law. The manifest purpose of this
deviation from the usual conceptions of residency in law as explained in Gallego vs.
Vera is "to exclude strangers or newcomers unfamiliar with the conditions and needs of
the community" from taking advantage of favorable circumstances existing in that
community for electoral gain. While there is nothing wrong with the practice of
establishing residence in a given area for meeting election law requirements, this
nonetheless defeats the essence of representation, which is to place through the assent
of voters those most cognizant and sensitive to the needs of a particular district, if a
candidate falls short of the period of residency mandated by law for him to qualify. That
purpose could be obviously best met by individuals who have either had actual
residence in the area for a given period or who have been domiciled in the same area
either by origin or by choice.

In the case at bar, the COMELEC found that private respondent changed his residence from Gattaran to
Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the following: (1) the affidavit of Engineer
Alfredo Ablaza, the owner of the residential apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where
private respondent had lived in 1990; (2) the contract of lease between private respondent, as lessee, and
Tomas T. Decena, as lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao, Cagayan, for the
period July 1, 1995 to June 30, 1996; (3) the marriage certificate, dated January 18, 1998, between private
respondent and Lerma Dumaguit; (4) the certificate of live birth of private respondent's second daughter; and
(5) various letters addressed to private respondent and his family, which all show that private respondent was a
resident of Tuguegarao, Cagayan for at least one (1) year immediately preceding the elections on May 11,
1998.

There is thus substantial evidence supporting the finding that private respondent had been a resident of the
Third District of Cagayan and there is nothing in the record to detract from the merit of this factual finding.

Petitioner contends that the fact that private respondent was a resident of Gattaran, at least until June 22,
1997, is shown by the following documentary evidence in the record, to wit: (1) his certificates of candidacy for
governor of Cagayan in the 1988, 1992 and 1995 elections; (2) his voter's registration records, the latest of
which was made on June 22, 1997; and (3) the fact that private respondent voted in Gattaran, Cagayan, in the
elections of 1987, 1988, 1992 and 1995.

The contention is without merit. The fact that a person is registered as a voter in one district is not proof that he
is not domiciled in another district. Thus, in Faypon v. Quirino, 17 this Court held that the registration of a voter in a
place other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence.

Nor is it of much importance that in his certificates of candidacy for provincial governor in the elections of 1988,
1992, and 1995, private respondent stated that he was a resident of Gattaran. Under the law, 18 what is required
for the election of governor is residency in the province, not in any district or municipality, one year before the
election.

Moreover, as this Court said in Romualdez-Marcos v. COMELEC: 19

It is the fact of residence, not a statement in a certificate of candidacy, which ought to

be decisive in determining whether or not an individual has satisfied the constitution's
residency qualification requirement. The said statement becomes material only when
there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible.

In this case, although private respondent declared in his certificates of candidacy prior to the May 11, 1998
elections that he was a resident of Gattaran, Cagayan, the fact is that he was actually a resident of the Third
District not just for one (1) year prior to the May 11, 1998 elections but for more than seven (7) years since July
1990. His claim that he had been a resident of Tuguegarao since July 1990 is credible considering that he was
governor from 1988 to 1998 and, therefore, it would be convenient for him to maintain his residence in
Tuguegarao, which is the capital of the province of Cagayan.

As always, the polestar of adjudication in cases of this nature is Gallego v. Vera, 20 in which this Court held:
"[W]hen the evidence on the alleged lack of residence qualification is weak or inconclusive and it clearly appears, as
in the instant case, that the purpose of the law would not be thwarted by upholding the right to the office, the will of
the electorate should be respected." In this case, considering the purpose of the residency requirement, i.e., to
ensure that the person elected is familiar with the needs and problems of his constituency, there can be no doubt
that private respondent is qualified, having been governor of the entire province of Cagayan for ten years
immediately before his election as Representative of that province's Third District. 1w phi1.nt

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 189034 January 11, 2010

CELESTINO A. MARTINEZ III, Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND BENHUR L.
SALIMBANGON, Respondents.

DECISION

VILLARAMA, JR., J.:

This petition for certiorari under Rule 65 seeks to nullify the Decision1 dated May 28, 2009 of the House of
Representatives Electoral Tribunal in HRET Case No. 07-035 dismissing the election protest and declaring
private respondent as the duly elected Representative of the Fourth Legislative District of Cebu, and the
Resolution2 dated July 30, 2009 denying petitioner's motion for reconsideration thereof.

The Facts

In the May 14, 2007 elections, petitioner Martinez and private respondent Salimbangon were among the
candidates for Representative in the Fourth Legislative District of Cebu Province. On March 29, 2007, Edilito C.
Martinez, a resident of Barangay Tambongon, Daan-Bantayan, Cebu, filed his certificate of candidacy for the
same position.

On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a nuisance candidate.3 However, the
Commission on Elections Second Division issued its Resolution declaring Edilito C. Martinez a nuisance
candidate only on June 12, 2007 or almost one (1) month after the elections.

On July 9, 2007, Salimbangon was proclaimed winner in the congressional elections for the Fourth Legislative
District of Cebu on the basis of official results showing that he garnered sixty-seven thousand two hundred
seventy-seven (67,277) votes as against Martinez who garnered sixty-seven thousand one hundred seventy-
three (67,173) votes, or a difference of one hundred four (104) votes.
Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July 26, 2007, the HRET granted his
motion to convert the same into a Regular Protest of all one thousand one hundred twenty-nine (1,129)
precincts of the Fourth Legislative District of Cebu.

The election protest is based on three hundred (300) ballots more or less with only "MARTINEZ" or "C.
MARTINEZ" written on the line for Representative which the Board of Election Inspectors (BEI) did not count
for Martinez on the ground that there was another congressional candidate (Edilito C. Martinez) who had the
same surname. Martinez further alleged that he lost several thousand votes as a result of incorrect
appreciation of ballots not counted in his favor while clearly marked ballots, groups of ballots which appeared to
have been prepared by one (1) person, individual ballots which appeared to have been prepared by two (2) or
more persons, and fake and unofficial ballots were read and counted in favor of Salimbangon. He also claimed
that the votes reflected in the election returns were unlawfully increased in favor of Salimbangon while votes in
his favor were unlawfully decreased.4

Salimbangon filed his Answer with Counter-Protest stating that the Minutes of Voting (MOV) inside the ballot
boxes in all the protested precincts contain no recorded objections regarding straying of votes claimed by
Martinez, and that it was very seldom, if at all, that there were ballots with only "MARTINEZ" or "C. MARTINEZ"
written on the line for Representative. He counter-protested 954 precincts on grounds of coercion/intimidation
and duress; massive vote-buying; "lansadera"; misreading/miscounting/misappreciation of votes; and other
electoral anomalies and irregularities.

During the revision, ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative
were not counted and temporarily classified as stray. These comprise majority of the 9,831 stray ballots
claimed by Martinez.5

HRET Ruling

In its Decision dated May 28, 2009, the HRET resolved each of the claims and objections respectively raised
by protestant and protestee applying the rules for appreciation of ballots. The Tribunal recognized as most
crucial the issue of whether or not ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for
Representative should be counted in favor of Martinez. Thus, the election protest "will rise or fall on how the
Tribunal [appreciates said] ballots."6

Ruling on the issue, the HRET sustained the BEI in considering the ballots as stray in accordance with Sec.
211 (1) of the Omnibus Election Code which provides:

"Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if
there is no other candidate with the same first name or surname for the same office."7 [EMPHASIS
SUPPLIED.]

Since the name of Edilito C. Martinez was still included in the official list of candidates on election day (May 14,
2007), the HRET held that five thousand four hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ"
only written on the line for Representative were properly denied on the ground that there was no way of
determining the real intention of the voter. These ballots were included in the 7,544 ballots denied as votes for
Martinez in 961 precincts.8

Commiserating with Martinez on the delayed resolution of SPA Case No. 07-133 (PES), the HRET stated:

"We sympathize to (sic) the protestant that he is the victim of the inaction of the Comelec in failing to decide the
petition to disqualify Edilito C. Martinez as nuisance candidate on or before the May 14, 2007 elections. After
all, it appears that the latter did not even lift a finger to oppose the petition for his declaration as nuisance
candidate and that per its decision rendered only twenty-nine (29) days after the May 14, 2007 elections, Edilito
C. Martinez was indeed a nuisance candidate.

"As it is, the delay committed by the Comelec in deciding the petition to disqualify Edilito C. Martinez as
nuisance candidate on or before May 14, 2007 election did not only cause injustice to herein protestant but
worst, had resulted to (sic) the disenfranchisement of five thousand four hundred one (5,401) electorates
whose votes could have changed the number of votes garnered by the parties herein if not changed altogether
the outcome of the election itself."9
1avvphi1

The final overall results of recount and appreciation of ballots, election documents and other evidence in the
entire 1,129 precincts as determined by the HRET are as follows :10
Overall Fourth District of Cebu Votes

PROTESTANT PROTESTEE

1] Votes per physical count* in 961 precincts where there was ballot 57,758 57,132
appreciation

2] Votes in 12 precincts** without ballots found during revision (based 998 660
on election returns)

3] Votes per election returns in 156 precincts in which several spurious 9,937 7,815
ballots were placed after elections, counting and/or canvassing of
votes

68,693 65,607

Less: Objected ballots rejected*** 4,333 860

Add: Claimed ballots admitted*** 2,287 2,348

Unclaimed ballots admitted*** 8 11

Restored Ballots 2

Total Votes in the Contested Precincts After Appreciation of 66,655 67,108

Evidence

PLURALITY OF PROTESTEE'S VOTES 453

* Taken from Revision Reports

** Namely Precinct Nos. 51A, Daan-Bantayan, 40A, 56A, 79A, all of Bantayan,
15C, 19D, 66B/67A, 88A, 105A, all of Bogo, 40A/41A, 70A/71A, all of
Medellin, 30A, Sta. Fe.

*** During appreciation of ballots in 961 precincts.

On the basis of the foregoing, the HRET dismissed the election protest, affirmed the proclamation of
Salimbangon and declared him to be the duly elected Representative of the Fourth Legislative District of Cebu,
having won by a plurality margin of 453 votes.

Martinez moved for reconsideration of the Decision, but the HRET denied it by Resolution dated July 30,
2009.[11]

The Petition

Petitioner alleges that the HRET gravely abused its discretion when it failed to credit the "MARTINEZ" or "C.
MARTINEZ" votes in his favor despite the finality of the COMELEC resolution declaring Edilito C. Martinez a
nuisance candidate. Petitioner argues that the Decision disenfranchised 5,401 voters when it ruled that said
votes cannot be counted as votes for him since "there is no way of determining the real intention of the voter",
in utter disregard of the mandate of Art. VIII, Sec. 14 of the Constitution. He maintains that there is no clear and
good reason to justify the rejection of those 5,401 ballots, and points out that at the time private respondent
was proclaimed by the Board of Canvassers, only 104 votes separated private respondent from him (private
respondent was credited with 67,277 votes as against 67,173 votes of petitioner, while nuisance candidate
Edilito C. Martinez got a measly 363 votes.)12

Petitioner further alleges that the HRET invalidated ballots for him without stating the legal and factual bases
therefor, and on grounds other than the objections raised by private respondent. He contends that the HRET
erred in concluding that the ruling in Bautista v. Commission on Elections13 cannot be applied in view of
circumstances which supposedly distinguish the present case from Bautista. Finally, petitioner cites the
dissenting opinion of the Honorable Associate Justice Antonio Eduardo B. Nachura who disagreed with the
majority ruling and posited that the final declaration by COMELEC that Edilito C. Martinez was a nuisance
candidate and the cancellation of his certificate of candidacy should be deemed effective as of the day of the
election.14
In his Comment, private respondent assails the apparent desire of petitioner for this Court to review the
physical appreciation of ballots conducted by the HRET when he assigned as issues the alleged erroneous
invalidation by the HRET of petitioner's ballots which were ruled as written by two (2) persons, and when he
even appreciated ballots that were declared by the HRET as marked ballots. Private respondent details the
mostly post-election anomalies and irregularities, particularly in Bogo City, perpetrated by the petitioner as
found by the HRET such as tampering of election returns and statement of votes and vote padding/tampering.

As to the "MARTINEZ" and "C. MARTINEZ" ballots, private respondent asserts that the HRET correctly refused
to credit petitioner with these votes, stressing that there were admittedly three (3) candidates for the position of
Representative for the Fourth Legislative District of Cebu as of May 14, 2007. Not a single voter in the district
knew of any nuisance congressional candidate on election day. Private respondent argues that it would be
illogical and most unfair to count the said ballots in favor of petitioner as it is erroneous to base the voter's
intent on the supervening circumstance which was inexistent on the date the ballot was accomplished and cast.
The HRET likewise did not err in holding that the Bautista ruling is inapplicable, there being no announced
declaration yet of one (1) of the candidates as nuisance candidate when the voters cast their ballots on election
day.

The Issues

What then is the legal effect of declaring a nuisance candidate as such in a final judgment after the elections?
Should ballots containing only the similar surname of two (2) candidates be considered as stray votes or
counted in favor of the bona fide candidate?

Our Ruling

The Court finds the petition meritorious.

Section 69 of the Omnibus Election Code provides:

"Section 69. Nuisance candidates. -- The Commission may motu proprio or upon a verified petition of an
interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said
certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the
voters by the similarity of the names of the registered candidates or by other circumstances or acts which
clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of
candidacy has been filed and thus prevent a faithful determination of the true will of the electorate."

Republic Act No. 6646, otherwise known as "The Electoral Reforms Law of 1987" provides in Section 5 thereof:

"SEC. 5. Procedure in Cases of Nuisance Candidates. --

(a) A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69
of Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the
Commission by any registered candidate for the same office within five (5) days from the last day for
the filing of certificates of candidacy. Filing by mail shall not be allowed.

"(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the
respondent candidate together with a copy of the petition and its enclosures, if any.

"(c) The respondent shall be given three (3) days from receipt of the summons within which to file his
verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner.
Grounds for a motion to dismiss may be raised as affirmative defenses.

"(d) The Commission may designate any of its officials who are lawyers to hear the case and receive
evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be
required to submit position papers together with affidavits or counter-affidavits and other documentary
evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and
recommendations within five (5) days from the completion of such submission of evidence. The
Commission shall render its decision within five (5) days from receipt thereof.

"(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy
thereof by the parties, be final and executory unless stayed by the Supreme Court.
 "(f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its
decision or the decision of the Supreme Court to the city or municipal election registrars, boards of
election inspectors and the general public in the political subdivision concerned." [EMPHASIS
SUPPLIED.]

By their very nature, proceedings in cases of nuisance candidates require prompt disposition. The declaration
of a duly registered candidate as nuisance candidate results in the cancellation of his certificate of candidacy.
The law mandates the Commission and the courts to give priority to cases of disqualification to the end that a
final decision shall be rendered not later than seven days before the election in which the disqualification is
sought.15 In many instances, however, proceedings against nuisance candidates remained pending and
undecided until election day and even after canvassing of votes had been completed.

Here, petitioner sought to declare Edilito C. Martinez as a nuisance candidate immediately after the latter filed
his certificate of candidacy as an independent candidate and long before the May 14, 2007 elections. Petitioner
averred that Edilito C. Martinez who was a driver of a motorcycle for hire, locally known as "habal-habal", did
not own any real property in his municipality, had not filed his income tax return for the past years, and being
an independent candidate did not have any political machinery to propel his candidacy nor did he have political
supporters to help him in his campaign. Petitioner claimed that Edilito C. Martinez after the filing of his
certificate of candidacy, was never heard of again and neither did he start an electoral campaign. Given such
lack of bona fide intention of Edilito C. Martinez to run for the office for which he filed a certificate of candidacy,
petitioner contended that his candidacy would just cause confusion among the voters by the similarity of their
surnames, considering that petitioner was undeniably the frontrunner in the congressional district in the Fourth
Legislative District of Cebu as his mother, Rep. Clavel A. Martinez, was the incumbent Representative of the
district.16

The COMELEC's Second Division granted the petition and declared Edilito C. Martinez as a nuisance
candidate. It noted that the failure of said candidate to answer and deny the accusations against him clearly
disclosed the fact that he had no bona fide intention to run for public office. Thus, it concluded that his only
purpose for filing his certificate of candidacy was to put the election process into mockery and cause confusion
among the voters by the similarity of his surname with that of petitioner.17

No motion for reconsideration was filed by Edilito C. Martinez and neither did he appeal before this Court the
resolution declaring him a nuisance candidate. Said decision had thus become final and executory after five (5)
days from its promulgation in accordance with the COMELEC Rules of Procedure.18 But having come too late,
the decision was an empty victory for petitioner who lost to private respondent by a slim margin of 104 votes. In
his election protest, petitioner sought to have ballots with only "MARTINEZ" or "C. MARTINEZ" written on the
line for Representative counted in his favor. The HRET, however, considered such ballots numbering 5,401 as
stray and rejected petitioner's argument that the ruling in Bautista v. Comelec (supra) is applicable in this case.

Bautista involves a mayoralty candidate (Cipriano "Efren" Bautista) during the May 11, 1998 elections who filed
a petition to declare as nuisance candidate Edwin "Efren" Bautista, who filed a certificate of candidacy for the
same position at the last minute. The COMELEC granted the petition, declared Edwin Bautista a nuisance
candidate and ordered the cancellation of his certificate of candidacy. Consequently, Edwin Bautista's name
was not included in the official list of candidates for the position of mayor of Navotas City and copies of the list
were distributed to the boards of election inspectors (BEI). On May 8, 1998, Edwin filed a motion for
reconsideration and as a result, the Election Officer of Navotas issued a directive to the BEI to include the
name of Edwin Bautista in the certified list of candidates, only to recall said order in the afternoon. In view of
the conflicting directives, counsel for petitioner requested the COMELEC that instructions be given to the BEI to
tally separately the votes for "EFREN BAUTISTA", "EFREN", "E. BAUTISTA" and "BAUTISTA."

On May 13, 1998, the COMELEC denied Edwin Bautista's motion for reconsideration. When the canvass of the
election returns was commenced, the Municipal Board of Canvassers refused to canvass as part of the valid
votes of petitioner the separate tallies of ballots on which were written "EFREN BAUTISTA," "EFREN," "E.
BAUTISTA" and "BAUTISTA." Petitioner then filed with the COMELEC a petition to declare illegal the
proceedings of the Municipal Board of Canvassers. Meanwhile Edwin Bautista filed a petition for certiorari with
this Court assailing the actions of COMELEC declaring him a nuisance candidate and ordering the cancellation
of his certificate of candidacy. The Court dismissed said petition finding no grave abuse of discretion committed
by the COMELEC and subsequently also denied with finality the motion for reconsideration filed by Edwin
Bautista.

As to the petition to declare as illegal the proceedings of the Municipal Board of Canvassers for its refusal to
include the stray votes in the separate tally sheet, the COMELEC dismissed the same, citing Sec. 211 (4)19 of
the Omnibus Election Code. Petitioner Bautista elevated the case to the Supreme Court which ruled in his
favor, thus:
"At the outset and initially setting aside all the ramifications of the substantive issue of the instant petition, the
primordial concern of the Court is to verify whether or not on the day of the election, there was only one 'Efren
Bautista' as a validly registered candidate as far as the electorate was concerned.

"x x x

"Edwin Bautista moved for reconsideration on May 8, 1998. Unfortunately, said motion was not resolved as of
election day. Technically, the April 30, 1998 decision was not yet final as of May 11, 1998, and this technicality
created serious problems on election day.

"x x x

"An analysis of the foregoing incidents shows that the separate tallies were made to remedy any prejudice that
may be caused by the inclusion of a potential nuisance candidate in the Navotas mayoralty race. Such
inclusion was brought about by technicality, specifically Edwin Bautista's filing of a motion for reconsideration,
which prevented the April 30, 1998 resolution disqualifying him from becoming final at that time.

"Ideally, the matter should have been finally resolved prior to election day. Its pendency on election day
exposed petitioner to the evils brought about by the inclusion of a then potential, later shown in reality
to be nuisance candidate. We have ruled that a nuisance candidate is one whose certificate of candidacy is
presented and filed to cause confusion among the electorate by the similarity of the names of the registered
candidate or by other names which demonstrate that the candidate has no bona fide intention to run for the
office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true
will of the electorate (Fernandez vs. Fernandez, 36 SCRA 1 [1970]).

"It must be emphasized that the instant case involves a ground for disqualification which clearly affects the
voters' will and causes confusion that frustrates the same. This is precisely what election laws are trying to
protect. They give effect to, rather than frustrate, the will of the voter. Thus, extreme caution should be
observed before any ballot is invalidated. Further, in the appreciation of ballots, doubts are resolved in favor of
their validity. (Silverio vs. Castro,19 SCRA 521 [1967]).

"x x x x

"As discussed in the COMELEC's April 30, 1998 decision, in accordance with Section 69, Edwin Bautista was
found to be a nuisance candidate. First and foremost, he was running under the name of Edwin 'Efren'
Bautista, when it had been established that he was really known as 'Boboy' or 'Boboy Tarugo.' Second, the
following circumstances saliently demonstrate that he had no bona fide intention of running for the office for
which he filed his certificate of candidacy: He is said to be engaged in a 'buy and sell' business, but he has no
license therefor. He declared that he had a monthly income of P10,000.00 but with expenses
totalling P9,000.00. He does not own any real property. He did not file his income tax return for the years 1995
and 1996 and when asked why, he said he did not have any net income and that he was only earning enough
to defray household expenses. He even violated COMELEC rules since he failed to submit the names of
individuals who paid for his campaign materials as well as the printing press he dealt with. He did not have a
political line-up and had no funds to support his campaign expenses. He merely depended on friends whose
names he did not submit to the COMELEC. And as straightforwardly found by the COMELEC, he 'has not
demonstrated any accomplishment/achievement in his twenty-six (26) years of existence as a person that
would surely attract the electorate to choose him as their representative in government.'

"In contrast, it was shown that petitioner had previously held under his name Cipriano and appellation, 'Efren'
Bautista, various elective positions, namely: Barangay Captain of Navotas in 1962, Municipal Councilor of
Navotas in 1970, and Vice-Mayor of Navotas in 1980. He is a duly registered Naval Architect and Marine
Engineer, and a member of various civic organizations such as the Rotary Club of Navotas and the Philippine
Jaycees.

"It seems obvious to us that the votes separately tallied are not really stray votes. Then COMELEC
Chairman Bernardo P. Pardo himself, now a respected member of the Court, in his May 14, 1998
Memorandum, allowed the segregation of the votes for "Bautista," "Efren," and "Efren Bautista," and "E.
Bautista" into a separate improvised tally, for the purpose of later counting the votes. In fine, the COMELEC
itself validated the separate tallies since they were meant to be used in the canvassing later on to the
actual number of votes cast. These separate tallies actually made the will of the electorate
determinable despite the apparent confusion caused by a potential nuisance candidate. What remained
unsaid by the COMELEC Chairman was the fact that as early as May 13, 1998, the COMELEC had already
spoken and stated its final position on the issue of whether or not Edwin Bautista is a nuisance candidate. It
had already denied Edwin's motion for reconsideration in its May 13, 1998 Order x x x
"x x x x

"This important detail only shows that as of May 14, 1998, when Chairman Pardo issued the aforestated
Memorandum, Edwin Bautista had already been finally declared as a nuisance candidate by the
COMELEC. And when Edwin Bautista elevated the matter to this Court, we upheld such declaration. How then
can we consider valid the votes for Edwin Bautista whom we finally ruled as disqualified from the 1998 Navotas
mayoralty race? That is like saying one thing and doing another. These are two incompatible acts the
contrariety and inconsistency of which are all too obvious."20 [EMPHASIS SUPPLIED.]

Petitioner now invokes this Court's pronouncement in Bautista to the effect that votes indicating only the
surname of two (2) candidates should not be considered as stray but counted in favor of the bona
fide candidate after the other candidate with a similar surname was declared a nuisance candidate. In refusing
to apply the ruling in Bautista, the HRET said that the factual circumstances in said case are different, thus:

"Protestant strongly asserts that the 'MARTINEZ' or 'C. MARTINEZ' only votes be counted in his favor invoking
the ruling in the case of Bautista vs. Comelec, G.R. No. 133840, November 13, 1998 (298 SCRA 480) where
the Supreme Court held that the final and conclusive ruling on the declaration of a nuisance candidate retroacts
on the day of the election.

"We disagree.

"While the Bautista vs. Comelec case also involves a candidate declared as nuisance by the Comelec, the
case herein is not on all fours with it. x x x

"x x x

"It is clear from the foregoing facts of the Bautista case that the nuisance candidate, Edwin Bautista, was
declared as such on April 30, 1998, eleven (11) days before the May 11, 1998 elections. Although the decision
was not yet final on Election Day because of a Motion for Reconsideration that Edwin Bautista had filed on May
8, 1998, nevertheless, his name was not included in the list of candidates for the position of Mayor for
Navotas. This is not the situation in the present case for Edilito C. Martinez was not yet declared
disqualified during the May 14, 2007 elections. There were, therefore, two (2) congressional candidates on
the day of the election with "MARTINEZ" as surname, Celestino A. Martinez and Edilito C. Martinez.

"More importantly, in the Bautista case, while the Comelec's decision declaring Edwin Bautista a nuisance
candidate had not yet attained finality on election day, May 11, 1998, the voters of Navotas were informed of
such disqualification by virtue of newspaper releases and other forms of notification. The voters in said case
had constructive as well as actual knowledge of the action of the Comelec delisting Edwin Bautista as
a candidate for mayor. This is not so in the present case for Edilito C. Martinez was not yet disqualified
as nuisance candidate during the May 14, 2007 elections. There were no newspaper releases and other
forms of notification to the voters of the Fourth District of Cebu on or before May 14, 2007 elections
that Edilito C. Martinez was disqualified as a nuisance candidate."21 [EMPHASIS SUPPLIED.]

It is clear that Bautista is anchored on the factual determination that the COMELEC resolution declaring Edwin
Bautista a nuisance candidate was already final since his motion for reconsideration was already denied by the
Commission when canvassing of the votes started. Hence, the segregated and separately tallied votes
containing only the similar first names/nicknames and surnames of the two (2) candidates were considered as
not really stray votes. We held that the separate tallies validated by the COMELEC actually made the will of the
electorate determinable despite the apparent confusion caused by a nuisance candidate.

In the case at bar, there was no segregation or separate tally of votes for petitioner. Unlike in Bautista, there
was simply no opportunity for petitioner to request the segregation and separate tally of expected ballots
containing only the surname "MARTINEZ" as the resolution granting his petition was promulgated only a month
later. The HRET, while not closing its eyes to the prejudice caused to petitioner by COMELEC's inaction and
delay, as well as the disenfranchisement of the 5,401 voters, refused to credit him with those votes on the
ground that there was no way of determining the real intention of the voter.

We disagree.

The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers
is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis
of proclamation of the winning candidate. Election contests, therefore, involve the adjudication not only of
private and pecuniary interests of rival candidates, but also of paramount public interest considering the need
to dispel uncertainty over the real choice of the electorate.22

In controversies pertaining to nuisance candidates as in the case at bar, the law contemplates the likelihood of
confusion which the similarity of surnames of two (2) candidates may generate. A nuisance candidate is thus
defined as one who, based on the attendant circumstances, has no bona fide intention to run for the office for
which the certificate of candidacy has been filed, his sole purpose being the reduction of the votes of a strong
candidate, upon the expectation that ballots with only the surname of such candidate will be considered stray
and not counted for either of them.

In elections for national positions such as President, Vice-President and Senator, the sheer logistical challenge
posed by nuisance candidates gives compelling reason for the Commission to exercise its authority to
eliminate nuisance candidates who obviously have no financial capacity or serious intention to mount a
nationwide campaign. Thus we explained in Pamatong v. Commission on Elections23:

"The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who
have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest
to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State
takes into account the practical considerations in conducting elections. Inevitably, the greater the number of
candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time
and resources in preparation for the election. These practical difficulties should, of course, never exempt the
State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be
available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly
election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic
institutions. As the United States Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of
support before printing the name of a political organization and its candidates on the ballot -- the interest, if no
other,in avoiding confusion, deception and even frustration of the democratic [process].

"x x x x

"There is a need to limit the number of candidates especially in the case of candidates for national positions
because the election process becomes a mockery even if those who cannot clearly wage a national campaign
are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information
Sheet and the Official Ballots. These would entail additional costs to the government. x x x

"The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to
run in the elections. Our election laws provide various entitlements for candidates for public office, such as
watchers in every polling place, watchers in the board of canvassers, or even the receipt of electoral
contributions. Moreover, there are election rules and regulations the formulations of which are dependent on
the number of candidates in a given election.

"Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The
organization of an election with bona fide candidates standing is onerous enough. To add into the mix
candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral
process. x x x

"x x x" 24 [emphasis supplied]

Given the realities of elections in our country and particularly contests involving local positions, what emerges
as the paramount concern in barring nuisance candidates from participating in the electoral exercise is the
avoidance of confusion and frustration of the democratic process by preventing a faithful determination of the
true will of the electorate, more than the practical considerations mentioned in Pamatong. A report published by
the Philippine Center for Investigative Journalism in connection with the May 11, 1998 elections indicated that
the tactic of fielding nuisance candidates with the same surnames as leading contenders had become one (1)
"dirty trick" practiced in at least 18 parts of the country. The success of this clever scheme by political rivals or
operators has been attributed to the last-minute disqualification of nuisance candidates by the Commission,
notably its "slow-moving" decision-making.25

As illustrated in Bautista, the pendency of proceedings against a nuisance candidate on election day inevitably
exposes the bona fide candidate to the confusion over the similarity of names that affects the voter's will and
frustrates the same. It may be that the factual scenario in Bautista is not exactly the same as in this case,
mainly because the Comelec resolution declaring Edwin Bautista a nuisance candidate was issued before and
not after the elections, with the electorate having been informed thereof through newspaper releases and other
forms of notification on the day of election. Undeniably, however, the adverse effect on the voter's will was
similarly present in this case, if not worse, considering the substantial number of ballots with only "MARTINEZ"
or "C. MARTINEZ" written on the line for Representative - over five thousand - which have been declared as
stray votes, the invalidated ballots being more than sufficient to overcome private respondent's lead of only 453
votes after the recount.

Bautista upheld the basic rule that the primordial objective of election laws is to give effect to, rather than
frustrate, the will of the voter. The inclusion of nuisance candidates turns the electoral exercise into an uneven
playing field where the bona fide candidate is faced with the prospect of having a significant number of votes
cast for him invalidated as stray votes by the mere presence of another candidate with a similar surname. Any
delay on the part of the COMELEC increases the probability of votes lost in this manner. While political
campaigners try to minimize stray votes by advising the electorate to write the full name of their candidate on
the ballot, still, election woes brought by nuisance candidates persist.

The Court will not speculate on whether the new automated voting system to be implemented in the May 2010
elections will lessen the possibility of confusion over the names of candidates. What needs to be stressed at
this point is the apparent failure of the HRET to give weight to relevant circumstances that make the will of the
electoratedeterminable, following the precedent in Bautista. These can be gleaned from the findings of the
Commission on the personal circumstances of Edilito C. Martinez clearly indicating lack of serious intent to run
for the position for which he filed his certificate of candidacy, foremost of which is his sudden absence after
such filing. In contrast to petitioner who is a well-known politician, a former municipal mayor for three (3) terms
and a strong contender for the position of Representative of the Fourth Legislative District of Cebu (then
occupied by his mother), it seems too obvious that Edilito C. Martinez was far from the voters' consciousness
as he did not even campaign nor formally launch his candidacy. The HRET likewise failed to mention the total
number of votes actually cast for Edilito C. Martinez, which can support petitioner's contention that the
"MARTINEZ" and "C. MARTINEZ" votes could not have been intended as votes for Edilito C. Martinez.

Petitioner should not be prejudiced by COMELEC's inefficiency and lethargy. Nor should the absence of
objection over straying of votes during the actual counting bar petitioner from raising the issue in his election
protest. The evidence clearly shows that Edilito C. Martinez, who did not even bother to file an answer and
simply disappeared after filing his certificate of candidacy, was an unknown in politics within the district, a
"habal-habal" driver who had neither the financial resources nor political support to sustain his candidacy. The
similarity of his surname with that of petitioner was meant to cause confusion among the voters and spoil
petitioner's chances of winning the congressional race for the Fourth Legislative District of Cebu. As it turned
out, there were thousands of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for
Representative, votes considered stray by the BEI and not counted in favor of petitioner, and which the HRET
affirmed to be invalid votes. Had the Commission timely resolved the petition to declare Edilito C. Martinez a
nuisance candidate, all such ballots with "MARTINEZ" or "C. MARTINEZ" would have been counted in favor of
petitioner and not considered stray, pursuant to COMELEC Resolution No. 4116,26 issued in relation to the
finality of resolutions or decisions in disqualification cases, which provides:

"This pertains to the finality of decisions or resolutions of the Commission en banc or division, particularly on
Special Actions (Disqualification Cases).

Special Action cases refer to the following:

(a) Petition to deny due course to a certificate of candidacy;

(b) Petition to declare a candidate as a nuisance candidate;

(c) Petition to disqualify a candidate; and

(d) Petition to postpone or suspend an election.

Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions on
special action cases (disqualification cases) the Commission, RESOLVES, as it is hereby RESOLVED, as
follows:

(1) the decision or resolution of the En Banc of the Commission on disqualification cases shall become
final and executory after five (5) days from its promulgation unless restrained by the Supreme Court;
 xxx

(4) the decision or resolution of the En Banc on nuisance candidates, particularly whether the nuisance
candidate has the same name as the bona fide candidate shall be immediately executory;

(5) the decision or resolution of a DIVISION on nuisance candidate, particularly where the
nuisance candidate has the same name as the bona fide candidate shall be immediately
executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed. In
which case, the votes cast shall not be considered stray but shall be counted and tallied for the
bona fide candidate.

All resolutions, orders and rules inconsistent herewith are hereby modified or repealed." [emphasis supplied.]

We held in several cases that the judgments of the Electoral Tribunals are beyond judicial interference, unless
rendered without or in excess of their jurisdiction or with grave abuse of discretion.27 The power of judicial
review may be invoked in exceptional cases upon a clear showing of such arbitrary and improvident use by the
Tribunal of its power as constitutes a clear denial of due process of law, or upon a demonstration of a very
clear unmitigated error, manifestly constituting such grave abuse of direction that there has to be a remedy for
such abuse.28 Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to
lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. The
grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty
enjoined by law.29 Respondent HRET gravely abused its discretion in affirming the proclamation of respondent
Salimbangon as the duly elected Representative of the Fourth Legislative District of Cebu despite the final
outcome of revision showing 5,401 ballots with only "MARTINEZ" or "C. "MARTINEZ" written on the line for
Representative, votes which should have been properly counted in favor of petitioner and not nullified as stray
votes, after considering all relevant circumstances clearly establishing that such votes could not have been
intended for "Edilito C. Martinez" who was declared a nuisance candidate in a final judgment.

Ensconced in our jurisprudence is the well-founded rule that laws and statutes governing election contests
especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the
choice of public officials may not be defeated by technical infirmities. An election protest is imbued with public
interest so much so that the need to dispel uncertainties which becloud the real choice of the people is
imperative. 30 The prohibition against nuisance candidates is aimed precisely at preventing uncertainty and
confusion in ascertaining the true will of the electorate. Thus, in certain situations as in the case at bar, final
judgments declaring a nuisance candidate should effectively cancel the certificate of candidacy filed by such
candidate as of election day. Otherwise, potential nuisance candidates will continue to put the electoral process
into mockery by filing certificates of candidacy at the last minute and delaying resolution of any petition to
declare them as nuisance candidates until elections are held and the votes counted and canvassed.

We therefore hold that ballots indicating only the similar surname of two (2) candidates for the same position
may, in appropriate cases, be counted in favor of the bona fide candidate and not considered stray, even if the
other candidate was declared a nuisance candidate by final judgment after the elections. Accordingly, the
5,401 votes for "MARTINEZ" or "C. MARTINEZ" should be credited to petitioner giving him a total
of 72,056 votes as against 67,108total votes of private respondent. Petitioner thus garnered more votes than
private respondent with a winning margin of 4,948 votes.

WHEREFORE, the petition is GRANTED. The Decision dated May 28, 2009 and Resolution dated July 30,
2009 of the House of Representatives Electoral Tribunal in HRET Case No. 07-035 are ANNULLED and SET
ASIDE. Petitioner Celestino A. Martinez III is hereby declared the duly elected Representative of the Fourth
Legislative District of Cebu in the May 14, 2007 elections. This decision is immediately executory.

Let a copy of the decision be served personally upon the parties and their counsels.

No pronouncement as to costs.

SO ORDERED.

A.M. No. SCC-98-4 March 22, 2011

ASHARY M. ALAUYA, Clerk of Court, Shari'a District Court, Marawi City, Complainant,
vs.
JUDGE CASAN ALI L. LIMBONA, Shari'a Circuit Court, Lanao del Sur, Respondent.
 DECISION

PER CURIAM:

Before the Court is the present administrative matter against Judge Casan Ali Limbona, Tenth Sharia Circuit
Court (10th SCC), Tamparan, Lanao del Sur. This matter is the subject of the Memorandum/Report of the
Office of the Court Administrator (OCA) dated August 7, 2000.1

The Factual Antecedents

The facts of the case, culled from the OCA report and the case record, are summarized below.

(1) The OCA received on July 31, 1998 a letter dated July 13, 1998 addressed to then Court
Administrator Alfredo L. Benipayo,2 signed by Datu Ashary M. Alauya (Alauya), Clerk of Court, 10th
SSC, Marawi City.

Alauya reported that numerous verbal complaints had been received against Judge Casan Ali Limbona
(Judge Limbona) for: (a) not reporting to his station at the SCC in Tamparan, Lanao del Sur; (b) having
filed a certificate of candidacy as a party-list candidate of the Development Foundation of the
Philippines (DFP) while serving in the Judiciary and while receiving his salary as a judge; and (c)
obtaining from the post office, without sufficient authority, checks representing benefits for court
employees.

(2) A request from a "concerned citizen"3 that the court in Tamparan, Lanao del Sur, be moved to
Cotobato City where Judge Limbona resided since the judge had been reporting to Tamparan only
once a year since 1994.

Upon the OCAs inquiry,4 the Commission on Elections (COMELEC) confirmed that based on their
records, a certain Casan Ali L. Limbona filed his certificate as a party-list candidate of the DFP in the
May 11, 1998 elections.5

The OCA confirmed, too, that Judge Limbona failed to submit any notice or information about his candidacy; for
this reason, the Judge continued to draw his salary as a judge. The OCA forthwith advised the Finance
Services Office to discontinue the payment of Judge Limbonas salary.

On January 27, 1999, the Court resolved to: (1) treat Alauyas letter as an administrative complaint against
Judge Limbona; (2) direct Judge Limbona to comment; (3) explain why he did not inform the OCA that he ran
for public office in the May 1998 elections; and (4) immediately refund the salaries/allowances he received from
March to November 1998.6

In a letter dated December 28, 1998 addressed to the OCA, Judge Limbona denied that he consented to be a
nominee of DFP in the May 1998 elections. To prove his point, he submitted the affidavit7 of Datu Solaiman A.
Malambut, DFPs National President, admitting sole responsibility for his "honest mistake" and "malicious
negligence and act of desperation" in including the name of Judge Limbona among the partys list of nominees.

While Judge Limbona professed awareness of the rule that appointed government officials are considered
resigned on the date of the filing of their certificates of candidacy, he was not aware of any legal opinion or
ruling applicable to his case.

Alauya, on the other hand, denied authorship of the letter against Judge Limbona and requested that his name
be stricken from the records as complainant in the case.8

In his comment dated April 26, 1998,9 Judge Limbona branded as "purely malicious and unfounded" the
allegations that he and his staff were not reporting at the 10th SCC in Tamparan, Lanao del Sur. In support of
his claim, the judge submitted the joint affidavit10 of several members of his staff certifying that the public had
been transacting business daily with their office at the Memorial Building in Tamparan. Members of his staff
also vouched for Judge Limbonas leadership, intelligence, diligence and contributions to the welfare of the
community. The judge also submitted a certification dated April 8, 199911 from the municipal mayor of
Tamparan, Datu Topa-an D. Disomimba, attesting that the establishment of the 10th SCC in Tamparan has
contributed to the maintenance of peace and order in the area, and that Judge Limbonas leadership has been
excellent.
Judge Limbona reiterated his denial that he filed a certificate of candidacy for the May 11, 1998 elections. He
explained that he had no knowledge of his supposed candidacy until he learned about it from the OCA and this
Court. Because he was never a candidate, he continued performing his duties as a judge.

Also on April 26, 1999, Judge Limbona filed a motion for reconsideration12 of the Courts January 27, 1999
Resolution maintaining his lack of knowledge of the filing of his candidacy. On May 10, 1999, Judge Limbona
filed another motion for reconsideration13 of the same Resolution, submitting fresh arguments as follows:

(1) his alleged certificate of candidacy and acceptance bore discrepancies in the signature, thumbprints
and community tax certificate numbers;

(2) the Courts order withholding the release of his salaries without giving him the opportunity to be
heard violated his right to due process; and

(3) the resolution of the Court ordering him to refund the salaries he received from March 26, 1998 to
November 30, 1998 likewise deprived him of due process as it meant he had already been adjudged
guilty of the charges.

In a Memorandum/Report dated October 18, 1999,14 the OCA apprised the Court of developments in the case.
The OCA noted that the charges against Judge Limbona that needed to be addressed were: (1) Judge
Limbonas alleged filing of a certificate of candidacy as a party-list representative in the May 1998 elections, in
violation of the rule on partisan political activity, and (2) Judge Limbonas neglect of his duties as a judge.

On the first charge, the OCA disbelieved Judge Limbonas assertion that he did not consent to the inclusion of
his name in the certificate of candidacy filed before the COMELEC and that his inclusion was purely due to the
carelessness of the person who prepared the certificate. The OCA nevertheless took the view that a positive
identification of the judges participation in the filing of the certificate of candidacy was needed to fully resolve
the matter.

The OCA, however, found that the second charge of non-performance or neglect of duty (due to absenteeism)
stood unsubstantiated and was, in fact, negated by the joint affidavit15 of the staff members of the 10th SCC in
Tamparan, Lanao del Sur and the certification16 of the municipal mayor vouching for the judges leadership,
diligence and contribution to the maintenance of peace and order in the community.

The OCA recommended that the National Bureau of Investigation (NBI) be asked to determine the authenticity
of Judge Limbonas signatures on the certificate of candidacy as DFP representative in the May 1998
congressional elections, and that Judge Limbona be suspended as a judge until the matter is finally resolved.

The Court (Third Division) approved the OCA recommendation.17

On July 7, 2000, the NBI, through Deputy Director Sancho K. Chan, Jr., submitted to the OCA its report on the
matter18 with the following findings:

FINDINGS: Comparative examination of the specimens received under the stereocopic microscope, hand lens
and with the aid of photographic enlargement reveals significant similarities in habit handwriting characteristics
existing between the questioned and the standard sample signatures of Casan Ali Limbona, to wit:

- structural pattern of letter elements -

- Directions of strokes

- Manner of execution

- Other identifying details

CONCLUSION: The questioned and the standard sample signatures Casan Ali L. Limbona WERE WRITTEN
by one and the same person.""

The NBI findings and conclusion that Judge Limbona himself signed the certificate of candidacy validated the
OCAs initial doubts on Judge Limbonas avowals of innocence about his participation in the May 1998
elections and his claim that the signatures appearing on the certificate of candidacy were forged.
 The OCA Recommendation and Related Incidents

The OCA recommended that Judge Limbona be found guilty of dishonesty and be dismissed from the service
with forfeiture of retirement and other privileges, if any, and be barred from re-employment in the public service,
and that he be made to refund all salaries/allowances he received from March 26, 1998 to November 30, 1998
without prejudice to the filing of an appropriate case in court.

In a related development, the Court (Second Division) issued a Resolution dated June 16, 2003 in A.M. No.
SCC-03-08, entitled Emelyn A. Limbona v. Judge Casan Ali Limbona, forwarding to the Third Division for
consideration under the present case, the charge that the respondent judge continued to perform his functions
and to receive his salaries as judge after he had filed a certificate of candidacy in the May 1998 elections.

The Courts Ruling

We find the OCAs recommendation to be well-founded. Judge Limbona committed grave offenses which
rendered him unfit to continue as a member of the Judiciary. When he was appointed as a judge, he took an
oath to uphold the law, yet in filing a certificate of candidacy as a party-list representative in the May 1998
elections without giving up his judicial post, Judge Limbona violated not only the law, but the constitutional
mandate that "no officer or employee in the civil service shall engage directly or indirectly, in any electioneering
or partisan political campaign."19

The NBI investigation on the authenticity of Judge Limbonas signatures on the certificate of candidacy
unqualifiedly established that the judge signed the certificate of candidacy for the May 1998 elections, thus
negating his claim that his signatures were forged. The filing of a certificate of candidacy is a partisan political
activity as the candidate thereby offers himself to the electorate for an elective post.1avv phi1

For his continued performance of his judicial duties despite his candidacy for a political post, Judge Limbona is
guilty of grave misconduct in office. While we cannot interfere with Judge Limbonas political aspirations, we
cannot allow him to pursue his political goals while still on the bench. We cannot likewise allow him to deceive
the Judiciary. We find relevant the OCAs observation on this point:

"x x x Judge Limbonas concealment of his direct participation in the 1998 elections while remaining in the
judiciarys payroll and his vain attempt to mislead the Court by his claim of forgery, are patent acts of
dishonesty rendering him unfit to remain in the judiciary."

In light of the gravity of Judge Limbonas infractions, we find OCAs recommended penalty of dismissal to be
appropriate. Under the Rules of Court, dishonesty and gross misconduct are punishable by dismissal.20 We
also approve the OCA recommendation that Judge Limbona be made to refund the salaries/allowances he
received from March 26, 1998 to November 30, 1998. With this ruling, we likewise resolve the charge against
Judge Limbona referred to us by the Courts Second Division in its June 16, 2003 Resolution in A.M. No.
SCC-03-08 that the respondent judge continued to perform judicial functions and to receive his salaries as
judge after he had filed a certificate of candidacy in the May 1998 elections.

WHEREFORE, premises considered, Judge Casan Ali L. Limbona is declared GUILTY OF GROSS
MISCONDUCT and DISHONESTY and is declared DISMISSED from the service effective March 26, 1998, the
date of the filing of his certificate of candidacy, with FORFEITURE of all accrued retirement benefits and other
monetary entitlements, if any. He is BARRED from re-employment in the government, including government-
owned and controlled corporation. Judge Limbona is DIRECTED TO REFUND the salaries, allowances and
other benefits he received from March 26, 1998 to November 30, 1998, within 10 days from the finality of this
Decision.

This Decision is without prejudice to appropriate criminal and civil cases that may be filed against Judge
Limbona for the acts he committed. Let a copy of this Decision be served on the Ombudsman for whatever
action it may deem appropriate.

SO ORDERED.

G.R. No. 168550 August 10, 2006

URBANO M. MORENO, Petitioner,

vs.
COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICO-NAZARIO, Respondents.
 DECISION

TINGA, J.:

In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution 2 of the Commission on
Elections (Comelec) en banc dated June 1, 2005, affirming the Resolution 3 of the Comelec First Division dated
November 15, 2002 which, in turn, disqualified him from running for the elective office of Punong Barangay of
Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan
Elections.

The following are the undisputed facts:

Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on the ground
that the latter was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to suffer
imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months by the Regional Trial
Court, Branch 28 of Catbalogan, Samar on August 27, 1998.

Moreno filed an answer averring that the petition states no cause of action because he was already granted
probation. Allegedly, following the case of Baclayon v. Mutia, 4 the imposition of the sentence of imprisonment,
as well as the accessory penalties, was thereby suspended. Moreno also argued that under Sec. 16 of the
Probation Law of 1976 (Probation Law), the final discharge of the probation shall operate to restore to him all
civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed.
The order of the trial court dated December 18, 2000 allegedly terminated his probation and restored to him all
the civil rights he lost as a result of his conviction, including the right to vote and be voted for in the July 15,
2002 elections.

The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary hearing.
After due proceedings, the Investigating Officer recommended that Moreno be disqualified from running for
Punong Barangay.

The Comelec First Division adopted this recommendation. On motion for reconsideration filed with the
Comelec en banc, the Resolution of the First Division was affirmed. According to the Comelec en banc, Sec.
40(a) of the Local Government Code provides that those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence, are disqualified from running for any elective local position. 5 Since Moreno was released
from probation on December 20, 2000, disqualification shall commence on this date and end two (2) years
thence. The grant of probation to Moreno merely suspended the execution of his sentence but did not affect his
disqualification from running for an elective local office.

Further, the Comelec en banc held that the provisions of the Local Government Code take precedence over
the case of Baclayon v. Mutia cited by Moreno and the Probation Law because it is a much later enactment
and a special law setting forth the qualifications and disqualifications of elective local officials.

In this petition, Moreno argues that the disqualification under the Local Government Code applies only to those
who have served their sentence and not to probationers because the latter do not serve the adjudged
sentence. The Probation Law should allegedly be read as an exception to the Local Government Code
because it is a special law which applies only to probationers. Further, even assuming that he is disqualified,
his subsequent election as Punong Barangay allegedly constitutes an implied pardon of his previous
misconduct.

In its Comment 6 dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor General argues
that this Court in Dela Torre v. Comelec 7 definitively settled a similar controversy by ruling that conviction for
an offense involving moral turpitude stands even if the candidate was granted probation. The disqualification
under Sec. 40(a) of the Local Government Code subsists and remains totally unaffected notwithstanding the
grant of probation.

Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his arguments and pointing out material
differences between his case and Dela Torre v. Comelec which allegedly warrant a conclusion favorable to
him. According to Moreno, Dela Torre v. Comelec involves a conviction for violation of the Anti-Fencing Law,
an offense involving moral turpitude covered by the first part of Sec. 40(a) of the Local Government Code. Dela
Torre, the petitioner in that case, applied for probation nearly four (4) years after his conviction and only after
appealing his conviction, such that he could not have been eligible for probation under the law.
In contrast, Moreno alleges that he applied for and was granted probation within the period specified therefor.
He never served a day of his sentence as a result. Hence, the disqualification under Sec. 40(a) of the Local
Government Code does not apply to him.

The resolution of the present controversy depends on the application of the phrase "within two (2) years after
serving sentence" found in Sec. 40(a) of the Local Government Code, which reads:

Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable
by one (1) year or more of imprisonment, within two (2) years after serving sentence; [Emphasis
supplied.]

....

We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the crime of
which Moreno was convicted by final judgment, involves moral turpitude falling under the first part of the above-
quoted provision. The question of whether Arbitrary Detention is a crime involving moral turpitude was never
raised in the petition for disqualification because the ground relied upon by Mejes, and which the Comelec
used in its assailed resolutions, is his alleged disqualification from running for a local elective office within two
(2) years from his discharge from probation after having been convicted by final judgment for an offense
punishable by Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months. Besides, a
determination that the crime of Arbitrary Detention involves moral turpitude is not decisive of this case, the
crucial issue being whether Morenos sentence was in fact served.

In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the grant of
probation does not affect the disqualification under Sec. 40(a) of the Local Government Code was based
primarily on the finding that the crime of fencing of which petitioner was convicted involves moral turpitude, a
circumstance which does not obtain in this case. At any rate, the phrase "within two (2) years after serving
sentence" should have been interpreted and understood to apply both to those who have been sentenced by
final judgment for an offense involving moral turpitude and to those who have been sentenced by final
judgment for an offense punishable by one (1) year or more of imprisonment. The placing of the comma (,) in
the provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government Code.

The Courts declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we should add,
ought to be considered an obiter in view of the fact that Dela Torre was not even entitled to probation because
he appealed his conviction to the Regional Trial Court which, however, affirmed his conviction. It has been held
that the perfection of an appeal is a relinquishment of the alternative remedy of availing of the Probation Law,
the purpose of which is to prevent speculation or opportunism on the part of an accused who, although already
eligible, did not at once apply for probation, but did so only after failing in his appeal. 9

Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase "service of
sentence," understood in its general and common sense, means the confinement of a convicted

person in a penal facility for the period adjudged by the court. 10 This seemingly clear and unambiguous
provision, however, has spawned a controversy worthy of this Courts attention because the Comelec, in the
assailed resolutions, is alleged to have broadened the coverage of the law to include even those who did not
serve a day of their sentence because they were granted probation.

Moreno argues, quite persuasively, that he should not have been disqualified because he did not serve the
adjudged sentence having been granted probation and finally discharged by the trial court.

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is
rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to petitioner
suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of
suspension from public office and from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph
which required that petitioner refrain from continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the
right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage,
attendant to the penalty of arresto mayor in its maximum period to prision correccional in its minimum
period 11 imposed upon Moreno were similarly suspended upon the grant of probation.
It appears then that during the period of probation, the probationer is not even disqualified from running for a
public office because the accessory penalty of suspension from public office is put on hold for the duration of
the probation.

Clearly, the period within which a person is under probation cannot be equated with service of the sentence
adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution
of the sentence. During the period of probation, 12 the probationer does not serve the penalty imposed upon
him by the court but is merely required to comply with all the conditions prescribed in the probation order. 13

It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case. They focused
on the fact that Morenos judgment of conviction attained finality upon his application for probation instead of
the question of whether his sentence had been served.

The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec. 40(a) of the
Local Government Code unequivocally disqualifies only those who have been sentenced by final judgment for
an offense punishable by imprisonment of one (1) year or more, within two (2) years after serving sentence.

This is as good a time as any to clarify that those who have not served their sentence by reason of the grant of
probation which, we reiterate, should not be equated with service of sentence, should not likewise be
disqualified from running for a local elective office because the two (2)-year period of ineligibility under Sec.
40(a) of the Local Government Code does not even begin to run.

The fact that the trial court already issued an order finally discharging Moreno fortifies his position. Sec. 16 of
the Probation Law provides that "[t]he final discharge of the probationer shall operate to restore to him all civil
rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to
the offense for which probation was granted." Thus, when Moreno was finally discharged upon the courts
finding that he has fulfilled the terms and conditions of his probation, his case was deemed terminated and all
civil rights lost or suspended as a result of his conviction were restored to him, including the right to run for
public office.

Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives room for
judicial interpretation, 14 our conclusion will remain the same.

It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the intended
meaning of the phrase "service of sentence," i.e., whether the legislature also meant to disqualify those who
have been granted probation. The Courts function, in the face of this seeming dissonance, is to interpret and
harmonize the Probation Law and the Local Government Code. Interpretare et concordare legis legibus est
optimus interpretandi.

Probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity conferred
by the state, which is granted to a deserving defendant who thereby escapes the extreme rigors of the penalty
imposed by law for the offense of which he was convicted. 15 Thus, the Probation Law lays out rather stringent
standards regarding who are qualified for probation. For instance, it provides that the benefits of probation shall
not be extended to those sentenced to serve a maximum term of imprisonment of more than six (6) years;
convicted of any offense against the security of the State; those who have previously been convicted by final
judgment of an offense punished by imprisonment of not less than one (1) month and one (1) day and/or a fine
of not less than P200.00; those who have been once on probation; and those who are already serving
sentence at the time the substantive provisions of the Probation Law became applicable. 16

It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers offenses
punishable by one (1) year or more of imprisonment, a penalty which also covers probationable offenses. In
spite of this, the provision does not specifically disqualify probationers from running for a local elective office.
This omission is significant because it offers a glimpse into the legislative intent to treat probationers as a
distinct class of offenders not covered by the disqualification.

Further, it should be mentioned that the present Local Government Code was enacted in 1991, some seven (7)
years after Baclayon v. Mutia was decided. When the legislature approved the enumerated disqualifications
under Sec. 40(a) of the Local Government Code, it is presumed to have knowledge of our ruling in Baclayon v.
Mutia on the effect of probation on the disqualification from holding public office. That it chose not to include
probationers within the purview of the provision is a clear expression of the legislative will not to disqualify
probationers.
On this score, we agree with Moreno that the Probation Law should be construed as an exception to the Local
Government Code. While the Local Government Code is a later law which sets forth the qualifications and
disqualifications of local elective officials, the Probation Law is a special legislation which applies only to
probationers. It is a canon of statutory construction that a later statute, general in its terms and not expressly
repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute. 17

In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the disqualification
to include Moreno, the Comelec committed an egregious error which we here correct. We rule that Moreno was
not disqualified to run for Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002
Synchronized Barangay and Sangguniang Kabataan Elections.

Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime of
Arbitrary Detention. He claims to have obtained a fresh mandate from the people of Barangay Cabugao,
Daram, Samar in the July 15, 2002 elections. This situation calls to mind the poignant words of Mr. Justice now
Chief Justice Artemio Panganiban in Frivaldo v. Comelec 18 where he said that "it would be far better to err in
favor of popular sovereignty than to be right in complex but little understood legalisms."

WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en banc dated June
1, 2005 and the Resolution of its First Division dated November 15, 2002, as well as all other actions and
orders issued pursuant thereto, are ANNULLED and SET ASIDE. The Commission on Elections is directed to
proceed in accordance with this Decision. No pronouncement as to costs.

SO ORDERED.

G.R. No. 198742 August 10, 2012

TEODORA SOBEJANA-CONDON, Petitioner,

vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P.
PAGADUAN,Respondents.

SERENO,*

PERLAS-BERNABE, JJ *

DECISION

REYES, J.:

Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.)
No. 9225 renders a dual citizen ineligible to run for and thus hold any elective public office.

The Case

At bar is a special civil action for certiorari1 under Rule 64 of the Rules of Court seeking to nullify
Resolution2 dated September 6, 2011 of the Commission on Elections (COMELEC) en banc in EAC (AE) No.
A-44-2010. The assailed resolution (a) reversed the Order3 dated November 30, 2010 of COMELEC Second
Division dismissing petitioners appeal; and (b) affirmed the consolidated Decision4 dated October 22, 2010 of
the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora Sobejana-Condon
(petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union.

The Undisputed Facts

The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8, 1944. On
December 13, 1984, she became a naturalized Australian citizen owing to her marriage to a certain Kevin
Thomas Condon.

On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the Philippine
Embassy in Canberra, Australia pursuant to Section 3 of R.A. No. 9225 otherwise known as the "Citizenship
Retention and Re-Acquisition Act of 2003."5 The application was approved and the petitioner took her oath of
allegiance to the Republic of the Philippines on December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian Citizenship
before the Department of Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the
Order dated September 27, 2006 certifying that she has ceased to be an Australian citizen.6

The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in her bid. She
again sought elective office during the May 10, 2010 elections this time for the position of Vice-Mayor. She
obtained the highest numbers of votes and was proclaimed as the winning candidate. She took her oath of
office on May 13, 2010.

Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan7 and Luis M. Bautista,8 (private
respondents) all registered voters of Caba, La Union, filed separate petitions for quo warranto questioning the
petitioners eligibility before the RTC. The petitions similarly sought the petitioners disqualification from holding
her elective post on the ground that she is a dual citizen and that she failed to execute a "personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" as
imposed by Section 5(2) of R.A. No. 9225.

The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to be an
Australian citizen. She claimed that the Declaration of Renunciation of Australian Citizenship she executed in
Australia sufficiently complied with Section 5(2), R.A. No. 9225 and that her act of running for public office is a
clear abandonment of her Australian citizenship.

Ruling of the RTC

In its consolidated Decision dated October 22, 2010, the trial court held that the petitioners failure to comply
with Section 5(2) of R.A. No. 9225 rendered her ineligible to run and hold public office. As admitted by the
petitioner herself during trial, the personal declaration of renunciation she filed in Australia was not under oath.
The law clearly mandates that the document containing the renunciation of foreign citizenship must be sworn
before any public officer authorized to administer oath. Consequently, the RTCs decision disposed as follows:

WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents] and
AGAINST (petitioner):

1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the office of
Vice-Mayor of Caba, La Union;

2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; and

3) DECLARING the position of Vice-Mayor in said municipality vacant.

SO ORDERED.9

Ruling of the COMELEC

The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in its
Order10 dated November 30, 2010 for failure to pay the docket fees within the prescribed period. On motion for
reconsideration, the appeal was reinstated by the COMELEC en banc in its Resolution11 dated September 6,
2011. In the same issuance, the substantive merits of the appeal were given due course. The COMELEC en
banc concurred with the findings and conclusions of the RTC; it also granted the Motion for Execution Pending
Appeal filed by the private respondents.

The decretal portion of the resolution reads:

WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as follows:

1. To DISMISS the instant appeal for lack of merit;

2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and

3. To GRANT the Motion for Execution filed on November 12, 2010.

SO ORDERED.12 (Emphasis supplied)

Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc.

The Petitioners Arguments

The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006, she no
longer held dual citizenship and was only a Filipino citizen when she filed her certificate of candidacy as early
as the 2007 elections. Hence, the "personal and sworn renunciation of foreign citizenship" imposed by Section
5(2) of R.A. No. 9225 to dual citizens seeking elective office does not apply to her.

She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In support
thereof, she cites portions of the Journal of the House of Representatives dated June 2 to 5, 2003 containing
the sponsorship speech for House Bill (H.B.) No. 4720, the precursor of R.A. No. 9225.

She claims that the private respondents are estopped from questioning her eligibility since they failed to do so
when she filed certificates of candidacy for the 2007 and 2010 elections.

Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive merits of
her appeal instead of remanding the same to the COMELEC Second Division for the continuation of the appeal
proceedings; and (b) allow the execution pending appeal of the RTCs judgment.

The Issues

Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the merits of an
appeal after ruling on its reinstatement; II) Whether the COMELEC en banc may order the execution of a
judgment rendered by a trial court in an election case; III) Whether the private respondents are barred from
questioning the qualifications of the petitioner; and IV) For purposes of determining the petitioners eligibility to
run for public office, whether the "sworn renunciation of foreign citizenship" in Section 5(2) of R.A. No. 9225 is
a mere pro-forma requirement.

The Courts Ruling

I. An appeal may be simultaneously

reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.

The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC en banc by
Section 3, Article IX-C of the Constitution, viz:

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 of decisions
shall be decided by the Commission en banc.

A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure, to wit:

Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the
Commission en banc except motions on interlocutory orders of the division which shall be resolved by the
division which issued the order.

Considering that the above cited provisos do not set any limits to the COMELEC en bancs prerogative in
resolving a motion for reconsideration, there is nothing to prevent the body from directly adjudicating the
substantive merits of an appeal after ruling for its reinstatement instead of remanding the same to the division
that initially dismissed it.

We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en banc when
it proceeded to decide the substantive merits of the petitioners appeal after ruling for its reinstatement.

Further, records show that, in her motion for reconsideration before the COMELEC en banc, the petitioner not
only proffered arguments on the issue on docket fees but also on the issue of her eligibility. She even filed a
supplemental motion for reconsideration attaching therewith supporting documents13 to her contention that she
is no longer an Australian citizen. The petitioner, after obtaining an unfavorable decision, cannot be permitted
to disavow the en bancs exercise of discretion on the substantial merits of her appeal when she herself
invoked the same in the first place.

The fact that the COMELEC en banc had remanded similar appeals to the Division that initially dismissed them
cannot serve as a precedent to the disposition of the petitioners appeal. A decision or resolution of any
adjudicating body can be disposed in several ways. To sustain petitioners argument would be virtually putting
a straightjacket on the COMELEC en bancs adjudicatory powers.

More significantly, the remand of the appeal to the COMELEC Second Division would be unnecessarily
circuitous and repugnant to the rule on preferential disposition of quo warranto cases espoused in Rule 36,
Section 15 of the COMELEC Rules of Procedure.14

II. The COMELEC en banc has the

power to order discretionary
execution of judgment.

We cannot subscribe to petitioners submission that the COMELEC en banc has no power to order the
issuance of a writ of execution and that such function belongs only to the court of origin.

There is no reason to dispute the COMELECs authority to order discretionary execution of judgment in view of
the fact that the suppletory application of the Rules of Court is expressly sanctioned by Section 1, Rule 41 of
the COMELEC Rules of Procedure.15

Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an appellate court
after the trial court has lost jurisdiction. In Batul v. Bayron,16 we stressed the import of the provision vis--vis
election cases when we held that judgments in election cases which may be executed pending appeal includes
those decided by trial courts and those rendered by the COMELEC whether in the exercise of its original or
appellate jurisdiction.

III. Private respondents are not

estopped from questioning
petitioners eligibility to hold public
office.

The fact that the petitioners qualifications were not questioned when she filed certificates of candidacy for
2007 and 2010 elections cannot operate as an estoppel to the petition for quo warranto before the RTC.

Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a petition
questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy
was filed can be raised, to wit:

(1) Before election, pursuant to Section 78 thereof which provides that:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny
due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that
any material representation contained therein as required under Section 74 hereof is false. The petition may be
filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than fifteen days before the election; and

(2) After election, pursuant to Section 253 thereof, viz:

Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang
Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the
Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election. (Emphasis ours)

Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the
twenty-five (25)-day period prescribed by Section 78 of the Omnibus Election Code for whatever reasons, the
elections laws do not leave him completely helpless as he has another chance to raise the disqualification of
the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of
the election, as provided under Section 253 of the Omnibus Election Code.17
The above remedies were both available to the private respondents and their failure to utilize Section 78 of the
Omnibus Election Code cannot serve to bar them should they opt to file, as they did so file, a quo warranto
petition under Section 253.

IV. Petitioner is disqualified from

running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.

R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens who have
lost their Philippine citizenship18 by taking an oath of allegiance to the Republic, thus:

Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-
born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the
following oath of allegiance to the Republic:

"I, _____________________, solemnly swear (or affirm) that I will support and defend the Constitution
of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly
constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme
authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this
obligation upon myself voluntarily without mental reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country
shall retain their Philippine citizenship upon taking the aforesaid oath.

The oath is an abbreviated repatriation process that restores ones Filipino citizenship and all civil and political
rights and obligations concomitant therewith, subject to certain conditions imposed in Section 5, viz:

Sec. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under
this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following conditions:

(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of
the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and
other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public
office as required by the Constitution and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of
the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they
renounce their oath of allegiance to the country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a
license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by,
or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens;
and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country
which they are naturalized citizens. (Emphasis ours)

Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino citizenship
when she took an Oath of Allegiance to the Republic of the Philippines on December 5, 2005. At that point, she
held dual citizenship, i.e., Australian and Philippine.
On September 18, 2006, or a year before she initially sought elective public office, she filed a renunciation of
Australian citizenship in Canberra, Australia. Admittedly, however, the same was not under oath contrary to the
exact mandate of Section 5(2) that the renunciation of foreign citizenship must be sworn before an officer
authorized to administer oath.

To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to interpret the
"sworn renunciation of any and all foreign citizenship" in Section 5(2) to be a mere pro forma requirement in
conformity with the intent of the Legislature. She anchors her submission on the statement made by
Representative Javier during the floor deliberations on H.B. No. 4720, the precursor of R.A. No. 9225.

At the outset, it bears stressing that the Courts duty to interpret the law according to its true intent is exercised
only when the law is ambiguous or of doubtful meaning. The first and fundamental duty of the Court is to apply
the law. As such, when the law is clear and free from any doubt, there is no occasion for construction or
interpretation; there is only room for application.19 Section 5(2) of R.A. No. 9225 is one such instance.

Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of
referring to two or more things at the same time. For a statute to be considered ambiguous, it must admit of two
or more possible meanings.20

The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC,21 we declared its categorical
and single meaning: a Filipino American or any dual citizen cannot run for any elective public position in the
Philippines unless he or she personally swears to a renunciation of all foreign citizenship at the time of filing the
certificate of candidacy. We also expounded on the form of the renunciation and held that to be valid, the
renunciation must be contained in an affidavit duly executed before an officer of the law who is authorized to
administer an oath stating in clear and unequivocal terms that affiant is renouncing all foreign citizenship.

The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos re-acquiring or retaining their
Philippine citizenship under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run
for elective posts in the Philippines, thus:

The law categorically requires persons seeking elective public office, who either retained their Philippine
citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign
citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of the
certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as
citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of
allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the
Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before
an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as
candidates in Philippine elections.

Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and
all foreign citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to
accomplish an undertaking other than that which they have presumably complied with under Section 3 thereof
(oath of allegiance to the Republic of the Philippines). This is made clear in the discussion of the Bicameral
Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on 18
August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon.
Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the oath of allegiance is
different from the renunciation of foreign citizenship;

xxxx

The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under
Republic Act No. 9225 to take their oath of allegiance to the Republic of the Philippines, but also to explicitly
renounce their foreign citizenship if they wish to run for elective posts in the Philippines. To qualify as a
candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine
citizenship.23 (Citation omitted and italics and underlining ours)

Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to be disqualified from running for the
position of vice-mayor for his failure to make a personal and sworn renunciation of his American citizenship.
We find no reason to depart from the mandatory nature infused by the above rulings to the phrase "sworn
renunciation". The language of the provision is plain and unambiguous. It expresses a single, definite, and
sensible meaning and must thus be read literally.25 The foreign citizenship must be formally rejected through an
affidavit duly sworn before an officer authorized to administer oath.

It is conclusively presumed to be the meaning that the Legislature has intended to convey.26 Even a resort to
the Journal of the House of Representatives invoked by the petitioner leads to the same inference, viz:

INTERPELLATION OF REP. JAVIER

Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born Filipinos and
not to naturalized Filipinos.

Rep. Libanan replied in the affirmative.

Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos who have
dual citizenship shall continue to enjoy full civil and political rights. This being the case, he sought clarification
as to whether they can indeed run for public office provided that they renounce their foreign citizenship.

Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal and sworn
renunciation of foreign citizenship before any authorized public officer.

Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full civil and
political rights as Filipino citizens, the measure also discriminates against them since they are required to make
a sworn renunciation of their other foreign citizenship if and when they run for public office. He thereafter
proposed to delete this particular provision.

In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any issues that
might be raised pertaining to the citizenship of any candidate. He subsequently cited the case of
Afroyim vs. Rusk, wherein the United States considered a naturalized American still as an American
citizen even when he cast his vote in Israel during one of its elections.

Rep. Javier however pointed out that the matter of voting is different because in voting, one is not required to
renounce his foreign citizenship. He pointed out that under the Bill, Filipinos who run for public office must
renounce their foreign citizenship. He pointed out further that this is a contradiction in the Bill.

Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and are now
entitled to reacquire their Filipino citizenship will be considered as natural-born citizens. As such, he likewise
inquired whether they will also be considered qualified to run for the highest elective positions in the country.

Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn renunciation
of their foreign citizenship and that they comply with the residency and registration requirements as provided
for in the Constitution.

Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are citizens at
the time of birth without having to perform an act to complete or perfect his/her citizenship.

Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No. 63. The
repeal, he said, would help Filipino citizens who acquired foreign citizenship to retain their citizenship. With
regard then to Section 5 of the Bill, he explained that the Committee had decided to include this provision
because Section 18, Article XI of the Constitution provides for the accountability of public officers.

In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign citizenship will only
become a pro forma requirement.

On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who became foreign
citizens and who have reacquired their Filipino citizenship under the Bill will be considered as natural-born
citizens, and therefore qualified to run for the presidency, the vice-presidency or for a seat in Congress. He
also agreed with the observation of Rep. Javier that a natural-born citizen is one who is a citizen of the country
at the time of birth. He also explained that the Bill will, in effect, return to a Filipino citizen who has acquired
foreign citizenship, the status of being a natural-born citizen effective at the time he lost his Filipino citizenship.
As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino citizens
and Filipino citizens by election who are all disqualified to run for certain public offices. He then suggested that
the Bill be amended by not considering as natural-born citizens those Filipinos who had renounced their
Filipino citizenship and acquired foreign citizenship. He said that they should be considered as repatriated
citizens.

In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latters comments on the
matter. He however stressed that after a lengthy deliberation on the subject, the Committees on Justice, and
Foreign Affairs had decided to revert back to the status of being natural-born citizens those natural-born
Filipino citizens who had acquired foreign citizenship but now wished to reacquire their Filipino citizenship.

Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage to a
foreigner can regain her repatriated Filipino citizenship, upon the death of her husband, by simply taking her
oath before the Department of Justice (DOJ).

Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens who are not
considered natural-born. He reiterated that natural-born Filipino citizens who had renounced their citizenship by
pledging allegiance to another sovereignty should not be allowed to revert back to their status of being natural-
born citizens once they decide to regain their Filipino citizenship. He underscored that this will in a way allow
such Filipinos to enjoy dual citizenship.

On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep. Libanan
stated that this will defeat the purpose of the Bill.

Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign citizenships
and later decided to regain their Filipino citizenship, will be considered as repatriated citizens.

Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only naturalized
Filipino citizens are not considered as natural-born citizens.

In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino citizens
under the 1935 Constitution and who elected Filipino citizenship upon reaching the age of maturity, are not
deemed as natural-born citizens.

In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery of ones
original nationality and only naturalized citizens are not considered as natural-born citizens.

On whether the Sponsors would agree to not giving back the status of being natural-born citizens to natural-
born Filipino citizens who acquired foreign citizenship, Rep. Libanan remarked that the Body in plenary session
will decide on the matter.27

The petitioner obviously espouses an isolated reading of Representative Javiers statement; she conveniently
disregards the preceding and succeeding discussions in the records.

The above-quoted excerpts of the legislative record show that Representative Javiers statement ought to be
understood within the context of the issue then being discussed, that is whether former natural-born citizens
who re-acquire their Filipino citizenship under the proposed law will revert to their original status as natural-
born citizens and thus be qualified to run for government positions reserved only to natural-born Filipinos, i.e.
President, Vice-President and Members of the Congress.

It was Representative Javiers position that they should be considered as repatriated Filipinos and not as
natural-born citizens since they will have to execute a personal and sworn renunciation of foreign citizenship.
Natural-born citizens are those who need not perform an act to perfect their citizenship. Representative
Libanan, however, maintained that they will revert to their original status as natural-born citizens. To reconcile
the renunciation imposed by Section 5(2) with the principle that natural-born citizens are those who need not
perform any act to perfect their citizenship, Representative Javier suggested that the sworn renunciation of
foreign citizenship be considered as a mere pro forma requirement.

Petitioners argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must be
deemed a formal requirement only with respect to the re-acquisition of ones status as a natural-born Filipino so
as to override the effect of the principle that natural-born citizens need not perform any act to perfect their
citizenship. Never was it mentioned or even alluded to that, as the petitioner wants this Court to believe, those
who re-acquire their Filipino citizenship and thereafter run for public office has the option of executing an
unsworn affidavit of renunciation.

It is also palpable in the above records that Section 5 was intended to complement Section 18, Article XI of the
Constitution on public officers primary accountability of allegiance and loyalty, which provides:

Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times and any
public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another
country during his tenure shall be dealt with by law.

An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that ones
statement is true or that one will be bound to a promise. The person making the oath implicitly invites
punishment if the statement is untrue or the promise is broken. The legal effect of an oath is to subject the
person to penalties for perjury if the testimony is false.28

Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the
prospective public officers abandonment of his adopted state and promise of absolute allegiance and loyalty to
the Republic of the Philippines.

To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would
also accommodate a mere qualified or temporary allegiance from government officers when the Constitution
and the legislature clearly demand otherwise.

Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost
her citizenship, is entitled to judicial notice. We disagree.

Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven.29 To
prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of
Rule 132 of the Revised Rules of Court which reads:

Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19,
when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by
the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul,
vice- consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office. (Emphasis ours)

Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the
purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original,
or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.

The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may
also be established through: (1) a testimony under oath of an expert witness such as an attorney-at-law in the
country where the foreign law operates wherein he quotes verbatim a section of the law and states that the
same was in force at the time material to the facts at hand; and (2) likewise, in several naturalization cases, it
was held by the Court that evidence of the law of a foreign country on reciprocity regarding the acquisition of
citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for
favorable action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of the written
proof offered." Thus, in a number of decisions, mere authentication of the Chinese Naturalization Law by the
Chinese Consulate General of Manila was held to be a competent proof of that law.30

The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods. As
uniformly observed by the RTC and COMELEC, the petitioner failed to show proof of the existence of the law
during trial. Also, the letter issued by the Australian government showing that petitioner already renounced her
Australian citizenship was unauthenticated hence, the courts a quo acted judiciously in disregarding the same.

We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter
in view of the photocopy of a Certificate of Authentication issued by Consular Section of the Philippine
Embassy in Canberra, Australia attached to the petitioners motion for reconsideration.
We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers
(AASJS) Member v. Datumanong31 that the framers of R.A. No. 9225 did not intend the law to concern itself
with the actual status of the other citizenship.

This Court as the government branch tasked to apply the enactments of the legislature must do so conformably
with the wisdom of the latter sans the interference of any foreign law. If we were to read the Australian Citizen
Act of 1948 into the application and operation of R.A. No. 9225, we would be applying not what our legislative
department has deemed wise to require. To do so would be a brazen encroachment upon the sovereign will
and power of the people of this Republic.32

The petitioners act of running for public office does not suffice to serve as an effective renunciation of her
Australian citizenship. While this Court has previously declared that the filing by a person with dual citizenship
of a certificate of candidacy is already considered a renunciation of foreign citizenship,33 such ruling was
already adjudged superseded by the enactment of R.A. No. 9225 on August 29, 2003 which provides for the
additional condition of a personal and sworn renunciation of foreign citizenship.34

The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the most number
of votes does not validate the election of a disqualified candidate because the application of the constitutional
and statutory provisions on disqualification is not a matter of popularity.35

In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek
elective office, to execute a personal and sworn renunciation of any and all foreign citizenships before an
authorized public officer prior to or simultaneous to the filing of their certificates of candidacy, to qualify as
candidates in Philippine elections.36 The rule applies to all those who have re-acquired their Filipino citizenship,
like petitioner, without regard as to whether they are still dual citizens or not. It is a pre-requisite imposed for
the exercise of the right to run for public office.

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-
acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run
for public office. The petitioner's failure to comply therewith in accordance with the exact tenor of the law,
rendered ineffectual the Declaration of Renunciation of Australian Citizenship she executed on September 18,
2006. As such, she is yet to regain her political right to seek elective office. Unless she executes a sworn
renunciation of her Australian citizenship, she is ineligible to run for and hold any elective office in the
Philippines.

WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated
September 6, 2011 of the Commission on Elections en bane in EAC (AE) No. A-44-2010 is AFFIRMED in toto.

SO ORDERED.

G.R. No. 100318 July 30, 1991

GOVERNOR EMILIO M.R. OSMEA, (Province of Cebu), GOVERNOR ROBERTO PAGDANGANAN, on

behalf of the League of Governors of the Philippines, REPRESENTATIVES PABLO P. GARCIA (3rd
District-Cebu), RAUL V. DEL MAR (North District, Cebu City), ANTONIO T. BACALTOS (1st District-
Cebu), WILFREDO G. CAINGLET (3rd District-Zamboanga del Norte), and ROMEO GUANZON (Lone
District-Bacolod City),petitioners,
vs.
COMMISSION ON ELECTIONS, HON. OSCAR M. ORBOS, Executive Secretary, HON. GUILLERMO
CARAGUE, Secretary of the Department of Budget and Management and HON. ROSALINA S.
CAJUCOM, OIC-National Treasury, respondents.

G.R. No. 100308 July 30, 1991

THE LEAGUE OF THE PROVINCIAL GOVERNORS OF THE PHILIPPINES, represented by HON.

GOVERNOR ROBERTO M. PAGDANGANAN, as its President and HON. ROBERTO M. PAGDANGANAN,
Governor of the Province of Bulacan in his personal capacity and as a taxpayer, petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by its Chairman, HON. CHRISTIAN S.
MONSOD,respondents.

G.R. No. 100417 July 30, 1991

CONSTANTINO G. JARAULA, ARTURO C. UBAUB MIGUEL M. SABACAJAN RENE C. BARBASO,
MATEO P. PADERANGA, JERRY M. PACURIBOT, AND ERASTO SALCEDO, petitioners,
vs.
EXEC. SECRETARY OSCAR M. ORBOS, SECRETARY OF DEPT. OF BUDGET AND MANAGEMENT
GUILLERMO N. CARAGUE, NATIONAL TREASURER ROSALINA CAJUCOM, AND COMMISSION ON
ELECTIONS, respondents.

G.R. No. 100420 July 30, 1991

GEMILIANO C. LOPEZ, JR., petitioner,

vs.
COMMISSION ON ELECTIONS, HON. GUILLERMO N. CARAGUE, and HON. ROSALINA S.
CAJUCOM,respondents.

Manuel DJ. Siayngco and Oliviano D. Regalado for petitioner in G.R. No. 100308.

Jacinto D. Jimenez for petitioner in G.R. No. 100420. Pablo P. Garcia and Winston F. Garcia for petitioner in
G.R. No. 100318.

PARAS, J.:p

For all the awesome power of the Congress and the Executive, the Court will not hesitate to "make the hammer
fall, and heavily," to use Justice Laurel's pithy language, where the acts of these departments, or of any public
official betray the people's will as expressed in the Constitution. (Association of Small Landowners in the
Philippines, Inc., v. Secretary of Agrarian Reform, 175 SCRA 343, 365)

It need only be added, to borrow again the words of Justice Laurel, that

. . . when the Judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments, it does not in reality nullify or invalidate an act of the
Legislative, but only asserts the solemn and sacred obligation assigned to it by the Constitution
to determine conflicting claims of authority under the Constitution and to establish for the parties
in an actual controversy the rights which that instrument secures and guarantees to them. This
is in truth all that is involved in what is termed "judicial supremacy" which properly is the power
of judicial review under the Constitution. (Angara v. Electoral Commission, 63 Phil. 139.)

The petition now before Us (G.R. No. 100318) calls for a determination of the validity and constitutionality of
Republic Act 7056, "An Act Providing for the National and Local Elections in 1992, Pave the Way for
Synchronized and Simultaneous Elections Beginning 1995, and Authorizing Appropriations Therefor," which
was signed into law on June 20, 1991. The suit was instituted by Governor Emilio M. Osmea (Province of
Cebu), Governor Roberto Pagdanganan on behalf of the League of Governors of the Philippines,
Representatives Pablo P. Garcia (3rdDistrict-Cebu), Raul V. del Mar (North District-Cebu City), Antonio T.
Bacaltos (1st District-Cebu), Wilfredo G. Cainglet (3rd District-Zamboanga del Norte) and Romeo Guanzon
(lone District-Bacolod City), by way of a petition for Prohibition, mandamus and Injunction with temporary
restraining order and/or preliminary injunction to prevent the implementation of said Republic Act 7056 and the
consequent expenditure of public funds and to compel the Comelec to immediately and with all deliberate
speed set up the machinery and make the necessary preparation for the holding of synchronized national and
local elections on the second Monday of May, 1992.

The petitioners' claim they have actual and material legal interest in the subject matter of this case not only
because, as public officials, they have taken an oath to support and defend the Constitution but also because,
as taxpayers, they have an interest in seeing to it that public funds are properly and, more importantly, lawfully
disbursed. They pray for this Court to declare Republic Act No. 7056 as unconstitutional and, therefore, invalid
and inoperative because:

1. Republic Act 7056 violates the mandate of the Constitution for the holding of synchronized
national and local elections on the second Monday of May 1992.

2. Republic Act 7056, particularly the 2nd paragraph of Section 3 thereof, providing that all
incumbent provincial, city and municipal officials shall hold over beyond June 30, 1992 and
 shall serve until their successors shall have been duly elected and qualified violates Section 2,
Article XVIII (Transitory Provision) of the Constitution.

3. The same paragraph of Section 3 of Republic Act 7056, which in effect, shortens the term or
tenure of office of local officials to be elected on the 2nd Monday of November, 1992 violates
Section 8, Article X of the Constitution.

4. Section 8 of Republic Act 7056, providing for the campaign periods for Presidential, Vice-
Presidential and Senatorial elections, violates the provision of Section 9, Article IX under the
title "Commission on Elections" of the Constitution.

5. The so-called many difficult if not insurmountable problems mentioned in Republic Act 7056
to synchronized national and local elections set by the Constitution on the second Monday of
May, 1992, are not sufficient, much less, valid justification for postponing the local elections to
the second Monday of November 1992, and in the process violating the Constitution itself. If, at
all, Congress can devise ways and means, within the parameters of the Constitution, to
eliminate or at least minimize these problems and if this, still, is not feasible, resort can be
made to the self-correcting mechanism built in the Constitution for its amendment or revision.
(pp. 4-5, Petition)

Similar claims have been made in the other cases mentioned in the caption.

The Court in its Resolution dated June 27, 1991 issued a restraining order, "ordering the respondents and/or
anyone acting in their place or stead, or by their authority, to cease and desist from implementing Republic Act
7056, which provides among others, for the holding of desynchronized national and local elections in 1992." (p.
29, Rollo) The Court also required respondents to comment on the petition within a non-extendible period of
ten (10) days from notice.

Commenting on the petition as required, the Solicitor General prays for the denial of the petition arguing that
the question raised by petitioners is political in nature and therefore beyond the jurisdiction of this Court. He
stresses,citing National Economic Protective Association v. Ongpin, 171 SCRA 657, that petitioners failed to
show justification for the exercise of its judicial power, viz (1) the existence of an appropriate case; (2) an
interest personal and substantial by the party raising the constitutional question; (3) the plea that the function
be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon
in order to decide the case. He also questions the legal standing of the petitioners, who, he contends are
merely asking for an advisory opinion from the Court, there being no justiciable controversy for resolution.

On the merits of the case, the Solicitor General contends that Republic Act 7056 is a valid exercise of
legislative power by Congress and that the regular amending process prescribed by the Constitution does not
apply to its transitory provisions.

Ruling first on the jurisdictional issue, We hold that contrary to the respondents' assertion, the Court has the
competence to act on the matter at bar. What is before us is not a discretionary act of Congress or the
Executive that may not be reviewed by us because it is political in nature. What is involved here is the legality,
not the wisdom of Republic Act 7056. And even if we were to assume that the issue presented before us is
political in nature, We would still not be precluded from resolving it under the expanded jurisdiction conferred
upon us that now covers in proper cases even political questions (Daza v. Singson, 180 SCRA 496), provided
naturally, that the question is not solely and exclusively political (as when the Executive extends recognition to
a foreign government) but one which really necessitates a forthright determination of constitutionality, involving
as it does a question of national importance. Article VIII, Sec. 1 of the 1987 Constitution clearly provides:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.

On the other procedural issues raised, We held as early as in the Emergency Power Cases (Araneta v.
Dinglasan, 84 Phil. 368; Rodriguez v. Gella 93 Phil. 603) that where serious constitutional questions are
involved, "the transcendental importance to the public of these cases demands that they be settled promptly
and definitely, brushing aside if we must, technicalities of procedure." The same policy has since then been
consistently followed by the Court, as in Gonzales v. Commission on Elections, 21 SCRA 774, where We held:

In the course of the deliberations, a serious procedural objection was raised by five members of
the Court. It is their view that respondent Commission on Elections not being sought to be
restrained from performing any specific act, this suit cannot be characterized as "other than a
mere request for an advisory opinion." Such a view, from the remedial law standpoint, has
much to recommend it. Nonetheless, a majority would affirm the original stand that under the
circumstances, it could still rightfully be treated a petition for prohibition.

The language of Justice Laurel fits the case: "All await the decision of this Court on the
constitutional question. Considering, therefore, the importance which the instant case has
assumed and to prevent multiplicity of suits, strong reasons of public policy demand that (its)
constitutionality . . . be now resolved." It may likewise be added that the exceptional character
of the situation that confronts us, the paramount public interest and the undeniable necessity for
ruling, the national election being barely six months away reinforce our stand.

It would appear undeniable, therefore, that before us is an appropriate invocation of our

jurisdiction to prevent the enforcement of an alleged unconstitutional statute. We are left with no
choice then; we must act on the matter.

In the case of Kapatiran ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371, 378,
wherein the Solicitor General raised the same issues failure to show i justification for the exercise of judicial
powers and lack of justiciable controversy for resolution, the Court ruled that these are mere procedural
matters and

considering the importance to the public of the case at bar and in keeping with the court's duty
under the 1987 Constitution to determine whether or not other branches of government have
kept them-selves within the limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Court has brushed aside technicalities of procedure
and had taken cognizance of this petition.

This ruling was re-echoed in the case of "Association of Small Landowners in the Philippines, Inc. v. Secretary
of Agrarian Reform," 175 SCRA 343 and in the more recent case of "Attys. Humberto Basco et. al. v. Philippine
Amusement and Gaming Corporation (PAGCOR)", G.R. No. 91649, promulgated May 14, 1991.

To summarize, on the procedural issue, We hold in view of the foregoing considerations, that the issue
presented to us in the case at bar, is justiciable rather than political. Even if the question were political in
nature, it would still come within our powers of review under the expanded jurisdiction conferred upon us by
Article VIII, Section 1 of the 1987 Constitution, which includes the authority to determine whether grave abuse
of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of
the government. As for the other alleged procedural flaws lack of court standing, etc., assuming the
existence of such flaws, the same may be brushed aside, conformably with existing doctrine so that the
important constitutional issue raised may be addressed.

Accordingly, We are left with no other alternative but to uphold the jurisdiction of the Court over the present
cases. It goes without saying that We do this not because the Court is superior to the Executive and/or
Legislative but simply because the Executive, the Legislative and this Court are subject to the Constitution as
the supreme law.

As this Court stated in Daza v. Singson, supra:

. . . But as our jurisdiction has been invoked and more importantly because a constitutional
stalemate has to be resolved, there was no alternative for us except to act and to act decisively.
In doing so, of course, we are not imposing our will upon the said agencies, or substituting our
discretion for theirs, but merely discharging our sworn responsibility to interpret and apply the
Constitution. That is a duty we do not evade, lest we ourselves betray our oath.

Now, We go to the merits of the case.

At the core of this controversy is Article XVIII, Sections 2 and 5 (Transitory Provisions) of the 1987 Constitution,
which reads
 Sec. 2. The Senators, Members of the House of Representatives and the local officials first
elected under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of
votes shall serve for six year and the remaining twelve for three years.

xxx xxx xxx

Sec. 5. The six-year term of the incumbent President and Vice President elected in the
February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to
noon of June 30, 1992.

The first regular elections for President and Vice-President under this Constitution shall be held
on the second Monday of May, 1992. (emphasis supplied)

It is clear from the aforequoted provisions of the 1987 Constitution that the terms of office of Senators,
Members of the House of Representatives, the local officials, the President and the Vice-President have been
synchronized to end on the same hour, date and year noon of June 30, 1992.

It is likewise evident from the wording of the above-mentioned Sections that the term of synchronization is used
synonymously as the phrase holding simultaneously since this is the precise intent in terminating their Office
Tenure on the same day or occasion. This common termination date will synchronize future elections to once
every three years (Bernas the Constitution of the Republic of the Philippines, Vol. II, p. 605).

That the election for Senators, Members of the House of Representatives and the local officials (under Sec. 2,
Art. XVIII) will have to be synchronized with the election for President and Vice President (under Sec. 5, Art.
XVIII) is likewise evident from the following records of the proceedings in the Constitutional Commission:

CONSIDERATION OF THE SURVEY

OF SYNCHRONIZATION OF ELECTIONS

MR. ROMULO: Madam President, we have two subject matters to be taken up. The first with
regard to the synchronization of elections, copies of the results of the survey of which, I think,
has been provided to everybody and the second question is the party list sectoral
representation issue.

I move that we proceed to the consideration of the survey on the synchronization of the
elections for the Offices of the President and Vice-President, the members of the Congress and
the local officials.

THE PRESIDENT: Is there any objection to the motion of the Acting Floor Leader? (Silence) the
Chair hears none the motion is approved.

MR. OPLE: Madam President, will the Acting Floor Leader yield to a question concerning this
agenda?

MR. ROMULO: Yes, certainly.

MR. OPLE: We are taking up the consideration of the survey on the synchronization of the
elections, and within that context the specific terms of office of the President and the Vice-
President, the Members of the Congress and the local officials. Is that correct?

MR. ROMULO. That is my proposal inasmuch as the survey covers all of those offices.

MR. OPLE. This will not foreclose a full debate on the question of the terms of the President
and the Vice-President in the Constitution later on?

MR. ROMULO. Madam President, firstly, I do not think this involves the incumbents.

MR. OPLE. Thank you very much.

 MR. ROMULO. Does that satisfy Commissioner Ople?

MR. OPLE. That is all the information I wanted. Thank you very much, Madam President.

THE PRESIDENT. The term of the incumbents is taken up in the Transitory Provisions. Is that
correct?

MR. ROMULO. That is correct, Madam President.

THE PRESIDENT. So the body will now discuss the term of office of the President, Vice-
President, the Members of the Congress and the local officials.

MR. ROMULO. Yes. So in other words, strictly speaking, we will discuss the synchronization of
elections. (Records, July 24, 1986, pp. 204-205)

Further, the records of the proceedings of October 3, 1986 show the following:

MR. MAAMBONG. For purposes of identification, I will now read a section which we will
temporarily indicate as Section 14. It reads: THE SENATORS, MEMBERS OF THE HOUSE OF
REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION
SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992.

This was presented by Commissioner Davide, so may we ask that Commissioner Davide be
recognized.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.

MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the
action taken by the Commission on Section 2 earlier, I am formulating a new proposal. It will
read as follows THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND
THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL SERVE
UNTIL NOON OF JUNE 30, 1992.

I proposed this because of the proposed section of the Article on Transitory Provisions giving a
term to the incumbent President and Vice-President until 1992, Necessarily then, since the term
provided by the Commission for Members of the Lower House and for local officials is three
years, if there will be an election in 1987, the next election for said officers will be in 1990, and it
would be very close to 1992. We could never attain, subsequently, any synchronization of
election which is once every three years.

So under my proposal we will be able to begin actual synchronization in 1992, and

consequently, we should not have a local election or an election for Members of the Lower
House in 1990 for them to be able to complete their term of three years each. And if we also
stagger the Senate, on the first election it will result in an election in 1993 for the Senate alone,
and there will be an election for 12 Senators in 1990. But for the remaining 12 who will be
elected in 1987, if their term is for six years, their election will be in 1993. So, consequently we
will have elections in 1990, in 1992 and in 1993, the later election will be limited to only 12
Senators and of course to the House of the Lower House. But, definitely, thereafter we can
never have an election once every three years, therefore defeating the very purpose of the
Commission when we adopted the term of six years for the President and another six years for
the Senators with the possibility of staggering with 12 to serve for six years and 12 for three
years insofar as the first Senators are concerned. And so my proposal is the only way to effect
the first synchronized election which would mean, necessarily, a bonus of two years to the
Members of the Lower House and a bonus of two years to the local elective officials.

THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?

MR. DE CASTRO Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.

MR. DE CASTRO Thank you.

 During the discussion on the legislative and the synchronization of elections, I was the one who
proposed that in order to synchronize the elections every three years, which the body approved
the first national and local officials to be elected in 1987 shall continue in office for five years,
the same thing the Honorable Davide is now proposing. That means they will all serve until
1992, assuming that the term of the President will be for six years and continue beginning in
1986. So from 1992, we will again have national, local and presidential elections. This time, in
1992, the President shall have a term until 1998 and while the next 12 shall serve until 1995,
and then the local officials elected in 1992 will serve until 1995. From then on, we shall have an
election every three years.

So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize
our elections every three years which was already approved by the body.

Thank you, Mr. Presiding Officer.

xxx xxx xxx

MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent
President and Vice-President in 1992.

MR. DAVIDE. Yes.

MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the
Senator's and local officials with the election of the President?

MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption
that the provision of the Transitory Provisions on the term of the incumbent President and Vice-
President would really end in 1992.

MR. GUINGONA. Yes.

MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the President
up to the municipal officials.

xxx xxx xxx

MR. SUAREZ. Last point of inquiry to the Honorable Davide. From 1987 up to 1992, as
envisioned under the Gentlemen's proposal, will there be no local or national election?

MR. DAVIDE. None, Mr. Presiding Officer.

MR. SUAREZ. And the second local and national elections will be held in 1992?

MR. DAVIDE. That is correct, Mr. Presiding Officer.

MR. SUAREZ. Prior to June 30, 1992?

MR. DAVIDE. Yes, Mr. Presiding Officer.

(Record, October 3, 1986, pp. 429-432. Emphasis supplied)

It thus becomes very evident that the Constitution has mandated a synchronized national and local election
prior to June 30, 1992 or more specifically as provided for in Article XVIII, Sec. 5-on the second Monday of
May, 1992.

On this point, it has to be stressed that the term of office of elective local officials, except barangay officials, is
fixed by the Constitution at three years (Sec. 8, Art. X). The incumbent local officials were elected in January
1988. Therefore, their term would have expired on February 2, 1991. But their term was adjusted to expire at
noon of June 30, 1992. The reason for the said adjustment, as well as those of the Senators, members of the
House of Representatives, President and Vice-President, is the same to synchronize the national and local
elections.
Upon the other hand, and contrary to the express mandate of the 1987 Constitution, Republic Act 7056
provides for two (2) separate elections in 1992 as follows:

Sec. 2. Start of Synchronization To start the process of synchronization of election in

accordance with the policy hereinbefore declared there shall be held:

(a) An election for President and Vice-President of the Philippines, twenty four (24) Senators
and all elective Members of the House of Representatives on the second Monday of May, 1992,
and

(b) An election of all provincial, city and municipal elective officials on the second Monday of
November, 1992.

The purpose of Republic Act 7056 is as stated in Section 1 thereof under the heading "Statement of Policy"

. . . to start, as much as practicable, the synchronization of the elections so that the process can
be completed in the 1995 elections with the result that beginning 1995 there shall be only one
(1)simultaneous regular elections for national and local elective officials every three (3) years.

With the clear mandate of the 1987 Constitution to hold synchronized (simultaneous) national and local
elections in the second Monday of May, 1992, the inevitable conclusion would be that Republic Act 7056 is
clearly violative of the Constitution because it provides for the holding of a desynchronized election. Stated
differently, Republic Act 7056 particularly Sections 1 and 2 thereof contravenes Article XVIII, Sections 2 and 5
of the 1987 Constitution.

But this is not all. There are other provisions of the Constitution violated by RA 7056. For one, there is Section
2, Article XVIII of the Constitution which provides that the local official first elected under the Constitution shall
serve until noon of June 30, 1992. But under Sec. 3 of RA 7056, these incumbent local officials shall hold over
beyond June 30, 1992 and shall serve until their successors shall have been duly elected and qualified. It has
been held that:

It is not competent for the legislature to extend the term of officers by providing that they shall
hold overuntil their successors are elected and qualified where the constitution has in effect or
by clear implication prescribed the term and when the Constitution fixes the day on which the
official term shall begin, there is no legislative authority to continue the office beyond that
period, even though the successors fail to qualify with the time. (See 67 CJS p.379, Emphasis
supplied)

In American Jurisprudence it has been stated as follows:

It has been broadly stated that the legislature cannot, by an act postponing the election to fill an
office the term of which is limited by the Constitution, extend the term of the incumbent beyond
the period as limited by the Constitution. (43 Am Jur., 152, page 13)

Also, there is Section 8, Article X of the Constitution which provides that:

The term of office of elective local officials, except barangay officials which shall be determined
by law shall be three years and no such official shall serve for more than three consecutive
terms. . . .

But if the local election will be held on the second Monday of November 1992 under RA 7056, those to be
elected will be serving for only two years and seven months, that is, from November 30, 1992 to June 30, 1995,
not three years as provided for by the Constitution.

Then also, Section 9, Article IX of the Constitution provides that:

Unless otherwise fixed by the Commission in special cases, the election period shall commence
ninety days before the day of election and shall end thirty days thereafter.

Under this provision the filing of the Certificate of Candidacy and the ensuing campaign period must be
embraced or circumscribed within that election period of ninety days, except when in special cases, the
Comelec (not Congress) alters the period. But RA 7056 provides for a different campaign period, as follows:
 Sec. 8.

xxx xxx xxx

(a) For President arid Vice-Presidential elections one hundred thirty (130) days before the day
of election.

(b) For Senatorial elections, ninety (90) days before the day of the election, and

(c) For the election of Members of the House of Representatives and local elective provincial,
city and municipal officials forty-five (45) days before the day of the elections.

All these the postponement of the holding of a synchronized national and local election from 1992 to 1995;
the hold-over provision for incumbent local officials; the reduction of the term of office of local officials to be
elected on the second Monday of November 1992 and the change in the campaign periods, are violative of the
1987 Constitution.

The contention of the Solicitor General that the method of amendment or revision prescribed by the
Constitution (Article XVIII) does not apply to the Transitory Provisions because in the nature of things
Transitory Provisions are to be carried out as soon as practicable, and Congress can, in the exercise of its
legislative power enact the needed legislation, in this case RA 7056, deserves no consideration at all. The
1987 Constitution has stated in clear and categorical language that "the six-year term of the incumbent
President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of
elections, hereby extended to noon of June 30, 1992 (Article XVIII, Sec. 5)." As discussed earlier, the elections
referred to, to be synchronized with the election of the President and Vice-President on the second Monday of
May 1992, is the election for Senators, Members of the House of Representatives and local officials.

Incidentally, Webster defines

Synchronization as the act or result of synchronizing; concurrence of events or motions in

respect to time.

Synchronize to happen or take place at the same time; to represent or arrange event so as
to indicate coincidence or co-existence; to cause to agree in time.

It is noteworthy that the Solicitor General evaded the issue of the constitutionality of Republic Act 7056.
Although he made a lengthy discussion on the procedural issues and on the legislative power of Congress, he
failed to refute the arguments of the petitioners that Republic Act 7056 violated several provisions of the 1987
Constitution more importantly, the provision on synchronization of election.

Insofar as the motion for intervention filed by some Congressmen on July 29, 1991 is concerned, We believe
the same is meritless because the mere absence of a provision in the 1987 Constitution which would prohibit
the holding of separate elections does not mean that the Constitution does not intend the holding of
simultaneous or synchronized elections.

IN VIEW OF THE FOREGOING CONSIDERATIONS, Republic Act 7056 is hereby declared

UNCONSTITUTIONAL, hence, NULL and VOID. The restraining order earlier issued is hereby made
permanent. No costs.

SO ORDERED.

G.R. No. 120318 December 5, 1997

RICARDO "BOY" CANICOSA, petitioner,

vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF CALAMBA, LAGUNA and
SEVERINO LAJARA, respondents.
BELLOSILLO, J.:

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 filed up in
some precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.e., without
padlocks nor self-locking metal seals; and, (f) there was delay in the delivery of election returns. But the
COMELEC en bancdismissed 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.

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 ports 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 R.A. 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 theOmnibus 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 R.A. No. 7166:

Sec. 10. Annulment of the List of Voters. Any book of voters the preparation of which has been
affected with fraud, bribery, forgery, impersonation, intimidation, force or any other similar irregularity or
which is statistically improbable may be annulled after due notice and hearing by the Commission motu
propio or after the filing of a verified complaint: Provided, that no order, ruling or decision annulling a
book of voters shall be executed within sixty (60) days before an election.

If indeed the situation herein described was common in almost all of the 557 precincts as alleged by
Canicosa, 4then 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. Challenges 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 date
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 certificates 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

that

Sec. 215. Board of election inspectors to issue a certificate of the number of votes polled by the
candidates for an office to the watchers. After the announcement of the results of the election and
before leaving the polling place, it shall be the duty of the board of election inspectors to issue a
certificate of the number of votes received by a candidate upon request of the watchers. All members of
the board of election inspectors shall sign the certificate.

Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646 also require
 Sec. 16. Certificate 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.

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. IX-C, 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 administrative of all laws relative to the conduct of elections of the purposes 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 the 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.

The 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
vs. 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.

WHEREFORE, finding no grave abuse of discretion committed by public respondent Commission on Elections,
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. 135613 March 9, 2000

ARTHUR V. VELAYO, petitioner,

vs.
COMMISSION ON ELECTIONS AND ERNESTO NATIVIDAD, respondents.

PUNO, J.:

In this special civil action for certiorari, petitioner Arthur V. Velayo seeks to set aside the Resolution issued by
respondent Commission on Elections dated October 6, 1998 annulling his proclamation, and directing the
Board of Canvassers of Gapan, Nueva Ecija to convene immediately, exclude Precincts 43A, 44A2, 50A and
50A1, and immediately proclaim the winning candidate for Mayor of Gapan, Nueva Ecija.
Petitioner Arthur V. Velayo and private respondent Ernesto Natividad were among the candidates for mayor of
Gapan, Nueva Ecija in the May 11, 1998 elections. The Municipal Board of Canvassers constituted to canvass
the election results was composed of Linda Sandoval 1 as Chairman, Eduardo Pancho 2 as Vice Chairman and
Eustaquita Tolentino 3 as member.

On May 12, 1998, the canvass of election returns started. Private respondent orally sought the exclusion of
Election Return Nos. 4245882 (Precinct 6A) and 4900753 (Precinct 103). Election Return No. 4245882 was
objected on the ground that it is incomplete and contains material defects. 4 Election Return No. 4900753 was
objected on the ground of material defects and that it does not contain the thumbmarks of official
watchers. 5 The Board denied the objections and continued with the canvass.

On May 13, 1998, private respondent filed with the COMELEC (2nd Division) SPC No. 98-002. 6 The petition is
entitled "In the Matter of the Challenge and Objection to the Composition and Proceedings of the Municipal
Board of Canvassers of Gapan, Nueva Ecija and for Annulment of Certain Election Returns Illegally Canvassed
and for Suspension of Canvass of Election Returns Pending Substitution of the Challenged Members Thereof."
The petition did not name any respondent. Not the Municipal Board of Canvassers. Neither petitioner Velayo.
On the same date, the private respondent 7 sent a letter to the Board seeking the disqualification of its
Chairman and Vice Chairman for alleged bias and gross violations of the law and COMELEC Rules and
Regulations. On May 14, 1998, the Board denied the prayer to suspend the canvass "there being no valid and
compelling reason to do so" and the request for disqualification. On May 16, 1998, the private respondent
sought reconsideration of the Board's ruling. 8 His effort did not succeed and he filed a verified Notice of
Appeal. 9 On May 17, 1998, the Board proclaimed petitioner as the duly elected Mayor of Gapan, Nueva Ecija
with a vote of 10,697. Private respondent garnered 10,427 votes.

On May 18, 1998, the private respondent filed another case with the COMELEC (2nd Division), SPC No. 98-
050 entitled "In the Matter of the Appeal from the Adverse Ruling of the Municipal Board of Canvassers for
Gapan, Nueva Ecija, dated 14 May 1998, Seeking the Disqualification of Ms. Linda D. Sandoval and Eduardo
Pancho to Sit as Chairman and Vice Chairman thereof; to Suspend the Canvass and to Suspend/Annul the
Proclamation of the Winning Candidates." 10 Again, the petition did not name the Municipal Board of
Canvassers or the petitioner Velayo as respondents. Neither were they furnished copies of the petition. The
petition prayed:

WHREFORE, it is most respectfully prayed that after due proceedings, judgment be rendered, as follows:

1. Declaring as null and void all acts and proceedings had by the Municipal Board of Canvassers from
13 May 1998 when the same have been challenged by the petitioner as illegal up to its last act thereof
particularly the canvass of election returns for the local elections only;

2. Ordering the substitution/replacement of Ms. Linda Sandoval and Mr. Eduardo Pancho as
chairperson and vice chairman of the Municipal Board of Canvassers for Gapan, Nueva Ecija, and once
substituted/replaced, directing the substituted members of the Board to proceed with dispatch in the
canvass of the election returns;

3. Suspending the proclamation of the winning candidates until after a faithful and impartial canvass of
the returns shall have been had by the substituted members of the Board, and the pre-proclamation
controversies bearing on the questioned matter resolved by this Honorable Commission; and

4. Annuling the proclamation, if any shall have been illegally done by the Board on the basis of the
sham, pre-determined and manipulated canvass of the returns as complained of herein.

Petitioner prays for other relief just and proper in the premises.

In the morning of May 19, 1998, Natividad filed a third case, SPC No. 98-073, entitled "In the matter of the
appeal from the written rulings dated 13, 14 and 15 May 1998 of the Municipal Board of Canvassers for Gapan,
Nueva Ecija, on contested Election Returns No. 4900678 of Precinct No. 9A3/9A4 dated 13 May 1998;
contested Returns Nos. 4900775 of Precinct No. 43A2; 4900776 of Precinct No. 43A3; 4900828 of Precinct
No. 61A2; 4900780 of Precinct No. 45A/45A1; 4900789 of Precinct No. 99A; 4900774 of Precinct No. 43A1;
4900792 of Precinct Nos. 50A and 50A2; 4900844 of Precinct No. 68A; 4900779 of Precinct No. 44A2; and
4900811 of Precinct No. 98A2 all dated 14 May 1998 and contested Election Returns No. 4900777 of Precinct
No. 56A2." 11 Later in the day, he submitted documentary evidence in support of his appeal. 12 Again, neither
the Board nor the petitioner was named respondent in the appeal. They were not furnished copies of the
petition.
On May 21, 1998, the private respondent filed a Supplemental Appeal in SPC No. 98-073. It was entitled "In
the Matter of the Supplemental Appeal from the Written Rulings dated 17 May 1998 of the Municipal Board of
Canvassers for Gapan, Nueva Ecija, on Contested Election Returns Nos. 4900773 of Precinct No. 43A;
4900775 of Precinct No. 43A2; 4900777 of Precinct No. 44A; and 4900789 of Precinct No. 44A1. Annexed to
the pleading were the documentary evidence or the private respondent. 13 Again, both the Board and the
petitioner were not made parties in the Supplemental Appeal. They were not furnished copies of the Appeal.

On June 8, 1998, the private respondent filed a motion for admission of new and additional evidence. 14 In SPC
98-050, he submitted twenty (20) affidavits. In SPC 98-073, he submitted eight (8) affidavits. Petitioner was not
furnished a copy of the motion.

On June 9, 1998, the COMELEC (2nd Division) 15 dismissed SPC No. 98-002, SPC No. 98-050 and SPC No.
073 in an Order which reads:

In view of the proclamation by the Municipal Board of Canvassers of Gapan, Nueva Ecija, of all the
winning candidates for the municipal positions of said municipality on May 17, 1998, as evidenced by
duly signed Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Municipal
Offices [C.E. form No. 25] with Serial No. 03490337, this Commission [Second Division] RESOLVED,
as it hereby RESOLVES TO DISMISS this instant petition for being MOOT AND ACADEMIC.

SO ORDERED. 16

It is alleged by the private respondent that he received a copy of the Order on June 22, 1998.

On June 25, 1998, the private respondent filed a Motion for Reconsideration contending that the Order of
dismissal is contrary to law and the evidence. He sought to restrain the proclamation of the petitioner. 17 Again,
petitioner was not furnished with a copy or the Motion. On July 3, 1998, the records of the three (3) cases were
elevated to the COMELEC en banc for resolution of private respondent's Motion for Reconsideration. 18 Again,
petitioner was not furnished a copy of the Order.

On October 6, 1998, the COMELEC en banc issued the questioned Resolution, 19 the dispositive portion of
which reads:

WHEREFORE, premises considered, the proclamation of Arthur V. Velayo is hereby ANNULLED. The
Board of Canvassers of Gapan, Nueva Ecija is hereby DIRECTED to convene immediately, exclude
Precincts 44A, 44A2 and 50A & 50A1 20 and immediately proclaim the winning candidate for mayor of
Gapan, Nueva Ecija.

Further, they are directed to immediately inform the Commission of their action thereon.

SO ORDERED.

In so ruling, the COMMISSION en banc held that:

A close perusal of the above-entitled cases would show that the above objections and appeals were
made strictly in accordance with law, however, the Board in defiance of Section 245 and Section 20 of
Republic Act 7166, particularly sub-paragraph (i) included the assailed election returns without giving
opportunity to the aggrieved party to go on appeal to the Commission.

Said Section 20(i) of R.A. 7166 states:

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

In this case, it is clear that the objected election returns will adversely affect the results of the elections.

Thus, after close perusal of the above-cited objected election returns, the Commission finds that the
election returns of 44A, 44A2, and 50A1/A2 should be excluded from the canvass. It is worth noting
that in these precincts 44A and 44A2 petitioner Natividad got zero votes which is statistically
improbable. The affidavits of the following watchers respectively to wit: Rolando C. Gamboa, Eduardo
Mallare and Eduardo Surio together with the police report of Miguel S. Inductivo of the threats received
 by Danilo Simon, all watchers of petitioner, all in the dialect which attest to the incident wherein they
were prevented and threatened from entering the polling place by four [un]identified men and they were
able to witness these men threatening the teachers and telling them to tamper the election return in
such a way that they will not be noticed by other people and they will have no problem.

Watchers play a vital role in protecting the votes especially during the counting of votes in the precinct
level. The fact that the watchers were prevented and in fact heard the teachers threatened to have the
election returns altered makes the whole election process a mockery in these precincts as the returns
are no longer reflective of the true results of the elections. It is no wonder then that in these precincts
Natividad got zero votes.

Further, since there was already an objection against the two members of the Board of Canvassers and
their illegal proceedings they cannot proceed to canvass, to cite Section 244 of the Omnibus Election
Code:

Sec. 244. Contested composition or proceedings of the board. When the composition or
proceedings of the board of canvassers are contested, the board of canvassers shall, within
twenty-four hours, make a ruling thereon with notice to the contestant who, if adversely
affected, may appeal the matter to the Commission within five days after the ruling with proper
notice to the board of canvassers. After due notice and hearing, the Commission shall decide
the case within ten days from the filing thereof. During the pendency of the case, the board of
canvassers shall suspend the canvass until the Commission orders the continuation or
resumption thereof and citing their reasons or grounds therefor.

Thus, the action of the Board in proclaiming the winning candidate for mayor in the Municipality of
Gapan is illegal for violation of Section 20(a) to (i) of R.A. 7166 and Section 244 of the Omnibus
Election Code. 21

It was only then that petitioner was informed of the Resolution by telegram on October 8, 1998.

In a letter 22 dated October 9, 1998, the Board, thru its new Chairman, Belen Rivera, informed Velayo that it will
convene on October 16, 1998. On October 17, 1998, it proclaimed the private respondent as Mayor with a vote
of 10,420.

In this special civil action for certiorari, petitioner contends:

1. The questioned Resolution (Annex "A") of October 6, 1998 is ultra vires and void ab initio because it
was issued ex-parte, without notice and opportunity afforded the petitioner to be heard and therefore,
violative of due process.

2. The Comelec committed grave abuse of discretion amounting to lack of jurisdiction when it did not
dismiss respondent Natividad's Motion for Reconsideration on SPC Nos. 98-002, 98-050 and 98-073
for being filed out of time.

3. The Comelec committed grave abuse of discretion amounting to lack of jurisdiction when it excluded
the votes cast in Precincts 44A, 44A2, 50A and 50A1 as manufactured and contrary to statistical
probabilities without the required notice and hearing consistent with due process.

4. The Comelec committed grave abuse of discretion amounting to lack of jurisdiction when it annulled
the proclamation of petitioner without the required notice and hearing consistent with due process.

5. The Comelec committed grave abuse of discretion amounting to lack of jurisdiction when it did not
dismiss said pre-proclamation cases for the reason that the grounds relied upon by respondent
Natividad are proper grounds for election protests.

In its Manifestation and Motion (in lieu of Comment), the Solicitor General agreed with the petitioner and opined
that the COMELEC gravely abused its discretion when it issued the impugned resolution. 23 COMELEC filed its
own Comment sustaining its resolution. So did the private respondent.

We grant the petition.

FIRST. Private respondent maintains that the filing of his Motion for Reconsideration on June 25, 1998 was
within the 5-day reglementary period as he received a copy of the June 9, 1998 Order of the COMELEC only
on June 22, 1998. We do not agree with the private respondent for he cannot count the 5-day reglementary
period from the date he received the June 9, 1998 Order of the COMELEC. Section 2, Rule 19 of the
COMELEC Rules of Procedure clearly provides that private respondent's Motion for Reconsideration should be
". . . filed within five (5) days from the promulgation thereof," thus:

Sec. 2. Period for Filing Motions for Reconsideration. A motion to reconsider a decision, resolution,
order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such
motion, if not pro-forma, suspends the execution or implementation of the decision, resolution, order or
ruling.

A party cannot feign ignorance of the date of promulgation of a decision or resolution because it is previously
fixed and notice is served upon him in advance. Thus, Section 5, Rule 18 of the COMELEC Rules of Procedure
provides:

Sec. 5. Promulgation. The promulgation of a decision or resolution of the Commission or a Division

shall be made on a date previously fixed, of which notice shall be served in advance upon the parties or
their attorneys personally or by registered mail or by telegram.

SECOND. Respondent COMELEC failed to be faithful to section 3 of Rule 27 of the 1993 COMELEC Rules of
Procedure which provides that "all pre-proclamation controversies shall be heard summarily after due notice . .
."24

The records will show that petitioner was not furnished any notice of the pre-proclamation proceedings against
him from beginning to end. Respondent Natividad did not give petitioner copies of his notices of appeal from
the rulings of the Municipal Board of Canvassers. Nor was petitioner given copies of private respondent's
petitions and motions filed with the COMELEC. Even the COMELEC's Second Division failed to notify petitioner
about the promulgation of its Order dated June 9, 1998 which dismissed the pre-proclamation cases against
him for being moot and academic. He was not also given a copy of private, respondent's Motion for
Reconsideration against said Order. Also, he was not furnished a copy of the July 4, 1998 Order of the
Comelec (2nd Division) which elevated respondent Natividad's Motion for Reconsideration to the
COMELEC en banc. All that petitioner received from the COMELEC on October 8, 1998 was its en
banc resolution annulling his proclamation.

It cannot be denied that petitioner Velayo is a real party in interest. As the proclaimed Mayor, petitioner stands
to be prejudiced by whatever action COMELEC may take on the appeals filed by respondent Natividad. His
non-inclusion as respondent and his lack of notice of the proceedings in the COMELEC which resulted in the
cancellation of his proclamation constitute clear denial of due process.

THIRD. The Court agrees with the Solicitor General that pre and post proclamation proceedings should be
resolved summarily but not ex parte. We quote his sound submission, viz.:

The record shows that petitioner had no participation whatsoever in all the proceedings conducted
before the COMELEC. He was not furnished with a copy of any of the three (3) petitions filed by private
respondent before the COMELEC (Annexes B, B-1 and B-2, Petition). This fact is admitted by private
respondent himself in his Comment on the Petition dated November 12, 1998, thus:

1. Petitioner has no legal personality to file the special civil action herein under Rule 65 of the
Rules of Court because he is/was not a party to the three pre-proclamation cases, namely, SPC
Nos. 98-002, 98-050 and 98-073 filed by answering respondent before public respondent
Commission on Election hereafter referred to as the COMELEC.

(p. 1, Private Respondent's Comment; emphasis ours)

In Jagunap v. Commission on Elections, 104 SCRA 204 (1981), this Honorable Court ruled that a
proclamation of a winning candidate can be set aside only after due notice and hearing, viz:

Upon the facts of the case, We find that the COMELEC had, indeed, gravely abused its
discretion, amounting to lack of jurisdiction, in annulling the proclamation of JAEN as the
elected Municipal Mayor of Leganes, Iloilo. JAEN was not furnished with a copy of any petition
or motion to set aside his proclamation; nor was he notified of the hearing of such petition or
motion. As a matter of fact, the records of the case do not indicate that a hearing was ever
conducted by the COMELEC before it ordered the annulment of the proclamation of JAEN. This
to Us is an irregularity. JAEN, who has already been proclaimed by the Municipal Board of
 Canvassers of Leganes, Iloilo, has the right to be notified of any proceeding to set aside his
proclamation, and a hearing is necessary before the COMELEC can order the annulment of his
proclamation. Section 175 of the 1978 Election Code explicitly provides that the COMELEC can
order the annulment of a proclamation of a candidate-elect on any of the grounds mentioned in
Sections 172, 173 and 174 thereof (defective, tampered and falsified election returns, and
discrepancies in the election returns) only after due notice and hearing. Said section reads as
follows:

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 propio 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.

It results that COMELEC Resolution No. 9431, dated March 1, 1980, and COMELEC Resolution No.
9456, dated May 6, 1980, which were issued without the notice and hearing, are arbitrary, and
therefore, null and void. The proclamation of JAGUNAP, being based upon these void resolutions, is,
consequently, of no legal effect, and should be set aside.

Furthermore, Section 246 of B.P. Blg. 881, otherwise known as the Omnibus Election Code of the
Philippines, as amended by Section 18 of R.A. 7166, provides that pre-proclamation cases must be
disposed of summarily but not ex parte viz:

Sec. 246. Summary disposition of pre-proclamation controversies. All pre-proclamation

controversies on election returns on certification of canvass shall, on the basis of the records and
evidence elevated to it by the board of canvassers, be disposed of summarily by the Commission within
seven (7) days from receipt thereof. Its decisions shall be executory after the lapse of seven (7) days
from receipt by the losing party of the decision of the commission.

xxx xxx xxx

A judicial proceeding, order or injunction, etc. is said to be ex parte when it is taken or granted at the
instance and for the benefit of one party only and without notice to, or contestation by any person
adversely interested. An ex parte hearing is one in which the court or tribunal hears only one side of the
controversy (Black's Law Dictionary, Sixth Edition, p. 576).

In the case at bar, petitioner's proclamation as Mayor of Gapan, Nueva Ecija by the Municipal Board of
Canvassers on May 17, 1998 was not only summarily annulled by the COMELEC. It was annulled ex
parte, i.e., solely on the basis of the evidence presented by private respondent, absolutely depriving
petitioner an opportunity to present his rebuttal evidence. This ex parte annulment of petitioner's
proclamation is null and void for being repugnant to the due process clause of the Constitution and,
should, therefore, be set aside conformably with Jagunap, (supra).

It is true that RA No. 7166 provides for summary proceedings in pre-proclamation cases and does not require a
trial type hearing. Nevertheless, summary proceedings cannot be stretched to mean ex parte proceedings.
Summary simply means with dispatch, with the least possible delay. It signifies that the power may be
exercised without a trial in the ordinary manner prescribed by law for regular judicial proceedings. But although
the proceedings are summary, the adverse party nevertheless must at the very least be notified so that he can
be apprised of the nature and purpose of the proceeding. 25 In the case at bar, all the proceedings were
conducted by the respondent COMELEC without the participation of the petitioner. Worse, respondent
Natividad was allowed to file various motions without the knowledge of the petitioner. Plainly, these ex
parte proceedings offend fundamental fairness and are null and void.

FOURTH. To be sure, Republic Act No. 7166 introduced several electoral reforms and some of them relate to
the disposition of pre-proclamation controversies. Among others, it provides that pre-proclamation
controversies on election returns or certificates of canvass must be disposed of summarily by the COMELEC
on the basis of the records and evidence adduced in the Board of Canvassers. Thus, section 20 of RA No.
7166 which repealed Section 245 of the Omnibus Election Code provides:

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

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

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

The evidence attached to the objection or opposition submitted by the parties, shall be immediately and
formally admitted into the records of the board by the chairman affixing his signature at the back of
each and every page thereof.

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

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

(f) After all the uncontested returns have been canvassed and the contested returns ruled upon by it,
the board shall suspend the canvass. Within forty-eight (48) hours therefrom, any party adversely
affected by the ruling may file with the board a written and verified notice of appeal; and within an
unextendible period of five (5) days thereafter, an appeal may be taken to the Commission.

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

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

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

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

Appeal from the decision of the Board of Canvassers is governed by Section 18 of RA 7166, viz.:

Sec. 18. Summary disposition of pre-proclamation controversies. All pre-proclamation controversies

on election returns or certificates of canvass shall, on the basis of the records and evidence elevated to
it by the board of canvassers, be disposed of summarily by the Commission within seven (7) days from
receipt thereof. Its decision shall be executory after the lapse of seven (7) days from receipt by the
losing party of the decision of the Commission.

In the case at bar, we have carefully examined the records and it does not clearly appear that the COMELEC
annulled the proclamation of Velayo on the basis of the official records and evidence adduced by the parties
before the Board of Canvassers. The importance of these official records and evidence cannot be
overemphasized. The records contain the contested election returns, the objections of the aggrieved party, the
opposition of the prevailing party, the evidence of the parties, and the rulings of the Board of Canvassers. R.A.
No. 7166 explicitly provides that it is only on the basis of these official records that the COMELEC can decide
the pre-proclamation controversy in a summary manner. Without the official records, the respondent
COMELEC cannot validly decide a pre-proclamation controversy. There is no showing that the official records
of the Board of Canvassers were forwarded to the respondent COMELEC and were used to cancel Velayo's
proclamation.

FIFTH. Worse still, the respondent COMELEC annulled the proclamation of petitioner Velayo on the basis of
new and additional evidence submitted by the private respondent. These new and additional evidence were not
presented before the Board of Canvassers. Petitioner Velayo was not furnished these evidence and given the
chance to refute them. In SPC No. 98-050, these pieces of new and additional evidence are:

(1) Affidavit of Isagani V. Manuel dated 18 May 1998 consisting of two pages attached hereto as Annex
A and made an integral part hereof;

(2) Affidavit of Romeo Natividad dated 20 May 1998 consisting of two (2) pages copy of which is
attached hereto as Annex B and made an integral part hereof;

(3) Affidavit of Danilo Natividad dated 19 May 1998 consisting of two (2) pages copy of which is
attached hereto as Annex C and made an integral part hereof;

(4) Joint affidavit of Dindo C. Alvarez and Berlin Alvarez (dated) 20 May 1998 consisting of two (2)
pages copy of which is attached hereto as Annex D and made an integral part hereof;

(5) Joint affidavit of Myrna Angelina Cosio and Rachel G. Navarro dated 19 May 1998 copy of which is
attached hereto as Annex E and made an integral part hereof;

(6) Joint affidavit of Lourdes M. Malaca and Adelwiso P. Malaca dated 19 May 1998 copy of which is
attached hereto as Annex F and made an integral part hereof;

(7) Joint affidavit of Leovigildo Angeles and Joselito Arcilla dated 20 May 1998 copy of which is
attached hereto as Annex G and made an integral part hereof;

(8) Joint affidavit of Francisco Angeles and Hilario Garcia dated 18 May 1998 copy of which is attached
hereto as Annex H and made an integral part hereof;

(9) Joint affidavit of Arlene Ayroso and Jamaiza Garcia dated 20 May 1998 copy of which is attached
hereto as Annex I and made an integral part hereof;

(10) Joint affidavit of Belinda Reyes and Corazon Reyes dated 20 May 1998 copy of which is attached
hereto as Annex J and made an integral part hereof;

(11) Joint affidavit of Elenita Pablo and Ariel Gutierrez dated 20 May 1998 copy of which is attached
hereto as Annex K and made an integral part hereof;

(12) Joint affidavit of Francisco Mauro and Bernardo Santos dated 19 May 1998 copy of which is
attached hereto as Annex L and made an integral part hereof;

(13) Joint affidavit of Lorenzo Rueda and Ceferino Sta. Maria consisting of two (2) pages copy of which
is attached hereto as Annex M and made an integral part hereof;

(14) Joint affidavit of Rommel Oanes and Jonnel Robello dated 19 May 1998 copy of which is attached
hereto as Annex N and made an integral part hereof;

(15) Joint affidavit of Enrico Matias and Ronald Tolentino dated 20 May 1998 copy of which is attached
hereto as Annex O and made an integral part hereof;

(16) Joint affidavit of Cesar Natividad and Belinda Tinio dated 20 May 1998 copy of which is attached
hereto as Annex P and made an integral part hereof;

(17) Joint affidavit of Fernando Caralde and Angelito Nepomuceno dated 18 May 1998 copy of which is
attached hereto as Annex Q and made an integral part hereof;
 (18) Joint affidavit of Evaristo Bunag and Donald Alvarez dated 19 May 1998 copy of which is attached
hereto as Annex R and made an integral part hereof;

(19) Joint affidavit of Roberto Manipon and Gerry Fernandez dated 20 May 1998 copy of which is
attached hereto as Annex S and made an integral part hereof; and

(20) Joint affidavit of Roberto dela Cruz and Leonardo Reyes dated 20 May 1998 copy of which is
attached hereto as Annex T and made an integral part hereof. 26

In SPC 98-073, the new and additional evidence are the following:

(1) Election Returns No. 4900773 (Precinct No. 43A)

Certification by the PNP, Gapan Police Station, Gapan, Nueva Ecija, that the complaint of Danilo Simon
that he was threatened as watcher of Precinct No. 43A by four (4) unidentified men as follows:
"Magsilayas na kayo dito pagpapatayin ko kayo," was entered in the Police Blotter of Gapan Police
Station on 11 May 1998 copy of which is attached hereto as Annex Y and made an integral part hereof
and accompanied by the affidavit of Danilo Simon dated 14 May 1998, Annex Y-1 hereof.

Joint affidavit of Nestor Pascual and Gerry Mangahas dated 22 May 1998 copy of which is attached
hereto as Annex Z and made an integral part hereof;

(2) Election Returns No. 4900774 (Precinct No. 43A 1)

Joint affidavit of Perfecto San Gabriel and Rico Andres dated 22 May 1998 copy of which is attached
hereto as Annex AA and made an integral part hereof;

(3) Election Returns No. 4900775 (Precinct No. 43A2)

Joint affidavit of Editha Pasco and Jose San Gabriel dated 22 May 1998 copy of which is attached
hereto as Annex BB and made an integral part hereof;

(4) Election Returns No. 4900776 (Precinct No. 43A3)

Joint affidavit of Eladio Bartolome and Edgar Gatus dated 22 May 1998 copy of which is attached
hereto as Annex CC and made an integral part hereof;

(5) Election Returns No. 4900777 (Precinct No. 44A)

Joint affidavit of Rolando Linsangan and Samuel Lazaro dated 22 May 1998 copy of which is attached
hereto as Annex DD and made an integral part hereof;

(6) Election Returns No. 4900778 (Precinct No. 44A1)

Joint affidavit of Ramon Natividad and George Lazaro dated 22 May 1998 copy of which is attached
hereto as Annex EE and made an integral part hereof;

(7) Election Returns No. 4900779 (Precinct No. 44A2)

Joint affidavit of Eduardo A. Santiago and Guillermo Gatus dated 22 May 1998 copy of which is
attached hereto as Annex FF and made an integral part hereof;

(8) Election Returns No. 4900779 (Precinct No. 44A2)

Joint affidavit of Francisco delos Santos and Cesar Nanalis dated 22 May 1998 copy of which is
attached hereto as Annex GG and made an integral part hereof; and

(9) Election Returns No. 4900792 (Precinct No. 50A1/50A2)

Joint affidavit of Roberto S. Delegiado and Eduardo Hernandez dated 22 May 1998 copy of which is
attached hereto as Annex HH and made an integral part hereof. 27
Again, it cannot be gainsaid that petitioner was denied due process by the respondent COMELEC.

SIXTH. Even granting that the respondent COMELEC can consider the new and additional evidence of the
private respondent, their examination will show that their evidentiary value cannot justify the annulment of the
proclamation of petitioner Velayo. The COMELEC relied on the affidavits of the watchers of the private
respondent, namely: Rolando C. Gamboa, Eduardo Mallare and Eduardo Surio together with the police report
of Miguel S. Inductivo on the alleged threats received by Danilo Simon.

The Affidavits 28 of Danilo Simon read:

(1) REPUBLIC OF THE PHILIPPINES)

PROVINCE OF NUEVA ECIJA) S.S.
MUNICIPALITY OF GAPAN)

AFFIDAVIT

Ako si Danilo Simon, may sapat na gulang, asawa at naninirahan sa Mangino, Gapan, Nueva Ecija ng
naaayon sa batas ay nagsasaad ng sumusunod:

Na, nuong ika-11 ng Mayo 1998 ay inutusan ako ni Ernesto L. Natividad na magdala ng itinalaga sa mga
presinto sa Kapalangan, Mahipon, Bungo at Makabaklay, Gapan, Nueva Ecija.

Na, isinagawa ko ang pagdadala ng pagkain ng watchers ng bandang ika 10:00 ng umaga.

Na, ng dumating ako sa eskuwelahan ng Kapalangan na siyang pinagdadausan ng botohan ay natuklasan ko

na walang watchers ang Liberal Party o mga kandidato nito sa mga lugar ng botohan sa Kapalangan.

Na ng malaman ko ang ganitong pangyayari ay ipinagbigay alam ko kay Ginoong Ernesto L. Natividad na
kandidato para Mayor ng Gapan, Nueva Ecija na siyang kandidato opisyal ng Liberal Party.

Sa katotohanan ng lahat, ay kusang loob kong nilagdaan ang Affidavit na ito ngayong ika-14 ng Mayo 1998
dito sa Gapan, Nueva Ecija.

(SGD). DANILO SIMON

Nagsasalaysay

(2) REPUBLIKA NG PILIPINAS )

LALAWIGAN NG NUEVA ECIJA ) S.S.
BAYAN NG GAPAN )

SINUMPAANG SALAYSAY

Ako, si Danilo Simon, may asawa, Pilipino at naninirahan sa Mangino, Gapan, Nueva Ecija ng naaayon sa
batas ay nagsasaad ng sumusunod:

Na, nuong ika-11 ng Mayo 1998, nagpunta ako sa Himpilan ng Pulisya ng Gapan, Nueva Ecija at inireport ko
ang tungkol sa ginawa sa mga watchers ng Liberal Party sa mga presinto sa Kapalangan. 1wphi 1.nt

Na, kalakip nito ang kopya ng Police Blotter.

Sa katotohanan ng lahat ay kusang loob akong lumagda ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva
Ecija.

(SGD). DANILO SIMON

Nagsasalaysay

The police report of SPO1 Miguel Inductivo 29 reads:

Republic of the Philippines

National Police Commission
PHILIPPINE NATIONAL POLICE
 GAPAN POLICE STATION
Gapan, Nueva Ecija

-oOo-

GPS-IN May 14, 1998

SUBJECT: Certification

TO WHOM IT MAY CONCERN:

This is to CERTIFY, that it appear(s) in the Police Blotter of Gapan Police Station, Gapan, Nueva Ecija on page
0741 with entry number 0829 dated 11 May 1998, the following entries and read as follows:

THREAT

Danilo Simon y Nunez, 43 years old, married, driver, election watcher, resident of Mangino, Gapan, Nueva
Ecija personally appeared and complained to this station that on or about 111800 (sic) May 1998 inside
Precinct No. 43A, Kapalangan, Gapan, Nueva Ecija his watcher I.D. and Watcher Appointment was grabbed
from his hand and threw by four (4) unidentified men and threatened him "Magsilayas kayo dito pag papatayin
ko kayo." Complainant further relayed he and his companion watcher Manny Legaspi of Kapalangan, Gapan,
Nueva Ecija left the said voting precinct due to the incident.

(SGD) DANILO SIMON

Case reported and recorded by SPO2 RUPERTO H. SIMON PNP.

Issued upon request of Mr. Danilo N. Simon, for whatever any legal purpose it may serve.

FOR THE CHIEF OF POLICE

(SGD) MIGUEL S. INDUCTIVO

SPO1 PNP
Investigator

The Affidavit 30 of Eduardo Mallare reads:

REPUBLIC OF THE PHILIPPINES )

PROVINCE OF NUEVA ECIJA ) S.S.
MUNICIPALITY OF GAPAN )

AFFIDAVIT

Ako, si Eduardo Mallare, may asawa at naninirahan sa Sta. Cruz, Gapan, Nueva Ecilja matapos
makapanumpa ng naaayon sa batas ay malaya at kusang loob na nagsasaad ng sumusunod:

Na, ako ay inapoint ni G. Ernesto Natividad bilang watcher sa presinto 44A2 sa Kapalangan, Gapan, Nueva
Ecija;

Na, ayaw akong kilalaning watcher ng mga maestra na nakatalaga sa presinto 44A2 at hindi rin ako binigyan
ng CVC;

Na, hindi ako pinayagang umalis ng compound ng eskwelahan ng Kapalangan hangga't hindi tapos ang mga
ginagawang mga titsers;

Na, nadinig na sinabihan ng mga lalake ang mga titser sa presinto 44A2 na gawing malinis ang pagreretoke ng
election return.

Lumagda ako sa salaysay na ito ng kusang loob ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.

(SGD) EDUARDO MALLARE

Nagsasalaysay
The Affidavit 31 of Eduardo Surio reads:

REPUBLIC OF THE PHILIPPINES )

PROVINCE OF NUEVA ECIJA )S.S.
MUNICIPALITY OF GAPAN )

AFFIDAVIT

Ako, si Eduardo Surio, may asawa at naninirahan sa San Lorenzo, Gapan, Nueva Ecija matapos
makapanumpa ng naaayon sa batas ay malaya at kusang loob na nagsasaad ng sumusunod:

Na, itinalaga ako ni G. Eto Natividad bilang watcher niya sa presinto 50A1-50A2 sa Mahipon, Gapan, Nueva
Ecija;

Na, hindi ako pinayagang pumasok sa loob ng presinto ng apat na lalake at ipinasabi sa titsers na hindi ako
puwede sa loob ng presinto at binawal din akong umalis ng bakuran ng eskwelahan hanggat hindi nila ako
pinaaalis;

Na, nadinig ko na sinabihan ng mga lalake ang mga titsers na ayusin ang election return para masiyahan ang
kanilang amo.

Sa katunayan ng lahat ay kusang loob akong lumagda ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva
Ecija.

(SGD) EDUARDO SURIO

Nagsasalaysay

The Affidavit 32 of Rolando Gamboa reads:

REPUBLIC OF THE PHILIPPINES )

PROVINCE OF NUEVA ECIJA )S.S.
MUNICIPALITY OF GAPAN )

AFFIDAVIT

Ako, si Rolando C. Gamboa, may asawa at nakatira sa Mangino, Gapan, Nueva Ecija matapos makapanumpa
ng ayon sa batas ay malaya at kusang loob na nagsasaad ng sumusunod:

Na, inapoint akong watcher ni G. Eto Natividad sa presinto 44A sa Kapalangan, Nueva Ecija nuong May 11,
1998;

Na, hindi ako nakapasok sa kwarto na kinalalagyan ng presinto 44A dahil binawal ako ng limang lalake at
sinabihan na huwag akong umuwi hangga't hindi naguuwian ang mga titsers sa presinto 44A;

Na, hindi ako nakakuha ng CVC dahil ayaw akong bigyan ng mga titsers dahil utos daw sa kanila;

Na, narinig ko na inutusan ang mga titsers ng limang lalaki na gawing maganda o mataas ang bilang ng boto
ng Velayo na hindi halatain ang pagsasaayos.

Nilagdaan ko ang salaysay na ito ng kusang loob ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.

(SGD) ROLANDO C. GAMBOA

Nagsasalaysay

Taken together, these affidavits do not constitute substantial evidence to justify the cancellation of petitioner
Velayo's proclamation. As aforestated, Simon, Mallare, Surio ang Gamboa are all watchers of the private
respondent and hence are not impartial witnesses. A circumspect examination of these affidavits will show their
worthlessness, thus: (1) affidavits of Danilo Simon. In his first Affidavit, he said: "Na, ng dumating ako sa
eskuwelahan ng Kapalangan na siyang pinagdadausan ng botohan ay natuklasan ko na walang watchers ang
Liberal Party o mga kandidato nito sa mga lugar ng botohan sa Kapalangan." Such a statement does not
establish anything wrong with any election return. In his second Affidavit executed on the same date, he
changed his statement by alleging: "Na, nuong ika-11 ng Mayo 1998, nagpunta ako sa Himpilan ng Pulisya ng
Gapan, Nueva Ecija at inireport ko ang tungkol sa pananakot na ginawa sa mga watchers ng Liberal Party sa
mga presinto sa Kapalangan." In the second Affidavit he also mentioned threats to watchers of the liberal
Party. Nevertheless, he did not state the nature of the threat, the names of the watchers, the names of the
culprit and whether the threats affected the elections. In the police blotter, Simon further embroidered his
report. He alleged therein that it was he whose watcher ID and Appointment were grabbed and thrown away by
four unidentified men and who threatened "Magsilayas kayo dito pagpapatayin ko kayo." Also, he added, that
his companion watcher Manny Legaspi left the precinct due to the incident. The changes in Simon's story
destroy his credibility. Indeed, the police did not even investigate his report. In any event, Simon's affidavits did
not establish that the voters of private respondent failed to vote. They did not prove that any election return was
particularly tampered. They did not prove any electoral malpractice of petitioner Velayo or any of his people. It
bears stressing that petitioner Velayo and private respondent Natividad were not the only candidates for mayor
of Gapan; (2) the affidavit of Ernesto Mallare was no better. He merely alleged he was not recognized by the
teachers as a watcher; that he was not allowed to leave the school compound; and that he heard some men
tell the teachers in Precinct 44A2 "na gawing malinis ang pagreretoke ng election return." The affidavit is
meaningless for it does not name the teachers concerned and the men who gave the order to tamper the
election return and whether or not the teachers obeyed. It is also incredible that he was allowed to stay in the
precinct while efforts to tamper with the returns were being made. It is also incredible that he did not report to
the police his illegal detention and the tampering of the election returns; (3) likewise the affidavit of Eduardo
Surio has but a scrap value. He merely alleged he was barred from entering and leaving the precinct by men
whom he did not identify. He said the same men ordered the teachers whom he did not identify "na ayusin ang
election returns para masiyahan ang kanilang amo." He did not say whether the teachers obeyed, what
election returns were doctored, and the identity of the "amo." Such generalizations do not constitute evidence,
let alone evidence of any illegal act or omission on the part of petitioner Velayo to justify cancellation of his
proclamation. Surio also failed to make a police report; (4) the affidavit of Rolando C. Gamboa is likewise bereft
of value. It did not name names. It alleged "na narinig ko na inutusan ang mga titsers ng limang lalaki na
gawing maganda o mataas ang bilang ng boto ng Velayo na hindi halatain ang pagsasaayos." Again, it is not
clear whether the teachers complied. It is not clear whether the Velayo referred to is petitioner Arthur Velayo.
He also did not report to the police.

To repeat, all these affiants are watchers of respondent Natividad. The truthfulness of their affidavits is highly
suspect. The more impartial witnesses like the teachers were not presented by Natividad. Indeed, these
1w phi 1

complaints of the affiants do not appear to have been raised by Natividad during the canvassing of the election
returns in Precincts 44A, 44A2 and 50A1 and 50A2. Thus, some of the election returns in Precinct Nos. 44A
and 44A2, 50A and 50A2 were not excluded because the objections merely related to formal defects and did
not affect the integrity and authenticity of the returns. 33 In fine, the affidavits of private respondent Natividad are
insufficient proofs to annul petitioner Velayo's proclamation for as we held in Casimiro, et al. v. COMELEC, et
al.: 34

Obviously, the evidence relied upon mainly by petitioners to support their charges of fraud and
irregularities in the election returns and in the canvassing consisted of Affidavits prepared by their own
representatives. The self-serving nature of said Affidavits cannot be discounted. As this Court has
pronounced, reliance should not be placed on mere affidavits . . . .

Aside from said sworn statements, the records do not indicate any other substantial evidence that
would justify the exclusion of election returns in the canvassing for being fraudulent in character nor a
declaration that the proceedings wherein the returns were canvassed were null and void. The evidence
presented by petitioners is not enough to overturn the presumption that official duty had been regularly
performed. . . . In the absence of clearly convincing evidence, the election returns and the canvassing
proceedings must be upheld. A conclusion that an election return is obviously manufactured in the
canvass must be approached with extreme caution, and only upon the most convincing proof.

Finally, respondent COMELEC's resort to the doctrine of statistical improbability is flawed. As observed by
petitioner Velayo, from experiences in past elections, respondent COMELEC should be aware that it is possible
for one candidate or even a few candidates to get zero votes in one or a few precincts. In his Memorandum,
petitioner Velayo attached some Statement of Votes as Annexes A to A-5, where it can be readily gleaned that
there were not a few candidates who obtained zero votes in certain precincts in that particular election.

Standing alone and without more, the bare fact that a candidate for public office received zero votes in one or
two precincts can not adequately support a finding that the subject election returns are statistically improbable.
A no-vote for a particular candidate in election returns is but one strand in the web of circumstantial evidence
that those election returns were prepared under "duress, force and intimidation." 35 In the case of Una Kibad v.
Comelec, 36we warned that the doctrine on statistical improbability must be viewed restrictively, the utmost care
being taken lest in penalizing the fraudulent and corrupt practices, which indeed is called for, innocent voters
become disenfranchised, a result which hardly commends itself. This specially applies to the case at bar where
respondent COMELEC's ruling is premised on questionable affidavits of private respondent's witnesses, and
election returns which appear to be regular on their face. Moreover, the doctrine of statistical improbability
involves a question of fact and a more prudential approach prohibits its determination ex parte.

IN VIEW WHEREOF, the Resolution of the respondent COMELEC (en banc) dated October 6, 1998 is hereby
SET ASIDE, the proclamation of private respondent Ernesto Natividad is declared NULL and VOID and
COMELEC is ordered to REINSTATE petitioner Arthur V. Velayo as Mayor of Gapan, Nueva Ecija, effective
immediately upon receipt of this decision. Costs against private respondent.

SO ORDERED.

G.R. No. 193846 April 12, 2011

MARIA LAARNI L. CAYETANO, Petitioner,

vs.
THE COMMISSION ON ELECTIONS and DANTE O. TINGA, Respondents.

RESOLUTION

NACHURA, J.:

Before us is a petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Court, assailing the
Orders issued by public respondent Commission on Elections (COMELEC), through its Second Division, dated
August 23, 20101 and September 7, 2010,2 respectively. The two Orders were issued in relation to the election
protest, docketed as EPC No. 2010-44, filed by private respondent Dante O. Tinga against petitioner Maria
Laarni Cayetano.

In the automated national and local elections held on May 10, 2010, petitioner and private respondent were
candidates for the position of Mayor of Taguig City. Petitioner was proclaimed the winner thereof on May 12,
2010, receiving a total of Ninety-Five Thousand Eight Hundred Sixty-Five (95,865) votes as against the Ninety-
Three Thousand Four Hundred Forty-Five (93,445) votes received by private respondent.

On May 24, 2010, private respondent filed an Election Protest against petitioner before the COMELEC. Private
respondents protest listed election frauds and irregularities allegedly committed by petitioner, which translated
to the latters ostensible win as Mayor of Taguig City. On the whole, private respondent claims that he is the
actual winner of the mayoralty elections in Taguig City.

Posthaste, petitioner filed her Answer with Counter-Protest and Counterclaim on June 7, 2010. Petitioner
raised, among others, the affirmative defense of insufficiency in form and content of the Election Protest and
prayed for the immediate dismissal thereof.

On July 1, 2010, the COMELEC held a preliminary conference and issued an Order granting private
respondent a period within which to file the appropriate responsive pleading to the Answer of petitioner. The
COMELEC likewise stated that it will rule on the affirmative defenses raised by petitioner.

As previously adverted to, the COMELEC issued the assailed Preliminary Conference Order dated August 23,
2010, finding the protest filed by private respondent and counter-protest filed by petitioner to be sufficient in
form and substance. Effectively, the COMELEC denied petitioners affirmative defense of insufficiency in form
and substance of the protest filed by private respondent. The Order reads:

WHEREFORE, finding the instant protest and the counter-protest to be sufficient in form and substance, the
Commission (Second Division) hereby:

1. DIRECTS [private respondent] to make a cash deposit [of] ONE MILLION SIX HUNDRED NINE
THOUSAND FIVE HUNDRED PESOS (P1,609,500.00) to defray the expenses for the recount of the
ballots as well as for other incidental expenses relative thereto pertaining to the 217 clustered protested
precincts composed of 1,073 established precinct[s] at the rate of P1,500.00 for each precinct as
required in Section 2 Rule II of COMELEC Resolution No. 8804 payable in three (3) equal installments
every twenty (20) days starting within five (5) days from receipt hereof.

2. DIRECTS [petitioner] to make a cash deposit of TWO MILLION EIGHT HUNDRED ELEVEN
THOUSAND PESOS (P2,811,000.00) to defray the expenses for the recount of the ballots as well as
for other incidental expenses relative thereto pertaining to the 380 protested clustered precinct[s]
 composed of 1,874 established precincts at the rate of P1,500.00 for each precinct as required in
Section 2[,] Rule II of COMELEC Resolution No. 8804 payable in three (3) equal installments every
twenty (20) days starting within five (5) days from receipt hereof.

3. DIRECTS the City Election Officer (EO) of Taguig City, to gather and collect the subject contested
ballot boxes containing the ballots, and their keys from the City Treasurer of Taguig City and to deliver
the same to ECAD, COMELEC, Intramuros, Manila, within fifteen (15) days from receipt of the ballot
boxes from said Treasurer with prior notice to herein parties who may wish to send their respective duly
authorized representatives to accompany the same, observing strict measures to protect the safety and
integrity of the ballot boxes;

4. DIRECTS [private respondent] and [petitioner] to provide for the needed vehicle/s to the EO for the
gathering and transportation of the subject contested ballot boxes. All expenses for the retrieval and
transportation of the said ballot boxes shall be borne by both [private respondent] and [petitioner];

5. AUTHORIZES the City Election Officer to secure a sufficient number of security personnel either
from the PNP or the AFP in connection with the afore-directed gathering and transportation of the
subject ballot boxes;

6. DIRECTS [private respondent] to shoulder the travel expenses, per diems and necessary allowance
of the COMELEC personnel, which include the PES and at most two (2) support staff, and the
PNP/AFP personnel acting as security; and

7. DIRECTS the herein parties to shoulder the travelling expenses of their respective counsels and
watchers.

8. DIRECTS [private respondent] in the protest proper and [petitioner] in the counter protest to bear the
expenses for the rental of the Precinct Count Optical System (PCOS) machine that will be used for the
authentication of the ballots as well as the payment for the information Technology Expert (IT Expert)
who will assist in the authentication of the ballots, unless they are both willing to stipulate on the
authenticity of the said ballots cast in connection with the May 10, 2010 National and Local Elections.
DIRECTS further that in case [private respondent] agree[s] to stipulate on the authenticity of the ballots
and [petitioner] raises the issue of authenticity, [petitioner] shall be the one to bear the fee for the rent
of the PCOS machine as well as the service of the IT Expert.

9. DIRECTS the parties to file a manifestation whether they intend to secure photocopies of the
contested ballots within a non-extendible period of five (5) days from receipt of this Order. No belated
request for the photocopying of ballots shall be entertained by this Commission (Second Division). The
photocopying shall be done simultaneous with the recount of the ballots considering that the ballot box
storage area is no longer near the recount room.

The pertinent Order for the constitution of Recount Committees and the schedule of recount shall be issued
after the arrival of the subject ballot boxes and after the required cash deposits shall have been paid by [private
respondent].

The Preliminary Conference is hereby ordered terminated. The parties are given three (3) days from receipt
hereof to file their comment, suggestions or corrections, if any, to this Preliminary Conference Order. After the
lapse of said period, no more comment, suggestion or correction shall be entertained, and this Preliminary
Conference Order shall thereafter be valid and binding upon the parties.3

Thereafter, on August 31, 2010, petitioner filed a Motion for Reconsideration of the Preliminary Conference
Order relative to the denial of her affirmative defenses. Private respondent filed a Comment and Opposition
thereto. Consequently, the COMELEC issued the second assailed Order dated September 7, 2010, denying
petitioners Motion for Reconsideration.

Hence, this petition for certiorari positing the singular issue of whether the COMELEC committed grave abuse
of discretion amounting to lack or excess of jurisdiction in refusing to dismiss the protest of private respondent
for insufficiency in form and content.

Not unexpectedly, private respondent refutes the allegations of petitioner and raises the procedural infirmity in
the instant petition, i.e., the power of this Court to review decisions of the COMELEC under Section 3,4 Article
IX-C of the Constitution, pursuant to the leading case of Repol v. COMELEC.5 Private respondent likewise
counters that the petition fails to demonstrate grave abuse of discretion.
Adamantly, petitioner insists that the case at bar differs from Repol since the herein assailed Orders constituted
a final order of the COMELEC (Second Division) on that particular issue. Moreover, petitioner maintains that
the COMELEC patently committed grave abuse of discretion.

We cannot subscribe to petitioners proposition. The landmark case of Repol, as affirmed in the subsequent
cases of Soriano, Jr. v. COMELEC6 and Blanco v. COMELEC,7 leaves no room for equivocation.

Reviewing well-settled jurisprudence on the power of this Court to review an order, whether final or
interlocutory, or final resolution of a division of the COMELEC, Soriano definitively ruled, thus:

In the 2004 case of Repol v. Commission on Elections, the Court cited Ambil and held that this Court has no
power to review via certiorari an interlocutory order or even a final resolution of a division of the COMELEC.
However, the Court held that an exception to this rule applies where the commission of grave abuse of
discretion is apparent on its face. In Repol, what was assailed was a status quo ante Order without any time
limit, and more than 20 days had lapsed since its issuance without the COMELEC First Division issuing a writ
of preliminary injunction. The Court held that the status quo ante Order of the COMELEC First Division was
actually a temporary restraining order because it ordered Repol to cease and desist from assuming the position
of municipal mayor of Pagsanghan, Samar and directed Ceracas to assume the post in the meantime. Since
the status quo ante Order, which was qualified by the phrase "until further orders from this Commission," had a
lifespan of more than 20 days, this Order clearly violates the rule that a temporary restraining order has an
effective period of only 20 days and automatically expires upon the COMELECs denial of preliminary
injunction. The Court held:

"Only final orders of the COMELEC in Division may be raised before the COMELEC en banc. Section 3, Article
IX-C of the 1987 Constitution mandates that only motions for reconsideration of final decisions shall be decided
by the COMELEC en banc, thus:

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 of decisions
shall be decided by the Commission en banc. (Emphasis supplied.)

Under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration only
of"decisions" of a Division, meaning those acts having a final character. Clearly, the assailed status quo
ante Order, being interlocutory, should first be resolved by the COMELEC First Division via a motion for
reconsideration.

Furthermore, the present controversy does not fall under any of the instances over which the COMELEC en
banccan take cognizance of the case. Section 2, Rule 3 of the 1993 COMELEC Rules of Procedure provides:

SEC. 2. The Commission En Banc. The Commission shall sit en banc in cases hereinafter specifically
provided, or in pre-proclamation cases upon a vote of a majority of the members of the Commission, or in all
other cases where a division is not authorized to act, or where, upon a unanimous vote of all the Members of a
Division, an interlocutory matter or issue relative to an action or proceeding before it is decided to be referred to
the Commissionen banc.

The present case is not one of the cases specifically provided under the COMELEC Rules of Procedure in
which the COMELEC may sit en banc. Neither is this case one where a division is not authorized to act nor a
case where the members of the First Division unanimously voted to refer the issue to the COMELEC en banc.
Thus, the COMELECen banc is not even the proper forum where Repol may bring the assailed interlocutory
Order for resolution.

We held in Ambil, Jr. v. Commission on Elections that

Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the COMELEC in
division [cannot] dispense with the filing of a motion for reconsideration of a decision, resolution or final order of
the Division of the Commission on Elections because the case would not reach the Comelec en banc without
such motion for reconsideration having been filed x x x.

Repol went directly to the Supreme Court from an interlocutory order of the COMELEC First Division. Section
7, Article IX of the 1987 Constitution prescribes the power of the Supreme Court to review decisions of the
COMELEC, as follows:
Section 7. Each commission shall decide by a majority vote of all its members any case or matter brought
before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the
rules of the commission or by the commission itself. Unless otherwise provided by this constitution or by law,
any decision, order, or ruling of each commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof.

We have interpreted this constitutional provision to mean final orders, rulings and decisions of the COMELEC
rendered in the exercise of its adjudicatory or quasi-judicial powers. The decision must be a final decision or
resolution of the COMELEC en banc. The Supreme Court has no power to review via certiorari an
interlocutory order or even a final resolution of a Division of the COMELEC. Failure to abide by this
procedural requirement constitutes a ground for dismissal of the petition. (Emphasis supplied.)

However, this rule is not ironclad. In ABS-CBN Broadcasting Corporation v. COMELEC, we stated

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent a miscarriage of justice, when the issue involves the principle
of social justice or the protection of labor, when the decision or resolution sought to be set aside is a nullity, or
when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.

The Court further pointed out in ABS-CBN that an exception was warranted under the peculiar circumstances
of the case since there was hardly enough opportunity to move for a reconsideration and to obtain a swift
resolution in time for the 11 May 1998 elections. The same can be said in Repol's case. We rule that direct
resort to this Court through a special civil action for certiorari is justified under the circumstances obtaining in
the present case. (Emphasis supplied)

xxxx

The general rule is that a decision or an order of a COMELEC Division cannot be elevated directly to this Court
through a special civil action for certiorari. Furthermore, a motion to reconsider a decision, resolution, order, or
ruling of a COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to reconsider
an interlocutory order of a COMELEC Division shall be resolved by the division which issued the interlocutory
order, except when all the members of the division decide to refer the matter to the COMELEC En Banc.

Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor can they be proper
subject of a petition for certiorari. To rule otherwise would not only delay the disposition of cases but would also
unnecessarily clog the Court docket and unduly burden the Court. This does not mean that the aggrieved party
is without recourse if a COMELEC Division denies the motion for reconsideration. The aggrieved party can still
assign as error the interlocutory order if in the course of the proceedings he decides to appeal the main case to
the COMELEC En Banc. The exception enunciated in Kho and Repol is when the interlocutory order of a
COMELEC Division is a patent nullity because of absence of jurisdiction to issue the interlocutory order, as
where a COMELEC Division issued a temporary restraining order without a time limit, which is the Repol case,
or where a COMELEC Division admitted an answer with counter-protest which was filed beyond the
reglementary period, which is the Kho case.

This Court has already ruled in Reyes v. RTC of Oriental Mindoro, that "it is the decision, order or ruling of the
COMELEC En Banc that, in accordance with Section 7, Art. IX-A of the Constitution, may be brought to the
Supreme Court on certiorari." The exception provided in Kho and Repol is unavailing in this case because
unlike inKho and Repol, the assailed interlocutory orders of the COMELEC First Division in this case are not a
patent nullity. The assailed orders in this case involve the interpretation of the COMELEC Rules of Procedure.
Neither will theRosal case apply because in that case the petition for certiorari questioning the interlocutory
orders of the COMELEC Second Division and the petition for certiorari and prohibition assailing the Resolution
of the COMELECEn Banc on the main case were already consolidated.8

Plainly, from the foregoing, the Court has no jurisdiction to review an order, whether final or interlocutory, even
a final resolution of a division of the COMELEC. Stated otherwise, the Court can only review via certiorari a
decision, order, or ruling of the COMELEC en banc in accordance with Section 7, Article IX-A of the
Constitution.1avv phi 1

Petitioners assertion that circumstances prevailing herein are different from the factual milieu attendant in
Repol has no merit. As stated in Soriano, "the general rule is that a decision or an order of a COMELEC
Division cannot be elevated directly to this Court through a special civil action for certiorari." In short, the final
order of the COMELEC (Second Division) denying the affirmative defenses of petitioner cannot be questioned
before this Court even via a petition for certiorari.
True, the aforestated rule admits of exceptions as when the issuance of the assailed interlocutory order is a
patent nullity because of the absence of jurisdiction to issue the same.9 Unfortunately for petitioner, none of the
circumstances permitting an exception to the rule occurs in this instance.

Finally, certiorari will not lie in this case.

The issuance of a special writ of certiorari has two prerequisites: (1) a tribunal, board, or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction; and (2) there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law.10

Although it is not the duty of the Court to point petitioner, or all litigants for that matter, to the appropriate
remedy which she should have taken, we refer her to the cue found in Soriano, i.e., "[t]he aggrieved party can
still assign as error the interlocutory order if in the course of the proceedings he decides to appeal the main
case to the COMELECEn Banc." In addition, the protest filed by private respondent and the counter-protest
filed by petitioner remain pending before the COMELEC, which should afford petitioner ample opportunity to
ventilate her grievances. Thereafter, the COMELEC should decide these cases with dispatch.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.

G.R. No. 118861 April 27, 1995

EMMANUEL M. RELAMPAGOS, petitioner,

vs.
ROSITA C. CUMBA and the COMMISSION ON ELECTIONS, respondents.

DAVIDE, JR., J.:

This special civil action of certiorari under Rule 65 of the Rules of Court revives the issue of whether or not the
Commission on Elections (COMELEC) has jurisdiction over petitions for, certiorari, prohibition,
and mandamus in election cases where it has exclusive appellate jurisdiction In the split decision of 4 March
1992 in the consolidated cases of Garcia vs. De Jesus and Uy vs. Commission on Elections, 1 this Court ruled in
the negative because of the absence of any specific conferment upon the COMELEC, either by the constitution or by
legislative fiat, of jurisdiction to issue such extraordinary writs. It held that jurisdiction or the legal power to hear and
determine a cause or causes of action, must exist as a matter of law, whether the jurisdiction is original or appellate,
and since these two classes of jursdiction are exclusive of each other, each must expressly conferred by law. One
does not flow, nor is inferred, from the other. This Court proceeded to state that in the Philippine setting, the authority
to issue the aforesaid writs involves the exercise of original jurisdiction which has always been expressly conferred
either by Constitution or by law. It is never derived by implication. Although the Constitution grants the COMELEC
appellate jurisdiction, it does not grant it any power to exercise original jurisdiction over petitions for certiorari,
prohibition, and mandamus unlike the case of this Court which is specifically conferred with such authority in Section
5(1) of Article VIII. It also pointed out that the doctrines laid down in Pimentel vs. COMELEC 2 that neither the
Constitution nor any law has conferred jurisdiction on the COMELEC to issue such writs still finds application
under the 1987 Constitution.

In the decision of 29 July 1992 in Veloria vs. Commission on Elections, 3 this Court reiterated the Garcia and Uy
doctrine.

In the challenged resolution at bench, the respondent COMELEC adhered to the affirmative view of the issue,
citing as authority therefore its own decision of 29 July 1993 in Dictado vs. Cosico and the last paragraph of
Section 50 of B. P. Blg. 697, which reads:

Sec. 50. Definition.

xxx xxx xxx

The Commission is hereby vested with exclusive authority to hear and decide petitions
for certiorariprohibition, and mandamus involving election cases.
The petitioner herein pleads that this resolution be set aside and nullified for having been issued with grave
abuse of discretion amounting to lack or excess of jurisdiction. He contends that while the COMELEC's position
is inherently compelling, it deserves scant consideration in view of Garcia and Uy and Veloria and the nature
and purpose of B. P. Blg. 697 which was to govern solely the Batasang Pambansa election of 14 May 1984;
hence, it was a temporary statute which self-destructed after such election.

The antecedent facts that led to the filing of this action are uncomplicated and undisputed.

In the synchronized elections of 11 May 1992, the petitioner and private respondent Rosita Cumba were
candidates for the position of Mayor in the municipality of Magallanes, Agusan del Norte. The latter was
proclaimed the winning candidate, with a margin of only twenty-two votes over the former.

Unwilling to accept defeat, the petitioner filed an election protest with the Regional Trial Court (RTC) of Agusan
del Norte, which was assigned to Branch 2 thereof in Butuan City.

On 29 June 1994, the trial court, per Judge Rosario F. Dabalos, found the petitioner to have won with a margin
of six votes over the private respondent and rendered judgement in favor of the petitioner as follows:

WHEREFORE, in view of the foregoing results, the court hereby declares the protestant as
having won the mayoralty election and as duly elected Mayor of the Municipality of Magallanes,
Agusan del Norte in the local election held on May 11, 1992, the protestant having obtained six
(6) votes more than that of the protestee's votes.

Copies of the decision were sent to and received by the petitioner and the private respondent on 1 July 1994.

On 4 July 1994, the private respondent appealed the decision to the COMELEC by filing her notice of appeal
and paying the appellate docket fees.

On 8 July 1994, the trial court gave due course to the appeal.

On 12 July 1994, the petitioner filed with the trial court a motion for execution pending appeal, which the private
respondent opposed on 22 July 1994.

On 3 August 1994, the trial court granted the petitioner's motion for execution pending appeal. The
corresponding writ of execution was forthwith issued. Thereafter, the private respondent filed a motion for a
reconsideration of the order of execution and the sheriff held in abeyance the implementation of the writ. This
motion was denied on 5 August 1994.

The private respondent then filed with the respondent COMELEC a petition for certiorari to annul the aforesaid
other of the trial court granting the motion for execution pending appeal and the writ of execution. The petition
was docketed as SPR No. 1-94.

On 9 February 1995, the COMELEC promulgated its resolution granting the petition. 4 The dispositive portion
thereof reads as follows:

WHEREFORE, premises considered, the Commission RESOLVES that is [sic] has exclusive
authority to hear and decide petitions for certiorari, prohibition and mandamus in election cases
as authorized by law, and therefore, assumes jurisdiction of the instant petition
for certiorari which is hereby GRANTED. The Order of the court a quo of August 3, 1994 is
hereby declared NULL and VOID and the Writ of Execution issued on August 4, 1994 LIFTED.

Accordingly, petitioner Rosita Cumba is ordered restored to her position .as Municipality Mayor
of Magallanes, Agusan del Norte, pending resolution of the appeal before this Commission in
the case of Relampagos vs. Cumba in EAC No. 108-94.

In upholding its jurisdiction in certiorari, prohibition, and mandamus cases, the respondent COMELEC
maintains that there is a special law granting it such jurisdiction, viz., Section 50 of B.P. Blg. 697, which
remains in full force as it was not expressly repealed by the Omnibus Election Code (B.P. Blg. 881),and that it
is not exactly correct that this law self-destructed after the May 1984 election. It further reasoned out that in the
performance of its judicial functions, the COMELEC, is the most logical body to issue the extraordinary writs
of certiorari, prohibition andmandamus in election cases where it has appellate jurisdiction. It ratiocinated as
follows:
It is therefore clear that if there is a law which specifically confers jurisdiction to issue the
prerogative Writs, then the Commission has jurisdiction.

Such a law exists. Section 50, B.P. Blg. 697 is that law.

B.P. Blg. 697, approved on March 14, 1984, is entitled "AN ACT TO GOVERN THE ELECTION
OF MEMBERS OF THE BATASANG PAMBANSA ON MAY 14, 1984 AND THE SELECTION
OF SECTORAL REPRESENTATIVES THEREAFTER, APPROPRIATING FUNDS THEREFOR
AND FOR OTHER PURPOSES. Section 50 provides:

Sec. 50. Definition. Pre-proclamation controversy refers to any question

pertaining to or affecting the proceedings of the Board of Canvassers which
may be raised by any candidate, political party or coalition of political parties
before the board or directly with the Commission.

The Commission Elections shall be the sole judge and shall have exclusive
jurisdiction over all pre-proclamation controversies.

The Commission is hereby vested with exclusive authority to hear and decide
petitions forcertiorari, prohibition and mandamus involving election
cases.(Emphasis supplied).

We have debated among ourselves whether Section 50, B.P. Blg. 697, has been repealed. We
have come to the conclusion that it has not been repealed. The repealing provision in the
Omnibus Election Code (BP Blg. 881, December 3, 1985), provides:

Sec. 282. Repealing Clause. Presidential Decree No. 1296 otherwise known
as the The 1978 Election Code, as amended, is hereby repealed. All other
election Laws, decrees, executive orders, rules and regulations or parts thereof,
inconsistent with the provisions of this Code is hereby repealed, except
Presidential Decree No. 1618 and Batas Pambansa Blg. 20 governing the
election of the members of the Sangguniang Pampook of Regions IX and XII.
(Emphasis supplied).

B.P. Blg. 697 has not been expressly repealed, and Section 50 thereof is not inconsistent with
the provisions of the Omnibus Election Code. Besides, in the cited Garcia/Uy cases, as
reiterated in the Veloria case, the Supreme Court itself said, reiterating previous cases, that
implied repeal of statutes is frowned upon, thus:

Just as implied repeal of statutes frowned upon, so also should the grant of
original jurisdiction by mere implication to a quasi-judicial body be tabooed.
(Garcia/Uy/Veloria Cases: Emphasis supplied).

xxx xxx xxx

It is equally clear that Executive Order No. 90 . . . did not modify or repeal,
whether expressly or impliedly, Section 23 of P.D. No. 1752. It is common place
Learning thatimplied repeal are not favored in Law and are not casually to be
assumed. The first effort of a court must always be to reconcile or adjust the
provisions of one statute with those of another so as to give sensible effect to
both provisions (Jalandoni vs. Andaya, 55 SCRA 261 (1974); Villegas vs.
Subido, 41 SCRA 190, 196-197 (1971); National Power Corporation vs. ARCA,
25 SCRA 931 (1968); U.S. vs. Palacios, 33 Phil. 208 (1916); and Iloilo Palay
and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377(1965). Only
when there is clear inconsistency and conflict between the provisions of two (2)
statutes,may a court hold that the provisions later in point of time have impliedly
repealed the earlier ones" that (Philippine American Management Co., Inc., vs.
Philippine American Management Employees Association, 49 SCRA 194
(1973); and Villegas vs. Subido, 41 SCRA 190 (1971) (Larga vs. Ranada, Jr.,
No. L-7976, August 3, 1984, 164 SCRA 25).

It was even suggested that Batas Pambansa Blg. 697 self-destructed after the Batasang
Pambansa elections of 1984; because of the provisions of Section 1 (Title and Applicability)
which provides: "This act shall be known and cited as "The Law on the 1984 Batasang
Pambansa Election." It shall govern the election for the regular Batasang Pambansa which
shall be held on May 14, 1984, and the selection of sectoral representatives thereafter as
provided by the Constitution.

While that may be true with most of its provisions which were applicable only for the particular
election (like election and campaign periods, voting constituency, etc.) most if not all of the
remaining provisions could be applicable to future elections. It is not lost to the Commission that
B.P. Blg. 697 was passed also "for other purposes."

But the important consideration is that the authority granted to the Commission under B.P. Blg.
697 is not inconsistent with our election laws. It should be mentioned that the provisions of
Republic Act No. 6638 which governed the local elections of January 18, 1988, as to the
number of councilors in specified cities (Sec. 3) and the number of Sangguniang members in
different provinces and cities (Sec. 4) are still applicable up to this day. In fact, it became one of
the important controlling provision which governed the May 11, 1992 elections. If provisions of
Republic Act No. 6636 which are not inconsistent with the present election laws did not self-
destruct, why should Section 50 of B.P. Blg. 697?

Another provision which did not self-destruct is that which provides that "any city or municipal
judge, who includes or excludes any voter without any legal basis in inclusion and exclusion
proceedings, shall be guilty of an election offense," although this provision is found in Section
10 of Executive Order No. 134 supposedly with limited application as the enabling act for the
elections for Members of Congress on May 11, 1987 and for other purposes.

Clearly the intent of the law, was to give certiorari, jurisdiction to the Commission on Elections
because the Pimentel case said there was none, to fill a void in the law, and avoid an
incongruous situation.

A statute's clauses and phrases must not be taken separately but in its relation
to the statute's totality. Each statute must, in fact, be construed as to
"harmonized it with the pre-existing body of laws." Unless clearly repugnant,
provisions of statutes must be reconciled. . . . (Commissioner of Customs vs.
ESSO Standard Eastern, Inc. L-28329, August 7, 1975, 66 SCRA 113).

xxx xxx xxx

The statutory construction rule is: "When the Legislature enacts provision, it is
understood that it is aware of previous statutes relating to the same subject
matter and that in the absence of any express repeal or amendment therein, the
new provision should be deemed enacted pursuant to the legislative policy
embodied in the prior statutes." (Legaspi vs. Executive Secretary, L-36153,
November 28, 1975, 68 SCRA 253).

The Commission is the most logical body whenever it performs judicial functions to take
jurisdiction of petitions for certiorari, prohibition and mandamus because it has appellate
jurisdiction in election cases granted by the Constitution itself. The Court of Appeals has no
more appellate jurisdiction over such cases And in the case of the Supreme Court, Justice de
Castro in the Pimentel case pointed out, in his dissenting opinion that under the Constitution
the certiorari jurisdiction of the Supreme Court in election cases should properly be limited to
decisions, orders or rulings of the Commission on Elections, not from lower courts.

It was of course different under the Election Code of 1971 (R.A. No. 6388, September 2, 1971)
because the Supreme Court and the Court of Appeals then had appellate jurisdiction in election
case decided by the lower courts.

In the Veloria case, it now appears that only the Supreme Court and the Court of Appeals
havecertiorari jurisdiction over election cases from the lower courts because after reiterating the
ruling in the Garcia and Uy cases, the Supreme Court said:

In view of this pronouncement, an original civil action of certiorari, prohibition

ormandamus against a regional trial court in an election contest may be
filed only in the Court of Appeals or in this Court being the only courts given
 such original jurisdiction under the Constitution and the Law. (Emphasis
supplied).

While these two appellate Courts do have the jurisdiction under the Constitution and the law, it
is most logical for the Commission whenever it performs judicial functions to have the authority
to issue these prerogative writs. . . .

...

In traversing the first issue, we are citing our decision laid down in the case of Antonio Dictado
vs. Hon. Rodrigo N. Cosico and Emilio Tiongco promulgated on July 29, 1993. In this case, the
Commission en banc had occasion to rule on the question of whether or not the Commission
has the authority to hear and decide petitions for certiorari in election cases.

The Commission En Banc, speaking through Hon. Commissioner Regalado E. Maambong,

ruled that there is [a] law which grants the Commission, the exclusive authority to issue special
writs of certiorari, prohibition and mandamus in election cases, and there are also Supreme
Court decisions, recent in fact, which declare that the Commission has no such authority
precisely because; according to the decisions, there is no law granting such authority, and
without any hint whatsoever of the existence of Sec. 50 of Batas vs. Pambansa Blg. 697.

As gleaned from the case of Dictado, respondents were arguing that Sec. 50 of BP Blg. 697
was repealed by the Omnibus Election Code (BP Blg. 881, December 3, 1985). Furthermore, in
their answer, respondents cited Supreme Court decisions where it was declared that, indeed,
the Commission has no jurisdiction to issue special writs of certiorari, prohibition
and mandamus in aid of its appellate jurisdiction.

It is still the position of this Commission that Sec. 50, BP Blg. 697 has not been repealed.

As defined in the Constitution, "Judicial power" includes the duty of the Courts of Justice to
settle actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess, of jurisdiction on the part of any branch or instrumentality of the government (Sec. 1,
par. 2, Art. VII).

Since the COMELEC, in discharging its appellate jurisdiction pursuant to Sec. 2 (2), Art. IX-C,
acts as a court of justice performing judicial power and said power includes the determination of
whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction, it necessarily follows that the Comelec, by constitutional mandate, is vested with
jurisdiction to issue writs of certiorariin aid of its appellate jurisdiction. 5

It set aside, for having been issued with grave abuse of discretion, the trial court's order of execution pending
appeal and the writ of execution because

[a]t the time the Motion for Execution Pending Appeal was filed on July 12, 1994 the court a
quo had already lost jurisdiction over the case for as early as July 8, 1994, it had already
acknowledged through its order issued on that date, the perfection of the appeal of petitioner as
in fact it ordered the elevation of the records of the case to this Honorable Commission. 6

Aggrieved by the resolution, the petitioner filed the instant special civil action.

In the resolution of 21 February 1985, the Court required the respondents to comment on the petition and
issued a temporary restraining order enjoining the respondent COMELEC to cease and desist from enforcing is
challenged resolution.

As naturally expected, the private respondent, in her Comment, opposed the petition by invoking the very
arguments adduced by the respondent COMELEC in its challenged the resolution and the dissenting opinion in
the Garcia andUy cases.

In its comment filed by the Office of the Solicitor General, the respondent COMELEC postulates that it issued
the said resolution after it had taken cognizance of the appeal interposed by the private respondent from the
RTC decision, unlike in the Garcia and Uy cases, and therefore, in the exercise of its appellate jurisdiction,
thus:
 it cannot be gainsaid that [it] possesses inherent powers to employ means necessary to carry
into effect the powers conferred upon it by law (Sec. 6, Rule 135 of the Revised Rules of Court)
and verily, there was no need for any statutory grant for that purpose. Indeed, in annulling the
Order of Execution of the Regional Trial Court, public respondent did not exceed its jurisdiction
since its action in this regard was necessary to preserve the subject of the appeal and to
maintain the status quo of the parties pending the final outcome of its review of the correctness
of the appealed decision. 7

It tried to show that in Pimentel and Garcia, the trial courts still had jurisdiction over the cases unlike in the
instant case where the trial court had already given due course to the appeal and elevated the records of the
case to the COMELEC which had taken cognizance of the appeal.

This Court resolved to give due course to this petition and to decide it on its merits.

The contention of the respondent COMELEC as advanced by the Office of the Solicitor General is
unacceptable. It goes against its theory in the assailed resolution and is not supported by the facts. The
challenged resolution involves a case which the COMELEC docketed as a special relief case (SPR. No. 1-94).
Under Rule 28 of its Rules of Procedure, the special relief cases are petitions for certiorari,
prohibition, mandamus, and contempt proceedings. The ordinary appeal from the RTC decision was, as
disclosed in the challenged resolution; docketed as EAC No. 108-94. 8 Clearly then, the COMELEC had
recognized and taken cognizance of two cases: one, the ordinary appeal from the RTC decision (EAC No. 108-94),
and two, the special civil action for certiorari docketed as SPR No. 1-94. The two cases were not consolidated. The
dissimilarities between them need no further elaboration. Since it issued the challenged resolution under the latter
case, it cannot now be heard to state that it issued it as an incident in the former, the ordinary appeal. This
erroneous contention of the Office of the of the Solicitor General notwithstanding, the position taken by the
COMELEC in its resolution now in question paves the way for a re-examination of this Court's pronouncement in
the Garciaand Uy cases.

As earlier stated, in Garcia and Uy, 9 and later, in Veloria, 10 this Court ruled that the COMELEC has no jurisdiction
over the extraordinary writs of certiorari, prohibition, and mandamus because there is no specific constitutional or
statutory conferment to it of such jurisdiction.

The respondent COMELEC, however, points out that Section 50 of B.P. Blg. 697 expressly granted it such
jurisdiction. Indeed, it did. Nevertheless, considering that the said law was, per Section 1 thereof, "to govern the
election for the regular Batasang Pambansa which shall be held on May 14, 1984, and the selection of sectoral
representatives thereafter as provided by the Constitution," and in view of the passage of the Omnibus Election
Code (B.P. Blg. 881) by the regular Batasang Pambansa, 11 this Court is then confronted with the twin issues of
whether said B.P. Blg. 697 became functus officio after the 14 May 1984 election of members of the regular
Batasang Pambansa or the selection thereafter of the sectoral representatives at the latest, and whether it was
repealed by the Omnibus Election Code.

The Court agrees with the respondent COMELEC that there are provisions in B.P. Blg. 697 whose lifetime go
beyond the 14 May 1984 election or the subsequent selection of sectoral representatives. In fact, by the very
wording of the last paragraph of its Section 50, to: wit:

Sec. 50. Definition.

xxx xxx xxx

The Commission is hereby vested with the exclusive authority to hear and decide petitions
forcertiorari, prohibition and mandamus involving election cases. (Emphasis supplied).

it is quite clear that the exercise of the power was not restricted within a specific period of time. Taken in the
context of the conspicuous absence of such jurisdiction as ruled in Pimentel vs. Commission on Elections, 12 it
seems quite obvious that the grant was intended as a remedial legislation to eliminate the seeming incongruity or
irrationality resulting in a splitting of jurisdiction pointed out in the dissenting opinion of Justice De Castro in the said
case.

But did not the Omnibus Election Code (B.P. Blg. 881) repeal B.P. Blg. 697? The repealing clause of the latter
reads as follows:

Sec. 282. Repealing clause. Presidential decree No. 1296, otherwise known as The 1978
Election Code, as amended, is hereby repealed. All other election laws, decrees, executive
orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Code are
 hereby repealed, except Presidential Decree No. 1618 .and Batas Pambansa Blg. 20 governing
the election of the members of the Sangguniang Pampook of Regions IX and XII.

The second sentence is in the nature of a general repealing clause. It has been said:

An express general repealing clause to the effect that. all inconsistent enactments are repealed;
is in legal contemplation a nullity. Repeals must either be expressed or result by implication.
Although it has in some instances been held to be an express recognition that there are acts in
conflict with the act in which it is included and as indicative of the legislative intent to repeal
such acts, a general repealing clause cannot be deemed an express repeal because it fails to
identify or designate any act to be repealed. It cannot be determinative of an implied repeal for
if does not declare any inconsistency but conversely, merely predicates a repeal upon the
condition that a substantial conflict is found under application of the rules of implied repeals. If
its inclusion is more than mere mechahical verbiage, it is more often a detriment than an aid to
the establishment of a repeal, for such clause is construed as an express limitation of the repeal
to inconsistent acts. 13

This Court is not unaware of the equally settled rule in statutory construction that in the revision or codification
of laws, all parts and provisions of the old laws that are omitted in the revised statute or code are deemed
repealed, unless the statute or code provides otherwise expressly or impliedly. 14

By the tenor of its aforequoted Repealing Clause, it does not evidently appear that the Batasang Pambansa
had intended to codify all prior election statutes and to replace them with the new Code. It made, in fact, by the
second sentence, a reservation that all prior election statutes or parts thereof not inconsistent with any
provisions of the Code shall remain in force. That sentence

predicates the intended repeal upon the condition that a substantial conflict must be found on
existing and prior acts of the same subject matter. Such being the case, the presumption
against implied repeals and the rule on strict construction regarding implied repeals apply ex
proprio vigore. For the legislature is presumed to know the existing laws so that, if repeal of
particular or specific law or laws is intended, the proper step is to express it. The failure to add a
specific repealing clause particularly mentioning the statute to be repealed indicates that the
intent was not to repeal any existing law on the matter, unless an irreconcilable inconsistency
and repugnancy exist in the terms of the new and the old laws. 15

This being the case, the Court painstakingly examined the aforesaid last paragraph of Section 50 of the
Omnibus Election Code to determine if the former is inconsistent with any of the provisions of the latter, It found
none.

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

The Commission is hereby vested with exclusive authority to hear and decide petitions
for certiorari, prohibition and mandamus involving election cases.

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

The jurisdiction of the COMELEC having been settled, we now proceed to review the substance of the
challenged resolution.

That the trial court acted with palpable and whimsical abuse of discretion in granting the petitioner's motion for
execution pending appeal and in issuing the writ of execution is all too obvious. Since both the petitioner and
the private respondent received copies of the decision on 1 July 1994, an appeal therefrom may be filed within
five days16 from 1 July 1994, or on or before 6 July 1994. Any motion for execution pending appeal must be filed
before the period for the perfection of the appeal. Pursuant to Section 23 of the Interim Rules Implementing B.P. Blg.
129, which is deemed to have supplementary effect to the COMELEC Rules of Procedures pursuant to Rule 43 of
the latter, an appeal would be deemed perfected on the last day for any of the parties to appeal, 17 or on 6 July 1994.
On 4 July 1994, the private respondent filed her notice of appeal and paid the appeal fee. On 8 July 1994, the trial
court gave due course to the appeal and ordered the elevation of the records of the case to the COMELEC. Upon
the perfection of the appeal, the trial court was divested of its jurisdiction over the case. 18 Since the motion for
execution pending appeal was filed only on 12 July 1994, or after the perfection of the appeal, the trial court could no
longer validly act thereon. It could have been otherwise if the motion was filed before the perfection of the
appeal. 19 Accordingly, since the respondent COMELEC has the jurisdiction to issue the extraordinary writs
of certiorari, prohibition, and mandamus, then it correctly set aside the challenged order granting the motion for
execution pending appeal and writ of execution issued by the trial court.

WHEREFORE, the instant petition is DENIED and the challenged resolution of 9 February 1995 of the
Commission on Elections in SPR No. 1-94 entitled "Rosita Cumba vs. Manuel M. Relampagos, et al. " is
AFFIRMED.

The temporary restraining order issued on 21 February 1995 is hereby LIFTED.

No pronouncemnt as to costs.

SO ORDERED.

G.R. No. 168296 January 31, 2007

FELOMINO V. VILLAGRACIA, Petitioner,

vs.
COMMISSION ON ELECTIONS and RENATO V. DE LA PUNTA, Respondents.

DECISION

PUNO, CJ:

At bar is a Petition for Certiorari under Rule 64 of the Rules of Court with Urgent Prayer for Issuance of
Temporary Restraining Order. Petitioner was proclaimed as winning candidate for the position of Punong
Barangay in Barangay Caawigan, Talisay, Camarines Norte, in the July 15, 2002 barangay elections by a
margin of six (6) votes.

Private respondent filed an election protest with the Municipal Trial Court of Talisay, Camarines Norte, under
Election Case No. 001-2002. After the revision of ballots, the trial court invalidated thirty-four (34) of the ballots
for being marked. All 34 marked ballots were deducted from the votes of petitioner.

On December 3, 2003, the trial court adjudged private respondent as the true winner and nullified the
proclamation of petitioner, viz.:

WHEREFORE, the Court finds the Protestant Renato dela Punta as the duly elected Punong Barangay of
Caawigan, Talisay, Camarines Norte with the total valid vote[s] of 187 or a winning margin of 26 votes.

The earlier proclamation made by the Barangay Board of Canvassers of Precinct No. 15-A and 15-A-2 and 15-
A-1 of Barangay Caawigan, Talisay, Camarines Norte is declared null and void.1

Petitioner appealed the decision with the First Division of the Commission on Elections (COMELEC) raising for
the first time on appeal the issue that the trial court lacked jurisdiction over the election protest for failure of
private respondent to pay the correct filing fees.

The First Division, through its Resolution2 dated September 9, 2004, set aside the decision of the trial court and
dismissed the election protest of private respondent for lack of jurisdiction, viz.:

The payment credited to the general fund which could be considered as filing fee is incomplete considering that
Section 6 of Rule 37 of the [COMELEC] Rules on Procedure requires that it should be One Hundred (P100.00)
Pesos. Hence, the trial court could not have acquired jurisdiction over the [private respondents] case.3

Private respondent moved for reconsideration. In an Order4 dated October 7, 2004, the First Division elevated
the motion for reconsideration to the COMELEC En Banc.

On June 1, 2005, the COMELEC En Banc promulgated its questioned Resolution granting the motion for
reconsideration and reinstating the decision of the trial court. It issued a writ of execution5 on July 22, 2005
ordering petitioner to vacate his post as Punong Barangay of Barangay Caawigan, Talisay, Camarines Norte,
in favor of private respondent.
Hence, this petition raising the following issues:

WHETHER THE COMMISSION ON ELECTIONS (COMELEC, FOR SHORT) GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OF JURISDICTION IN NOT APPLYING THE SOLLER
DOCTRINE IN THE INSTANT CASE[.]

II

WHETHER THE COMELEC ERRED IN CONCLUDING THAT THE USE OF THE WORDS "JOKER",
"QUEEN", "ALAS", AND "KAMATIS", IN MORE THAN ONE BALLOT WOULD CONSTITUTE MARKED
BALLOTS.6

Petitioner contends that had public respondent followed the doctrine in Soller v. COMELEC,7 it would have
sustained the ruling of the First Division that the trial court lacked jurisdiction to hear the election protest due to
private respondents failure to pay the correct filing fees.

We disagree. The Soller case is not on all fours with the case at bar. In Soller, petitioner therein filed with the
trial court a motion to dismiss private respondents protest on the ground of, among others, lack of jurisdiction.
In the case at bar, petitioner actively participated in the proceedings and voluntarily submitted to the jurisdiction
of the trial court. It was only after the trial court issued its decision adverse to petitioner that he raised the issue
of jurisdiction for the first time on appeal with the COMELECs First Division.8

While it is true that a court acquires jurisdiction over a case upon complete payment of the prescribed filing fee,
the rule admits of exceptions, as when a party never raised the issue of jurisdiction in the trial court. As we
stated inTijam v. Sibonghanoy, et al., viz.:9

xxx [I]t is too late for the loser to question the jurisdiction or power of the court. xxx [I]t is not right for a party
who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to
afterwards deny that same jurisdiction to escape a penalty.

It was therefore error on the part of the COMELECs First Division to indiscriminately apply Soller to the case
at bar. As correctly pointed out by public respondent in its questioned Resolution, viz.: 1avv phi 1.net

xxx. Villagracia never assailed the proceedings of the trial court for lack of jurisdiction during the proceedings
therein. Instead, he filed an Answer to the Protest on 2 August 2002 and then actively participated during the
hearings and revision of ballots and subsequently filed his Formal Offer of Exhibits. The issue on the filing fees
was never raised until the Decision adverse to his interest was promulgated by the trial court and only on
[a]ppeal to the COMELEC. Necessarily, we apply the case of Alday vs. FGU Insurance Corporation where the
Supreme Court instructed that "although the lack of jurisdiction of a court may be raised at any stage of the
action, a party may be estopped from raising such questions if he has actively taken part in the very
proceedings which he questions, belatedly objecting to the courts jurisdiction in the event that the judgment or
order subsequently rendered is adverse to him." Villagracia is therefore estopped from questioning the
jurisdiction of the trial court only on [a]ppeal.10

As to the second issue, petitioner contends that in order to invalidate a ballot for being marked, it must appear
that the voter has placed the mark to identify the ballot.11 Petitioner argues that the appearance of the words
"Joker," "Alas," "Queen" and "Kamatis" in more than one ballot cannot identify the ballot of a voter so as to
violate the secrecy of votes. Thus, the votes should be counted in his favor.12

There are 34 marked ballots in the case at bar. Fourteen (14) ballots are marked with the word "Joker"; six (6)
ballots with the word "Alas"; seven (7) ballots with the word "Queen"; and, seven (7) ballots with the word
"Kamatis." These ballots were all deducted by the trial court from the votes of petitioner. While each of these
words appears in more than one ballot and may not identify a particular voter, it is not necessary that the marks
in a ballot should be able to specifically identify a particular voter.13 We have ruled that the distinction should
always be between marks that were apparently carelessly or innocently made, which do not invalidate the
ballot, and marks purposely placed thereon by the voter with a view to possible future identification, which
invalidates it. The marks which shall be considered sufficient to invalidate the ballot are those which the voter
himself deliberately placed on his ballot for the purpose of identifying it thereafter.14

In the case at bar, the marks indicate no other intention than to identify the ballots. The observation of public
respondent on the appearance of the marks on the questioned ballots is apropos, viz.:
xxx. We take notice of the fact that these marks were all written in the number 7 slot of the list of Kagawad for
Sangguniang Barangay. We further take notice that all these marks appear only in ballots wherein the Punong
Barangay voted thereon is Jun Villagracia, the proclaimed winning candidate and herein [petitioner]. It is
therefore indubitable that these ballots are indeed marked ballots.15

Finally, the present action is one of certiorari under Rule 64 of the Rules of Court where questions of fact
cannot be raised. The familiar rule is that findings of fact of the [COMELEC] supported by substantial evidence
shall be final and non-reviewable.16 There is no reason to depart from this rule.

IN VIEW WHEREOF, the petition is DISMISSED. The prayer for a Temporary Restraining Order is DENIED for
being moot. The questioned Resolution of the COMELEC En Banc dated June 1, 2005 in EAC No. 1-2004
isAFFIRMED.

Costs against petitioner.

SO ORDERED.

G.R. No. 124169 April 18, 1997

ASAN "SONNY" CAMILIAN, petitioner,

vs.
COMMISSION ON ELECTIONS and LEONARDO A. PIOQUINTO, respondents.

KAPUNAN, J.:

What is to be resolved in this case is whether or not the Commission on Elections (COMELEC) committed
grave abuse of discretion in setting aside the Regional Trial Court's order of execution pending appeal of its
decision declaring petitioner as duly elected mayor of Isabela, Basilan in the May 8, 1995 elections.

The facts are as follows:

Petitioner Asan "Sonny" Camlian and private respondent Leonardo A. Pioquinto were among the candidates
for the mayoralty of Isabela, Basilan during the May 8, 1995 elections.

After the canvassing, private respondent was found to have obtained a total of eight thousand two hundred
seventeen (8,217) votes while petitioner garnered a total of five thousand nine hundred forty six (5,946) votes.
Consequently, private respondent was proclaimed winner by the Municipal Board of Canvassers of Isabela,
Basilan on May 12, 1995. He, thereafter, assumed office and discharged the duties and responsibilities of the
same.

On May 19, 1995, petitioner filed an electoral protest before the Regional Trial Court (RTC) of Basilan, Branch
II.

On January 22, 1996, the RTC rendered a decision declaring petitioner as the duly elected mayor of Isabela,
Basilan after finding that he obtained a total of five thousand eight hundred thirty six (5,836) votes over private
respondent's two thousand two hundred ninety one (2,291) votes. 1

On the same day, private respondent filed a notice of appeal while petitioner filed a motion for execution
pending appeal.

On January 29, 1996, a hearing was conducted on the motion for execution pending appeal.

On January 31, 1996, the RTC issued an order granting petitioner's motion for execution pending
appeal. 2Accordingly, a writ of execution was issued. On the same day, petitioner assumed office and commenced to
discharge the functions appurtenant thereto.

On February 6, 1996, private respondent filed a petition for certiorari with prayer for preliminary injunction and
issuance of a temporary restraining order with respondent COMELEC, docketed as SPR No. 5-96.
On February 8, 1996, respondent COMELEC issued a temporary restraining order directing (a) Judge Salvador
Memoracion to cease and desist from implementing the January 31, 1996 order of execution and (b) petitioner
from assuming and discharging the functions of the office of the mayor of Isabela, Basilan until further orders
therefrom. 3

On February 29, 1996, hearing and oral arguments on the petition and the preliminary injunction was
conducted by respondent COMELEC.

On March 14, 1996, respondent COMELEC issued an order granting the issuance of a writ of preliminary
injunction.4

On March 18, 1996, respondent COMELEC issued another order declaring that the preliminary injunction it
issued was in the nature of a mandatory injunction by reason of which petitioner must cease from discharging
the functions of the office of the mayor of Isabela, Basilan.

On March 27, 1996, petitioner filed the instant petition for certiorari seeking the nullification of the orders of
respondent COMELEC directing (a) RTC Judge Salvador Memoracion to cease and desist from implementing
his order granting petitioner's motion for execution pending appeal and (b) petitioner to cease and desist from
discharging the functions of the office of the mayor of Isabela, Basilan.

On March 29, 1996, this Court issued a temporary restraining order ordering respondent COMELEC to cease
and desist from implementing and enforcing its March 14, 1996 order. 5

On April 16, 1996, respondent COMELEC issued yet another resolution reselling on the merits SPR No. 5-96.
The decretal portion of the same reads:

WHEREFORE, the petition of Leonardo A. Pioquinto is hereby GRANTED. Judgment is hereby

rendered:

1. DECLARING NULL AND VOID ab initio, the Order dated January 31, 1996
granting the issuance of writ of execution in Electoral Protest No. 1-95;

2. DECLARING likewise, null and void AND OF NO EFFECT, the writ of

execution dated January 31, 1996, being based on null and void Order of
January 31, 1996;

3. The proclamation of respondent Asan Camlian on January 22, 1996 is

likewise declared null and void;

4. DIRECTING respondent Asan Camliam (sic) to vacate the office of Mayor of

Isabela, Basilan and to relinquish the said position to Leonardo A. Pioquinto.

The above resolution is without prejudice to the final resolution of the appeal filed before this
Commission by Leonardo A. Pioquinto protestee-appellant docketed as EAC No. 4-96.

SO ORDERED. 6

Consequently, petitioner filed a motion for leave to file supplemental and/or amended petition attaching thereto
his supplemental and/or amended petition, this time including in his cause the prayer for nullification of the April
16, 1996 order of respondent COMELEC.

The sole issue for resolution in the instant case hinges on whether or not respondent COMELEC committed, or
acted in, grave abuse of discretion amounting to lack of jurisdiction in issuing the assailed orders nullifying the
RTC's January 31, 1996 order granting the motion for execution pending appeal.

The remedy of certiorari is proper only to correct errors of jurisdiction committed by a lower court, tribunal,
board or agency exercising judicial functions, or grave abuse of discretion which is tantamount to lack of
jurisdiction. Where the error is not one of jurisdiction but an error of law or fact which is a mistake of
judgment, certiorari is not available. In the instant case, herein petitioner asseverates that the challenged
orders were issued by respondent COMELEC with grave abuse of discretion amounting to lack of jurisdiction
and should therefore be set aside.
We do not agree.

At the outset, we note that there is no dispute with respect to the jurisdiction of the Regional Trial Courts to rule
on motions for execution pending appeal filed within the reglementary period for perfecting an
appeal. 7 Consequently, the filing of a notice of appeal within the same period does not divest the trial court of its
jurisdiction over a case and resolve pending
incidents. 8 Neither is there any doubt that the COMELEC has the authority to issue the extraordinary writs
of certiorari, prohibition and mandamus in election cases over which it has appellate jurisdiction by virtue of Section
50 of Batas Pambansa Bilang 697. 9 What petitioner would like this Court to consider is solely the issue of whether or
not respondent COMELEC erred in annulling and setting aside the order of the RTC granting the motion for
execution pending appeal in the absence of good reasons for the immediate execution of the questioned judgment.

Pursuant to Section 1, Rule 41 of the COMELEC Rules of Procedure, Section 2, Rule 39 of the Rules of
Court, 10which allows Regional Trial Courts to order execution pending appeal upon good reasons stated in a special
order, 11 may be made to apply suppletorily or by analogy to election cases decided by them. 12 While execution
pending appeal may be allowed under the foregoing rule, the said provision must be strictly construed against the
movant as it is an exception to the general rule on execution of judgments. 13 Following civil law jurisprudence, the
reason allowing for immediate execution must be of such urgency as to outweigh the injury or damage of the losing
party should it secure a reversal of the judgment on appeal. Absent any such justification, the order of execution
must be struck down as flawed with grave abuse of discretion. 14

In the case before us, no such justification exists.

Records bear that petitioner, in his pleading entitled "Supplemental Reasons and Arguments on the Matter of
the Propriety for the Immediate Issuance of a Writ of Execution" (his earlier "Motion for Execution" contained no
good reasons) cited the following as alleged "good" reasons for immediate execution pending appeal, to wit:

1.) This is an Election Case and as such enjoys preference over all action (sic) except habeas
corpus(Art. 258, P.B. 881, otherwise known as the Omnibus Election Code);

2.) Public interest demands that any cloud as to the true result of an election should be
dispelled as soon as possible. The legislative policy embodied in these sections which hastens
the administration of justice in election contests is aimed at making more effective the
constitutional principle that sovereignty resides in the people (QUERUBIN v. CA, G.R. 2581,
cited in GONZALES, Administrative Law, Law on Public Officers, and Election Law, 1966 ed.,
P. 518);

3.) Even before the judgment has become executory and before appeal was perfected, the
Court, in its discretion, may order execution upon good reason (sic) to be stated in the special
order such as where the appeal is clearly dilatory. (RODRIGUEZ v. CA, May 23, 1959; DE VER
v. SANTOS, 1-24351, Sept. 22, 1977), 1 An appeal for delay is good for execution pending
appeal. When an appeal is taken for purpose of delay, such fact is good reason for granting
execution pending appeal; (PRESBITERO v. RODAS, 77 PHIL. 300; ILOILO TRADING
CENTER v. RODAS, 77 PHIL. 327), 2 A dilatory tactic to unduly delay the restoration of the
possession of the land in question (Office of this Case) and the fruitful used thereof in violation
of plaintiff's rights is good enough reason to execute judgment pending appeal; (TOLEDO v.
TIZON, CA, G.R. No. 27412-R, Sept. 2, 1960), 3 The absence of a good defense on appeal is a
good reason for execution pending appeal. There was consequently no excuse to Felix Feria
waiting for the outcome of the proceedings on appeal, which obviously will not affect his right to
recover; (NAVARRA v. MARTINEZ, 66 PHIL. 178; LUZON SURETY COMPANY, INC., v.
ENRIQUEZ, No. L- 9744, SAN. 29, 1957), 4 Another good reason for the grant of immediate
execution is where the prevailing party posts sufficient bond to answer for damages in case of
reversal of the judgment; (HDA. NAVARRA v. LABRADOR, 65 PHIL. 336; GF PVTA v.
LUCERO, ET. AL., L-32550, OCT. 27, 1983), 5 The losing party, however, can post a
supersedes (sic) bond to prevent execution pending appeal; (NAWASA v. CATOLICO, L-21705
AND L-24327, APRIL 27, 1967; CITY OF MANILA v. CA, ET. AL., L-35253, JULY 26, 1976), 6
But, where the needs of the prevailing party and that of public interest are urgent, the Court can
order the IMMEDIATE EXECUTION DESPITE THE SUPERSEDEAS BOND. 15

In the trial court's order for execution pending appeal, it merely adopted some of the alleged "good" reasons
invoked by the petitioner, namely: (a) public interest in the true outcome of the election; (b) finding that private
respondent "illegally manufactured votes;" and (c) appeal was interposed merely for the purpose of delay. 16
Respondent COMELEC found the foregoing reasons inadequate and insufficient to constitute as "good
reasons" within the purview of the law. It discussed:

A reading of the disputed Order of execution pending appeal dated January 31, 1996 shows
that respondent judge just quoted the reasons advanced by protestant for the propriety of the
issuance of the execution pending appeal and tackled the jurisdiction of the trial court in issuing
the execution pending appeal citing the cases of Norbi H. Edding versus Commission on
Elections, GR No. 112060, July 17, 1995 and the case of Tomas Tobon Uy versus Commission
on Elections, 206 SCRA 779 and its findings after examination of the contested ballots that
protestee garnered only 2,291 votes as against protestant's 5,916 votes and concluded that
protestee was able to illegally manufacture 5,836 votes in his favor to the prejudice of
protestant and the sovereign will of the people of the Municipality of Isabela, Basilan.

Thus, a mere reading of the assailed Order of execution pending appeal shows no good
reasons. It must be emphasized that Section 2 of Rule 39 must be strictly complied with. The
reason advanced by the respondent judge that his ruling finding that protestee manufactured
votes in his favor is one of the good reasons is untenable. In SPR NO. 2-93 (Antonio Dictado
vs. Hon. Rodrigo Cosico), the Commission En Banc had occasion to say: "It has been the
consistent ruling of this Commission that while it is true that when an election protest is filed the
protestee is only considered a presumptive winner until the protest is resolved, in the same
way, when a protestant is adjuged the winner by a court of law but the case is on appeal with
the Commission, such appeal likewise makes the protestant a presumptive winner and, unless
meritorious grounds exist to execute judgment pending appeal, it is illogical to replace a
presumptive winner proclaimed by a board of canvassers, by another presumptive winner so
declared by a court. It needs no explanation that when a protestant is installed as a winner
pending appeal, that in itself is already disruptive of the government service. How much more if
the protestee wins the appeal in which case he will have to be reinstalled again to the office
which he was forced to vacate? 17

We agree. Not every invocation of public interest with particular reference to the will of the electorate can be
appreciated as a good reason especially so if the same appears to be self-serving and has not been clearly
established. Public interest will be best served when the candidate voted for the position is finally proclaimed
and adjudged winner in the elections. Urgency and expediency can never be substitutes for truth and
credibility. The appeal interposed by private respondent to the COMELEC does not seem to be merely dilatory
as it aims to resolve decisively the question as to who is the true winner in the last elections. Moreover, apart
from petitioner's sweeping and self-serving allegation that the appeal is dilatory, no supporting argument or
explanation whatsoever is offered why he considers it so. The omission militates against the pretended
urgency of the motion for execution pending appeal. We are sure that both petitioner and private respondent
would want to see the light at the end of the tunnel. Finally, the issue of "illegally manufactured votes" is best
ventilated, and must accordingly be threshed out, in the election case before the COMELEC.

WHEREFORE, the instant petition is hereby DENIED and the challenged resolutions of the Commission on
Elections dated February 8, 1996 and April 16, 1996 in SPR No. 5-96 are AFFIRMED.

SO ORDERED.

P.E.T. CASE No. 002 March 29, 2005

RONALD ALLAN POE a.k.a. FERNANDO POE, JR., Protestant,

vs.
GLORIA MACAPAGAL-ARROYO, Protestee.

RESOLUTION

QUISUMBING, J.:

The moving finger writes, says Omar Khayyam in the Rubayyat, and having writ, moves on. Nor all your piety
nor wit, adds the poet, could lure it back to cancel half a line; nor all your tears wash out a word of it.

Such is my view on the providential case for our consideration.

Before this Electoral Tribunal, composed pursuant to the Constitution, by all the fifteen members of the
Supreme Court, is a matter of first impression. We are tasked not only to determine, as originally prayed for,
who between the Protestant and the Protestee was the true winner in the May 10, 2004 Presidential Elections,
but also to decide now whether the Protestants widow (Mrs. Jesusa Sonora Poe, popularly known as the
cinema star Susan Roces) could intervene and/or substitute for the deceased party, assuming arguendo that
the protest could survive his death.

If one were guided by folk wisdom expressed in the adage that in a democracy, the voice of the people is the
voice of God, then it would appear our task had been made easy by fateful events. Past midnight, in the early
hours of June 24, 2004, the Congress as the representatives of the sovereign people and acting as the
National Board of Canvassers, in a near-unanimous roll-call vote, proclaimed Mrs. Gloria Macapagal Arroyo
(GMA) the duly elected President of the Philippines. She obtained 12,905,808 votes, as against 11,782,232
votes for the second-placer, the movie actor Fernando Poe, Jr. (FPJ).1 She took her Oath of Office before the
Chief Justice of the Supreme Court on June 30, 2004.

Refusing to concede defeat, the second-placer in the elections, Mr. FPJ, filed seasonably an election protest
before this Electoral Tribunal on July 23, 2004. Mrs. GMA, through counsel, filed her Answer with Counter
Protest on August 5, 2004. As counsels for the parties exchanged lively motions to rush the presentation of
their respective positions on the controversy, an act of God intervened. On December 14, 2004, the Protestant
died in the course of his medical treatment at St. Lukes Hospital. The medical certificate, filed by counsel as
part of the Notice of Death of the Protestant, showed that he died of cardio-pulmonary arrest, secondary to
cerebral infarction.

However, neither the Protestees proclamation by Congress nor the death of her main rival as a fortuitous
intervening event, appears to abate the present controversy in the public arena. Instead, notice may be taken
of periodic mass actions, demonstrations, and rallies raising an outcry for this Tribunal to decide the electoral
protest of Mr. FPJ against Mrs. GMA once and for all. The oracular function of this Tribunal, it would appear,
needs to be fully exercised to make manifest here and abroad who is the duly elected leader of the Filipino
nation. All these, despite the fact that the submissions by the parties on their respective sides in the protest and
the counter-protest are thus far, far from completed.

Needless to stress, this Tribunal cannot shirk its constitutional duty. Yet, neither could it go beyond its mandate
under the Constitution and the law. Further, this Tribunal is guided by its Rules, as well as the Rules of Court in
a suppletory manner. Considering the transcendental importance of the electoral contest involving the
Presidency, a rush to judgment is simply out of the question. Yet decide the matter we must, without further
delay, to prevent popular unrest and avoid further destabilization of government at the highest level.

Together with the formal Notice of the Death of Protestant, his counsel has submitted to the Tribunal, dated
January 10, 2005, a "MANIFESTATION with URGENT PETITION/MOTION to INTERVENE AS A
SUBSTITUTE FOR DECEASED PROTESTANT FPJ," by the widow, Mrs. Jesusa Sonora Poe, who signed the
verification and certification therein.

As movant/intervenor, Mrs. FPJ claims that because of the untimely demise of her husband and in
representation not only of her deceased husband but more so because of the paramount interest of the Filipino
people, there is an urgent need for her to continue and substitute for her late husband in the election protest
initiated by him to ascertain the true and genuine will of the electorate in the 2004 elections. In support of her
assertion, she cites De Castro v. Commission on Elections,2 and Lomugdang v. Javier,3 to the effect that the
death of the protestant does not constitute a ground for the dismissal of the contest nor oust the trial court of
the jurisdiction to decide the election contest. She stresses nevertheless that even if the instant protest case
succeeds, she is cognizant that as a mere substitute she cannot succeed, assume or be entitled to said
elective office, and her utmost concern is not personal but one that involves the publics interest. She prays,
however, that if subsequently determined that the protestee Gloria Macapagal-Arroyo did not get the highest
number of votes for president, for protestee to be disallowed from remaining in office, and thus prevented from
exercising the powers, duties, responsibilities and prerogatives reserved only to the duly-elected president or
her legitimate successor.

In her Comment, the Protestee, Mrs. GMA, relying on Vda. de De Mesa v. Mencias4 and subsequent cases
including analogous cases decided by the House of Representatives Electoral Tribunal (HRET), asserts that
the widow of a deceased candidate is not the proper party to replace the deceased protestant since a public
office is personal and not a property that passes on to the heirs. She points out that the widow has no legal
right to substitute for her husband in an election protest, since no such right survives the husband, considering
that the right to file an election protest is personal and non-transmissible.

Protestee also contends Mrs. FPJ cannot substitute for her deceased husband because under the Rules of the
Presidential Electoral Tribunal, only the registered candidates who obtained the 2nd and 3rd highest votes for the
presidency may contest the election of the president and patently, Mrs. FPJ did not receive the 2nd and
3rd highest votes for she was not even a candidate for the presidency in the election that is being contested.

Citing pertinent PET Rules, protestee also stresses that this Tribunal has no jurisdiction over actions of
surviving spouses to ascertain the vote of the electorate as the Tribunal has jurisdiction only over election
protests and quo warranto cases.

According to protestee, movant/intervenor Mrs. FPJ cannot use "the public interest" to justify her request to be
substituted for her husband. "Public interest", i.e. the need to dispel uncertainty over the real choice of the
electorate, is applicable only in election contests, not in an action to merely "ascertain the true and genuine will
of the people." She asserts that the only case herein cognizable by this Tribunal is an election protest involving
a protestant and a protestee, not between the electorate and the protestee. Citing analogous HRET cases,
protestee avers that in a case where the protestant, the primary adversary in an election protest case dies, the
public interest in said protest dies with him.

Protestee also contends that in the adversarial nature of a protest case where one of the parties dies, a correct
ruling cannot be had because the dead protestant could no longer refute his adversarys allegations because
death has rendered him hors de combat.

Further citing Defensor-Santiago v. Ramos,5 protestee points out that this Tribunal, nonetheless, confirmed its
power to dismiss an electoral case on technical grounds. She adds that if the Tribunal can do so on a
technicality, all the more it could for a stronger reason, that of protestants death.

In her Reply, movant/intervenor argues that reference of protestee to the HRET case of Abadilla v. Ablan,6 was
erroneous inasmuch as said case was a congressional protest and the controlling case is De Castro. She
likewise contends that protestant failed to distinguish between a right to an office which protestant concedes is
personal and non-transmissible vis--vis the right to pursue the process which is not personal but imbued with
public interest. She likewise stresses that the death of the protestant abolished the personal/private character
of the protest, as protestants right to assume if he prevails, necessarily disappears, and the same cannot be
transferred to anyone else, protestants widow included. She insists, however, that the public interest remains.
Further, movant/intervenor posits that the protest having been commenced cannot be abated by the death of
the protestant and the only real issue is the determination of the proper substitute. She avers that the Tribunals
rule is clear on who can commence and initiate a protest compared to the persons who can initiate a quo
warranto. She admits that in the former, only the second and third placers in the presidential election are
authorized to commence the contest, while in the latter, any voter may initiate the petition. She contends that
with no personal interest involved, any registered voter can continue the duly-commenced protest as the real-
party-in-interest which is analogous to a quo warranto. She contradicts protestee and insists that allowing "any
voter" to substitute just like in a quo warranto will not open the floodgate to whimsical protests, and the
imagined political instability feared by protestee will even more be pronounced if the protest is dismissed.
Movant/intervenor reiterates that the issue at hand involves just the continuation of proceedings by allowing
substitution and the taking over by the substitute of the prosecution of the protest already "duly commenced."

Plainly, the issue here is: May the widow substitute/intervene for the protestant who died during the pendency
of the latters protest case?

The fundamental rule applicable in a presidential election protest is Rule 14 of the PET Rules. It provides,

Rule 14. Election Protest.Only the registered candidate for President or for Vice-President of the
Philippines who received the second or third highest number of votes may contest the election of the
President or the Vice-President, as the case may be, by filing a verified petition with the Clerk of the
Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner.

Pursuant to this rule, only two persons, the 2nd and 3rd placers, may contest the election. By this express
enumeration, the rule makers have in effect determined the real parties in interest concerning an on-going
election contest. It envisioned a scenario where, if the declared winner had not been truly voted upon by the
electorate, the candidate who received that 2nd or the 3rd highest number of votes would be the legitimate
beneficiary in a successful election contest.

This Tribunal, however, does not have any rule on substitution nor intervention but it does allow for the
analogous and suppletory application of the Rules of Court, decisions of the Supreme Court, and the decisions
of the electoral tribunals.7
Rule 3, Section 16 is the rule on substitution in the Rules of Court.8 This rule allows substitution by a legal
representative. It can be gleaned from the citation of this rule that movant/intervenor seeks to appear before
this Tribunal as the legal representative/substitute of the late protestant prescribed by said Section 16.
However, in our application of this rule to an election contest, we have every time ruled that a public office is
personal to the public officer and not a property transmissible to the heirs upon death.9 Thus, we consistently
rejected substitution by the widow or the heirs in election contests where the protestant dies during the
pendency of the protest. In Vda. de De Mesa v. Mencias,10 we recognized substitution upon the death of the
protestee but denied substitution by the widow or heirs since they are not the real parties in interest. Similarly,
in the later case of De la Victoria v. Commission on Elections,11 we struck down the claim of the surviving
spouse and children of the protestee to the contested office for the same reason. Even in analogous cases
before other electoral tribunals,12 involving substitution by the widow of a deceased protestant, in cases where
the widow is not a real party in interest, we denied substitution by the wife or heirs.

This is not to say that death of the protestant necessarily abates the pending action. We have held as early as
Vda. de De Mesa (1966) that while the right to a public office is personal and exclusive to the public officer, an
election protest is not purely personal and exclusive to the protestant or to the protestee such that the death of
either would oust the court of all authority to continue the protest proceedings.13 Hence, we have allowed
substitution and intervention but only by a real party in interest. A real party in interest is the party who would
be benefited or injured by the judgment, and the party who is entitled to the avails of the suit.14 In Vda. de De
Mesa v. Mencias15 andLomugdang v. Javier,16 we permitted substitution by the vice-mayor since the vice-
mayor is a real party in interest considering that if the protest succeeds and the protestee is unseated, the vice-
mayor succeeds to the office of the mayor that becomes vacant if the one duly elected cannot assume office. In
contrast, herein movant/intervenor, Mrs. FPJ, herself denies any claim to the august office of President. Thus,
given the circumstances of this case, we can conclude that protestants widow is not a real party in interest to
this election protest.

We are not unaware that a contest before election tribunals has two aspects. First, it is in pursuit of ones right
to a public office, and second, it is imbued with public interest.

Indeed the personal aspect of the case is inextricably linked with the public interest. For an election protest
involves not merely conflicting private aspirations but is imbued with public interest which raises it into a plane
over and above ordinary civil actions.17 But herein movant/intervenor, Mrs. FPJ, has overly stressed that it is
with the "paramount public interest" in mind that she desires "to pursue the process" commenced by her late
husband. She avers that she is "pursuing the process" to determine who truly won the election, as a service to
the Filipino people. We laud her noble intention and her interest to find out the true will of the electorate.
However, nobility of intention is not the point of reference in determining whether a person may intervene in an
election protest. Rule 19, Section 1 of the Rules of Court18 is the applicable rule on intervention in the absence
of such a rule in the PET Rules. In such intervention, the interest which allows a person to intervene in a suit
must be in the matter of litigation and of such direct and immediate character that the intervenor will either gain
or lose by the effect of the judgment. In this protest, Mrs. FPJ will not immediately and directly benefit from the
outcome should it be determined that the declared president did not truly get the highest number of votes. We
fully appreciate counsels manifestation that movant/intervenor herself claims she has no interest in assuming
the position as she is aware that she cannot succeed to the presidency, having no legal right to it. Yet thus far,
in this case, no real parties such as the vice-presidential aspirants in the 2004 elections, have come forward to
intervene, or to be substituted for the deceased protestant. In our view, if persons not real parties in the action
could be allowed to intervene, proceedings will be unnecessarily complicated, expensive and interminable
and this is not the policy of the law.19 It is far more prudent to abide by the existing strict limitations on
intervention and substitution under the law and the rules.

Conformably then with the law, the rules and prevailing jurisprudence, this Tribunal finds no justifiable reason
to grant the petition/motion for intervention and substitution.

WHEREFORE, the motion of movant/intervenor JESUSA SONORA POE a.k.a. SUSAN ROCES to intervene
and substitute for the deceased protestant is DENIED for lack of merit.

Acting on the protest and considering the Notice of the Death, submitted by counsel of protestant RONALD
ALLAN POE, a.k.a. FERNANDO POE, JR., we also resolve that Presidential Electoral Tribunal Case No. 002,
entitledRonald Allan Poe a.k.a. Fernando Poe, Jr. v. Gloria Macapagal-Arroyo, should be as it is hereby
DISMISSED on the ground that no real party in interest has come forward within the period allowed by law, to
intervene in this case or be substituted for the deceased protestant.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 128054 October 16, 1997

KILOSBAYAN, INC., FERNANDO A. SANTIAGO, QUINTIN S. DOROMAL, EMILIO C. CAPULONG JR.,

RAFAEL G. FERNANDO, petitioners,
vs.
COMMISSION ON ELECTIONS, SALVADOR ENRIQUEZ, FRANKLIN DRILON, CESAR SARINO,
LEONORA V. DE JESUS, TIBURCIO RELUCIO, RONALDO V. PUNO, BENITO R. CATINDIG, MANUEL
CALUPITAN III, VICENTE CARLOS, FRANCISCO CANCIO, JIMMY DURANTE, MELVYN
MENDOZA, respondents.

HERMOSISIMA, JR., J.:

Special Provision No. 1 of the Countrywide Development Fund (CDF) under Republic Act No. 7180, otherwise
known as the "General Appropriations Act (GAA) of 1992" allocates a specific amount of government funds for
infrastructure and other priority projects and activities. In order to be valid, the use and release of said amount
would have to proceed upon strict compliance with the following mandatory requirements: (1) approval by the
President of the Philippines; (2) release of the amount directly to the appropriate implementing agency; and (3)
list of projects and activities.

In a letter, dated March 17, 1992, respondent Cesar Sarino, the then Secretary of Interior and Local
Government, requested for authority to negotiate, enter into a sign Memoranda of Agreements with accredited
Non-Governmental Organization (NGOs) in order to utilize them to implement the projects of the CDF provided
for under R.A. No. 7180.

Thereafter, in an undated letter 1, respondent Franklin Drilon, the then Executive Secretary, granted the above-
mentioned request of secretary Sarino. Such an authority was extended to all the Regional Directors of the
Department of Interior and Local Government (DILG).

Pursuant to the above-described authority granted him as the then Regional Director of the DILG-NCR,
respondent Tiburcio Relucio, on April 24, 1992, entered into a Memorandum of Agreement 2 with an accredited
NGO known as the "Philippine Youth Health and Sports Development Foundation, Inc." (PYHSDFI).

The PYHSDFI was registered with the Securities and Exchange Commission (SEC) on October 25, 1985 as a
non-stock, non-profit foundation with principal address at AFMC Building, Amorsolo Street, Makati City. 3 Its
incorporators were private respondents Benito Catindig, President; Manuel Calupitan, Vice-President; Francisco
Cancio, Treasurer; Melvin Mendoza, Secretary, and Ronaldo Puno, Chairman. 4

The PYHSDFI was organized to promote among the youth, consciousness and greater involvement and
participation in sports and cultural development activities through training camps and demonstration seminars
conducted by qualified experts in the field. 5

Not long after its incorporation, that is, in 1987, the PHYSDFI suspended its operations because of lack of fund
donations and the migration to the United States of many of its members. 6 The foundation became active again
in October, 1991. 7

In order to be eligible for financial assistance, the PYHSDFI, on December 12, 1991, applied with the DILG for
accreditation as NGO in accordance with the guidelines prescribed in Memorandum Circular No. 90-07, dated
January 31, 1990. 8

On March 23, 1992, the PYHSDFI approved Board Resolution No. 7, series of 1992, requesting for allocation
from the government's CDF in order to implement its various sports, health, and cultural activities in specific
areas in Metro Manila. 9 Hence, the Memorandum of Agreement dated April 24, 1992 was entered into by PYHSDFI
President Catindig and DILG-NCR Regional Director Relucio. In compliance with accreditation requirements of the
DILG, the PYHSDFI, on April 27, 1992, filed with the SEC a new set of by-laws. 10

Under the said Memorandum of Agreement, it was the express responsibility of the DILG to effect the release
and transfer to PYHSDFI of the amount of Seventy Million Pesos (P70,000.000.00) 11 from the aggregate
allocation of the CDF for the complete implementation of the foundation's sports, health and cultural work program.

Respondent Salvador Enriquez, as Secretary of the Department of Budget and Management (DBM), signed on
April 22, 1992 and released on April 30, 1992, Advice of Allotment (AA) No. BC-8494-92-215 dated April 22,
1992, allocating the amount of Seventy Million Pesos from the CDF under object 200-10 to cover financial
assistance for sports, health and cultural programs and other related activities in the various barangays in the
National Capital
Region. 12

The release of the Seventy Million Pesos was made in several checks 13:

Date PNB Check No. Amount

May 5, 1992 138051 P23,000,000.00

May 5, 1992 138052 P23,000,000.00

May 6, 1992 138060 P24,000.000.00

During the hearing of the Senate Committee on Finance on November 22, 1993, DILG Budget Officer Rafael
Barata confirmed the above allotment as part of the amount of Three Hundred Thirty Million Pesos
(P330,000,00000) that was released by the DBM from the 1992 CDF. The exact amount released to DILG-
NCR was P70,099,393.00 while the amounts released to the other regions are as follows:

Region I P 14,942,834.00

Region II 108,000.00

Region III 19,115,000.00

Region IV 74,131,150.00

Region V 25,047,991.00

Region VI 5,545,000.00

Region VII 20,159,500.00

Region VIII 23,006,600.00

Region IX 19,900,900.00

Region X 25,356,012.00

Region XII 9,549,000.00

CAR 10,300,000.00

The total amount disbursed under the CDF was P330,470,688.00.

On December 14, 1993, public respondent Commission on Elections (Comelec) received from petitioner
Kilosbayan a letter informing the former of "two . . . serious violations of election laws" 14, thus:

1. The documented admission of Secretary of Budget Salvador Enriquez, in the October 5, 1993
hearing of the Commission on Appointments, that the amount of P70 million was released by his
department, shortly before the elections of May 11, 1992, in favor of a private entity, the so-called
"Philippine Youth, Health and Sports Development Foundation," headed by Mr. Ronaldo Puno, who
had been repeatedly identified by columnist Teodoro Benigno as a key member of the Sulu Hotel
Operation (SHO), which had reportedly engaged in dirty election tricks and practices in said elections. .
..

2. The illegal diversion of P330 million by Malacanang from the Countryside Development Fund to the
Department of Interior and Local Government which disbursed this huge amount shortly before the May
11, 1992 elections, as revealed by DILG Budget Officer Barata, in a hearing of the Senate Finance
Committee, chaired by Sen. Vicente Sotto III, held last November 22, 1993. 15
and "request[ing] that . . . these offenses and malpractices be investigated promptly, thoroughly, impartially,
without fear or favor, so that public confidence in the integrity and purity of the electoral process may be
immediately restored for the sake of our newly-regained democracy" 16

On December 14, 1993, then Comelec Chairman Christian Monsod called a meeting of the Comelec En
Banc which resolved to refer petitioner Kilosbayan's letter-complaint to the Law Department for comment
and/or recommendation. 17 Said letter-complaint was docketed as E.O. Case No. 93-193.

The evidence proffered by Kilosbayan in support of its letter-complaint consisted of the published writings of
Teodoro Benigno 18 in his column in the Philippine Star newspaper imputing to the so-called Sulo Hotel Operation
(SHO) headed by PYHSDFI's chairman, Ronaldo Puno, the commission of illegal election activities during the May
11, 1992 elections, including the obtention of government funds for electioneering purposes; the transcripts of record
of the testimony of Secretary Enriquez before the Commission on Appointments during a hearing on October 5, 1993
and of the testimony of DILG Budget Officer Rafael Barata before the Senate Finance Committee during a hearing
on November 22, 1993; and an Affidavit executed by Norberto Gonzales, a congressional candidate in the May 11,
1992 elections, who alleged therein that at the Makati Headquarters of the Lakas-NUCD, in February, 1992, he
overheard respondents Franklin Drilon and Leonora de Jesus discussing party plans to use the funds of various
government offices to finance the party's election campaign and that ten (10) days or so before May 11, 1992, he
obtained his election propaganda materials, following instructions from the party's National Headquarters, from the
Sulo Hotel in Quezon City.

In a Memorandum dated March 28, 1994, Comelec Commissioner Regalado Maambong informed Chairman
Christian Monsod that petitioner Kilosbayan "[has already] presented their affidavits and supporting documents
and [that] it is now time for the respondents to be subpoenaed and for them to present their counter-affidavits
and supporting documents, if any, relative to the complaint of the Kilosbayan for illegal disbursement of public
funds in the May 11, 1992 synchronized elections 19.

On March 29, 1994, the Comelec En Banc, during its regular meeting, directed Atty. Jose P. Balbuena, Director
of Law Department, to issue the proper subpoenas and subpoena duces tecum in connection with the hearing
of the Kilosbayan letter-complaint; to proceed in accordance with the Comelec Rules and Procedure relative to
the investigation of cases involving election offenses; and to submit a complete report within ten (10) days from
the termination of the investigation. 20

Director Balbuena issued a subpoena dated April 17, 1994 21 addressed to respondents Salvador Enriquez,
Ronaldo Puno, Francisco Cancio, Vicente Carlos, Jimmy Durante, Melvin Mendoza and "Other John Does" requiring
them to appear at the Office of the Director on April 28, 1994 and to submit their respective counter-affidavits and
other supporting documents, if any, in connection with petitioner Kilosbayan's letter-complaint against them.

On May 10, 1994, respondents Melvin Mendoza and Salvador Enriquez filed their respective counter-
affidavits 22specifically denying all the accusatory allegations in petitioner Kilosbayan's letter-complaint.

On May 25, 1994, respondent Vicente Carlos submitted his counter-affidavit 23

For his part, respondent Francisco Cancio filed a Manifestation 24 dated May 24, 1994 that he cannot submit his
counter-affidavit due to lack of material time.

Thereafter, petitioner Kilosbayan manifested that it will file a consolidated reply to the Counter-Affidavits of
respondents Mendoza, Enriquez and Carlos. In order to give petitioner Kilosbayan sufficient time to prepare its
consolidated reply, the hearing was set on June 6, 1994.

When June 6, 1994 came, however, petitioner Kilosbayan filed, not a consolidated reply, but a pleading
denominated as "Interrogatories" 25 dated May 20, 1994 Said pleading contained a list of questions sought to be
propounded to respondents Enriquez, Carlos and Mendoza in an attempt to elicit from them confirmation regarding
the questioned CDF allotment, specifically the cash allocation received by PYHSDFI, and the consumption thereof
by PYHSDFI chairman Ronaldo Puno's SHO for its reported illegal election campaign activities during the May 11,
1992 elections.

Amidst opposition forged by respondents Enriquez and Mendoza, the Comelec Law Department, through
Director Balbuena, scheduled the clarificatory questioning on July 9, 1994. 26

Through a Motion for Reconsideration dated July 5, 1994, respondent Enriquez persisted to question the
legality of the scheduled clarificatory questioning on the ground that the same is in violation of his constitutional
right against self-incrimination. Said motion, however, was denied by the Comelec Law Department through
Director Balbuena.
Thus, respondents Enriquez and Mendoza filed separate Petitions for Certiorari 27 before the Comelec En
Bancassailing the afore-mentioned orders of Director Balbuena.

The Comelec En Banc treated said petitions as motions for reconsideration or petitions for review, of the orders
of Director Balbuena giving due course to petitioner Kilosbayan's Interrogatories and scheduling the same for
hearing. Ultimately, it ruled in favor of respondents Enriquez and Mendoza and held that the questions sought
by petitioner Kilosbayan to be propounded by Director Balbuena to said respondents, are being raised in a
preliminary investigation during which any person being accused of an offense, has the right to remain silent,
among others. 28

On February 9, 1995, the Comelec En Banc, during its regular meeting, promulgated Minute Resolution No.
95-0713 approving, with modification, the recommendations of the Law Department, as follows:

1. To dismiss the complaint against Secretary Salvador Enriquez, Jr. for insufficiency of evidence to
establish a probable cause;

2. To hold in abeyance the case against Ronald Puno, Vicente Carlos, Melvin Mendoza, Francisco
Cancio and Jimmy Durante, and to direct the Commission on Audit (COA) to conduct further rigid and
extensive investigation on the alleged irregularities or anomalies stated in its report dated November
15, 1993 and to submit its report on such investigation including pertinent papers thereof, which shall
be included in the re-evaluation of the existing documents pertaining to the PYHSDFI before the case
of the above respondents be re-submitted to this Commission for resolution;

3. To order the Law Department to summon Atty. Tiburcio A. Relucio, former Regional NCR-DILG
Director to shed light on the Kilosbayan complaint or the P70 million which were allotted by his office to
the PYHSDFI shortly before the May 11, 1992 synchronized national and local elections;

4. To direct the Law Department to send a letter to former DILG Secretary Cesar Sarino to explain
allotments and sub-allotments per evaluation report of the Law Department . . . ; [and]

5. To direct the Kilosbayan to identify, under oath, the John Does in their complaint. 29

Dismissing the case against respondent Enriquez, whose evidence of strict compliance with the requirements
of R.A. No. 7180 prior to the release of the Seventy Million Pesos to PYHSDFI, was significantly left unrebutted
by petitioner Kilosbayan, the Comelec En Banc reserved the disposition of the case against Ronaldo Puno and
other PYHSDFI officers until after submission by the COA of a more detailed report of the nature and extent of
the anomalous practices of the PYHSDFI in the utilization of the CDF money allocated thereto. Easily
understandable is the need for further investigation by the COA, considering that nothing on the Special Audit
Report on PYHSDFI's CDF allocation imputed the use thereof for electioneering activities.

In response, however, to the letter of the Comelec Law Department dated August 20, 1995 requesting the COA
to conduct a more rigid and extensive investigation, COA Chairman Celso Gangan wrote Director Balbuena on
September 12, 1995 that "the facts stated in our report dated November 15, 1993 are already complete; that
the report does not make mention of irregularities or anomalies, rather deficiencies like lack of supporting
documents to fully substantiate the disbursements . . . although the distribution of funds by the Foundation is
supported by a list . . . 30

On the same day, August 20, 1995, a letter was also sent to respondent Cesar Sarino, former DILG Secretary,
requesting him to submit a verified explanation regarding the sub-allotments issued by his office on several
dates in February and March, 1992, as well as some various sub-allotments issued by respondent Leonora de
Jesus, then Undersecretary of the DILG.

In the meantime, in a letter dated August 18, 1995, Director Balbuena asked petitioner Kilosbayan to "identify,
under oath, the John Does in their complaint". Responding through a letter 31, petitioner Kilosbayan, through its
Acting President, Cirilo Rigos, gave the following names:

Cesar Sarino Victor Sumulong

Leonora de Jesus Dionisio de la Serna

Jose Almonte Gabriel Claudio

Franklin Drilon
The above-named respondents were duly subpoenaed. Thereafter, they filed their respective Comments
and/or Answers.

On November 13, 1995, respondent Cesar Sarino submitted his Sworn Explanation/Comment remonstrating
that the questioned sub-allocations were approved after a strict compliance with the proscribed time frame
under the law which was March 27, 1992 until May 2, 1992 and the prohibition against public work
expenditures.

Respondent Gabriel Claudio filed his Comment/Answer on December 12, 1995 contending that he had not yet
joined government at any time before the May 11, 1992 elections.

Respondent Franklin Drilon filed his Comment on January 29, 1996 denouncing as hearsay the sole evidence
against him consisting of Teodoro Benigno's newspaper articles implicating him in the SHO.

Dionisio de la Serna, Victor Sumulong and Jose Almonte, who were additionally named as respondents by
petitioner Kilosbayan, denied any knowledge or participation in the election offenses subject of the letter-
complaint and objected thereto for failure to state, with particularity, the acts that they had supposedly
committed in violation of the Omnibus Election Code. Likewise, they pointed out that Teodoro Benigno
newspaper articles constituted hearsay evidence bereft of any probative value.

Insofar as respondent, then DILG-NCR Regional Director, Tiburcio Relucio was concerned, the Law
Department was unable to subpoena him because he was abroad.

No rebuttal evidence was tendered by petitioner Kilosbayan to dispute the counter-allegations of herein
respondents. Notably, too, petitioner Kilosbayan did not offer any additional evidence, in place of Teddy
Benigno's published newspaper articles implicating PYHSDFI's Ronaldo Puno and the SHO's electioneering
activities during the 1992 elections, in order to show even some semblance of a connection between the
PYHSDFI's CDF allotment and the SHO's electioneering activities.

On April 3, 1996, the Comelec Law Department issued the following findings and recommendations:

SYNOPSIS OF CASE

[1] TITLE:

KILOSBAYAN VS. SECRETARY SALVADOR ENRIQUEZ, JR., ET AL.

[2] DOCKET NUMBER

E.O. Case No. 93-193

[3] LAW ALLEGEDLY VIOLATED:

Section 261 (o), (v) and (w) of the Omnibus Election Code. (Use of public funds, money deposited in
trust, . . . , for an election campaign; Prohibition against release, disbursement or expenditure of public
funds for any and all kinds of public works; and Prohibition against construction of public works, delivery
of materials for public works and issuance of treasury warrants and similar devices).

[4] FINDINGS:

The Law Department finds that there is insufficient ground to engender a well-founded belief that
respondents Ronaldo Puno, Secretary Vicente Carlos, Melvin Mendoza, Francisco Cancio, Jimmy
Durante, Hon. Cesar N. Sarino, Leonora V. de Jesus, Jose Almonte, Dionisio de la Serna, Victor
Sumulong, Franklin Drilon and Gabriel (Gabby) Claudio have committed the acts being complained of
and are probably guilty thereof and should be held for further proceedings (trial) considering that the
allegations in the complaint are plain conjectures, speculations and based on hearsay evidence. The
other set of evidence which was obtained through coercive processes of the Commission did not show
that the acts are reflected therein come within the proscription of Section 261 (o), (v) and (w) of the
Omnibus Election Code.

[5] RECOMMENDATION:
 To dismiss the complaint of Kilosbayan against all the respondents.

xxx xxx xxx 32

The details of the investigation and a complete discussion of the evidence submitted by the contending parties
are laid out in the 16-page
Study 33 attached to the aforecited Synopsis of the Case. Essentially, the Law Department evaluated the evidence in
this wise:

The provisions of the Omnibus Election Code that may have been possibly violated by the respondents
in the KILOSBAYAN complaint, are as follows:

Sec. 261. Prohibited Acts the following shall be guilty of an election offense.

xxx xxx xxx

(o) Use of public funds, money deposited in trust, equipment, facilities owned or
controlled by the government for an election campaign. Any person who uses under
any guise whatsoever, directly or indirectly, (1)) public funds or money deposited with,
or held in trust by; public financing institutions or by government offices, banks, or
agencies; . . . . for any election campaign or for any partisan political activity.

(v) Prohibition against release, disbursement or expenditure of public funds. Any

public official or employee including barangay officials and those of government-owned
or controlled corporations and their subsidiaries, who, during forty-five days before a
regular election and thirty days before special election, releases, disburses or expends
any public funds for:

(1) Any and all kinds of public works, except the Following:

xxx xxx xxx

(w) Prohibition against construction of public works, delivery of materials for public
works and issuance of treasury warrants and similar devices. during the period of
forty-five days preceding a regular election and thirty days before a special election, any
person who (a) undertakes the construction of any public works, except for projects or
works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury
warrants or any device undertaking future delivery of money, goods or other things of
value chargeable against public funds.

The Commission on Audit, thru its Chairman, pointed out in its letter dated September 12, 1995, that
the facts stated in their report dated November 15, 1993 are already complete and that the report does
not make mention of irregularities or anomalies, rather deficiencies like lack of supporting documents to
fully substantiate the disbursements, such that although the distribution of funds by the Foundation is
supported by a list, this does not show the acknowledgment by the supposed recipients.

Although the report of the COA dated November 15, 1993 mentioned that upon the start of the audit, it
was disclosed that PYHSDFI did not keep book of accounts, wherein to record its transactions, which
constitute[s] a basic requirement in the accounting for funds and "all it had to evidence its
disbursements are vouchers, many of which are not supported by receipts or other documents", it does
not show that the public funds released to it by the DILG was used for any election campaign or for any
partisan political activity. The report says:

2) The inadequate financial reports, book of accounts and other supporting documents
rendered verification of total disbursements of P70M difficult.

This consist or the following:

a) Meals/snacks P14,465,000
b) Prof. fees/allowances
travel expenses P17,881,500
c) Rental site/facilities P3,441,480
d) Purchases of supplies
 and materials P34,221,020

P70,000,000

This particular part of the report of the COA also clearly showed that the public funds in the hands of
the PYHSDFI were not used for any and all kinds of public works.

Further it says:

3.A In most of the transactions undertaken, cash payments [were] used in paying their
obligations, since it would have been significantly expensive in overhead cost to
maintain a pool of administrative staff and besides no allocation of such expenses [was]
programmed. Moreover,most [the] expenses were in the category of payrolls which
[had] to be paid in cash. [L]ikewise suppliers asked for cash-on-delivery (COD) basis
since the prices given were the lowest obtainable commercial rates.

This showed that not all obligations of the PYHSDFI were paid in cash, in other words, the other
obligations were paid in other forms which may be checks or any other device undertaking future
delivery of money. However, no single piece of evidence was presented by Kilosbayan to prove its
complaint to determine whether they (checks) have been issued within the prohibited period.

In the light of the foregoing, the Law Department reiterates its former findings in its Study for Agenda
dated February 8, 1995 that "in the case of respondents Ronald Puno, Secretary Vicente Carlos,
Melvin Mendoza, Francisco Cancio and Jimmy Durante, based on the existing documents appearing on
the records, no probable cause exists against them for violation of the election law". It is well-settled
that the complainant must rely on the strength of his evidence and not on the weakness of the evidence
of the respondent[s].

In the case of Hon. Cesar N. Sarino, he alleged that his approvals of the sub-allocations reflect a strict
compliance with the law and do not violate Section 261 (v) of the Omnibus Election Code as their
approval [was] not within the proscribed time frame as designated by the Commission on Elections, and
Advice of Sub-allotment No. DILG-92-2-128 covers a type of expenditure which is not a public works
expenditure, hence, not violative of said provision of law.

xxx xxx xxx

. . . [A]n incisive, careful, meticulous and rigid review and re-evaluation of the above-listed sub-
allotments revealed, that the nine (9) sub-allotments approved by former DILG Secretary Cesar Sarino
which appeared to be for construction of public works are actually nine (9) pages of five (5) sub-
allotments . . . and the one (1) sub-allotment issued by Undersecretary Leonora V. de Jesus which
appeared to be for construction of public works is actually:

(b) Sub-allotment No. Date of Approval Pane No.

1] 92-1-90 March 19, 1992 1

To be liable for violation of Section 261 (v), supra, four (4) essential elements must concur and they
are:

1) A public official or employee releases, disburses, or expends any public funds;

2) The release, disbursement or expenditure of such public funds must be within forty-
five days before regular election (March 27, 1992 until May 11, 1992, Section 1,
Comelec Resolution No. 2332, Jan. 02, 1992);

3) The release, disbursement or expenditure of said public funds is for any and all kinds
of public works; and

4) The release, disbursement or expenditure of the public funds should not clover any of
the exceptions of Section 261 (v).

Except for Sub-allotment No. 92-1-94 and Sub-allotment No. 92-2-128 approved on March 27, 1992
and April 22, 1992, respectively, by former DILG Secretary Cesar Sarino, not one of the sub-allotments
 listed above does fall within the proscribed period. Sub-allotment No. 92-1-98 was approved to cover
the improvement/rehabilitation of Cabucgayan Waterworks System of Cabucgayan, Leyte. This falls
within the exception (maintenance of existing and/or completed public works projects) of the
proscription being merely a rehabilitation of an existing public works project. Sub-allotment No. 92-2-
128 was not for any and all kinds of public works. It was approved to cover the purchase of reference
and instructional materials for distribution to all local executives of the 2nd District of Surigao del Norte
in support of the Educational Upliftment Program of the DILG, hence, it could not also fall within the
proscription. The sub-allotment approved by Undersecretary Leonora V. de Jesus, which appeared to
be for the construction of public works, having been approved on March 19, 1992 does not fall within
the proscriptive period, hence, it could not also fall within the proscription.

xxx xxx xxx

Prescinding from the foregoing documents appearing on [the] records, there exists no sufficient ground
to engender a well-founded belief that former DILG Secretary Cesar Sarino and Undersecretary
Leonora V. de Jesus have violated Section 261 (v) of the Omnibus Election Code.

The Law Department must stress here that the allegations appearing in the columns of Teodoro
Benigno in the Philippine Star on several dates imputing dirty "election tricks and practices" (as worded
by Kilosbayan) against respondents Jose Almonte, Dionisio de la Serna, Victor Sumulong, Franklin
Drilon and Gabriel (Gabby) Claudio cannot be admitted as gospel truth because they are purely
speculative and conjectural. Suffice it to say, that, they are mere hearsay evidence. Well-settled is the
rule that Newspaper clippings are hearsay and of no evidentiary value. (People vs. Jovito Aguel, et al.,
97 SCRA 795].

Moreover, former Executive Secretary, now, Senator, Franklin Drilon's undated letter, where he
approved the request for authority dated March 17, 1992 of then former DILG Secretary Cesar N.
Sarino to negotiate, enter into and sign Memoranda of Agreements with and to utilize the accredited
Non-Governmental Organizations (NGOs), in accordance with the directive of then former President
Corazon Aquino dated March 13, 1992, regarding the implementation of projects under the
Countrywide Development Fund (CDF) provided under R.A. 7180, does not refer to any release,
disbursement, or expenditure of public funds for construction of public works.

Consequently, there also exists no sufficient evidence to engender a well-grounded belief that
respondents Jose Almonte, Dionisio de La Serna, Victor Sumulong, Franklin Drilon and Gabriel
(Gabby) Claudio have violated Section 261 (o) and (v) of the Omnibus Election Code.

It would not be amissed to state here in passing that well-enshrined is the rule that the complainant
must submit evidence to prove his case. IN THE INSTANT CASE, COMPLAINANT KILOSBAYAN DID
NOT SUBMIT EVIDENCE TO PROVE ITS CASE. IT POSTULATES THE THEORY THAT SINCE IT IS
THE CONSTITUTIONAL POWER OF THE COMMISSION TO ENFORCE AND ADMINISTER ALL
LAWS AND REGULATIONS RELATIVE TO THE CONDUCT OF ELECTIONS, IT IS INCUMBENT TO
USE ITS CONSTITUTIONAL POWER TO SECURE THE NEEDED EVIDENCE. THIS POSITION OF
THE KILOSBAYAN IS PATENTLY ERRONEOUS AS IT IS NOT ONLY ITS LEGAL OBLIGATION BUT
ALSO ITS MORAL DUTY TO SUBMIT ITS EVIDENCE TO PROVE ITS COMPLAINT. . . . 34

Adopting the foregoing findings and conclusions of the Law Department, the Comelec En Banc promulgated
Minute Resolution No. 96-1037 dismissing the charges against the following: respondents Ronaldo Puno,
Vicente Carlos, Melvin Mendoza, Francisco Cancio and Jimmy Durante for violation of Section 261 (o), (v) and
(w) of the Omnibus Election Code; respondents Cesar Sarino and Leonora de Jesus for violation of Section
261 (v) of the Omnibus Election Code; and respondent Franklin Drilon and others also charged in petitioner's
complaint, namely, Jose Almonte, Dionisio de la Serna, Victor Sumulong and Gabriel Claudio, for violation of
Section 261 (o) and (v) of the Omnibus Election Code, all on the ground of insufficiency of evidence to
establish probable cause.

Petitioner Kilosbayan, however, brushed off responsibility for adducing evidence of herein respondents'
culpability, and adamantly demanded that the Comelec perform its constitutional duty of prosecution election
offenses upon any, even meager, information of alleged commission of election offenses.

Its complaint having been dismissed in the aforementioned Resolutions dated February 9, 1995 and April 11,
1996, respectively, petitioner filed a Motion for Reconsideration dated May 16, 1997 and a Supplemental
Motion for Reconsideration dated June 7, 1996 seeking the nullification of the said Resolution and praying for
the filing of the corresponding criminal complaints and/or informations against herein respondents.
Reiterating the dismissal of E.O. Case No. 93-193, however, the Comelec denied the motions in the Resolution
dated October 30, 1996. 35

The Comelec Resolution dated January 20, 1997 contained the detailed basis for the final dismissal of E.O.
Case No. 93-193. Discussing point by point the arguments raised by petitioner in its Motion for Reconsideration
and Supplemental Motion for Reconsideration, the Comelec En Banc unanimously held, thus:

Movant complains:

The Law Department makes it appear that the KILOSBAYAN has greater responsibility
in the enforcement of election laws than the COMELEC to make it its moral and legal
duty to spend its time and private funds to gather evidence from public offices to
convince the COMELEC that there is sufficient evidence to establish the guilt of the
respondents.

xxx xxx xxx

It may do well to remember that the Constitution charged the COMELEC with the
responsibility to . . .

xxx xxx xxx

(6) . . . where appropriate, prosecute cases of violations of election laws,

including acts or omissions constituting election frauds, offenses, and
malpractices. (emphasis theirs)

The Commission has no quarrel with Complainant that indeed the Constitution tasked this Body with
the prosecution of election offenses. But the constitutional provision made it clear that the prosecution
should be made only where it is appropriate. It is appropriate when it is established in a preliminary
investigation that probable cause exist to justify the filing of the necessary information against the
accused.

Lest the Complainant forgets, it initiated the complaint. Thus, on it rests the burden of supporting its
charges with affidavits and/any evidence, for it is upon the evidence thus adduced, that the
investigating officer shall determine whether or not there is sufficient ground to hold the respondent for
trial. This is so provided under the COMELEC Rules of Procedure . . . .

Nonetheless, even with Complainant's failure to submit evidence substantial enough to justify findings
of probable cause, the Commission, through its Law Department undertook an investigation of the
case. The Law Department summoned the parties, took testimonies of witnesses, secured documents,
and conducted hearings. The result of the preliminary investigation was certainly on the basis of the
evidences adduced by complainant and the facts gathered by the Department on its own initiative.

xxx xxx xxx

No other evidence except Mr. Benigno's articles were submitted [by petitioner] to prove the existence of
the so-called Sulo Hotel Operations. "Newspaper clippings are hearsay and of no evidentiary value."
(People v. Aquel, et al.. 97 SCRA 795). . . .

[Further] . . . [petitioner] wants the Commission to derive from [the Commission on Audit] report the
conclusion that because there were discrepancies, to wit: 1. No books of accounts [were] maintained by
the NGO [i.e., PHYSDFI]; and 2. Cash payments were made regardless of amount, then the allocation
to PHYSDFI were made for electioneering purposes. Indeed, there could have been, as alleged by
Complainant, irregularities in the allocation, but it must be shown by the quantum of evidence required
to establish probable cause that such irregularities constituted election offense. This, Complainant's
evidences failed to show.

xxx xxx xxx

It was established that the PHYSDFI received from DILG-NCR an allocation of P70 Complainant "the
nature" of the allocation and the amount of the expenditures' made by PHYSDFI "within a short period
of time, i.e., immediately before the elections and in the light of the fact that it stopped all its operations
shortly after the elections' established beyond reasonable doubt that the foundation was engaged in
 partisan political activity. Complainant further averred that the "flight of the heads of the foundation
(Puno and Catindig) and Regional Director Tiburcio A. Relucio who went into hiding after the series of
exposes by columnist Teodoro Benigno . . . constitutes an implied admission of guilt. . . .

It is the Law Department's findings and so is Ours, that the nature and amount of expenditure within a
short period of time are not sufficient to meet the quantum proof required to establish that said
contributions were made for partisan political activity. It must be emphasized that the burden is on
Kilosbayan to prove its allegations. He who alleges must prove his allegation. Unfortunately for
Complainant, it was not able to produce evidence showing that the contribution was used for partisan
political activity.

xxx xxx xxx

Complainant posits the view that respondents are liable . . . because the sports and medical kits were
unlawful election propaganda, having been purchased and distributed a few days before election and
then stopped after the election. At most, this is speculative and presumptive. In the absence of proof
amply showing that the purchase and distribution of gadgets and kits were made to advertise or to
further the chances of victory of a candidate or candidates, the Commission cannot justify the
conclusion that probable cause exists to charge respondents . . . .

xxx xxx xxx

While it was established by documents thus presented . . . that there was a release of public funds by
DILG/DILG-NCR, within the prohibited period, the same could not be considered as a violation . . .
because one, the expenditure was not for public works; and two, the Department of Interior and Local
Government can not be considered as an office of other ministries (departments) performing functions
similar to the Ministry of Social Services and Development or the Ministry of Human Settlements.

Kilosbayan's complaints were heard. They were investigated. Complainant was given opportunity to
argue its case and prove its charges. It presented arguments but not evidences. Its thesis is more on
speculations, conjectures and suspicions. It expects the Commission to find as circumstantial evidence
the chain of circumstances which [it] presented, forgetting that:

The rule on circumstantial evidence necessarily requires that each circumstance must
be positively established with the requisite quantum of evidence, in the same manner
that the catena that binds them together and conduces to a conclusion of guilt must
survive the test of reason and satisfy the required evidentiary weight. (People vs.
Adofina, 239 SCRA 67)

Unfortunately, Complainant failed to substantiate with sufficient evidence the circumstances on which it
based the liability of respondents for offenses charged by way of its Supplemental Motion for
Reconsideration. . . . 36

Its Motion for Reconsideration and Supplemental Motion for Reconsideration having been finally denied by the
Comelec En Banc, petitioner Kilosbayan has come before us ascribing grave abuse of discretion to public
respondent Comelec for: (1) refusing and/or neglecting to gather more evidence of respondents' culpability,
pursuant to its constitutional duty to prosecute election offenses, through oral arguments upon petitioner's
Motion for Reconsideration and Supplemental Motion for Reconsideration as well as from respondents
Rolando Puno and Tiburcio Relucio who, petitioner claims, have not gone abroad but are actually in the
country; and (2) for issuing a blanket exoneration of all respondent despite the prima facie evidence already in
the hands of the Comelec.

The Comelec did not commit any act constituting grave abuse of discretion in dismissing petitioner
Kilosbayan's letter-complaint against herein respondents, the former having failed to prove its case against the
latter. As such, this petition must be dismissed.

Section 2 (7) of Article IX-C of the 1987 Constitution provides that the Comelec shall exercise the power to
"investigate and, where appropriate, prosecute cases of violations of elections laws, including act or omissions
constituting election frauds, offenses, and malpractices". Discerning the rationale for this grant of prosecutorial
powers to the Comelec, we already had occasion to rule, thus:

The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to
the conduct of election and the concomitant authority to investigate and prosecute election offenses is
 not without compelling reason. The evident constitutional intendment in bestowing this power to the
COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in
the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty
of every qualified citizen to vote. 37

This constitutional grant of prosecutorial power in the Comelec finds statutory expression under Section 265 of
Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit:

Sec. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting
arms of the government: Provided, however, That in the event that the Commission fails to act on any
complaint within four months from his filing, the complainant may file the complaint with the office of the
fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.

Insofar as the prosecution of election offenses is concerned, therefore, the Comelec is the "public prosecutor
with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses
punishable under the [Omnibus Election] Code before the competent court." 38 This constitutional and statutory
mandate for the Comelec to investigate and prosecute cases of violation of election laws translates, in effect, to the
exclusive power to conduct preliminary investigations in cases involving election offenses for the twin purpose of
filing an information in court and helping the Judge determine, in the course of preliminary inquiry, whether or not a
warrant of arrest should be issued. 39

For the effective investigation and prosecution of cases of election offenses and in the exercise by the Comelec
of its quasi-legislative power under Section 6, Article IX of the 1987 Constitution, the Comelec Rules of
Procedure were promulgated, providing, among others, the guidelines pertinent to election offenses. They are
as follows:

Rule 34 Prosecution of Election Offenses

Sec. 1. Authority of the Commission to Prosecute Election Offenses. The Commission shall have the
exclusive power to conduct preliminary investigation of all election offenses punishable under the
election laws and to prosecute the same, except as may otherwise be provided by law.

Sec. 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government. The Chief
State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are hereby given
continuing authority, as deputies of the Commission, to conduct preliminary investigation of complaints
involving election offenses under the election laws which may be filed directly with them, or which may
be indorsed to them by the commission or its duly authorized representatives and to prosecute the
same. Such authority may be revoked or withdrawn any time by the Commission whenever in its
judgment such revocation or withdrawal is necessary to protect the integrity of the Commission,
promote the common good, or when it believes that successful prosecution of the case can be done by
the Commission.

Sec. 3. Initiation of Complaint. Initiation of complaint for election offenses may be done motu
proprio by the Commission, or upon written complaint by any citizen of the Philippines, candidate,
registered political party, coalition of political parties or organizations under the party-list system or any
accredited citizen arms of the Commission.

Sec. 4. Form of Complaint and Where to File. (a) When not initiated motu propio by the Commission,
the complaint must be verified and supported by affidavits and/or any other evidence. Motu
propio complaints may be signed by the Chairman of the Commission, or the Director of the Law
Department upon direction of the chairman, and need not be verified.

(b) The complaint shall be filed with the Law Department of the Commission; or with the offices of the
Election Registrars . . .

xxx xxx xxx

Sec. 5. Referral for Preliminary Investigation. If the complaint is initiated motu proprio by the
Commission, or is filed with the Commission by any aggrieved party, it shall be referred to the Law
Department for investigation. Upon direction of the Chairman of the Commission, the preliminary
investigation may be delegated to any lawyer of said Department, or to any of the Regional Election
Directors or Provincial Election Supervisors, or any lawyer of the Commission.

Sec. 6. Conduct of Preliminary Investigation. (a) If on the basis of the complaint, affidavits and the
supporting evidence, the investigating officer finds no ground to continue with the inquiry, he shall
recommend the dismissal of the complaint and shall follow the procedure prescribed in Section 8 (c) of
this Rule. Otherwise, he shall issue a subpoena to the respondent, attaching thereto a copy of the
complaint, affidavits and other supporting documents giving said respondent ten (10) days from receipt
within which to submit counter-affidavits and other supporting documents. The respondent shall have
the right to examine all other evidence submitted by the complainant.

(b) Such counter-affidavits and other supporting evidence submitted by the respondent shall be
furnished by him to the complainant.

(c) If the respondent cannot he subpoenaed, or if subpoenaed, does not submit counter-affidavits within
the ten-dry period, the investigating officer shall base his resolution on the evidence presented by the
complainant.

(d) If the investigating officer believes that there are matters to be clarified, he may set a hearing to
propound clarification questions to the parties or their witnesses, during which the parties shall be
afforded an opportunity to be present but without the right to examine or cross-examine. If the parties
so desire, they may submit questions to the investigating officer which the latter may propound to the
parties or witnesses concerned.

(e) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve
the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for trial.

Sec. 7. Presumption of Existence of Probable Cause. A complaint initiated motu proprio by the
Commission is presumed to be based on sufficient probable cause and the investigating officer must
forthwith issue the subpoena mentioned in the immediately preceding section.

Sec. 8. Duty of Investigating Officer. The preliminary investigation must be terminated within twenty
(20) days after receipt of the counter-affidavits and other evidence of the respondents, and resolution
thereof shall be made within five (5) days hereafter.

(a) If the investigating officer finds no cause to hold the respondent for trial, he shall recommend
dismissal of the complaint.

(b) If the investigating officer finds cause to hold the respondent for trial, he shall prepare the resolution,
and the corresponding information wherein he shall certify under oath that he has examined the
complainant and his witnesses, that there is reasonable ground to believe that a crime has been
committed and that the accused was informed of the complaint and of the evidence submitted against
him and that he was given an opportunity to submit controverting evidence.

(c) In either case, the investigating officer shall, within five (5) days from the rendition of his
recommendation, forward the records of the case to

1) The Director of the Law Department of the Commission in cases investigated by any
of the Commission lawyers or field personnel and

2) The Stale Prosecutor, Provincial Fiscal or City Fiscal, as the case may be, pursuant
to the continuing authority provided for in Section 2 of this Rule.

Sec. 9. Duty of the Law Department, State Prosecutor, Provincial or City Fiscal Upon Receipt of
Records. (a) Within ten (10) days from receipt of the records stated in paragraph (c) of the
immediately preceding section, the State Prosecutor, Provincial or City Fiscal shall take appropriate
action thereon, immediately informing the parties of said action.

(b) In cases investigated by the lawyers or the field personnel of the Commission, the Director of the
Law Department shall review and evaluate the recommendation of said legal officer, prepare a report
and make a recommendation to the Commission affirming, modifying or reversing the same which shall
be included in the agenda of the succeeding meeting en banc of the Commission. If the Commission
 approves the filing of an information in court against the respondent/s, the Director of the Law
Department shall prepare and sign the information for immediate filing with the appropriate court.

(c) In all other cases, if the recommendation to dismiss or the resolution to file the case in court is
approved by State Prosecutor, Provincial or City Fiscal, they shall likewise approve the Information
prepared and immediately cause its filing with the proper court.

(d) If the recommendation to dismiss is reversed on the ground that a probable cause exists, the State
Prosecutor, or the Provincial or City Fiscal, may, by himself prepare and file the corresponding
information against the respondent or direct any of his assistants to do so without conducting another
preliminary investigation.

xxx xxx xxx [Emphasis ours].

The Comelec, whenever any election offense charge is filed before it, must have first, before dismissing the
same or filing the corresponding information, conducted the preliminary investigation proper of the case. At this
initial stage of criminal prosecution, is the determination of probable cause, i.e., whether or not there is reason
to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrasment of trial 40 or as the Comelec Rules of Procedure phrase it,
whether or not "there is reasonable ground to believe that a crime has been committed" 41.

The determination of probable cause in any criminal prosecution, is made indispensable by the Bill of Rights
which enshrines every citizen's right to due process, the presumption that he is presumed innocent, and the
inadmissibility against him of any damaging evidence obtained in violation of his right against self-incrimination.
As Justice Reynato S. Puno has pointed out, probable cause is neither an "opaque concept in our
jurisdiction" 42 or a "high level legal abstraction to be the subject of warring thoughts" 43 It constitutes those "facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been
committed" 44 by the person sought to be judicially indicted. In determining probable cause, however, the public
prosecutor must have been apprised by the complainant of his evidence in support of his accusatory allegations. In
other words, determining probable cause is an intellectual activity premised on the prior physical presentation or
submission of documentary or testimonial proofs either confirming, negating or qualifying the allegations in the
complaint.

It follows, therefore, that in the instant case, petitioner Kilosbayan must have necessarily tendered evidence,
independent of and in support of the allegations in its letter-complaint, of such quality as to engender belief in
an ordinarily prudent and cautious man that the offense charged therein has been committed by herein
respondents. Indeed probable cause need not be based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute
certainty of guilt 45, but it certainly demands more than "bare suspicion" 46 and can never be "left to presupposition,
conjecture, or even convincing logic" 47. The efforts of petitioner Kilosbayan, thus, in order to successfully lead to the
judicial indictment of respondents, should have gone beyond a largely declamatory condemnation of respondents
and diligently focused on its two-fold obligation of not only substantiating its charges against respondents but also
proffering before the Comelec substantial evidence of respondents' utilization, through conspiratorial, cooperative
and/or interrelated acts, of Seventy Million Pesos from the CDF for electioneering activities in violation of the
pertinent provisions on election offenses as enumerated in the Omnibus Election Code.

In the dispensation of this obligation, however, petitioner Kilosbayan utterly failed. The encompassing narration
of the pertinent facts and circumstances of this case in the early part of this ponencia indubitably shows the
complacency, at the least, and the gross and deliberate negligence, at the most, of petitioner Kilosbayan in
presenting sufficient evidence in support of its letter-complaint.

To salvage its position, however, petitioner Kilosbayan denies the existence, under the 1987 Constitution, of
any obligation on its part to present any evidence of its accusations against respondents in its letter-complaint.
Petitioner Kilosbayan asserts that it is the obligation of the Comelec to search for the evidence needed to
judicially indict respondents because it is the agency empowered to investigate and prosecute cases involving
election offenses; that E.O. Case No. 93-193 should, at any rate, be deemed one filed by the Comelec motu
proprio, thus needing no evidence since probable cause is such a case is presumed, petitioner Kilosbayan
having only "requested" for an investigation and the Comelec having proceeded to in fact hold the
investigation, as "requested" by petitioner Kilosbayan; and that the Comelec should already be grateful to
petitioner Kilosbayan for the latter's private efforts at exposing respondents' illegal election activities.

Kilosbayan's position is not tenable.

Indeed, Kilosbayan truly deserves commendation for its continued vigilance against any and all forms of
government corruption that cost this country not only the funds gravely needed to afford each Filipino a decent
and honorable life, but also the moral resolve to unite with each other and resist and eradicate the growing
culture of greed, abuse of power and blatant disregard for basic human dignity and social responsibility. But it
must guard against arrogance in trumpeting its causes, if not recklessness in its advocacy.

The claim of petitioner Kilosbayan that it is merely the "informant" and not the private complainant with the
burden to prove probable cause, borders on the ridiculous. Kilosbayan filed before the Comelec a letter-
complaint dated December 14, 1993 in support of which documentary evidences like copies of Teodoro
Benigno's newspaper articles on the SHO's use of PYHSDFI-obtained CDF, of respondent Enriquez's
testimony before the Commission on Appointments, of DILG Budget Officer Barata's testimony before the
Senate Finance Committee, and of Norberto Gonzales' affidavit, were likewise submitted by petitioner. The
letter-complaint not being verified, it is not disputed that petitioner Kilosbayan subsequently caused its
verification; when later asked to give the names of the other John Does in its letter-complaint, petitioner
Kilosbayan obliged with a list, under oath, of additional respondents. Petitioner Kilosbayan initiated the
complaint against herein respondents, hence the docketing thereof as E.O. Case No. 93-193; it filed numerous
pleadings before the Comelec as a private complainant in E.O. Case No. 93-193; it proceeded in the case in
accordance with the Comelec Rules of Procedure pertinent to the prosecution of cases of election offenses.
After all, the Kilosbayan should have presented evidence and not proceeded and relied on mere conjecture
and hearsay evidence.

The contention of petitioner Kilosbayan that it is the Comelec that is duty-bound to search for evidence to
prove its letter-complaint is downright erroneous. The task of the Comelec as investigator and prosecutor,
acting upon any election offense complaint, is not the physical searching and gathering of proof in support of a
complaint for an alleged commission of an election offense. A complainant, who in effect accuses another
person of having committed an act constituting an election offense, has the burden, as it is his responsibility, to
follow through his accusation and prove his complainant. If the complainant fails to proffer the necessary
evidence to show probable cause, notwithstanding the lack of denial or any evidence in controversion, of the
accusation, the complaint must be dismissed, since any person accused of a crime is presumed innocent and
does not at all have to make a response or reaction to the charges against him.

The Comelec, in acting upon an election offense complaint in the course of preliminary investigation, initially
facilitates the confrontation process between the complainant and the respondents by requiring the submission
of and interfacing, their respective evidences. Ultimately, the Comelec passes upon the contending parties'
respective submission and proofs and weighs the fact and circumstances established therefrom. Contrary to
the asseveration of petitioner Kilosbayan, the preliminary investigation is not an occasion for the Comelec to,
as a duty, spoonfeed the complainant with evidence needed to prove its case.

Finally, we cannot avoid to point out that no novel legal theory can distract even an ordinary layman from the
plain dearth of evidence of respondents' culpability on the record.

There is no proof of the electioneering activities alleged by petitioner Kilosbayan to have been perpetrated by
PYHSDFI during the May 11, 1992 elections. Petitioner claims that PYHSDFI distributed medical kits and
sports equipment to several youth groups in certain Metro Manila barangays for purposes of influencing their
vote during the May 11, 1992 elections. Petitioner, however, vaguely states the places where, the dates when,
the particular candidate for whose cause, and the general description of the people for whose consumption, the
distribution of election propaganda materials was undertaken. In fact, there is no proof that the medical kits and
sports equipment were election propaganda materials. This is not surprising for there is the barest evidence
that this distribution had any taken place at all.

There is no proof that PYHSDFI used its cash allocations as an accredited non-governmental organization in
order to undertake electioneering activities. Petitioner likewise did not present proof that said distribution of
medical kits and sports equipment was for purposes of influencing the votes of certain groups of people during
the May 11, 1992 elections. Brushing aside these fatal evidentiary lapses, petitioner insists that PYHSDFI is
guilty of using public funds for electioneering purposes simply because it received its CDF allocation within a
time frame suspiciously so near the May 11, 1992 elections. This CDF allocation, however, has been
convincingly shown to be a legal disbursement of public funds. Significantly, PYHSDFI neither presented
rebuttal evidence or even attempted to argue against the presumption of regular performance of official duty on
the part of respondents like Franklin Drilon, Cesar Sarino, and Salvador Enriquez who were then acting in their
official capacity as heads of their respective departments.

It may even be conceded that petitioner tells a credible story, it being too much of a coincidence for there to be,
on the one hand, rumors of electioneering activities on the part of PYHSDFI and on the other, genuine cash
allotments showing disbursement of public funds to the latter so coincidentally close to the May, 1992
elections. However, no matter how believable a story may be, no matter how possible it could really have been
that PYHSDFI was a financial conduit for criminal elements working for the interests of a particular candidate in
the 1992 elections, criminal charges cannot ever be sanctioned by possibilities or coffee shop rumors.

In other words, said cash allocations appear to be evidence of perhaps, a thousand hypothetical, though,
possible scenarios. But, they are evidence of only one fact: that a certain amount of public money was made
available to PYHSDFI as it is rightfully entitled thereto as an accredited non-governmental organization at
around the same time that the synchronized elections of 1992 were to be held. But this one fact is certainly no
justification to indict herein respondent for the election offenses imputed to them.

Lastly, there is no proof that respondents conspired to have PYSDFI accredited as a non-government
organization in order to avail itself of public funds to spend for electioneering purposes. In order for there to be
reasonable ground to believed that a conspiracy exists among (1) the government officials who set up the
mechanism for accrediting NGOs to implement the projects under the CDF and to qualify the latter to receive
CDF allocations; (2) the incorporators and officers of the PYHSDFI; and (3) the SHO implicated by Teodoro
Benigno in his newspaper articles in alleged electioneering activities during the May 11, 1992 elections, there
must be a semblance of evidence linking them to each other. There is none, however, except for the hearsay
evidence consisting of the aforementioned newspaper articles. Suffice it to say that although only a low
quantum and quality of evidence is needed to support a finding of probable cause 48, the same cannot be justified
upon hearsay evidence that is never given any evidentiary or probative value in this jurisdiction.

Incidentally, we note that although made party respondents in this case, Benito Catindig and Manuel Calupitan
III were not officially made respondents in E.O. Case No. 93-193 and accordingly not served with subpoena at
any time during the pendency of said before the Comelec. There is no ground, therefore, to implead Benito
Catindig and Manuel Calupitan III in the instant case.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is hereby DISMISSED, without any
pronouncement as to costs.

SO ORDERED.