COMPILATION OF SUPREME COURT RULINGS ON ELECTION CASES

CHAPTER I
General Principles

1. Source of Sovereign Power           

§1. The Philippines is a
democratic and republican State. 
Sovereignty resides in the people and all government authority emanates
from them. (Article II, Section 1, 1987 Philippine Constitution).

 §2. In Tatlonghari v. COMELEC
(199 SCRA 849), this Court has again reminded all and sundry that the
law governing electoral contest must be liberally construed to the end that the
will of the people may not be defeated. 
This primordial policy to ascertain the will of the people is evident in
the constitutional mandate that “Sovereignty resides in the people and all
government authority emanates from them.” (Loyola vs. House of
Representatives Electoral Tribunal, 229 SCRA 90 [1994], Nocon, J.). 

2. Republicanism

 

§1. A
republic is a representative government, a government run by and for the
people.  It is not a pure democracy where
the people govern themselves directly. (Cruz, Philippine Political Law, 1987
edition, p. 48).

 

§2. Obviously,
a republican government is a responsible government whose officials hold and
discharge their position as a public trust and shall, according to the
Constitution, “at all times be accountable to the people” (Article XI, Section
1, 1987 Philippine Constitution) they are sworn to serve. (Ibid)

            §3. Republicanism,
in so far as it implies the adoption of a representative type of government,
necessarily points to the enfranchised citizen as a particle of popular
sovereignty and as the ultimate source of established authority.  He has a voice in his Government and whenever
possible it is the duty of the judiciary, when called upon to act in
justiciable cases, to give it efficacy and not to stifle or frustrate it.  This, fundamentally, is the reason for the
rule that ballots should be read and appreciated, if not with utmost, with
reasonable, liberality. (Moya vs. Del Fierro, 69 Phil. 199 [1939], Laurel,
J.).

 

CHAPTER II
Suffrage

 1. Right of Suffrage, defined

 §1. Suffrage
is the right to vote in the election of all officers chosen by the people, and
in the determination of all questions submitted to the people. (Paine, Law
of Elections, p. 1).

§2. In our
republican system of government, the exercise by the people of their right of
suffrage is the expression of their sovereign will.  It is, therefore, absolutely essential that
the free and voluntary use of this right be effectively protected by the law
and by governmental authority. (Lacson, Jr. vs. Posadas, 72 SCRA 168 [1976],
Antonio, J.).

            §3. The
right to participate directly in the form of government, by secret ballot, is
among the most important and sacred of the rights of the people in self
government and one which must be most vigilantly guarded if a people desire to
maintain for themselves and their posterity a republican form of government in
which the individual may, in accordance with law, have a voice in the form of
his government. (United States vs. Iturrius, 37 Phil. 762 [1918], Johnson,
J.).

            §4. The
right of suffrage is one reserved by the people to a definite portion of the
population possessing the qualifications prescribed in the Constitution.  This view is based on the theory that the
sovereign political power in a democratic state remains with the people and is
to be exercised only in the manner indicated by the Constitution.  Consequently, a person who belongs to the
class to whom the Constitution grants this right may not be deprived of it by
any legislative act except by due process of law (5 State v. Kohler, 228 N.W.
895; State v. Phelps, 144 Wis. 1, 35 L.R.A. (NS) 353; in re Holman, 104 Atl.
212).  It is in this sense that suffrage
may be understood in the Philippines at present.  (Sinco, Vicente, G., Philippine Political
Law, Eleventh Edition, 1962, p. 381).

        

2. Source of Suffrage

 §1. Suffrage
may be exercised by all citizens of the Philippines not otherwise disqualified
by law, who are at least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to
vote for at least six months immediately preceding the election.  No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage. (Article V,
Section 1, The 1987 Philippine Constitution).

 §2. Article
V of the Constitution was meant to be and is a grant or conferment of a
right to persons possessing the qualifications and none of the
disqualifications therein mentioned, which in turn, constitute a limitation of
or restriction to said right, and cannot accordingly, be dispensed with,
except by constitutional amendment. Obviously, every such constitutional grant
or conferment of right is necessarily a negation of the authority of Congress
or of any other branch of the government to deny said right to the subject of the
grant — and, in this sense, only, may the same partake of the nature of a
guarantee.  But, this does not imply, not
even remotely, that the Fundamental Law allows Congress or anybody else to vest
in those lacking the qualifications and having the disqualifications mentioned
in the Constitution the right of suffrage.

 Since suffrage, according to Webster, is a
voice given not only in the choice of a man for an office or trust, but, also, in
deciding a controverted question, it follows, considering the said ruling
in Alcantara (61 Phil. 459), that the constitutional qualifications for
voters apply equally to voters in elections to public office and to voters in a
plebiscite. (Javellana vs. Executive Secretary, 50 SCRA 30 [1973],
Resolution, En Banc, Concepcion, C.J.).

 §3. In the
scheme of our present republican government, the people are allowed to have a
voice therein through the instrumentality of suffrage to be availed of by those
possessing certain prescribed qualifications (Art. V, Constitution of the Philippines;
Sections 93 and 94, Election Code).  The
People in clothing a citizen with the elective franchise for the purpose of
securing a consistent and perpetual administration of the government they
ordain, charge him with the performance of a duty in the nature of a public
trust, and in that respect constitute him a representative of the whole people.
(Abañil vs. Justice of the Peace Court of Bacolod, Negros Occidental, 70
Phil. 28 [1940]).

            §4. As
numerous as they are insidious are long-standing techniques of terror and
intimidation that have been conceived by man—in derogation of the right of
suffrage—which we have repeatedly and unqualifiedly condemned.    Sec. 133 of the Revised Election Code, an
explicit and unequivocal guarantee of a voter’s free access to enter the
polling place, has no other purpose than to maintain inviolate the right to
vote by safeguarding the voter against all manner of unauthorized interference
and travesty that purveyors of fear can devise. 
Every unlawful obstacle, by whatever means or method, interposed to the
free entry of a voter into the polling place to cast his vote, strikes at the
very heart of the right of suffrage. (People vs. San Juan, 22 SCRA 498  [1968], Castro, J.).

        §5. The
equal protection of the law contemplates equality in the enjoyment of similar
rights and privileges granted by law.  It
would have been discriminatory and a denial of the equal protection of the law
if the statute prohibited an individual or group of voters in the city from
voting for provincial officials while granting it to another individual or
group of voters in the same city. 
Neither can it be considered an infringement upon the petitioners’
rights of suffrage since the Constitution confers no right to a voter in a city
to vote for the provincial officials of the province where the city is
located.  Their right is limited to the
right to vote for elective city officials in local elections, which the
questioned statutes neither withdraw nor restrict. (Ceniza vs. Commission on
Elections, 95 SCRA 763 [1980], Concepcion, Jr., J.).

 

3. Nature of Suffrage

§1. The
modern conception of suffrage is that voting is a function of government.  It is a right created by law, not a natural
right. 

Suffrage is a privilege granted by the
State to such person or classes as are most likely to exercise it for the
public good.  For reasons of public
policy, certain classes of persons are excluded from the franchise.  Among the generally excluded classes are
minors, idiots, paupers, and convicts. (People vs. Corral, 62 Phil. 945
[1936], Abad Santos, J.).

§2. The
right to vote is a political right or privilege, to be given or withheld at the
exercise of the lawmaking power of the sovereignty.  It is not a natural right of the citizen, but
a franchise dependent upon law, by which it must be conferred to permit its
exercise.  It can emanate only from the
people, either in their sovereign statement of the organic law or through
legislative enactment, which they have authorized.  It is not included among the rights of
property or of person.  Neither is it an
absolute unqualified right, but it is altogether conventional.  When once granted it may be taken away by the
exercise of sovereign power, and if taken away no vested right is violated. (Gonzales,
Neptali, A., Administrative Law, Law on Public Officers and Election Law,
Second Edition 1966, p. 342, citing 20 C.J. 60-61 and People vs. Corral, 62
Phil. 945 [1936]).

§3. The right to vote being an
attribute of sovereignty which in a democratic state, particularly one of the
republican type, should reside in the Filipino people, courts are warned that
they should ever endeavor to bar the possibility that judicial proceedings
should be utilized to circumvent the policy of our constitution and laws, even
temporarily. (Ozamiz vs. Zosa, 34 SCRA 424 
[1970], Concepcion, C.J.).

4. Object
of Suffrage

§1. The main object of suffrage is
the continuity of government and the preservation and perpetuation of its
benefits. This object is two-fold: it enables the people to choose their
representatives to discharge sovereign functions, and to determine the will of
the people upon such questions submitted to them; the first is done thru
election, and the second by means of a plebiscite.  (McCrary on Elections, p. 13).

            §2. As
long as popular government is an end to be achieved and safeguarded, suffrage,
whatever may be the modality and form devised, must continue to be the means by
which the great reservoir of power must be emptied into the receptacular
agencies wrought by the people through their Constitution in the interest of
good government and the common weal.  (Moya
vs. Del Fierro, 69 Phil. 199 [1939], Laurel, J.).

            §3. Courts,
of course, should be slow in nullifying and setting aside the election in
particular municipalities or precincts. 
They should not nullify the vote until it is shown that the irregularities
and frauds are so numerous as to show an unmistakable intention or design to
defraud, and which do, in fact, defeat the true expression of the opinion and
wishes of the voters of said municipality or precinct. The evidence in the
present case shows an unmistakable intention and design on the part, not only
of the election inspectors, but many of the voters, to defeat, by methods
adopted, the true expression of opinion, through the ballot, of the people of
said municipality.  When the election has
been conducted so irregularly and fraudulently that the true result cannot be
ascertained, the whole return must be rejected. 
The rule is so well established that authorities need no longer be cited
in its support that whenever the irregularities and frauds are sufficient to
defeat the will of the people of the particular municipality or precinct, the
entire vote should be rejected and those who are guilty of such frauds and
irregularities should be punished to the very limit of the law. (Garchitorena
vs. Crescini and Imperial, 39 Phil. 258 [1918], Johnson, J.).

 §4. The fact that neither of the
parties raised the question of the illegality of certain ballots either at the
trial or in their pleadings, does not deprive the trial court of jurisdiction
to examine them, for as this Court held in the case of Yalung vs. Atienza
(52 Phil., 781), the institution of suffrage is a public and not a private
interest, and the trial court may examine all the ballots after the ballot
boxes are opened in order to determine which are legal and which are illegal,
even when neither of the parties raised any question as to their illegality. (Olano
vs. Tibayan, 53 Phil. 168 [1929], Villa-Real, J.).

 

 5. Power
of Congress to Regulate Suffrage

 §1. Since the right of suffrage is a
political and not a natural right, it is within the power of the state to
prescribe the manner in which such right shall be exercised.  Subject to constitutional restrictions,
Congress has the right to define the qualifications of its voters.  Furthermore, Congress has the power to
regulate elections, to prescribe the form of the official ballot, to provide
for the manner in which candidates shall be chosen and the names that shall be
printed upon the ballot, to regulate the manner of ascertaining an elector’s
qualifications and the manner of conducting elections, and, in the exercise of
the police power, to suppress whatever evils may be incident to the election of
public officers. (18 Am. Jur., 182).

 §2. The right of the State to deprive
persons of the right of suffrage by reason of their having been convicted of
crime is beyond question.  The manifest
purpose of such restriction is to preserve the purity of elections. (9 R. C.
L. 1042, cited in People vs. Corral, 62 Phil. 945 [1936], Abad Santos, J.).

 

6. Scope
of Suffrage

            §1. Suffrage
includes both election which is the expression of a choice of persons
for political offices by the voters of a body politic and plebiscite which
is a name given to a vote of the enfranchised mass of the population expressing
their choice for or against a proposed law or enactment submitted to them and
which if adopted will work a radical change in the Constitution.    (9 R.C.L. 976).

 CHAPTER III
Election

 

 1. Election,
defined

 §1. An election involves every
element necessary to the complete ascertainment of the expression of the
popular will, embracing the entire range, from the deposit of the ballot by the
elector up to the final ascertainment and certification of the result.  An election by the people means and includes
the perfect ascertainment of such result.

 The word “election” means the act of
casting and receiving the ballots from the voters, counting the ballots, and
making the returns thereon.  That is the
meaning of election in the ordinary usage, and it must be so construed, there
being nothing in the law to suggest that the Legislature intended to use it in
a different sense. (Hontiveros vs. Altavas, 24 Phil. 632 [1913]).

§2. Election is the means by which
the people choose their officials for definite and fixed periods and to whom
they entrust, for the time being, as their representatives the exercise of
powers of government. (Garchitorena v. Crescini and Imperial, 39 Phil. 258
[1918], Johnson, J.).

 §3. An election is the embodiment of
the popular will, the expression of the sovereign power of the people.  It involves the choice or selection of
candidates to public office by popular vote. 
Specifically, the term “election,” in the context of the Constitution,
may refer to the conduct of the polls, including the listing of voters, the
holding of the electoral campaign, and the casting and counting of the votes. (Taule
vs. Santos, 200 SCRA 512 [1991], Gancayco, J.).

 §4. In this jurisdiction, an election
means “the choice or selection of candidates to public office by popular vote”
through the use of the ballot, and the elected officials of which are
determined through the will of the electorate. 
“An election is the embodiment of the popular will, the expression of
the sovereign power of the people.” 
“Specifically, the term ‘election,’ in the context of the Constitution,
may refer to the conduct of the polls, including the listing of voters, the
holding of the electoral campaign, and the casting and counting of votes.”  The winner is the candidate who has obtained
a majority or plurality of valid votes cast in the election. (Carlos vs.
Angeles, 346 SCRA 571 [2000], Pardo, J.).

 
2. Purpose
of Election

   
§1. The purpose of an election is to give the voters a direct
participation in the affairs of their government, either in determining who
shall be their public officials or in deciding some question of public
interest; and for this purpose, all the legal voters should be permitted,
unhampered and unmolested, to cast their ballots.  When that is done, and no frauds have been
committed, the ballot should be counted and the election should not be declared
null.  Innocent voters should not be
deprived of their participation in the affairs of their government for mere
irregularities on the part of election officers for which they are in no way
responsible.  A different rule would make
the manner and method of performing a public duty of greater importance than
the duty itself. (Luna vs. Rodriguez, 39 Phil. 208 [1918], Johnson, J.).

§2. The purpose of an election is to
enable the electorate to choose the men that run their government, whether
national, provincial, municipal or city. 
If so, no useful end will be served by allowing — in the absence of
express legislative preference — the voters of a city to participate in the
election of the officials of the province which has ceased to have any
governmental jurisdiction and authority over said city.  (Teves vs. Commission on Elections, 90
Phil. 370 [1951], Paras, C.J.).

           §3. In elections, the first
consideration of every democratic polity is to give effect to the expressed
will of the majority.  It is true that
constitutional and statutory provisions requiring compliance with measures
intended to enhance the quality of our democratic institutions must be
obeyed.  The restriction against turncoatism
is one such measure. However, even as there should be compliance with the
provision on turncoatism, an interpretation in particular cases which respects
the free and untrammelled expression of the voters’ choice must be followed in
its enforcement.  (Yason vs.
Commission on Elections, 134 SCRA 371 [1985], Gutierrez, Jr., J.).

§4. The purpose of an election is to
give the voters a direct participation in the affairs of their government,
either in determining who shall be their public officials or in deciding some
question of public interest; and for this purpose, all of the legal voters
should be permitted, unhampered and unmolested, to cast their ballots. (Grand
Alliance for Democracy (GAD), et al., vs. Commission on Elections, 150 SCRA 665
[1987], Resolution, En Banc).

§5. True, election is the expression
of the sovereign power of the people.  In
the exercise of suffrage, a free people expects to achieve the continuity of
government and the perpetuation of its benefits.  However, inspite of its importance, the
privileges and rights arising from having been elected may be enlarged or
restricted by law.

The performance of legitimate and even
essential duties by public officers has never been an excuse to free a person
validly in prison.  The duties imposed by
the “mandate of the people” are multifarious. 
The accused-appellant asserts that the duty to legislate ranks highest
in the hierarchy of government.  The
accused-appellant is only one of the 250 members of the House of
Representatives, not to mention the 24 members of the Senate, charged with the
duties of legislation.  Congress
continues to function well in the physical absence of one or a few of its
members.

We, therefore, find that election to the position of
Congressman is not a reasonable classification in criminal law
enforcement.  The functions and duties of
the office are not substantial distinctions which lift him from the class of
prisoners interrupted in their freedom and restricted in liberty movement.  Lawful arrest and confinement are germane to
the purpose of the law and apply to all those belonging to the same class. (People of the Philippines vs. Jaloslos, 324 SCRA 689 [2000],
Ynares-Santiago, J.).

 

3. System
of Election Adopted in the Philippines

§1. The Congress shall provide a
system for securing the secrecy and sanctity of the ballot as well as a system
for absentee voting by qualified Filipinos abroad.

The Congress shall also design a procedure
for the disabled and the illiterates to vote without the assistance of other
persons. Until then they shall be allowed to vote under existing laws and such
rules as the Commission on Elections may promulgate to protect the secrecy of
the ballot. (Article V, Section 2, The 1987 Philippine Constitution).

§2. The Philippines has since 1901
adopted the Australian ballot system. 
This system of balloting was first conceived by Francis S. Dutton, a
member of the Legislature of South Australia. 
The distinguishing feature of the system is the strict secrecy in balloting.  It is mostly adopted by many countries in
Europe and practically in all the States of the Union. (Martin and Martin,
Administrative Law, Law of Public Officers and Election Law, Revised Edition,
1983, pp. 310, 311).

§3. The central idea of the Election
Law is to secure a secret ballot to the electors, to the end that they may
express their choice of candidates uninfluenced by threats, intimidation, or
corrupt motives.

The central idea of the Australian ballot
law, as so often expressed in the cases, is to shroud the marking of the
ballots in absolute secrecy.  All the
efforts to secure a free and untrammeled expression of the elector’s will lead
up to and depart from that point. (Gardiner vs. Romulo, 26 Phil. 254 [1914],
Trent, J.).

             §4. All of the authorities agreed, in order to
preserve a secret ballot and to give the voter the largest, unhampered
participation in the affairs of his Government, that the voter cannot be
required, if he objects, to disclose the names of the persons for whom he voted.  The manner of an elector’s vote and the
person or persons for whom he voted is a fact which no man has a right to learn
until the elector himself chooses to make it public.

That rule grows out of the secret ballot
system.  The privilege, however, is a
personal one and, if waived by the voter himself, he may then not only be
permitted but compelled to testify as to whom he voted for.

The will of the majority of the qualified
electors must be determined by a count of the legal ballots found in the ballot
box at the close of the election. 
Subsequent changes in the ballots should not be permitted to affect the
result of the election in order to destroy the will of the majority of the
qualified electors.  (Hontiveros vs.
Altavas, 26 Phil. Rep., 213; Paulino vs. Cailles, 37 Phil. 825; Calangi vs.
Jocson, R. G. No. 16108, decided February 7, 1920, not published.). (Dayrit
vs. San Agustin and Valdez, 40 Phil. 782 [1920], Johnson, J.).

§5. Sound policy dictates that public
elective offices are filled by those who have received the highest number of
votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no
measure can be declared carried unless he or it receives a majority or
plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243,
p. 676). (Geronimo vs. Ramos, 136 SCRA 435 [1985], Gutierrez, Jr., J.).

§6. In every election, the people’s
choice is the paramount consideration and their expressed will must, at all
times, be given effect.  When the
majority speaks and elects into office a candidate by giving him the highest
number of votes cast in the election for that office, no one can be declared
elected in his place. (Benito vs. Commission on Elections, 235 SCRA 436
[1994], Kapunan, J.).

4. 4. Sources of
Laws Governing Elections

§1. The first election law in the
Philippines, enacted by the Philippine Commission in 1907 was Act 1582, which
was modified by Acts Nos. 1669, 1709, 1926 and 1786.  These acts were later on incorporated in the
Administrative Code, in Chapter XVIII thereof. 
Under the Philippine Legislature, several changes were made through the
passage of Acts Nos. 2310, 3336 and 3387. 
Under the Commonwealth the National Assembly passed Commonwealth Act No.
233 and later enacted Commonwealth Act No. 357, which was the law enforced
until June 21, 1947, when the Revised Election Code (Rep. Act No. 180) was
approved.  Included as its basic
provisions are the provisions of Commonwealth Acts Nos. 233, 357, 605, 657, 666
and 725 and further amended by Republic Acts Nos. 599, 867, 2242, 3036, 3522,
and 3588, and 4648.  In 1971, R.A. 6388
superseded R.A. 180 as our Election Code. 
In 1978, Presidential Decree No. 1296 was promulgated and cited as the
Election Code of 1978. (Martin, Ruperto, G., and Martin, Melvyn S.,
Administrative Law, Law of Public Officers and Election Law, Revised Edition,
1983, pp. 310-311; Bernas, Joaquin, G., S.J., The 1987 Constitution of the
Republic of the Philippines: A Commentary, 1966 Edition, p. 580).

§2. These were later amended by Batas
Pambansa Bilang No. 881, which was further modified and/or amended by the 1987
Philippine Constitution and Republic Acts Nos. 6636, 6637, 6646, 6653, 6679,
6734, 6635, 6766, 6679, 7041, 7166, 7647, 7808, 7887, 7904, 7941, 8045, 8046,
8171, 8173, 8176, 8189, 8295, 8436, 8524, 8746, 8753, and 9006.

§3. Likewise, Executive Orders Nos.
57 (November 6, 1986); 94 (December 17, 1986); 134 (February 27, 1987); 144
(March 2, 1987); 157 (March 30, 1987); 162 (May 5, 1987); 198 (June 18, 1987);
and 270 (July 25, 1987) were issued to modify or amend existing election laws.

 

5. Aims
and Objects of Election Laws

 §1. The purity of elections is one of
the most important and fundamental requisites of popular government.  To banish the spectre of revenge from the
minds of the timid or defenseless, to render precarious and uncertain the
bartering of votes, and lastly, to secure a fair and honest count of the
ballots cast, is the aim of the law. (Gardiner v. Romulo, 26 Phil. 254
[1914], Trent, J.).

 §2. The whole purpose of the much
amended Election Law is to provide for clean elections.  The courts will assist in accomplishing this
purpose just in so far as they make themselves the instruments of the public
welfare.  By giving to each of the
leading political parties representation on election boards, honesty in the
conduct of the election will be better assured. (Papa vs. Municipal Board of
Canvassers of Manila, 47 Phil. 694 [1925], Malcolm, J.).    

 §3. The purpose of the Revised
Election Code is to protect the integrity of elections and to suppress all
evils that may violate its purity and defeat the will of the voters.  The purity of elections is one of the
fundamental requisites of popular government. (Cauton vs. Commission on
Elections, 126 Phil. 291 [1967]; 19 SCRA 911 [1967], Zaldivar, J.)

 

6. Rules
of Interpretation of Election Laws

§1. The provisions of the Election
Law declaring that a certain irregularity in an election procedure is fatal to
the validity of the ballot or of the returns, or when the purpose and spirit of
the law would be plainly defeated by a substantial departure from the
prescribed method, are mandatory.

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 such departure has not been
used as a means for fraudulent practices or for the intimidation of voters, and
it is clear that there has been a free and honest expression of the popular
will, the law will be held directory and such departure will be
considered a harmless irregularity.

Irregularities may be so numerous as not
to be attributed to ignorance or honest mistake but to design (which gives rise
to a presumption of all-pervading fraud) or to such careless disregard of the
law as to amount to laches.  Either cause
is sufficient to vitiate the returns. (Gardiner vs. Romulo, 26 Phil. 254
[1914], Trent, J.).

§2. It has been announced in many
decisions that the rules and regulations, for the conduct of elections, are
mandatory before the election, but when it is sought to enforce them after the
elections, they are held to be directory only, if that is possible, especially
where, if they are held to be mandatory, innocent voters will be deprived of
their votes without any fault on their part. 
The various and numerous provisions of the Election Law were adopted to
assist the voters in their participation in the affairs of the government and
not to defeat that object.  When the
voters have honestly cast their ballots, the same should not be nullified
simply because the officers appointed under the law to direct the election and
guard the purity of the ballots have not done their duty.  The law provides a remedy, by criminal
action, against them.  They should be
prosecuted criminally, and the will of the honest voter, as expressed through
his ballot, should be protected and upheld. 
(Luna vs. Rodriguez, 39 Phil. 208 [1918], Johnson, J.).

§3. The rules and regulations, for
the conduct of elections, are mandatory before the election, but when it is
sought to enforce them after the election, they are held to be directory only,
if that is possible, especially where, if they are held to be mandatory,
innocent voters will be deprived of their votes without any fault on their
part. The various and numerous provisions of the Election Law were adopted to
assist the voters in their participation in the affairs of the government and
not to defeat that object. (Delos Angeles vs. Rodriguez, 46 Phil. 595
[1924], Malcolm, J.).

§4. Interpretation of election laws
should give effect to the expressed will of the electorate. Patent
erasures and superimpositions in words and figures of the votes stated in the
election returns strike at the reliability of said returns as basis for canvass
and proclamation. A comparison with the other copies, and, in case of
discrepancy, a recount, is the only way to remove grave doubts as to the
correctness of said returns as well as of ascertaining that they reflect the
will of the people. (Purisima vs. Salanga, 122 Phil. 1084 [1965]; 15 SCRA
704 [1965], Bengzon, J.P., J.).

§5. Since the early case of Gardiner
v. Romulo (26 Phil. 521), this Court has made it clear that it frowns upon
any interpretation of the law or the rules that would hinder in any way not
only the free and intelligent casting of the votes in an election but also the
correct ascertainment of the results. 
This bent or disposition continues to the present.  There are other considerations that constrain
us to set aside the questioned order of dismissal.  (Rodriguez vs. Commission on Elections,
119 SCRA 465 [1982], Gutierrez, Jr., J.).

§6. Upon a restudy of the case, the
Court finds merit in the reconsideration prayed for, which would respect the
will of the electorate instead of defeating the same through the invocation of
formal or technical defects. (De Guzman vs. Board of Canvassers, 48 Phil. 211
[1925], citing Lino Luna vs. Rodriguez, 39 Phil. 208 [1918]; Badelles vs.
Cabili, 27 SCRA 121 [1969]; Yra vs. Abaño, 52 Phil. 380 [1928]; Canceran vs.
Comelec, 107 Phil. 607 [1960]; Corocoro vs. Bascara, 9 SCRA 522 [1963],
Pungutan vs. Abubakar, 43 SCRA 1 [1972]; and Lacson, Jr. vs. Posadas, 72 SCRA
170 [1976]). (Villanueva vs. Commission on Elections, 140 SCRA 352 [1985],
Teehankee, J.).

7. Kinds
of Elections

Elections
are of two kinds: (1) regular or general election, and (2) special
election.

§1. A general or regular election is
one provided by law for the election of officers throughout the state, or
certain subdivisions thereof, which recurs at stated intervals fixed by law, to
select officers who are to succeed to the office upon the expiration of the
full terms of the incumbents. (20 C.J., 56; 18 Am. Jur., 181).

§2. A special election is one
provided for by law under special circumstances.  It is an election held to supply a vacancy in
office before the expiration of the full term for which the incumbent was
elected, or an election at which some question or proposition is submitted to
the vote of the qualified electors, or an election for some particular
emergency. (Ibid.).

§3. In the absence of restrictive
terms or provisions in Republic Act 5777 specifying the year when the election
should be held, the phrase “next general elections” means the next general
elections for the offices which are to be filled.  The reference is to the general election for
local officials since the offices to be filled are local and not national in nature.
(Yñiquez vs. Commission on Elections, 30 SCRA 328 [1969], Makalintal, J.).

§4. The term “any elections” as used
in Sec. 56 of the Revised Election Code as amended, includes the election of
delegates to the Constitutional Convention under Resolution of both Houses No.
2 of March 16, 1967, as amended by Resolution of both Houses No. 4 of June 17,
1969, as implemented by R. A. No. 6132.  (Gatchalian
vs. Commission on Elections, 35 SCRA 435 [1970], Makasiar, J.).

§5. 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. (Paras vs. Commission on Elections, 264 SCRA 49 [1996],
Francisco, J.).

§6. 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. x x x With
the clear mandate of the 1987 Constitution to hold synchronized (simultaneous)
national and local elections on 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. (Osmeña vs. Commission on
Elections, 199 SCRA 750 [1991], Paras, J.).

§7. 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. (Paras vs. Commission on Elections, 264 SCRA 49 [1996],
Francisco, J.).

 

8. Initiative,
Referendum, Recall and Plebiscite

§1. The legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a
House of Representatives, except to the extent reserved to the people by the
provision on initiative and referendum. 
(Article VI, Section 1, The 1987 Philippine Constitution).

§2. The Congress shall, as early as
possible, provide for a system of initiative and referendum, and the exceptions
therefrom, whereby the people can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the Congress or local
legislative body after the registration of a petition therefor signed by at
least ten per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per centum
of the registered voters thereof.  (Article
VI, Section 32, The 1987 Philippine Constitution).

§3. The Congress shall 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, allocate
among the different local government units their powers, responsibilities, and
resources, and provide for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of local officials,
and all other matters relating to the organization and operation of the local
units.  (Article X, Section 3, The
1987 Philippine Constitution).

§4. Amendments to this Constitution
may likewise be directly proposed by the people through initiative upon
a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein.  No amendment under this section shall be
authorized within five years following the ratification of this Constitution
nor oftener than once every five years thereafter.

The Congress shall provide for the
implementation of the exercise of this right. 
(Article XVII, Section 2, The 1987 Philippine Constitution).

§5. Any amendment to, or revision of,
this Constitution under Section 1 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the approval of such
amendment or revision.

Any amendment under Section 2 hereof shall
be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the sufficiency of
the petition. (Article XVII, Section 4, The 1987 Philippine Constitution).

§6. The term “plebiscite” is used to
indicate a vote of the entire people who are enfranchised by law, expressing
their choice or against a proposed law or enactment submitted to them and
which, if adopted, will work a radical change in the constitution, or which is
beyond the powers of a regular legislative body. (Maine, Popular Government,
p. 40 cited in Martin and Martin, Administrative Law, Law of Public Officers
and Election Law, Revised Edition, 1983, pp. 309-310).

§7. In order that a plebiscite for
the ratification of an amendment to the Constitution may be validly held, it
must provide the voter not only sufficient time but ample basis for an
intelligent appraisal of the nature of the amendment per se as well as
its relation to the other parts of the Constitution with which it has to form a
harmonious whole.  In the context of the
present state of things, where the Convention has hardly started considering
the merits of hundreds, if not thousands, of proposals to amend the existing
Constitution, to present to the people any single proposal or a few of them cannot
comply with this requirement.  Under
Section 1, Article XV of the Constitution, a proposal to amend the Constitution
should be submitted to the people not separately from but together with all the
other amendments to be proposed by this present Convention.  (Tolentino vs. Commission on Elections, 41
SCRA 702 [1971], Barredo, J.).

§8. We find no way to reconcile the
holding of a plebiscite that should conform to said constitutional requirement
but eliminates the participation of either of these two component political
units.  No amount of rhetorical
flourishes can justify exclusion of the parent province in the plebiscite
because of an alleged intent on the part of the authors and implementors of the
challenged statute to carry out what is claimed to be a mandate to guarantee
and promote autonomy of local government units. 
The alleged good intentions cannot prevail and overrule the cardinal
precept that what our Constitution categorically directs to be done or imposes
as a requirement must first be observed, respected and complied with. No one
should be allowed to pay homage to a supposed fundamental policy intended to
guarantee and promote autonomy of local government units but at the same time
transgress, ignore and disregard what the Constitution commands in Article XI
Section 3 thereof.  Respondents would be
no different from one who hurries to pray at the temple but then spits at the
idol therein.  (Tan vs. Commission on
Elections, 142 SCRA 727 [1986], Alampay, J.).

§9. Plebiscite issues are matters of
public concern and importance. The people’s right to be informed and to be able
to freely and intelligently make a decision would be better served by access to
an unabridged discussion of the issues, including the forum. (Sanidad vs.
Commission on Elections, 181 SCRA 529 [1990], Medialdea, J.).

            §10. Chapter 3 (Sections 54 to 59) of B.P. Blg.
337 provides for the mechanism for recall of local elective officials.  Section 59 expressly authorizes the
respondent COMELEC to conduct and supervise the process of and election on
recall and in the exercise of such powers, promulgate the necessary rules and
regulations.

 We therefore rule that Resolution 2272 promulgated by
respondent COMELEC is valid and constitutional. 
Consequently, the respondent COMELEC had the authority to approve the
petition for recall and set the date for the signing of said petition.

 However, recall at this time is no longer
possible because of the limitation provided in Sec. 55 (2) of B.P. Blg. 337,
which states “SEC. 55.  Who May Be
Recalled; Ground for Recall; When Recall May not be Held.¾x x x (2) No recall shall take place
within two years from the date of the official’s assumption of office or one
year immediately preceding a regular local election.”

The Constitution has mandated a synchronized national
and local election prior to 30 June 1992, or more specifically, as provided for
in Article XVIII, Sec. 5¾on the second Monday of May, 1992.  Thus, to hold an election on recall
approximately seven (7) months before the regular local election will be
violative of the above provisions of the applicable Local Government Code (B.P.
Blg. 337). (Evardone vs. Commission on Elections, 204 SCRA 464 [1991],
Padilla, J.).

§11. It stands to reason that when
the law states that the plebiscite shall be conducted “in the political units
directly affected,” it means that residents of the political entity who would
be economically dislocated by the separation of a portion thereof have a right
to vote in said plebiscite.  Evidently,
what is contemplated by the phrase “political units directly affected,” is the
plurality of political units which would participate in the plebiscite.  (Padilla vs. Commission on Elections, 214
SCRA 735 [1992], Romero, J.).

§12. Recall is a mode of
removal of a public officer by the people before the end of his term of
office.  The people’s prerogative to
remove a public officer is an incident of their sovereign power and in the
absence of constitutional restraint, the power is implied in all governmental
operations.  Such power has been held to
be indispensable for the proper administration of public affairs.  Not undeservedly, it is frequently described
as a fundamental right of the people in a representative democracy.

The Batasang Pambansa then enacted
BP 337 entitled “The Local Government Code of 1983.”  Section 54 of its Chapter 3 provided only one
mode of initiating the recall elections of local elective officials, i.e., by
petition of at least twenty-five percent (25%) of the total number of
registered voters in the local government unit concerned, x x x.  In response to this constitutional call,
Congress enacted R.A. 7160, otherwise known as the Local Government Code of
1991, which took effect on January 1, 1992. 
In this Code, Congress provided for a second mode of initiating the
recall process through a preparatory recall assembly which in the provincial
level is composed of all mayors, vice-mayors and sanggunian members of
the municipalities and component cities. (Garcia vs. Commission on
Elections, 227 SCRA 100 [1993], Puno, J.).

§13. In construing the meaning
of the term, “regular local election” in Section 74 of the Local Government
Code of 1991 which provides that “no recall shall take place within one (1)
year x x x immediately preceding a regular local election,” we ruled that for
the time bar to apply, the approaching regular local election must be one where
the position of the official to be recalled, is to be actually contested and
filled by the electorate.

Section 69 (d) of the Local Government Code
of 1991 expressly provides that “recall of any elective x x x municipal x x x
official may also be validly initiated upon petition of at least twenty-five
percent (25%) of the total number of registered voters in the local government
unit concerned during the election in which the local official sought to be
recalled was elected.”  The law is plain
and unequivocal as to what initiates recall proceedings: only a petition of at
least 25% of the total number of registered voters, may validly initiate recall
proceedings.  (Angobung vs. Commission
on Elections, 269 SCRA 245 [1997], Hermosisima, Jr., J.).

 §14. The Liga ng mga Barangay
is undoubtedly an entity distinct from the Preparatory Recall Assembly.  It just so happens that the personalities
representing the barangays in the Liga are the very members of the Preparatory
Recall Assembly, the majority of whom met on July 7, 1996, and voted in favor
of the resolution calling for the recall of Mayor Malonzo, after deliberation
reported in the record, in accordance with the existing law.  Thus, the Punong Barangays and Sangguniang
Barangay members convened and voted as members of the Preparatory Recall
Assembly of the City of Caloocan, and not as members of the Liga ng mga
Barangay.  The recall proceedings, therefore,
cannot be denied merit on this ground. (Malonzo vs. Commission on Elections,
269 SCRA 380 [1997], Torres, Jr., J.).

             §15. In the case at bar, while the City of Pasig
vigorously claims that the areas covered by the proposed Barangays Karangalan and
Napico are within its territory, it can not deny that portions of the same area
are included in the boundary dispute case pending before the Regional Trial
Court of Antipolo.  Surely, whether the
areas in controversy shall be decided as within the territorial jurisdiction of
the Municipality of Cainta or the City of Pasig has material bearing to the
creation of the proposed Barangays Karangalan and Napico.  Indeed, a requisite for the creation of a
barangay is for its territorial jurisdiction to be properly identified by metes
and bounds or by more or less permanent natural boundaries.  Precisely because territorial jurisdiction is
an issue raised in the pending civil case, until and unless such issue is
resolved with finality, to define the territorial jurisdiction of the proposed
barangays would only be an exercise in futility.

 

Neither do we agree that merely because a plebiscite
had already been held in the case of the proposed Barangay Napico, the petition
of the Municipality of Cainta has already been rendered moot and academic.  The issues raised by the Municipality of
Cainta in its petition before the COMELEC against the holding of the plebiscite
for the creation of Barangay Napico are still pending determination before the
Antipolo Regional Trial Court. (City of Pasig vs. Commission on Elections,
314 SCRA 179 [1999], Ynares-Santiago, J.).

§16. We can agree that recall is a
process which begins with the convening of the preparatory recall assembly or
the gathering of the signatures of at least 25% of the registered voters of a
local government unit, and then proceeds to the filing of a recall resolution
or petition with the COMELEC, the verification of such resolution or petition,
the fixing of the date of the recall election, and the holding of the election
on the scheduled date.  However, as used
in paragraph (b) Section 74, “recall” refers to the election itself by means of
which voters decide whether they should retain their local official or elect
his replacement.  Several reasons can be
cited in support of this conclusion.

 

There are two limitations in paragraph (b)
on the holding of recalls: (1) that no recall shall take place within one year
from the date of assumption of office of the official concerned, and (2) that
no recall shall take place within one year immediately preceding a regular
local election.  The purpose of the first
limitation is to provide a reasonable basis for judging the performance of an
elective local official.  In the Bower
case cited by this Court in Angobung v. COMELEC, it was held that
“The only logical reason which we can ascribe for requiring the electors to
wait one year before petitioning for a recall election is to prevent
premature action on their part in voting to remove a newly elected official
before having had sufficient time to evaluate the soundness of his policies and
decisions.”  The one-year limitation was
reckoned as of the filing of a petition for recall because the Municipal Code
involved in that case expressly provided that “no removal petition shall be
filed against any officer or until he has actually held office for at least
twelve months.”  But however the period
of prohibition is determined, the principle announced is that the purpose of
the limitation is to provide a reasonable basis for evaluating the performance
of an elective local official.  Hence, in
this case, as long as the election is held outside the one-year period, the
preliminary proceedings to initiate a recall can be held even before the end of
the first year in office of a local official. (Claudio vs. Commission on
Elections, 331 SCRA 388 [2000], Mendoza, J.).

 

CHAPTER IV
Elective Constitutional Officers

 
1. President
and Vice-President

 

§1. No person may be elected
President unless he is a natural-born citizen of the Philippines, a registered
voter, able to read and write, at least forty years of age on the day of the
election, and a resident of the Philippines for at least ten years immediately
preceding such election. (Article VII, Section 2, The 1987 Philippine
Constitution).

 

§2. There shall be a Vice-President
who shall have the same qualifications and term of office and be elected with
and in the same manner as the President. 
He may be removed from office in the same manner as the President. (Article
VII, Section 3, 1987 Philippine Constitution).

 

The Vice-President may be appointed as a
Member of the Cabinet.  Such appointment
requires no confirmation. (Article VII, Section 3, The 1987 Philippine
Constitution).

 

§3. The President and the
Vice-President shall be elected by direct vote of the people for a term of six
years which shall begin at noon on the thirtieth day of June next following the
day of the election and shall end at noon of the same date six years
thereafter.  The President shall not be
eligible for any reelection.  No person
who has succeeded as President and has served as such for more than four years
shall be qualified for election to the same office at any time.

 

No Vice-President shall serve for more
than two successive terms.  Voluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of the service for the full term for which he
was elected.

 

Unless otherwise provided by law, the
regular elections for President and Vice-President shall be held on the second
Monday of May.

The returns of every election for
President and Vice-President, duly certified by the board of canvassers of each
province or city, shall be transmitted to the Congress, directed to the
President of the Senate.  Upon receipt of
the certificates of canvass, the President of the Senate shall, not later than
thirty days after the day of the election, open all the certificates in the
presence of the Senate and the House of Representatives in joint public
session, and the Congress, upon determination of the authenticity and due
execution thereof in the manner provided by law, canvass the votes.

 

The person having the highest number of
votes shall be proclaimed elected, but in case two or more shall have an equal
and highest number of votes, one of them shall forthwith be chosen by the vote
of majority of all the Members of both Houses of the Congress, voting separately.

 

The Congress shall promulgate its rules
for the canvassing of the certificates.

 

The Supreme Court, sitting en banc, shall
be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may promulgate its rules
for the purpose. (Article VII, Section 4, The 1987 Philippine Constitution).

 

§4. The President-elect and the
Vice-President-elect shall assume office at the beginning of their terms.

 

If the President-elect fails to qualify,
the Vice-President-elect shall act as President until the President-elect shall
have qualified.

 

If a President shall not have been chosen,
the Vice-President-elect shall act as President until a President shall have
been chosen and qualified.

 

If at the beginning of the term of the
President, the President-elect shall have died or shall have become permanently
disabled, the Vice-President-elect shall become President.

 

Where no President and Vice-President
shall have been chosen or shall have qualified, or where both shall have died
or become permanently disabled, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives shall act as President
until a President or a Vice-President shall have been chosen and qualified.

 

The Congress shall, by law, provide for
the manner in which one who is to act as President shall be selected until
a President or a Vice-President shall have qualified, in case of death,
permanent disability, or inability of the officials mentioned in the next
preceding paragraph. (Article VII, Section 7, The 1987 Philippine
Constitution).    

 

§5. In case of death, permanent
disability, removal from office, or resignation of the President, the
Vice-President shall become the President to serve the unexpired term.  In case of death, permanent disability,
removal from office, or resignation of both the President and Vice-President,
the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or
Vice-President shall have been elected and qualified.

 

The Congress shall, by law, provide who
shall serve as President in case of death, permanent disability, or resignation
of the Acting President.  He shall serve
until the President or the Vice-President shall have been elected and
qualified, and be subject to the same restrictions of powers and
disqualifications as the Acting President. (Article VII, Section 8, The 1987
Philippine Constitution).

 

§6. Whenever there is a vacancy in
the Office of the Vice-President during the term for which he was elected, the
President shall nominate a Vice-President from among the Members of the Senate
and the House of Representatives who shall assume office upon confirmation by a
majority vote of all the Members of both Houses of the Congress, voting
separately. (Article VII, Section 9, The 1987 Philippine Constitution).

 

 

2. Senators

 

§1. The Senate shall be composed of
twenty-four Senators who shall be elected at large by the qualified voters of
the Philippines, as may be provided by law. (Article VI, Section 2, The 1987
Philippine Constitution).

 

§2. No person shall be a Senator
unless he is a natural-born citizen of the Philippines, and, on the day of the
election, is at least thirty-five (35) years of age, able to read and write, a
registered voter, and a resident of the Philippines for not less than two years
immediately preceding the day of the election. (Article VI, Section 3, 1987
Philippine Constitution).

 

§3. The term of office of the
Senators shall be six years and shall commence, unless otherwise provided by
law, at noon on the thirtieth day of June next following their election.

 

No Senator shall serve for more than two
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. (Article VI, Section 4, 1987 Philippine Constitution).

 

 

3. House
of Representatives

 

§1. The House of Representatives
shall be composed of not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on the basis of
a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional, and sectoral
parties or organizations. (Article VI, Section 5, 1987 Philippine
Constitution).

 

§2. 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 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. (Article VI, Section 6, 1987 Philippine
Constitution).

 

§3. The Members of the House of
Representatives shall be elected for a term of three years which shall begin,
unless otherwise provided by law, at noon on the thirtieth day of June next
following their election.

 

No Member of the House of Representatives
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. (Article VI, Section
7, 1987 Philippine Constitution).

 

 

4. Party-list
Representatives

 

§1. 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. (Section 9, Republic Act No. 7941).

 

§2. The party-list representatives
shall constitute twenty per centum of the total number of
representatives including those under the party list.  For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or election
from the labor, peasant, urban poor, indigenous cultural communities, women,
youth, and such other sectors as may be provided by law, except the religious
sector.  (Article VI, Section 5 (2),
The 1987 Philippine Constitution).

 

§3. No votes cast in favor of a
political party, organization, or coalition shall be valid, except for those
registered under the party-list system as provided in this Constitution. (Article
IX (C), Section 7, The 1987 Philippine Constitution).

 

§4. Section 1 of Executive Order No.
198 dated 18 June 1987 provided for the manner of nomination and appointment of
sectoral representatives to the House of Representatives.  It further added the Veterans Sector, Elderly
Sector, Disabled Sector and Fisherfolk Sector to the party-list.

 

§5. Section 5 of Republic Act No.
7941 approved on 03 March 1995 provided for the election of party-list
representatives through the party-list system. 
It furthermore added the Overseas Workers and Professionals to the
party-list.

 

§6. The State shall promote
proportional representation in the election of representatives to the House of
Representatives through a party-list system of registered national, regional
and sectoral parties or organizations or coalitions thereof, which will enable
Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined political constituencies
but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the
House of Representatives. (Section 2, Republic Act No. 7941).

§7. For purposes of the May 1988
elections, the first five (5) major political parties on the basis of party
representation in the House of Representatives at the start of the Tenth
Congress of the Philippines shall not be entitled to participate in the
party-list system.

 

In determining the allocation of seats for
the second vote, the following procedure shall be observed:

 

(a.) The parties, organizations, and
coalitions shall be ranked from the highest to the lowest based on the number
of votes they garnered during the elections.

 

(b.) The parties, organizations, and
coalitions receiving at least two percent (2%) of the total votes cast for the
party-list system shall be entitled to one seat each: Provided, That those
garnering more than two percent (2%) of the votes shall be entitled to
additional seats in proportion to their total number of votes: Provided,
finally, That each party, organization, or coalition shall be entitled to not
more than three (3) seats. (Section 11, Republic Act No. 7941).

 

§8. The COMELEC shall tally all the
votes for the parties, organizations, or coalitions on a nationwide basis, rank
them according to the number of votes received and allocate party-list
representatives proportionately according to the percentage of votes obtained
by each party, organization, or coalition as against the total nationwide votes
cast for the party-list system. (Section 12, Republic Act No. 7941).

 

CHAPTER V
Other Elective Officials

 1. Local Officials

 

§1. The qualifications for local
elective officials are as follows:

 

(a) An elective local official must
be a citizen of the Philippines; a registered voter in the barangay,
municipality, city, or province, or in the case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where
he intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write Filipino
or any other local language or dialect.  

 

(b) Candidates for the position of
governor, vice-governor or member of the sangguniang panlalawigan, or mayor,
vice-mayor or member of the sangguniang panlungsod of highly urbanized
cities must be at least twenty-three (23) years of age on election day.

 

(c) Candidates for position of mayor
or vice-mayor of independent component cities, component cities, or
municipalities must be at least twenty-one (21) years of age on election
day. 

 

(d) Candidates for the position of
member of the sangguniang panlungsod or sangguniang bayan must be at least
eighteen (18) years of age on election day.

 

(e) x x x

 

(f) x x x

 

(Title Two, Chapter I, Section 39, R. A.
No. 7160, otherwise known as the Local Government Code).

2. Regional
Assembly of the Autonomous Regions

 

§1. No
person shall be a Member of the Regional Assembly unless he is: (1) A
natural-born citizen of the Philippines; (2) At least twenty-one (21) years of
age on the day of the election; (3) Able to read and write; (4) A registered
voter of the district in which he shall be elected on the day he files his
certificate of candidacy; and (5) A resident thereof for a period of not less
than five (5) years immediately preceding the day of the election. (Article VII, Section 7, Republic Act No. 6734 (Muslim Mindanao)
approved on August 1, 1999.).

 

§2. No person may be elected Governor
(Vice-Governor) of the Autonomous Region unless he is a natural-born citizen of
the Philippines, a registered voter of the Autonomous Region, able to read and
write, at least thirty-five (35) years of age on the day of the election, and a
resident of the Autonomous Region for at least five (5) years immediately
preceding the election. (Article VIII, Sections 3 and 4, Republic Act No.
6734 (Muslim Mindanao) approved on August 1, 1999).

 

§3. The sole province of Ifugao
cannot validly constitute the Cordillera Autonomous Region.  It is explicit in Article X, Section 15 of
the 1987 Constitution that: “Section 15. 
There shall be created autonomous regions in Muslim Mindanao and in
the Cordillera consisting of provinces, cities, municipalities and geographical
areas sharing common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines.” (Ordillo vs.
Commission on Elections, 192 SCRA 100 [1990], Gutierrez, Jr., J.).

 

 

3. Barangay
Officials

 

§1. Republic Act No. 6679 was
approved on November 4, 1988 amending Republic Act No. 6653 to postpone the
Barangay Elections provided for under Section 37, Article VI of the Omnibus
Election Code to March 28, 1989, prescribing additional rules governing the
conduct of Barangay Elections and for other purposes.

 

§2. The
qualifications for local elective officials are as follows:

xxx                                          xxx                                                      xxx

(e) Candidates for the position of
punong barangay or member of the sangguniang barangay must be at least eighteen
(18) years of age on election day.

 

(f) Candidates for the sangguniang
kabataan must be at least fifteen (15) years of age but not more than
twenty-one (21) years of age on election day. (Title Two, Chapter I, Section
39, R. A. No. 7160, otherwise known as the Local Government Code).

 

§3. The justice of the peace court of
the corresponding municipality has jurisdiction over a barrio election dispute
seeking to nullify the barrio elections held therein on the ground of lack of
notice to the barrio residents.

 

The Revised Election Code does not apply
to the election of barrio officials but to provincial and municipal
officials.  The proper law applicable to
the adjudication of a dispute over a barrio election is Republic Act No. 2370. (Bautista
vs. De la Cruz, 9 SCRA 725 [1963], Bautista Angelo, J.).

 

§4. In this petition for certiorari
and prohibition questioning the denial by the Laoag City Court of the
petitioner’s appeal from its decision in a barangay election protest, we are
asked to rule on the period within which the said decision may be appealed to
the Court of First Instance.  Batas
Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982, fixed
the period at ten days.  This period,
which is prescribed in Section 20 of the law, must be followed. (Villa vs.
Llanes, Jr., 120 SCRA 81 [1983], Plana, J.).

 

§5. Outside of the cases where the
Constitution clearly requires that the selection of particular officials shall
be thru the ballot and with the participation of political parties, the
lawmaking body, in the exercise of its power to enact laws regulating the
conduct of elections, may in our view ban or restrict partisan elections.  We are not aware of any constitutional provision
expressly or impliedly requiring that barangay officials shall be elected thru
partisan electoral process.  Indeed, it
would be within the competence of the National Assembly to prescribe that the
barangay captain and councilmen, rather than elected, shall be appointed
by designated officials such as the City or Municipal Mayors or Provincial
Governors.  If barangay officials could
thus be made appointive, we do not think it would be constitutionally obnoxious
to prescribe that they shall be elective, but without political party or
partisan involvement in the process in order to promote objectivity and lack of
partisan bias in the performance of their duties that are better discharged in
the absence of political attachment. (Occeña vs. Commission on Elections,
127 SCRA 404 [1984], Plana, J.).

 

§6. It follows that the
petitioner cannot insist that he was running not for kagawad only but
ultimately also for punong barangay in the 28 March 1989 election.  In fact, his certificate of candidacy was for
kagawad and not for punong barangay. 
As the basic position being disputed in the barangay election was
that of kagawad , that of punong barangay being conferred only by
operation of law on the candidate placing first, the petitioner had to forfeit
his position of punong barangay, which he was holding when he presented
his candidacy for kagawad.  Consequently,
he cannot be credited with the four contested votes for “Flores” on the
erroneous ground that he was still incumbent as punong barangay on the
day of the election. (Flores vs. Commission on Elections, 184 SCRA 484
[1990], Cruz, J.).

 

§7. It is clear, therefore, that
under the rules prevailing during the 1997 Barangay Elections, the failure to
authenticate the ballots shall no longer be cause for the invalidation
thereof.  Rather, the Board of Election
Inspectors shall merely note such failure in the minutes and declare the
failure to authenticate the ballots as an election offense.

 

We likewise agree with the dissenting
opinion that Article VI, Section 43 of the Omnibus Election Code and Section 6
of Republic Act No. 6679 do not apply to the 1997 Barangay Elections.  We quote with approval the following portion
of the dissent:  It is not too
difficult to discern why these two provisions quoted above so provide that any
ballot not so authenticated by the Chairman and the poll clerk by their
signatures shall be deemed spurious. 
This is so because the signatures were the only security marking in
the ballot produced either by a mimeographing machine or any ordinary
printer.  The local government units
which were tasked to produce them were not expected to put intricate security
markings on the ballot paper such as phantom markings, watermarking or printing
security marks.  As the Supreme Court
intimated in Libanan v. HRET, the difference in the rules may not be too
difficult to discern considering that in those official ballots supplied and
furnished by the local government units themselves, the possibility of the
ballots being easily counterfeited might not have been discounted.  Hence, the requirement that the chairman and
poll clerk authenticate by their signatures at the back of such ballots
prepared by the local government units. x x x However, in the 1997
Barangay elections, the ballots were not provided by the local government unit
themselves.  It was this Commission that
furnished and provided the official barangay ballots during the 1997 Barangay
Elections and these ballots were printed with security markings.  Although the COMELEC General
Instructions (Resolution No. 2888) requires the chairman of the board to
authenticate the ballots, the same does not provide for the invalidation of the
ballot in the event that the board failed to so authenticate it.  Instead, their failure was only considered as
an election offense.  It is, therefore,
inappropriate to apply the aforequoted legal provisions in this case and rule
that these unsigned ballots are spurious.  
As these ballots were provided and furnished by this Commission and
not by the local government unit concerned, the evil sought to be avoided by
these provisions, are more imaginary than real. (Malabaguio
vs. Commission on Elections, 346 SCRA 699 [2000], Ynares-Santiago, J.).

 

CHAPTER VI
Qualifications of Elective Officials

 

1. Citizenship

 

§1. All
constitutional officers, starting with the President are required to be
natural-born citizens of the Philippines.

 

§2. Natural-born citizens are those
who are citizens of the Philippines from birth without having to perform any
act to acquire or perfect their Philippine citizenship.  Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be deemed natural-born
citizens. (Article IV, Section 2, The 1987 Philippine Constitution).

 

§3. While Frivaldo does not
invoke either of the first two methods, he nevertheless claims he has
reacquired Philippine citizenship by virtue of a valid repatriation.  He claims that by actively participating in
the elections in this country, he automatically forfeited American citizenship
under the laws of the United States. 
Such laws do not concern us here. 
The alleged forfeiture is between him and the United States as his
adopted country.  It should be obvious
that even if he did lose his naturalized American citizenship, such forfeiture
did not and could not have the effect of automatically restoring his
citizenship in the Philippines that he had earlier renounced.  At best, what might have happened as a result
of the loss of his naturalized citizenship was that he became a stateless
individual.

 

This Court will not permit the anomaly of
a person sitting as provincial governor in this country while owing exclusive
allegiance to another country.  That fact
that he was elected by the people of Sorsogon does not excuse this patent
violation of the salutary rule limiting public office and employment only to
the citizens of this country.  The
qualifications prescribed for elective office cannot be erased by the
electorate alone.  The will of the people
as expressed through the ballot cannot cure the vice of ineligibility,
especially if they mistakenly believed, as in this case, that the candidate was
qualified.  Obviously, this rule requires
strict application when the deficiency is lack of citizenship.  If a person seeks to serve in the Republic of
the Philippines, he must owe his total loyalty to this country only, abjuring
and renouncing all fealty and fidelity to any other state. (Frivaldo vs.
Commission on Elections, 174 SCRA 245 [1989], Cruz, J.).

 

§4. The petitioner now claims that
his naturalization in Australia made him at worst only a dual national and did
not divest him of his Philippine citizenship. Such a specious argument cannot
stand against the clear provisions of CA No. 63, which enumerates the modes by
which Philippine citizenship may be lost. x x x It is also worth mentioning in
this connection that under Article IV, Section 5, of the present Constitution,
“Dual allegiance of citizens is inimical to the national interest and shall be
dealt with by law.”

 

Even if it be assumed that, as the
petitioner asserts, his naturalization in Australia was annulled after it was
found that his marriage to the Australian citizen was bigamous, that
circumstance alone did not automatically restore his Philippine citizenship. x
x x.  What we must consider is the fact
that he voluntarily and freely rejected Philippine citizenship and willingly
and knowingly embraced the citizenship of a foreign country.  The possibility that he may have been
subsequently rejected by Australia, as he claims, does not mean that he has
been automatically reinstated as a citizen of the Philippines. (Labo, Jr.,
vs. Commission on Elections, 176 SCRA 1 [1989], Cruz, J.).

 

§5. The cases of Juan Gallanosa
Frivaldo v. COMELEC et al., (G.R. No. 87193, June 21,1989) and Ramon L.
Labo v. COMELEC et al., (G.R. No. 86564, August 1, 1989) are not applicable
to the case at bar. x x x.  In the
instant case, private respondent vehemently denies having taken the oath of
allegiance to the United States (p. 81 Rollo). 
He is a holder of a valid and subsisting Philippine passport and has
continuously participated in the electoral process in this country since 1963
up to the present, both as a voter and as a candidate (pp. 107-108,
Rollo).  Thus, private respondent remains
a Filipino and the loss of his Philippine citizenship cannot be presumed.  x x x Considering the fact that admittedly
Osmeña was both a Filipino and an American, the mere fact that he has a
Certificate stating he is an American does not mean that he is not still a
Filipino. (Aznar vs. Commission on Elections, 185 SCRA 703 [1990], Paras,
J.).   

 

§6. Section 40 of Republic Act No.
7160 (Local Government Code of 1991) which took effect on January 1, 1992,
provides that those with dual citizenship are disqualified from running for any
elective local position, and effectively overturns the ruling in Aznar.

 

§7. Petitioner’s argument, that to
unseat him will frustrate the will of the electorate, is untenable.  Both the Local Government Code and the
Constitution require that only Filipino citizens can run and be elected to
public office.  We can only surmise that
the electorate, at the time they voted for private respondent, was of the
mistaken belief that he had legally reacquired Filipino citizenship. (Republic
vs. De la Rosa, 232 SCRA 785 [1994], Quiason, J.).

§8. Under Philippine law, citizenship
may be reacquired by direct act of Congress, by naturalization or by
repatriation.

 

From the above, it will be noted that the
law does not specify any particular date or time when the candidate must
possess citizenship, unlike that for residence (which must consist of at least one
year’s residency immediately preceding the day of election) and age (at
least twenty three years of age on election day).

 

Literally, such qualifications—unless
otherwise expressly conditioned, as in the case of age and residence—should
thus be possessed when the “elective [or elected] official” begins to govern,
i.e., at the time he is proclaimed and at the start of his term—in this
case, on June 30, 1995. 

 

Paraphrasing this Court’s ruling in Vasquez
vs. Giap and Li Seng Giap & Sons, if the purpose of the citizenship
requirement is to ensure that our people and country do not end up being
governed by aliens, i.e., persons owing allegiance to another nation, that aim
or purpose would not be thwarted but instead achieved by construing the
citizenship qualification as applying to the time of proclamation of the
elected official and at the start of his term.

 

But to remove all doubts on this important
issue, we also hold that the repatriation of Frivaldo RETROACTED to the date of
the filing of his application on August 17, 1994. (Frivaldo vs. Commission
on Elections, 257 SCRA 727 [1996], Panganiban, J.).

 

§9. Dual citizenship is different
from dual allegiance.  The former arises
when, as a result of the concurrent application of the different laws of two or
more states, a person is simultaneously considered a national by the said
states.  For instance, such a situation
may arise when a person whose parents are citizens of a state which adheres to
the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli.  Such a
person, ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states.

 

Considering the citizenship clause (Art.
IV) of our Constitution, it is possible for the following classes of citizens
of the Philippines to possess dual citizenship: 
(1) Those born of Filipino fathers and/or mothers in foreign countries
which follow the principle of jus soli; (2) Those born in the
Philippines of Filipino mothers and alien fathers if by the laws of their
fathers’ country such children are citizens of that country; (3) Those who
marry aliens if by the laws of the latter’s country the former are considered
citizens, unless by their act or omission they are deemed to have renounced
Philippine citizenship.  Dual allegiance,
on the other hand, refers to the situation in which a person simultaneously
owes, by some positive act, loyalty to two or more states.  While dual citizenship is involuntary, dual
allegiance is the result of an individual’s volition.

 

In including Section 5 in Article IV on
citizenship, the concern of the Constitutional Commission was not with dual
citizens per se but with naturalized citizens who maintain their
allegiance to their countries of origin even after their naturalization.  Hence, the phrase “dual citizenship” in R.A.
No. 7160, Section 40(d) and in R.A. No. 7854, Section 20 must be understood as
referring to “dual allegiance.” 
Consequently, persons with mere dual citizenship do not fall under this
disqualification.  Unlike those with dual
allegiance, who must, therefore, be subject to strict process with respect to
the termination of their status, for candidates with dual citizenship, it
should suffice if, upon the filing of their certificates of candidacy, they
elect Philippine citizenship to terminate their status as persons with dual
citizenship considering that their condition is the unavoidable consequence of
conflicting laws of different states. (Mercado vs. Manzano, 307 SCRA 630
[1999], Mendoza J.).

 

§10. Before the 1935 Constitution,
what served as the Constitution of the Philippines were the principal organic
acts by which the United States governed the country.

 

The signing into law of the 1935
Constitution has established the principle of jus sanguinis as basis for
the acquisition of Philippine citizenship.

 

The mere fact that a person is a holder of
an Australian passport and has an alien certificate of registration are not
acts constituting an effective renunciation of citizenship and do not militate
against her claim of Filipino citizenship.

 

The phrase “dual citizenship” in R.A. 7160
and in R.A. 7854 must be understood as referring to “dual allegiance” – persons
with mere dual citizenship do not fall under this disqualification.

 

For candidates with dual citizenship, it
is enough that they elect Philippine citizenship upon the filing of their
certificate of candidacy, to terminate their status as persons with dual
citizenship. A declaration in the certificate of candidacy that one is a
Filipino citizen and that he or she will support and defend the Constitution
and will maintain true faith and allegiance thereto, which is under oath,
operates as an effective renunciation of foreign citizenship. (Valles vs.
Commission on Elections, 337 SCRA 543 [2000], Purisima, J.).

2. Age

 

§1. In Espinosa vs. Aquino,
(Electoral Case No. 9, Senate Electoral Tribunal (SET), the election of the
late Senator Benigno S. Aquino, Jr. was upheld, despite his not being of the
required age on the day of the election, although he celebrated his
thirty-fifth birthday before his proclamation. 
The holding in Aquino was subsequently nullified by the adoption
of the 1987 Constitution (Art. VI, Sec. 3), which specified that the age
qualification must be possessed on the day of the elections, and not on the day
of the proclamation of the winners by the board of canvassers.

 

§2. From the above, it will be
noted that the law does not specify any particular date or time when the
candidate must possess citizenship, unlike that for residence (which must
consist of at least one year’s residency immediately preceding the day
of election) and age (at least twenty three years of age on election day).  (Frivaldo vs. Commission on Elections,
257 SCRA 727 [1996], Panganiban, J.).

 

§3. An elective municipal officer
must, among others, be at least 23 years of age at the time of the election. He
was thus disqualified to run for an elective municipal office under Section
2174 of the Revised Administrative Code (People vs. Yanza, G.R. No. L-12089,
April 29, 1960; Feliciano vs. Aquino, G.R. No. L-10201, September 23, 1957). (Sanchez
vs. Del Rosario, 111 Phil. 733 [1961]; 1 SCRA 1102 [1961], Reyes, J.B.L., J.).

 

§4. While Section 12 of the Dagupan
City Charter (Republic Act No. 170, as amended) states that the elective
members of the Municipal Board should not be less than 23 years of age, Section
6 of Republic Act No. 2259 fixes 25 years as the age limit.  The last-named statute, which was enacted
later, excludes from the operation thereof a number of cities, and the City of
Dagupan is not one of them.  Hence, the
charter provision on the age limit is deemed repealed by Republic Act No. 2259.
A duly elected councilor, who was below the age of 25 years at the time he
filed his certificate of candidacy, at the time of the election and at the time
he took his oath of office, is disqualified on the ground of non-age. (Gaerlan,
Jr. vs. Catubig, 17 SCRA 376 [1966], Sanchez, J.).

 

§5. The phrase “not more than
21 years of age”, means not over 21 years, not beyond 21 years.  It means 21 365-day cycles.  It does not mean 21 years and one or some
days or a fraction of a year because that would be more than 21 365-day cycles.  “Not more than 21 years old” is not
equivalent to “less than 22 years old,” contrary to petitioner’s claims.  The law does not state that the candidate be
less than 22 years on election day. The general rule is that an elected
official of the Sangguniang Kabataan must not be more than 21 years of age on
the day of his election. (Garvida vs. Sales, Jr., 271 SCRA 767 [1997], Puno,
J.).

§6. The petition filed by private
respondent Ututalum with the respondent Comelec to disqualify Loong on the
ground that the latter made a false representation in his certificate of
candidacy as to his age, clearly does not fall under the grounds of
disqualification as provided for in Rule 25 but is expressly covered by Rule 23
of the Comelec Rules of Procedure governing petitions to cancel certificate of
candidacy.  Moreover, Section 3, Rule 25
which allows the filing of the petition at any time after the last day for the
filing of certificates of candidacy but not later than the date of
proclamation, is merely a procedural rule issued by respondent Commission
which, although a constitutional body, has no legislative powers.  Thus, it cannot supersede Section 78 of the
Omnibus Election Code which is a legislative enactment. (Loong vs.
Commission on Elections, 216 SCRA 760 [1992], Padilla, J.).

 

 

3. Residence

 

§1. The question of residence for the
purposes of the Election Law is largely one of intention. (Yra vs. Abaño, 52
Phil. 380 [1928], Malcolm, J.).

 

§2. It is an established rule that
“where a voter abandons his residence in a state and acquires one in another
state, he cannot again vote in the state of his former residence until he has
qualified by a new period of residence” (20 Corpus Juris, p. 71, par. 28).  “The term ‘residence’ as so used, is
synonymous with ‘domicile’ which imports not only intention to reside in a
fixed place, but also personal presence in that place, coupled with conduct
indicative of such intention.” (People vs. Bender, 144 N.Y. S., 145).
(Nuval vs. Guray, 52 Phil. 645 [1928], Villa-Real, J.).

 

§3. A student living with his parents
in a certain barrio of a municipality, which barrio is later separated to be
organized as an independent municipality, who for several years pursues his
studies in several provinces of the archipelago, supported by his parents,
returning to the latter’s home during his vacations in the newly organized
municipality, does not lose his residence in said municipality, either on
account of having resided in different provinces as a student, or of having
registered as a voter in the former municipality, and is eligible as municipal
president of the new municipality even if his registration as a voter in the
municipality to which the new one originally belonged has not been cancelled.
(Vivero vs. Murillo, 52 Phil. 694 [1929], Villa-Real, J.).

 

§4. In Section 2071 of the
Administrative Code, it is declared that no person shall be eligible for
election to a provincial office unless at the time of the election he has,
among other things, been a bona fide resident of the province for at
least one year prior to the election. 
This provision requires personal residence in the province for the
period stated with a bona fide intention to make the place a home.  One who has been brought up in a certain
province but who, after qualifying as a lawyer, establishes his residence in Manila
with the intention of remaining there for an indefinite time, thereby severs
his domiciliary relation with his former province, and is not eligible to be a
candidate for a provincial office therein until he returns to the province and
lives there in good faith for one year prior to the election. (Tanseco vs.
Arteche, 57 Phil. 227 [1932], Street, J.).

 

§5. Inasmuch as the
respondent-appellant has had his legal residence in the municipality of
Dumaguete from the year 1904 up to the present, without having acquired another
in any other place, and inasmuch as he has all the other qualifications
required by law in order to be a qualified elector, his election to the office
of municipal president is valid and in accordance with law. (Larena vs.
Teves, 61 Phil. 36 [1934], Villa-Real, J.).

 

§6. At present the nearest approach
to a constitution that we have in the Philippines is our Organic Act, the Jones
Law, enacted August 29, 1916, by the Congress of the United States. “The
organic law (or Act) of a territory takes the place of a constitution as the
fundamental law of the local government.” (Malcolm, Philippine Constitutional
Law, p. 229.)  The only provision
contained in that law as to the qualification of voters appears in Section 15
thereof.  Under the authority conferred
upon it by said section the Philippine Legislature has prescribed the
qualifications and disqualifications of voters in Sections 431 and 432 of the
Revised Administrative Code.

 

The only question raised by the answer of
the respondents is whether or not the petitioners have acquired a residence for
voting purposes in the municipality in which they desire to vote. The
petitioners allege that they have and the respondents deny this
allegation.  There is no hard and fast
rule by which to determine where a person actually resides.  “Each case must depend on its particular
facts or circumstances.  Three rules are,
however, well established: first, that a man must have a residence or domicile
somewhere; second, that where once established it remains until a new one is
acquired; and third, a man can have but one domicile at a time.” (9 R. C. L.,
1031.).  (Alcantara vs. Secretary of
Interior, 61 Phil. 459 [1935], Goddard, J.).

 

§7. The respondent, born in the
municipality of Ibajay, baptized, grown up, married, paid his cedula tax,
registered as a voter, exercised the right of suffrage, and elected once as
councilor and three times as municipal president of said municipality, is
legally a resident thereof notwithstanding the fact that he constructed a house
in another municipality for purposes of business, had his family lived there
and educated his children in the schools of said municipality. (De los Reyes
vs. Solidum, 61 Phil. 893 [1935], Villa-Real, J.).

§8. The term “residence” as used in
the election law is synonymous with “domicile,” which imports not only
intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention.

 

In order to acquire a domicile by choice,
there must concur (1) residence or bodily presence in the new locality, (2) an
intention to remain there, and (3) an intention to abandon the old
domicile.  In other words, there must be
an animus non revertendi and an animus manendi.  The purpose to remain in or at the domicile
of choice must be for an indefinite period of time.  The acts of the person must conform with his
purpose.  The change of residence must be
voluntary; the residence at the place chosen for the domicile must be actual;
and to the fact of residence there must be added the animus manendi.

 

The manifest intent of the law in fixing a
residence qualification is to exclude a stranger or newcomer, unacquainted with
the conditions and needs of a community and not identified with the latter,
from an elective office to serve that community; and when 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. (Gallego vs. Verra, 73 Phil. 453 [1941], Ozaeta, J.).

 

§9. Mere absence from one’s residence
of origin – domicile – to pursue studies, engage in business, or practice his
avocation, is not sufficient to constitute abandonment or loss of such
residence.  (Faypon vs. Quirino, 96
Phil. 294 [1954], Padilla, J.).

 

§10. Despite his vigorous disclaimer,
Miguel’s immigration to the United States in 1984 constituted an abandonment of
his domicile and residence in the Philippines. 
For he did not go to the United States merely to visit his children or
his doctor there; he entered the United States with the intention to live there
permanently as evidenced by his application for an immigrant’s (not a visitor’s
or tourist’s) visa.  Based on that
application of his, he was issued by the U.S. Government the requisite green
card or authority to reside there permanently. 
xxx.  To be “qualified to run for
elective office” in the Philippines, the law requires that the candidate who is
a green card holder must have “waived his status as a permanent resident or
immigrant of a foreign country.” 
Therefore, his act of filing a certificate of candidacy for elective
office in the Philippines, did not of itself constitute a waiver of his status
as a permanent resident or immigrant of the United States.  The waiver of his green card should be
manifested by some act or acts independent of and done prior to filing his
candidacy for elective office in this country. 
Without such prior waiver, he was “disqualified to run for any elective
office”. (Caasi vs. Court of Appeals, 191 SCRA 229 [1990], Griño-Aquino,
J.).

§11. The determination of a person’s
legal residence or domicile largely depends upon intention which may be
inferred from his acts, activities and utterances xxx xxx xxx.  In the instant case, there is no evidence to
prove that the petitioner temporarily left her residence in Kananga, Leyte in
1975 to pursue any calling, profession or business.  What is clear is that she established her
residence in Ormoc City with her husband and considers herself a resident
therein.  The intention of animus
revertendi not to abandon her residence in Kananga, Leyte, therefore, is
not present.  The fact that she
occasionally visits Kananga, Leyte, through the years does not signify an
intention to continue her residence therein. (Abella vs. Commission on
Elections, 201 SCRA 253 [1991], Gutierrez, Jr., J.)

 

            §12. In
election cases, the Court treats domicile and residence as synonymous terms,
thus: “(t)he term “residence” as used in the election law is synonymous with
“domicile”, which imports not only an intention to reside in a fixed place but
also personal presence in that place, coupled with conduct indicative of such
intention”. Their going into self-exile until conditions favorable to them
would have somehow stabilized is understandable.  Certainly, their sudden departure from the
country cannot be described as “voluntary”, or as “abandonment of residence” at
least in the context that these terms are used in applying the concept of
“domicile by choice”.  (Romualdez vs.
Regional Trial Court, Br. 7, Tacloban City, 226 SCRA 408 [1993], Vitug, J.).

 

§13. The deliberations of the 1987
Constitution on the residence qualification for certain elective positions have
placed beyond doubt the principle that when the Constitution speaks of
“residence” in election law, it actually means only “domicile”. (Romualdez-Marcos
vs. Commission on Elections, 248 SCRA 300 [1995], Kapunan, J.).

 

§14. We agree with COMELEC’s
contention that in order that petitioner could qualify as candidate for
Representative of the Second District of Makati City, the latter “must prove
that he has established not just residence but domicile of choice.”  The Constitution requires that a person
seeking election to the House of Representatives should be a resident of
the district in which he seeks election for a period of not less than
one (1) year prior to the elections. 
Residence, for election law purposes, has a settled meaning in our
jurisdiction.  The absence of clear and
positive proof showing a successful abandonment of domicile under the
conditions stated above, the lack of identification—sentimental, actual or
otherwise—with the area, and the suspicious circumstances under which the lease
agreement was effected all belie petitioner’s claim of residency for the period
required by the Constitution, in the Second District of Makati. (Aquino vs.
Commission on Elections, 248 SCRA 400 [1995], Kapunan, J.).

 

§15. It is doctrinally settled that the term
“residence,” as used in the law prescribing the qualifications for suffrage and
for elective office, means the same thing as “domicile,” which imports not only
an intention to reside in a fixed place but also personal presence in that
place, coupled with conduct indicative of such intention.  “Domicile” denotes a fixed permanent
residence to which, whenever absent for business, pleasure, or some other
reasons, one intends to return. 
“Domicile” is a question of intention and circumstances.  In the consideration of circumstances, three
rules must be borne in mind, namely: (1) that a man must have a residence or
domicile somewhere; (2) when once established it remains until a new one is
acquired; and (3) a man can have but one residence or domicile at a time.

 

A person’s “domicile” once established is
considered to continue and will not be deemed lost until a new one is
established.  To successfully effect a
change of domicile one must demonstrate an actual removal or an actual change
of domicile; a bona fide intention of abandoning the former place of
residence and establishing a new one and definite acts which correspond with
the purpose.  In other words, there must
basically be animus manendi coupled with animus non revertendi.  The purpose to remain in or at the domicile
of choice must be for an indefinite period of time; the change of residence
must be voluntary; and the residence at the place chosen for the new domicile
must be actual.

 

It is the contention of petitioner that
his actual physical presence in Alabel, Sarangani, since December 1996 was
sufficiently established by the lease of a house and lot located therein in
January 1997 and by the affidavits and certifications under oath of the
residents of that place that they have seen petitioner and his family residing
in their locality.  While this may be so,
actual and physical is not in itself sufficient to show that from said date he
had transferred his residence in that place. 
To establish a new domicile of choice, personal presence in the place
must be coupled with conduct indicative of that intention.  While “residence” simply requires bodily
presence in a given place, “domicile” requires not only such bodily presence in
that place but also a declared and probable intent to make it one’s fixed and
permanent place of abode, one’s home. (Domino vs. Commission on Elections,
310 SCRA 546 [1999], Davide, Jr., C.J.).

 

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

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, 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. (Perez vs.
Commission on Elections, 317 SCRA 641 [1999], Mendoza, J.).

§17. In
requiring candidates to have a minimum period of residence in the area in which
they seek to be elected, the Constitution or the law intends to prevent the
possibility of a “stranger or newcomer unacquainted with the conditions and
needs of a community and not identified with the latter from [seeking] an elective
office to serve that community.”  Such
provision is aimed at excluding outsiders “from taking advantage of favorable
circumstances existing in that community for electoral gain.”  Establishing residence in a community merely
to meet an election law requirement defeats the purpose of representation: to
elect through the assent of voters those most cognizant and sensitive to the
needs of the community.  This purpose is
“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.”

We stress that the residence requirement is rooted in
the desire that officials of districts or localities be acquainted not only
with the metes and bounds of their constituencies but, more important, with the
constituents themselves—their needs, difficulties, aspirations, potentials for
growth and development, and all matters vital to their common welfare.  The requisite period would give candidates
the opportunity to be familiar with their desired constituencies, and likewise
for the electorate to evaluate the former’s qualifications and fitness for the
offices they seek.  In other words, the
actual, physical and personal presence of herein private respondent in Cagayan
de Oro City is substantial enough to show his intention to fulfill the duties
of mayor and for the voters to evaluate his qualifications for the
mayorship.  Petitioners’ very legalistic,
academic and technical approach to the residence requirement does not satisfy
this simple, practical and common-sense rationale for the residence
requirement. (Torayno, Sr., vs. Commission on Elections, 337 SCRA 574
[2000], Panganiban, J.).

4. Registered Voter

§1. This
connotes possession of the qualifications for suffrage as enumerated in Article
V, Section I, of the Constitution.

§2. The
Election Law makes use of the terms “qualified voter in his municipality,” and
“qualified elector therein.”  To be a
qualified voter, does not necessarily mean that a person must be a registered voter.  It is sufficient for the candidate to possess
all of the qualifications prescribed in section 431 and none of the
disqualifications prescribed in section 432. 
The fact that a candidate failed to register as an elector in the
municipality does not deprive him of the right to become a candidate and to be
voted for.

One may be a qualified voter without exercising the right to
vote.  Registering does not confer the
right; it is but a condition precedent to the exercise of the right.  Registration regulates the exercise of the
right of suffrage.  It is not a
qualification of such right. (Yra vs. Abano, 52 Phil. 380 [1928], Malcolm,
J.).  

§3. Registration
is essential to the exercise of the right of suffrage, not to the possession
thereof.  Indeed, only those who have
such right may be registered.  In other
words, the right must be possessed before the registration.  The latter does not confer it. (Aportadera
vs. Sotto, 3 SCRA 626 [1961], Concepcion, J.).

§4. It
should be emphasized that the Local Government Code requires an elective
official to be a registered voter.  It
does not require him to vote actually. 
Hence, registration – not the actual voting – is the core of this
“qualification.” (Frivaldo vs. Commission on Elections, 257 SCRA 727 [1996],
Panganiban, J.).

 

5. Literacy

§1. The
literacy qualification is now expressly required because it is not deemed
embraced in the suffrage qualification. 
The present Constitution not only does not require ability to read and
write, but in fact prohibits its imposition as a qualification for voting, when
it provides thus:

Suffrage may be exercised by all citizens
of the Philippines not otherwise disqualified by law, who are at least eighteen
years of age, and who shall have resided in the Philippines for at least one
year and in the place wherein they propose to vote for at least six months
immediately preceding the election.  No
literacy, property, or other substantive requirement shall be imposed on
the exercise of suffrage. (Article V, Section 1, The 1987 Philippine
Constitution).

 

 

CHAPTER VII
The Electoral Tribunals

 

1. Presidential Electoral Tribunal

 

§1. The Constitution makes no
provision for election contests involving the office of President or
Vice-President.  The absence of a
machinery to handle such contests was keenly felt when in the 1949 presidential
elections, complaints of frauds and irregularities in the election was made and
no recourse was available either under the Constitution or the statutes.  For while the Constitution provides in each
House of the Congress for an Electoral Tribunal which is given exclusive
jurisdiction over all election contests involving the members and the election
laws govern contests over elective local offices, neither the Constitution nor
the statutes make provision for contests over the two highest elective
positions in the land.  Not until 1957
did Congress fill this legal hiatus by enacting a special law creating the
Presidential Electoral Tribunal (Republic Act No. 1793 approved on June 21,
1957). (Sinco, Vicente G., Philippine Political Law, Eleventh Edition, 1962,
p. 154).

 

§2. Prior to the approval of Republic
Act No. 1793, a defeated candidate for president or vice-president, who believe
that he was the candidate who obtained the largest number of votes for either
office, despite the proclamation by Congress of another candidate as the
president-elect or vice-president-elect, had no legal right to demand by
election protest a recount of the votes cast for the office concerned, to
establish his right thereto.  As a
consequence, controversies or disputes on this matter were not justiciable.  (Lopez vs. Roxas, et al., 17
SCRA 756 [1966], Concepcion, C.J.).

 

§3. Republic Act No. 1793, creating
the Presidential Electoral Tribunal, has the effect of giving a defeated
candidate the legal right to contest judicially the election of the
President-elect or Vice-President-elect and to demand a recount of the votes
cast for the office involved in the litigation, as well as to secure a judgment
declaring that he, not the candidate proclaimed elected by Congress, is the one
elected President or Vice-President, as the case may be, and that, as such, he
is entitled to assume the duties attached to said office.

By providing that the Presidential
Electoral Tribunal “shall be composed of the Chief Justice and the other ten
members of the Supreme Court”, Republic Act No. 1793 has conferred upon such
Court an additional original jurisdiction of an exclusive character.  Republic Act No. 1793 has not created
a new or separate court.  It has
merely conferred upon the Supreme Court the functions of a Presidential
Electoral Tribunal.  The Presidential
Electoral Tribunal is not inferior to the Supreme Court, since it is the
same Court, although the functions peculiar to said Tribunal are more
limited in scope than those of the Supreme Court in the exercise of its
ordinary functions.  The result of the
enactment of Republic Act No. 1793 may be likened to the fact that Courts of
First Instance perform the functions of such ordinary Courts of First Instance,
those of courts of land registration, those of probate courts, and those of
courts of juvenile and domestic relations. 
It is, also, comparable to the situation obtaining when the municipal
court of a provincial capital exercises its authority, pursuant to law, over a
limited number of cases which were previously within the exclusive jurisdiction
of Courts of First Instance.  In all of these
instances, the court (Court of First Instance or municipal court) is
only one, although the functions may be distinct and,
even, separate. (Ibid.).

 

§4. In imposing upon the Supreme
Court the additional duty of performing the functions of a Presidential
Electoral Tribunal, Congress has not, through Republic Act No. 1793, encroached
upon the appointing power of the Executive. 
The imposition of new duties constitutes, neither the creation of an
office, nor the appointment of an officer. 
Said law is constitutional. (Ibid.).

 

§5. The power to be the judge of
contests relating to the election, returns, and qualifications of any public
officer is essentially judicial.  As such
— under the very principle of separation of powers — it belongs exclusively to
the judicial department, except only insofar as the Constitution
provides otherwise.  This is precisely
the reason why said organic law ordains that “the Senate and the House of
Representatives shall each have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns, and qualifications of
their respective Members” (Article VI, Section 11 of the Constitution).  In other words, the purpose of this provision
was to exclude the power to decide such contests relating to Members of
the Congress — which by nature is judicial — from the operation of the general
grant of judicial power to “the Supreme Court and such inferior courts as may
be established by law”. (Ibid.).

 

§6. The power of Congress to declare
who, among the candidates for President and/or Vice-President, has obtained the
largest number of votes, is entirely different in nature from and not
inconsistent with the jurisdiction vested in the Presidential Electoral
Tribunal by Republic Act No. 1793. 
Congress merely acts as a national board of canvassers, charged with the
ministerial and executive duty to make said declaration, on the
basis of the election returns duly certified by provincial and city boards of
canvassers.  (Article VII, Section 2,
Constitution of the Philippines.)  Upon
the other hand, the Presidential Electoral Tribunal has the judicial power
to determine whether or not said duly certified election returns have been
irregularly made or tampered with, or reflect the true results of the elections
in the areas covered by each, and, if not, to recount the ballots cast, and,
pass upon the validity of each ballot or determine whether the same shall be
counted, and, in the affirmative, in whose favor, which Congress has no
power to do. (Ibid.).

 

§7. The authority of the Presidential
Electoral Tribunal to determine whether or not the protestant has a better
right than the President and/or Vice-President to be declared elected by
Congress would not abridge the constitutional tenure.  If the evidence introduced in the election
protest shows that the person really elected President or Vice-President is the
protestant, not the person declared elected by Congress, then the latter had
legally no constitutional tenure whatsoever, and, hence, he can claim no
abridgment thereof. (Ibid.).

  

§8. The Supreme Court, sitting en
banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose. (Article VII, Section 4, The 1987
Philippine Constitution).

 

§9. The Revised Rules of the
Presidential Electoral Tribunal as of April 18, 1992 was published in the
Manila Bulletin on April 24, 1992.

                       

§10. It must also be
stressed that under the Rules of the Presidential Electoral Tribunal, an
election protest may be summarily dismissed, regardless of the public policy
and public interest implications thereof, on the following grounds: (1) The
petition is insufficient in form and substance; (2) The petition is filed
beyond the periods provided in Rules 14 and 15 hereof; (3) The filing fee is
not paid within periods provided for in these Rules; (4) The cash deposit, or
the first P100,000.00 thereof, is not paid within 10 days after the filing of
the protest; and (5) The petition or copies thereof and the annexes thereto
filed with the Tribunal are not clearly legible.  Other grounds for a motion to dismiss, e.
g., those provided in the Rules of Court which apply in a suppletory
character, may likewise be pleaded as affirmative defenses in the answer.  After which, the Tribunal may, in its
discretion, hold a preliminary hearing on such grounds.  In sum, if an election protest may be
dismissed on technical grounds, then it must be, for a decidedly stronger
reason, if it has become moot due to its abandonment by the Protestant. (Defensor-Santiago
vs. Ramos, 253 SCRA 559 [1996], En banc Resolution).

 

2. Senate
Electoral Tribunal

 

            a. Under
the Jones Law

         

§1. The Act of Congress of August 29,
1918, commonly known as the Jones Law, in its Section 18, provides: “That the
Senate and the House of Representatives, respectively, shall be the sole judges
of the elections, returns, and qualifications of their elective members.”  The grant of power to the Philippine Senate
and the Philippine House of Representatives, respectively, is full, clear, and
complete.  The Judiciary, with its
traditional regard for the balance of powers, must permit this exclusive
privilege of the Legislature to remain where the sovereign authority has placed
it. (Veloso vs. Boards of Canvassers of Leyte and Samar, 39 Phil. 886
[1919], Malcolm, J.).

 

§2. And it is a well-known fact that
Section 18 of the Jones Law confers exclusive jurisdiction upon the Senate and
the House of Representatives to hear and determine election protests against
the members-elect of each respective house. (Veloso vs. Boards of
Canvassers of Leyte and Samar, 39 Phil., 886.) (Rafols vs. Court of First
Instance and Fiscal of Cebu, 47 Phil. 736 [1925], Villamor, J.).

 

§3. Upon principle, reason and
authority, the Supreme Court has jurisdiction over the Electoral Commission and
the subject matter of the present controversy for the purpose of determining
the character, scope and extent of the constitutional grant to the Electoral
Commission as “the sole judge of all contests relating to the election, returns
and qualifications of the members of the National Assembly.”

 

The original provision regarding this
subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down the
rule that “the assembly shall be the judge of the elections, returns, and
qualifications of its members”, was taken from clause 1 of section 5, Article I
of the Constitution of the United States providing that “Each House shall be
the Judge of the Elections, Returns, and Qualifications of its own Members, . .
. . ”  The Act of Congress of August 29,
1916 (sec. 18, par. 1) modified this provision by the insertion of the word
“sole” as follows: “That the Senate and House of Representatives, respectively,
shall be the sole judges of the elections, returns, and qualifications of their
elective members, . . . . ” apparently in order to emphasize the exclusive
character of the jurisdiction conferred upon each House of the Legislature over
the particular cases therein specified. 
This court has had occasion to characterize this grant of power to the
Philippine Senate and House of Representatives, respectively, as “full, clear
and complete”.  (Veloso vs. Boards of
Canvassers of Leyte and Samar, 39 Phil. 886 [1919].)

 

b. Under the 1935 Constitution

 

§1. The Senate and the House of
Representatives shall each have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns, and qualifications of
their respective Members.  Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices of
the Supreme Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or of the House of Representatives, as the case
may be, who shall be chosen by each House three upon nomination of the party
having the largest number of votes and three upon the nomination of the party
having the second largest number of votes therein.  The senior Justice in each Electoral Tribunal
shall be its Chairman. (Article VI, Section 11, The 1935 Philippine
Constitution).

 

§2. The transfer of the power of
determining the election, returns and qualifications of the members of the
Legislature long lodged in the legislative body, to an independent, impartial
and non-partisan tribunal, is by no means a mere experiment in the science of
government x x x.

 

From the deliberations of our
Constitutional Convention it is evident that the purpose was to transfer in its
totality all the powers previously exercised by the Legislature in matters
pertaining to contested elections of its members, to an independent and
impartial tribunal.  It was not so much
the knowledge and appreciation of contemporary constitutional precedents,
however, as the long-felt need of determining legislative contests devoid of
partisan considerations which prompted the people acting through delegates to
the Convention to provide for this body known as the Electoral Commission.  With this end in view, a composite body in
which both the majority and minority parties are equally represented to off-set
partisan influence in its deliberations was created, and further endowed with
judicial temper by including in its membership three justices of the Supreme
Court.

 

The Electoral Commission is a
constitutional creation, invested with the necessary authority in the
performance and execution of the limited and specific function assigned to it
by the Constitution. Although it is not a power in our tripartite scheme of
government, it is, to all intents and purposes, when acting within the limits
of its authority, an independent organ. 
It is, to be sure, closer to the legislative department than to any
other.  The location of the provision
(Sec. 4) creating the Electoral Commission under Article VI entitled
“Legislative Department” of our Constitution is very indicative.  Its composition is also significant in that
it is constituted by a majority of members of the Legislature.  But it is a body separate from and independent
of the Legislature.

The grant of power to the Electoral
Commission to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, is intended to be as
complete and unimpaired as if it had remained originally in the
Legislature.  The express lodging of that
power in the Electoral Commission is an implied denial of the exercise of that
power by the National Assembly x x x. If the power claimed for the National
Assembly to regulate the proceedings of the Electoral Commission and cut off
the power of the Electoral Commission to lay down a period within which protest
should be filed were conceded, the grant of power to the commission would be
ineffective.  The Electoral Commission in
such a case would be invested with the power to determine contested cases
involving the election, returns, and qualifications of the members of the
National Assembly but subject at all times to the regulative power of the
National Assembly.  Not only would the
purpose of the framers of our Constitution of totally transferring this
authority from the legislative body be frustrated, but a dual authority would
be created with the resultant inevitable clash of powers from time to time x x
x. The power to regulate on the part of the National Assembly in procedural
matters will inevitably lead to the ultimate control by the Assembly of the
entire proceedings of the Electoral Commission, and, by indirection, to the
entire abrogation of the constitutional grant. 
It is obvious that this result should not be permitted.

 

The creation of the Electoral Commission
carried with it ex necesitate rei the power regulative in character to
limit the time within which protests entrusted to its cognizance should be
filed.  It is a settled rule of
construction that where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of
the other is also conferred (Cooley, Constitutional Limitations, eight ed.,
vol. I, pp. 138, 139).  In the absence of
any further constitutional provision relating to the procedure to be followed
in filing protests before the Electoral Commission, therefore, the incidental
power to promulgate such rules necessary for the proper exercise of its
exclusive powers to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, must be deemed by necessary
implication to have been lodged in the Electoral Commission. (Angara vs.
Electoral Commission, G.R. No. 45081, July 15, 1936; 63 Phil. 139 [1936],
Laurel, J.).

 

§3. The Convention, however, bent on
circumscribing the latter’s authority to “contests” relating to the election,
etc. altered the draft.  The Convention
did not intend to give it all the functions of the Assembly on the
subject of election and qualifications of its members.  The distinction is not without a difference.
“As used in the constitutional provisions”, election contest “relates only to
statutory contests in which the contestant seeks not only to oust the intruder,
but also to have himself inducted into the office.” (Laurel on Elections,
Second Edition, p. 250; 20 C.J., 58.).

§4. In all parliaments of the world,
the invariable rule is to leave unto themselves the determination of
controversies respecting the election and qualifications of their members.  This practice was followed in our country for
many years.  But when the fundamental law
of the Philippines was being drafted, the idea was conceived of transferring
that power to a separate and independent body to be created by the Constitution,
known as the Electoral Tribunal and to be composed of members of both the
majority and minority parties, in the legislative body. But fearing that the
Tribunal as thus composed might not still guarantee an impartial and just
disposition of election contest, and that partisan influence might prevail over
justice, it was conceived that three members of the Supreme Court should sit in
judgment in the Tribunal.  When the last
idea was launched on the floor of the Convention, the same received the support
of public opinion.  The Constitutional
Convention approved the proposal almost unanimously, and the corresponding
provision was inserted in the Constitution as Section 11 of Article VI of the
Constitution.  It is the people’s will
that the Electoral Tribunal should act in accordance with the law and justice
and with complete detachment from all political considerations. (Senate
Electoral Tribunal Decision, Prospero Sanidad, et al., vs. Jose O. Vera, et
al., Case No 1, April 19, 1947, cited in Francisco, Vicente, J., How To Try
Election Cases, 1952, pp. 493, 496, 497).

 

§5. Our Constitution has
unqualifiedly reposed upon the Electoral Tribunal the responsibility of being
the “sole judge of all contests relating to election, returns and
qualifications” of the members of the legislative houses.

 

The Electoral Tribunals are independent
constitutional creations with specific powers and functions to execute and
perform and the avowed purpose in creating them is to have independent
constitutional organs pass upon all contests relating to the election returns
and qualifications of members of the Congress, devoid of partisan influence or
consideration, which object would be frustrated if Congress were to retain that
power.

 

With the precise sphere of their
functions, they are as sovereign over their internal affairs as are each of the
other powers of government over their respective domains.  Consequently, the employees of an Electoral
Tribunal are its own, and not of the Senate nor of the House of Representatives
nor of any other entity, and it stands to reason that the appointment, the
supervision and the control over said employees rest wholly within the Tribunal
itself.

 

The Electoral Tribunals must be
independent not alone when they are deciding cases before them, but also when
they are selecting their personnel which will aid them in the performance of
their duties and when they are disposing of their funds for their necessary
expenses.  The selection of such
personnel and the disposition of such funds have a substantial bearing upon the
judicial functions of the Electoral Tribunals. 
If they may be forced to accept employees who deserve no trust from them
and they may be dictated to in the disposition of their funds, the integrity of
their proceedings and the correctness of their decisions may easily be impaired
and defeated.

 

The fact that the appropriation for the
Senate Electoral Tribunal is included in the budget corresponding to the
Senate, does not and cannot mean that employees of the Electoral Tribunal are
also employees of the Senate, for both institutions are separate and
independent of each other under the Constitution.

 

The Chief Justice, in the exercise of his
constitutional power to designate associate justices as members of the
Electoral Tribunals, has established the policy in conformity with what he
believes to be the true meaning of the Constitution, that associate justices
thus designated cannot be changed by him during the periods of their incumbency
except in cases of vacancy.  The evident
purpose is to maintain the independence of each associate justice in the
performance of his duties as a member of an electoral tribunal.

 

It is well-settled rule that when
jurisdiction is conferred by law on a court or tribunal, that court or
tribunal, unless otherwise provided by law, is deemed to have authority to
employ all writs, processes and other means necessary to make its power
effective.  In the instant case, the
Electoral Tribunal was created by the Constitution to perform a specific
mission.  That tribunal cannot accomplish
its mission without subordinate personnel. 
Consequently, in the absence of any specific provision of law to the
contrary, the Tribunal may, either by rules or by specific orders, provide for
the manner of selecting its employees. 
And in this case, the Electoral Tribunal, by rule, provided that the
power of appointment is lodged in its Chairman with the approval of the
Tribunal.

 

When not contrary to any specific
provision of law and when necessary for the accomplishment of purposes for
which said tribunal is created, rules of judicial tribunals have force of law. (Suanes
vs. Chief Accountant, G.R. No. L-2460, October 26, 1948; 46 Off. Gaz., 462; 81
Phil. 818 [1948], Moran, C.J.).

 

§6. Although the Constitution
provides that the Senate shall choose six (6) Senators to be members of the
Senate Electoral Tribunal, the latter is part neither of Congress nor of the
Senate.  (Angara vs. Electoral
Commission, 63 Phil., 139; Suanes vs. Chief Accountant, 81 Phil., 818; 46 Off.
Gaz., 462).

 

The main objective of the framers of the
Constitution in providing for the establishment, first, of an Electoral
Commission, and then of one Electoral Tribunal for each House of Congress was
to insure the exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body.  To achieve this purpose, two devices were
resorted to, namely: (a) the party having the largest number of votes,
and the party having the second largest number of votes, in the National
Assembly or in each House of Congress, were given the same number of
representatives in the Electoral Commission or Tribunal so that they may
realize that partisan considerations could not control the adjudication of said
cases, and thus be induced to act with greater impartiality; and (b) the
Supreme Court was given in said body the same number of representatives as each
one of said political parties, so that the influence of the former may be
decisive and endow said Commission or Tribunal with judicial temper.

 

The most vital feature of the Electoral
Tribunals is the equal representation of the parties having the largest and the
second largest number of votes in each House therein, and the resulting
equilibrium to be maintained by the Justices of the Supreme Court as members of
said Tribunals.

 

The framers of the Constitution intended
to prevent the majority party from controlling the Electoral Tribunals, and the
structure thereof is founded upon the equilibrium between the majority and the
minority parties therein, with the Justices of the Supreme Court, who are
members of said Tribunals, holding the resulting balance of power.  The procedure prescribed in Section 11 of
Article VI of the Constitution for the selection of members of the Electoral
Tribunals is vital to the role they are called upon to play. It constitutes the
essence of said Tribunals.  Hence,
compliance with said procedure is mandatory, and acts performed in violation
thereof are null and void.

 

While it is true that the membership of
the Senate Electoral Tribunal, in the case at bar, would in effect be limited
to seven (7), instead of nine (9), members, it must be conceded that the
present composition of the Senate, wherein twenty-three (23) of its members
belong to one party and one (1) member belongs to another, was not foreseen by
the framers of the Constitution. 
Furthermore, the spirit of the law prevails over its letter, and the
solution herein adopted maintains the spirit of the Constitution, for partisan
considerations cannot be decisive in a tribunal consisting of three (3)
Justices of the Supreme Court, three (3) members nominated by the majority
party and either one (1) or two (2) members nominated by the party having the
second largest number of votes in the House concerned.

 

The
equilibrium between the political parties therein would be destroyed, and, what
is worse, the decisive moderating role of the Justices of the Supreme Court
would be wiped out, and, in lieu thereof, the door would be thrown wide open
for the predominance of political considerations in the determination of
election protests pending before said Tribunal, which is precisely what the
fathers of our Constitution earnestly strove to forestall.  (Tañada and Macapagal vs. Cuenco, et al.
103 Phil. 1051 [1957], Concepcion, J.).

§7. Past
organic laws of the Philippines made each house of the legislature the sole
judge of the elections, returns, and qualifications of its elective
members.  It is the method established by
American constitutions for the settlement of election contests of members of
the legislative bodies in the United States. 
The Constitution of the Philippines has adopted a different device.  At first it established a body called
Electoral Commission which acted as the judge of contests relating to the
election, returns, and qualifications of members of the National Assembly.  When by the amendments adopted in 1940 the
National Assembly was replaced by the Congress of the Philippines, an Electoral
Tribunal, with practically similar membership as that of the Electoral
Commission, was created for each house of Congress.  As provided in Article VI, Section 4, of the
Constitution before its amendment, the Electoral Commission was constituted in
this manner:

“There shall be an Electoral Commission
composed of three Justices of the Supreme Court designated by the Chief
Justice, and of six members chosen by the National Assembly, three of whom
shall be nominated by the party having the largest number of votes and three by
the party having the second largest number of votes.  The senior justice in the Commission shall be
its Chairman.  The Electoral Commission
shall be the sole judge of all contests relating to the election, returns and
qualifications of the Members of the National Assembly”. (Sinco, Vicente,
G., Philippine Political Law, Eleventh Edition, 1962, pp. 153-514).

            §8. In
view of all the facts and the law, this Tribunal must adjudge, as it is hereby
adjudged, that conformably to the provisions of Section 29 of the Revised
Election Code, as amended, the protestees Gaudencio E. Antonino, Maria
Kalaw-Katigbak and Raul S. Manglapus are disqualified to continue holding the
office of Senator of the Philippines. 
The protest, with respect to the other Protestees, is dismissed.

And, as to the claim of protestant Ernesto
C. Hidalgo that he be declared entitled to any of the posts to be vacated by
the Protestees, the Tribunal rules that he has not established his right
thereto.  The established doctrine in
this jurisdiction is that the disqualification of a proclaimed candidate-elect
does not necessarily result in the election of a protestant  (Calano vs. Cruz, 94 Phil. 230, 233;
Llamoso vs. Ferrer, 84 Phil. 490). (Ernesto C. Hidalgo vs. Manglapus,
et al., Senate Electoral Tribunal, Electoral Case No. 5, Decision and
Resolution, Off. Gaz., Vol. 64, No. 14, 3186, 3228 [April 24, 1967], Reyes,
J.B.L. Chairman).

§9. After such proclamation, and much
more so after the oath of office was taken by the candidate proclaimed, with
his exercise of the prerogatives vested in such position, it would not only
curtail the plenary grant of authority to the Electoral Tribunal but likewise
could result in an unseemly wrangling between such constitutional agency and
the Supreme Court if the matter were not left to the sole and exclusive
appraisal and judgment of the Electoral Tribunal.  To the same effect is the resolution in Nacionalista
Party v. Comelec,           L-28242,
Feb. 23, 1968, where the Supreme Court was confronted with the principal issue
of determination of the eligibility or qualification of respondent Benigno
Aquino, Jr. under Section 4, Article VI of the Constitution, which provides in
part that “no person shall be a Senator unless he be a natural-born citizen of
the Philippines and, at the time of his election, is at least thirty-five
years of age x x x.”  In this
latter case, it was held: “that inasmuch as respondent Benigno Aquino, Jr. has
been proclaimed elected to that body and has assumed office as member thereof
the determination of his eligibility or qualification properly and exclusively
pertains to the Senate Electoral Tribunal x x x.” (Lachica vs. Yap, 25 SCRA
140 [1968], Fernando, J.).

 

c. Under the 1973 Constitution      

 

§1. The Commission on Elections shall
be the sole judge of all contests relating to the election, returns and
qualifications of all Members of the Batasang Pambansa and elective provincial
and city officials. (Article XII (C), Section 2, (2), The 1973 Philippine
Constitution).

 

            d. Under
the 1987 Constitution

 

§1. The Senate and the House of
Representatives shall each have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns, and qualifications of
their respective Members.  Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices of
the Supreme Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as the case may
be, who shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the
party-list system represented therein. 
The senior Justice in the Electoral Tribunal shall be its Chairman. (Article
VI, Section 17, The 1987 Philippine Constitution).

 

            §2. The
Electoral Tribunals and the Commission on Appointments shall be constituted
within thirty days after the Senate and the House of Representatives shall have
been organized with the election of the President and the Speaker. (Article
VI, Section 19, The 1987 Philippine Constitution). 

§3. It seems quite clear to us that
in thus providing for a Tribunal to be staffed by both Justices of the Supreme
Court and Members of the Senate, the Constitution intended that both those
“Judicial” and “Legislative” components commonly share the duty and authority
of deciding all contests relating to the election, returns and qualifications
of Senators.  The respondent Tribunal
correctly stated one part of this proposition when it held that said provision
“x x x is a clear expression of an intent that all (such) contests x x x shall
be resolved by a panel or body in which their (the Senators’) peers in that
Chamber are represented.”  The other part,
of course, is that the constitutional provision just as clearly mandates the
participation in the same process of decision of a representative or
representatives of the Supreme Court.

 

            Said
intent is even more clearly signaled by the fact that the proportion of
Senators to Justices in the prescribed membership of the Senate Electoral
Tribunal is 2 to 1, an unmistakable indication that the “legislative component”
cannot be totally excluded from participation in the resolution of senatorial
election contests, without doing violence to the spirit and intent of the
Constitution.

 

Let us not be misunderstood as saying that
no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify
himself from sitting in judgment on any case before said Tribunal.  Every Member of the Tribunal may, as his
conscience dictates, refrain from participating in the resolution of a case
where he sincerely feels that his personal interests or biases would stand in
the way of an objective and impartial judgment. 
What we are merely saying is that in the light of the Constitution, the
Senate Electoral Tribunal cannot legally function as such, absent its entire
membership of Senators and that no amendment of its Rules can confer on the
three Justices-Members alone the power of valid adjudication of a senatorial
election contest. (Abbas, et al., vs. Senate Electoral Tribunal, 166 SCRA
651 [1988], Gancayco, J.).

 

§4. In Pangilinan vs. Commission
on Elections (228 SCRA 36), this Court has ruled that “where the candidate
has already been proclaimed winner in the congressional elections, the remedy
of petitioner is to file an electoral protest with the Electoral Tribunal of
the House of Representatives.”  In like
manner, where as in the case at bar, petitioner assails the Commission’s
resolution proclaiming the twelfth (12th) winning senatorial candidate,
petitioner’s proper recourse was to file a regular election protest which under
the Constitution and the Omnibus Election Code exclusively pertains to the
Senate Electoral Tribunal.

 

The word “sole” in Section 17, Article VI
of the 1987 Constitution and Section 250 of the Omnibus Election Code
underscores the exclusivity of the Tribunal’s jurisdiction over election
contests relating to its members (Co vs. Electoral Tribunal of the House of
Representatives, 199 SCRA 692; Lazatin vs. House of Representatives
Electoral Tribunal, 168 SCRA 391; Angara vs. Electoral Commission,
63 Phil. 139, cited in Chavez vs. Commission on Elections, 211 SCRA
315).  Inasmuch as petitioner contests
the proclamation of herein respondent Teresa Aquino-Oreta as the 12th winning senatorial candidate, it is the
Senate Electoral Tribunal which has exclusive jurisdiction to act on the
complaint of petitioner.

 

The Office of the Solicitor General in its
‘Manifestation in Lieu of Comment’ filed before this Court had pointed out that
‘in a Resolution dated October 6, 1998 (G.R. No. 133751- Roberto M.
Pagdanganan vs. Commission on Elections, et al.), this Court dismissed the
petitioner for certiorari filed by Roberto M. Pagdanganan involving the same
issues as the case at bar for being moot and academic as Pagdanganan had
already filed a case with the Senate Electoral Tribunal.  Had petitioner properly filed her election
protest before the Senate Electoral Tribunal in accordance with the Revised
Rules of the Senate Electoral Tribunal, the same may have been consolidated
with the protest of Roberto Pagdanganan “for good and sufficient reasons” as
required by said rules. (Rasul vs. Commission on Elections, 313 SCRA 18 [1999],
Gonzaga-Reyes, J.).

 

§5.  The present Senate Electoral
Tribunal has ruled, thus:

a.) Accordingly, what the protestant
should have done when the COMELEC refused to act on her petition for a
provisional proclamation pending submission of proof of discrepancies between
the certificates of canvass and the election returns, was to appeal that
decision in a petition for certiorari with the Supreme Court.  Not having availed herself of that remedy,
she is precluded from raising the same question before the Tribunal in an
election protest.

The Tribunal agrees that the petition is
insufficient in form and content, insufficient even to put the Protestees to
the necessity (or duty) of calling for a bill of particulars, and certainly
insufficient to warrant further proceedings that would in all probability
ultimately involve examination of ballots from all the places
alleged.  This is a herculean task little
justified by such unpromising postulates, let alone the insufficiency of the
Protestant’s deposit. (Rasul vs. Webb, SET Case No. 002-92 [1993], Senate
Electoral Tribunal Resolution).   

b.) From the foregoing definition, it
is quite evident that an election contest always has a dual purpose or
objective; one is to unseat the protestee and the other is to install the
protestant to the office vacated by the protestee.  Thus, in his protest, Protestant Pimentel
prayed not only for the annulment of the proclamation and unseating of the
protestees, but also his declaration as winner in the 1995 senatorial elections.  In other words, the two reliefs sought are so
inextricably intertwined that one cannot be had without the other.  Certainly, when Protestant Pimentel sought
the removal of the protestees herein, it was merely a consequence of his desire
to occupy one of their seats in the 10th Congress.  If one of the purposes or objectives of the
election contest is no longer feasible or is lost in the process, an election
contest as a remedy becomes wanting of an essential element, making it
untenable.

 

In the instant case, the relief prayed for
by Protestant Pimentel to be declared winner in the 1995 senatorial elections
has been abandoned through Protestant Pimentel’s filing of his candidacy for a
senatorial seat in the 11th Congress of the
Philippines, his active campaigning therefor and finally, his eventual victory
and assumption to office as an elected Senator with a term of office of six (6)
years beginning June 30, 1998, which term of office, it must be stressed,
overlaps with that pertaining to the office being contested herein. (Pimentel
vs. Honasan, et al., SET Case No. 001-95, Senate Electoral Tribunal Resolution
[1999]).

 

§6. Under The 1987 Philippine
Constitution, the Senate Electoral Tribunal adopted and approved its Rules on
September 24, 1987 and the said Rules was subsequently amended on June 4, 1992,
April 24, 1996 and April 23, 1999, and published in a newspaper of general
circulation.

 

 

3. House
of Representatives Electoral Tribunal

         

§1. According to the Constitution:
“The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members.” (Sec. 11,
Art. VI, Phil. Const.)  The scope of such
authority was set forth thus:  “From the
deliberations of our Constitutional Convention it is evident that the purpose
was to transfer in its totality all the powers previously exercised by the
legislature in matters pertaining to contested elections of its members, to an
independent and impartial tribunal”  (Angara
v. Electoral Commission, 63 Phil. 139). 
The grant of power of the then Philippine Senate and House of
Representatives under the Jones Law was characterized by the Supreme Court as
“full, clear and complete” (Veloso v. Board of Canvassers, 39 Phil.
886).  To such a doctrine the Supreme
Court has remained committed.  The power
of the Electoral Tribunal remains full, clear and complete.  It excludes the exercise of any authority on
the part of the Supreme Court that would in any wise restrict or curtail it or
even affect the same (Cf. Suanez vs. Chief Accountant, 81 Phil. 818
and Tañada vs. Cuenco, 103 Phil. 1051).

 

§2. Courts of first instance have no
jurisdiction to nullify votes cast in a congressional election, and even if it
has, there must first be a showing that the alleged illegal votes cast would
affect the result of the election. (Osmeña vs. Hontanosas, 31 SCRA 48
[1970], Per Curiam).

 

§3. The power of the Comelec to set
aside returns that are falsified or are not authentic and genuine and to order
the same excluded from a canvass is distinct and separate from the authority
inherent in the Electoral Tribunals of the House or the Senate, in the course
of an electoral protest, to set aside such returns whenever the statements of
votes cast contained therein do not tally with the valid votes enclosed within
the ballot boxes themselves.  No conflict
of jurisdiction can arise since the powers of the Comelec and the Electoral
Tribunals are exercised on different occasions and for different purposes.  The Comelec is not concerned with the
veracity of the returns, but with their genuineness and regularity; and it is
self-evident that a return accomplished by the election inspectors under
threats and coercion by armed men is in law no return at all that the
canvassers may take into account.  As a
corollary, the Comelec can set aside an improper canvass, as well as the
resulting proclamation. (Antonio, Jr. vs. Commission on Elections, 32 SCRA
319 [1970], Reyes, J.B.L., J.).

 

§4. The petition is impressed with
merit because petitioner has been proclaimed winner of the Congressional
elections in the first district of Pampanga, has taken his oath of office as
such, and assumed his duties as Congressman. 
For this Court to take cognizance of the electoral protest against him
would be to usurp the functions of the House Electoral Tribunal.

 

The alleged invalidity of the two
proclamations (which had been previously ordered by the COMELEC itself) despite
alleged irregularities in connection therewith, and despite the pendency of the
protests of the rival candidates, is a matter that is also addressed,
considering the premises, to the sound judgment of the Electoral Tribunal. (Lazatin
vs. Commission on Elections, 157 SCRA 337 [1988], Paras, J.).

 

§5. That Sec. 250 of the Omnibus
Election Code, as far as contests regarding the election, returns and
qualifications of Members of the Batasang Pambansa is concerned, had ceased to
be effective under the 1987 Constitution is readily apparent.  First, the Batasang Pambansa has already been
abolished and the legislative power is now vested in a bicameral Congress.  Second, the Constitution vests exclusive jurisdiction
over all contests relating to the election, returns and qualifications of the
Members of the Senate and the House of Representatives in the respective
Electoral Tribunals [Art. VI, Sec. 17]. 
The exclusive original jurisdiction of the COMELEC is limited by
constitutional fiat to election contests pertaining to elective regional,
provincial and city offices and its appellate jurisdiction to those involving
municipal and barangay offices [Art. IV-C, Sec. 2 (2).].

 

The power of the HRET, as the sole judge
of all contests relating to the election, returns and qualifications of the
Members of the House of Representatives, to promulgate rules and regulations
relative to matters within its jurisdiction, including the period for filing
election protests before it, is beyond dispute. Its rule-making power
necessarily flows from the general power granted it by the Constitution.

 

The use of the word “sole” emphasizes the exclusive
character of the jurisdiction conferred [Angara v. Electoral Commission,
supra, at 162]. 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” [Id. at 175]. 
Earlier, this grant of power to the legislature was characterized by
Justice Malcolm as “full, clear and complete” [Veloso v. Board of
Canvassers of Leyte and Samar, 39 Phil. 886 (1919)].  Under the amended 1935 Constitution, the
power was unqualifiedly reposed upon the Electoral Tribunal [Suanes vs.
Chief Accountant of the Senate, 81 Phil. 818 (1948)] and it remained as
full, clear and complete as that previously granted the legislature and the
Electoral Commission [Lachica v. Yap, G.R. No. L-25379, September 25,
1968, 25 SCRA 140].  The same may be said
with regard to the jurisdiction of the Electoral Tribunals under the 1987
Constitution. (Lazatin vs. House Electoral Tribunal, 168 SCRA 391 [1988],
Cortes, J.).

 

§6. The Court continued further, “…
so long as the Constitution grants the HRET the power to be the sole judge of
all contests relating to election, returns and qualifications of members of the
House of Representatives, any final action taken by the HRET on the matter
within its jurisdiction shall, as a rule, not be reviewed by this Court . . .
the power granted to the Electoral Tribunal is full, clear and complete and
excludes the exercise of any authority on the part of this Court that would in
any wise  restrict it or curtail it or
even affect the same.” (pp. 403-404)

 

When may the Court inquire into acts of
the Electoral Tribunals under our constitutional grants of power? 

In the
later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court
stated that the judgments of the Tribunal are beyond judicial interference save
only “in the exercise of this Court’s so-called extraordinary jurisdiction, x x
x upon a determination that the Tribunal’s decision or resolution was rendered
without or in excess of its jurisdiction, or with grave abuse of discretion or
paraphrasing Morrero, upon a clear showing of such arbitrary and
improvident use by the Tribunal of its power as constitutes a denial of due
process of law, or upon a demonstration of a very clear unmitigated ERROR,
manifestly constituting such GRAVE ABUSE OF DISCRETION that there has to be a
remedy for such abuse.” (at pp. 785-786).

In the
leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled
that the power of the Electoral Commission “is beyond judicial interference
except, in any event, upon a clear showing of such arbitrary and improvident
use of power as will constitute a denial of due process.”  The Court does not venture into the perilous
area of trying to correct perceived errors of independent branches of the
Government.  It comes in only when it has
to vindicate a denial of due process or correct an abuse of discretion so grave
or glaring that no less than the Constitution calls for remedial action.

The
Supreme Court under the 1987 Constitution, has been given an expanded
jurisdiction, so to speak, to review the decisions of the other branches and
agencies of the government to determine whether or not they have acted within
the bounds of the Constitution.  (See
Article VIII, Section 1, Constitution). 
Yet, in the exercise thereof, the Court is to merely check whether or
not the governmental branch or agency has gone beyond the Constitutional limits
of its jurisdiction, not that it erred or has a different view.  In the absence of a showing that the HRET has
committed grave abuse of discretion amounting to lack of jurisdiction, there is
no occasion for the Court to exercise its corrective power; it will not decide
a matter which by its nature is for the HRET alone to decide.  (See Marcos v. Manglapus, 177 SCRA 668
[1989]).  It has no power to look into
what it thinks is apparent error. (Co vs. Electoral Tribunal of the House of
Representatives, 199 SCRA 692 [1991], Gutierrez, Jr., J.).

§7. Section
17 reechoes Section 11, Article VI of the 1935 Constitution, except the
provision on the representation of the main political parties in the tribunal
which is now based on proportional representation from all the political
parties, instead of equal representation of three members from each of
the first and second largest political aggrupations in the Legislature.

The use of the word “sole” in both Section
17 of the 1987 Constitution and Section 11 of the 1935 Constitution underscores
the exclusive jurisdiction of the House Electoral Tribunal as judge of
contests relating to the election, returns and qualifications of the members of
the House of Representatives (Robles vs. House of Representatives Electoral
Tribunal, G.R. No. 86647, February 5, 1990).  The tribunal was created to function as a nonpartisan
court although two-thirds of its members are politicians.  It is a non-political body in a sea of
politicians.  What this Court had earlier
said about the Electoral Commission applies as well to the electoral tribunals
of the Senate and House of Representatives.

 

The resolution of the House of
Representatives removing Congressman Camasura from the House Electoral Tribunal
for disloyalty to the LDP, because he cast his vote in favor of the
Nacionalista Party’s candidate, Bondoc, is a clear impairment of the
constitutional prerogative of the House Electoral Tribunal to be the sole
judge of the election contest between Pineda and Bondoc.

 

Another reason for the nullity of the
expulsion resolution of the House of Representatives is that it violates
Congressman Camasura’s right to security of tenure.  Members of the HRET, as “sole judge” of
congressional election contests, are entitled to security of tenure just as
members of the judiciary enjoy security of tenure under our Constitution (Sec.
2, Art. VIII, 1987 Constitution). 
Therefore, membership in the House Electoral Tribunal may not be
terminated except for a just cause, such as, the expiration of the member’s
congressional term of office, his death, permanent disability, resignation from
the political party he represents in the tribunal, formal affiliation with
another political party, or removal for other valid cause. (Bondoc vs.
Pineda, 201 SCRA 792 [1991], Griño-Aquino, J.).

                                 

§8. The Constitution vests in the
COMELEC “exclusive original jurisdiction over all contests relating to the
election, returns, and qualifications of all elective regional, provincial and
city officials.”  It has no
jurisdiction over contests relating to the election, returns, and
qualifications of Members of the House of Representatives.  On the other hand, under Sec. 17, Article VI
of the 1987 Constitution, the Electoral Tribunal of the House of
Representatives is the “sole judge of all contests relating to the election,
returns and qualifications” of its members. 
Consequently, the phrase “including pre-proclamation controversies” used
in Sec. 3, Article IX-C of the Constitution should be construed as referring
only to “pre-proclamation controversies” in election cases that fall within the
exclusive original jurisdiction of the COMELEC, i.e., election cases pertaining
to the election of regional, provincial and city officials.

 

Since
the 1973 Constitution has been replaced by the 1987 Constitution, the Batasang
Pambansa stands abolished and the legislative power is now vested in the
Congress of the Philippines consisting of the Senate and the House of
Representatives.  The Senate and the
House of Representatives now have their respective Electoral Tribunals which
are the “sole judge of all contests relating to the election, returns, and
qualifications of their respective Members,” thereby divesting the Commission
on Elections of its jurisdiction under the 1973 Constitution over election
cases pertaining to the election of the Members of the Batasang Pambansa
(Congress).  It follows that the COMELEC
is now bereft of jurisdiction to hear and decide pre-proclamation controversies
against members of the House of Representatives as well as the Senate.

Section
15 of R.A. 7166 is not, therefore, unconstitutional.  On the contrary, it is in harmony with the
1987 Constitution.  As aptly observed by
the Solicitor General in his Comment¾”The petitioner’s arguments are totally
misplaced.  In fact, Section 15, R.A.
7166 is consistent with Section 17, Article VI which makes the Electoral Tribunal
of the Senate and the House of Representatives the sole judge of all contests
relating to the election, returns, and qualifications of their
respective members.  Petitioner’s
objection relating to the preparation, transmission and appreciation of the election
returns or certificates of canvass falls within the sole
jurisdiction of the (House) Electoral Tribunal.”

Finally,
the private respondent Feliciano Belmonte, Jr. has already been proclaimed as
the winner in the congressional elections in the fourth district of Quezon
City.  He has taken his oath of office
and assumed his duties as representative; hence, the remedy open to the
petitioner was to have filed an electoral protest with the Electoral Tribunal
of the House of Representatives. (Pangilinan vs. Commission on Elections,
228 SCRA 36 [1993] Padilla, J.).

§9. As
to the House of Representatives Electoral Tribunal’s supposed assumption of
jurisdiction over the issue of petitioner’s qualifications after the May 8,
1995 elections, suffice it to say that HRET’s jurisdiction as the sole judge of
all contests relating to the election, returns and qualifications of members of
Congress begins only after a candidate has become a member of the House of
Representatives.  Petitioner not being a
member of the House of Representatives, it is obvious that the HRET at this
point has no jurisdiction over the question. 
(Romualdez-Marcos vs. Commission on Elections, 248 SCRA 300 [1995],
Kapunan, J.).

§10. Under Section 17 of Article VI
of the 1987 Constitution, the electoral tribunal clearly assumes jurisdiction
over all contests relative to the election, returns and qualifications of
candidates for either the Senate or the House only when the latter become
members of either the Senate or the House of Representatives.  A candidate who has not been proclaimed and
who has not taken his oath of office cannot be said to be a member of the House
of Representatives subject to Section 17 of Article VI of the Constitution. (Aquino
vs. Commission on Elections, 248 SCRA 400 [1995], Kapunan, J.).

 

§11. The Court has stressed that “. .
. so long as the Constitution grants the HRET the power to be the sole judge of
all contests relating to the election, returns and qualifications of members of
the House of Representatives, any final action taken by the HRET on a matter
within its jurisdiction shall, as a rule, not be reviewed by this Court . . . .
the power granted to the Electoral Tribunal x x x excludes the exercise of any
authority on the part of this Court that would in any wise restrict it or
curtail it or even affect the same.”

 

The Court did recognize, of course, its
power of judicial review in exceptional cases. 
In Robles vs. HRET, the Court has explained that while the
judgments of the Tribunal are beyond judicial interference, the Court may do
so, however, but only “in the exercise of this Court’s so-called extraordinary
jurisdiction, . . . upon a determination that the Tribunal’s decision or
resolution was rendered without or in excess of its jurisdiction, or with grave
abuse of discretion or paraphrasing Morrero, upon a clear showing of
such arbitrary and improvident use by the Tribunal of its power as constitutes
a denial of due process of law, or upon a demonstration of a very clear
unmitigated error, manifestly constituting such grave abuse of discretion that
there has to be a remedy for such abuse.”

 

In the old, but still relevant, case of Morrero
vs. Bocar, the Court has ruled that the power of the Electoral Commission
“is beyond judicial interference except, in any event, upon a clear showing of
such arbitrary and improvident use of power as will constitute a denial of due
process.”  The Court does not, to
paraphrase it in Co vs. HRET, venture into the perilous area of
correcting perceived errors of independent branches of the Government; it comes
in only when it has to vindicate a denial of due process or correct an abuse of
discretion so grave or glaring that no less than the Constitution itself calls
for remedial action. (Libanan vs. House of Representatives Electoral
Tribunal, 283 SCRA 520  [1997], Vitug,
J.).

 

§12. Under the Constitution, the HRET
shall be the sole judge of all contests relating to the election, returns and
qualifications of its members.  This does
not, however, bar us from entertaining petitions which charge the HRET with
grave abuse of discretion.  Indeed, in Libanan
v. House of Representatives Electoral Tribunal, we explained our assumption
of jurisdiction in election related cases involving the HRET as follows¾ “x x x. 
In Robles vs. HRET (181 SCRA 780), the Court has explained that
while the judgments of the Tribunal are beyond judicial interference, the Court
may do so, however, but only ‘in the exercise of this Court’s so-called
extraordinary jurisdiction, . . . upon a determination that the Tribunal’s
decision or resolution was rendered without or in excess of jurisdiction, or
with grave abuse of discretion or paraphrasing Morrero, upon a clear
showing of such arbitrary and improvident use by the Tribunal of its power as
constitutes a denial of due process of law, or upon a determination of a very
clear unmitigated error, manifestly constituting such grave abuse of
discretion, that there has to be a remedy for such abuse.’ (Garcia vs. House
of Representatives Electoral Tribunal, 312 SCRA 353 [1999], Ynarez-Santiago,
J.).

 

§13. 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, Section 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. (Perez vs. Commission on Elections, 317 SCRA 641
[1999], Mendoza, J.).

 

§14. In the present case, we find no
grave abuse of discretion on the part of the COMELEC when it held that its
jurisdiction over Case No. SPA 98-277 had ceased with the assumption of office
of respondent Fariñas as Representative for the first district of Ilocos
Norte.  While the COMELEC is vested with
the power to declare valid or invalid a certificate of candidacy, its refusal
to exercise that power following the proclamation and assumption of the
position by Fariñas is a recognition of the jurisdictional boundaries
separating the COMELEC and the Electoral Tribunal of the House of Representatives
(HRET).  Under Article VI, Section 17 of
the Constitution, the HRET has sole and exclusive jurisdiction over all
contests relative to the election, returns, and qualifications of members of
the House of Representatives.  Thus, once
a winning candidate has been proclaimed, taken his oath, and assumed office as
a member of the House of Representatives, COMELEC’s jurisdiction over election
contests relating to his election, returns, and qualifications ends, and the
HRET’s own jurisdiction begins.  Thus, the
COMELEC’s decision to discontinue exercising jurisdiction over the case is
justifiable, in deference to the HRET’s own jurisdiction and functions.

 

Petitioner contends that the jurisdiction
of the HRET as defined under Article VI, Section 17 of the Constitution is
limited only to the qualifications prescribed under Article VI, Section 6 of
the Constitution.  Consequently, he
claims that any issue which does not involve these constitutional
qualifications is beyond the realm of the HRET. 
The filing of a certificate of candidacy being a statutory qualification
under the Omnibus Election Code is outside the pale of the HRET, according to
him.  This contention lacks cogency and
is far from persuasive.  Article VI,
Section 17 of the Constitution cannot be circumscribed lexically.  The word “qualifications” cannot be
read as qualified by the term “constitutional”. 
Ubi lex non distinguit noc nos distinguire debemos.  Basic is the rule in statutory construction
that where the law does not distinguish, the courts should not
distinguish.  There should be no
distinction in the application of a law where none is indicated.  For firstly, the drafters of the fundamental
law, in making no qualification in the use of a general word or expression,
must have intended no distinction at all. 
Secondly, the courts could only distinguish where there are facts or
circumstances showing that the lawgiver intended a distinction or
qualification.  In such a case, the
courts would merely give effect to the lawgiver’s intent. 

 

Petitioner further argues that the HRET
assumes jurisdiction only if there is a valid proclamation of the winning
candidate.  He contends that if a
candidate fails to satisfy the statutory requirements to qualify him as a candidate,
his subsequent proclamation is void ab initio.  Where the proclamation is null and void,
there is no proclamation at all and the mere assumption of office by the
proclaimed candidate does not deprive the COMELEC at all of its power to
declare such nullity, according to petitioner. 
But as we already held, in an electoral contest where the validity of
the proclamation of a winning candidate who has taken his oath of office and
assumed his post as Congressman is raised, that issue is best addressed to the
HRET.  The reason for this ruling is
self-evident, for it avoids duplicity of proceedings and a clash of
jurisdiction between constitutional bodies, with due regard to the people’s
mandate. (Guerrero vs. Commission on Elections, 336 SCRA 458 [2000],
Quisumbing, J.).

 

            §15. The 1998 Rules of the House of
Representatives Electoral Tribunal was adopted on May 24, 1998 and published in
The Philippine Star in its issue of 5 April 1998.

 

 

CHAPTER VIII
The Courts

 

1. Municipal
Trial Courts

 

a.) Inclusion or Exclusion Proceedings

 

§1. 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 (5) days from
receipt of the notice thereof, otherwise said decision of the municipal or
metropolitan trial court shall become final and executory after said period.  The regional 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. (Article
XII, Section 138, Omnibus Election Code).

 

§2. Considering the summary character
of an exclusion case, the decision that a court of first instance may render
thereon even if final and unappealable does not acquire the nature of res
judicata (Nuval vs. Guray, 52 Phil. 645).  In this sense, it does not operate as a bar
to any future action that a party may take concerning the subject passed upon
in the exclusion case. (Mayor vs. Villacete, 2 SCRA 542 [1961], Bautista
Angelo, J.).

 

§3. In proceedings for the exclusion
of voters, the court may pass upon any question necessary to decide the issue
therein raised, including the question of citizenship of the person sought to
be stricken from the list of voters, if the determination of said issue depends
upon his political status.  The authority
to order the inclusion in or exclusion from the list of voters necessarily
carries with it the power to inquire into and settle all matters essential to
the exercise of said authority unless the law provides otherwise.

 

Under such Code, the inclusion and
exclusion proceedings were held in connection with the preparation of the list
of voters for each election, so that, after such election, the proceedings
became moot, since another list would be prepared for each subsequent
election.  Upon the other hand, under
Rep. Act No. 3588, as amended, inclusion and exclusion proceedings take place
always in relation to the contents of one and the same list of voters, the permanent
one. (Ozamiz vs. Zosa, 34 SCRA 424 [1970], Concepcion, C.J.).

 

§4. Where the applicant-voters
were in fact refused registration because the precincts where they sought to
apply for registration had run out of registration forms, the court may take
cognizance of their inclusion petitions notwithstanding that they have not
filed any application for registration. (Buenviaje vs. Aquino, 42 SCRA 209
[1971], Teehankee, J.).

 

            §5. Fifteen (15) days before the
regular elections on 8 May 1995 the final list of voters was posted in each
precinct pursuant to Sec. 148 of RA No. 7166. 
Based on the lists thus posted Canicosa could have filed a petition for
inclusion of registered voters with the regular courts.  The question of inclusion or exclusion from
the lists of voters involves the right to vote which is not within the power
and authority of COMELEC to rule upon. 
The determination of whether one has the right to vote is a justiciable
issue properly cognizable by our regular courts.

 

If indeed the situation herein described
was common in almost all of the 557 precincts as alleged by Canicosa, then it
was more expedient on his part to avail of the remedies provided by law in
order to maintain the integrity of the election.  Since Canicosa failed to resort to any of the
above options, the permanent list of voters as finally corrected before the
election remains conclusive on the question as to who had the right to vote in
that election, although not in subsequent elections. (Canicosa vs.
Commission on Elections, 282 SCRA 512 [1997], Bellosillo, J.).

 

            §6. The contention of DOMINO that
the decision of the Metropolitan Trial Court of Quezon City in the exclusion
proceedings declaring him a resident of the Province of Sarangani and not of
Quezon City is final and conclusive upon the COMELEC cannot be sustained.  The COMELEC has jurisdiction as provided in
Sec. 78, Art. IX of the Omnibus Election Code, over a petition to deny due
course to or cancel certificate of candidacy. 
In the exercise of the said jurisdiction, it is within the competence of
the COMELEC to determine whether false representation as to material facts was
made in the certificate of candidacy, that will include, among others, the
residence of the candidate.  The
determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings
as to the right of DOMINO to be included or excluded from the list of voters in
the precinct within its territorial jurisdiction, does not preclude the
COMELEC, in the determination of DOMINO’s qualification as a candidate, to pass
upon the issue of compliance with the residency requirement.

The proceedings for the exclusion or
inclusion of voters in the list of voters are summary in character.  Thus, the factual findings of the trial court
and its resultant conclusions in the exclusion proceedings on matters other
than the right to vote in the precinct within its territorial jurisdiction are
not conclusive upon the COMELEC. 
Although the court in inclusion or exclusion proceedings may pass upon
any question necessary to decide the issue raised including the questions of
citizenship and residence of the challenged voter, the authority to order the
inclusion in or exclusion from the list of voters necessarily carries with it
the power to inquire into and settle all matters essential to the exercise of
said authority.  However, except for the
right to remain in the list of voters or for being excluded therefrom for the
particular election in relation to which the proceedings had been held, a
decision in an exclusion or inclusion proceeding, even if final and
unappealable, does not acquire the nature of res judicata.  In this sense, it does not operate as a bar
to any future action that a party may take concerning the subject passed upon
in the proceeding.  Thus, a decision in
an exclusion proceeding would neither be conclusive on the voter’s political
status, nor bar subsequent proceedings on his right to be registered as a voter
in any other election.

 

Moreover, the Metropolitan Trial Court of
Quezon City in its 18 January decision exceeded its jurisdiction when it
declared DOMINO a resident of the Province of Sarangani, approved and ordered
the transfer of his voter’s registration from Precinct No. 4400-A of Barangay
Old Balara, Quezon City to precinct 14A1 of Barangay Poblacion, Alabel,
Sarangani.  It is not within the
competence of the trial court, in an exclusion proceedings, to declare the
challenged voter a resident of another municipality.  The jurisdiction of the lower court over
exclusion cases is limited only to determining the right of voter to remain in
the list of voters or to declare that the challenged voter is not qualified to
vote in the precinct in which he is registered, specifying the ground of the
voter’s disqualification.  The trial
court has no power to order the change or transfer of registration from one
place of residence to another for it is the function of the Election
Registration Board as provided under Section 12 of R.A. No. 8189.  The only effect of the decision of the lower
court excluding the challenged voter from the list of voters, is for the
Election Registration Board, upon receipt of the final decision, to remove the
voter’s registration record from the corresponding book of voters, enter the
order of exclusion therein, and thereafter place the record in the inactive
file.

 

Finally, the application of the rule on res
judicata is unavailing.  Identity of
parties, subject matter and cause of action are indispensable requirements for
the application of said doctrine. 
Neither herein Private Respondents nor INTERVENOR, is a party in the
exclusion proceedings.  The Petition
for Exclusion was filed by DOMINO himself and his wife, praying that he and
his wife be excluded from the Voter’s List on the ground of erroneous
registration while the Petition to Deny Due Course to or Cancel Certificate
of Candidacy was filed by private respondents against DOMINO for alleged
false representation in his certificate of candidacy.  For the decision to be a basis for the
dismissal by reason of res judicata, it is essential that there must be
between the first and the second action identity of parties, identity of
subject matter and identity of causes of action.  In the present case, the aforesaid essential
requisites are not present. (Domino vs. Commission on Elections, 310 SCRA
546 [1999] Davide, Jr., C.J.).

 

 

            b.) Barangay
Elections

§1. A
sworn petition contesting the election of a barangay officer shall be filed
with the proper municipal or metropolitan trial court by any candidate who has
duly filed a certificate of candidacy and has been voted for the same office,
within ten days after the proclamation of the results of the election.  The trial court shall decide the election
protest within fifteen days after the filing thereof.  The decision of the municipal or metropolitan
trial court may be appealed within ten days from receipt of a copy thereof by
the aggrieved party to the regional trial court which shall decide the case
within thirty days from its submission, and whose decision shall be final. (Article
XXI, Section 252, Batas Pambansa Blg. 881, otherwise known and cited as the
Omnibus Election Code).

§2. Section
174 of the Revised Election Code applies to barrio election protests.  The eligibility of a local elective official
may be contested only within one (1) week after the proclamation of his
election, whereas his election may be contested, upon grounds other than
ineligibility, within two (2) weeks after said proclamation.  (Falcotelo v. Gali, L-24190, Jan. 8,
1968, 22 SCRA 16). (Abesamis vs. Reyes, 31 SCRA 178 [1970], Sanchez, J.).

§3. A
petition for quo warranto for disqualification of an elected barangay
captain must be filed in the municipal or metropolitan trial court. (Regatcho
vs. Cleto, 126 SCRA 342  [1983], Aquino,
J.).

§4. The
doctrine in that case, although laid down under the 1935 Constitution, is still
controlling under the present charter as the interpretation by this Court of
Article IX-C, Section 2(2).  Accordingly,
Section 9 of Rep. Act No. 6679, insofar as it provides that the decision of the
municipal or metropolitan  court in a
barangay election case should be appealed to the regional trial court, must be
declared unconstitutional. (Flores vs. Commission on Elections, 184 SCRA 484
[1990], Cruz, J.).   

§5. The jurisdiction of the COMELEC
does not cover protests over the organizational set-up of the katipunan ng mga
barangay composed of popularly elected punong barangays as prescribed by
law whose officers are voted upon by their respective members.  The COMELEC exercises only appellate
jurisdiction over election contests involving elective barangay officials
decided by the Metropolitan or Municipal Trial Courts which likewise have
limited jurisdiction.  The authority of
the COMELEC over the katipunan ng mga barangay is limited by law to
supervision of the election of the representative of the katipunan concerned
to the sanggunian in a particular level conducted by their own
respective organization.  (Sec. 43, Batas
Pambansa Blg. 337). (Taule vs. Santos, 200 SCRA 512 [1991], Gancayco, J.).

 

§6. A Municipal Circuit Trial Court
has no jurisdiction to order the suspension of the canvassing of election
returns.  (Libardos vs. Casar, 234
SCRA 13 [1994], Padilla, J.).

 

 §7. Under paragraph (2), Section 2,
subdivision C, Article IX of the Constitution, it is the COMELEC, and not the
Regional Trial Courts, that has exclusive jurisdiction over all contests
involving elective barangay officials decided by courts of limited
jurisdiction, which are the Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts.  In Flores
v. Commission on Elections, this Court struck out as unconstitutional that
portion of Section 9 of R.A. No. 6679 vesting upon the Regional Trial Courts
appellate jurisdiction over such cases. (Guieb vs. Fontanilla, 247 SCRA 348
[1995], Davide, Jr., J.).

§8. Under
subparagraph (5), paragraph (e), Article 203, Rule XXVII of the Rules and
Regulations Implementing the Local Government Code of 1991, the conduct and
administration of the elections for sangguniang kabataan members shall be
governed by the rules promulgated by the COMELEC.

Section 252 of the Omnibus Election Code
and that portion of paragraph (2), Section 2, Article IX-C of the Constitution
on the COMELEC’s exclusive appellate jurisdiction over contests involving
elective barangay officials refer to the elective barangay officials under the
pertinent laws in force at the time the Omnibus Election Code was enacted and
upon the ratification of the Constitution. 
That law was B.P. Blg. 337, otherwise known as the Local Government
Code, and the elective barangay officials referred to were the punong barangay
and the six sangguniang bayan members. 
They were to be elected by those qualified to exercise the right of
suffrage.  They are also the same
officers referred to by the provisions of the Omnibus Election Code of the
Philippines on election of barangay officials. 
Metropolitan and municipal trial courts had exclusive original
jurisdiction over contests relating to their election.  The decisions of these courts were appealable
to the Regional Trial Courts.

In the
light of the foregoing, it is indisputable that contests involving elections of
SK (formerly KB) officials do not fall within Section 252 of the Omnibus
Election Code and paragraph 2, Section 2, Article IX-C of the Constitution and
that no law in effect prior to the ratification of the Constitution had made
the SK chairman an elective barangay official. 
His being an ex-officio member of the sangguniang barangay does not make
him one for the law specifically provides who are its elective members. (Mercado
vs. Board of Election Supervisors of Ibaan, Batangas, 243 SCRA 422 [1995],
Davide, Jr., J.).

§9. Based on Section 252 of the
Omnibus Election Code (Batas Pambansa Blg. 881), it is clear that it is the ministerial
duty of a Metropolitan Trial Court Judge to resolve election protests
involving  barangay offices within
fifteen days from the filing thereof. (Mamamayan ng Zapote 1, Bacoor, Cavite
vs. Balderian, 265 SCRA 360 [1996], Melo, J.).

                       

§10. Any contest relating to the
election of members of the Sangguniang Kabataan (including the chairman) –
whether pertaining to their eligibility or the manner of their election – is
cognizable by MTCs, MCTCs, and MeTCs. 
Section 6 of COMELEC Resolution No. 2824, which provides that:  “cases involving the eligibility or
qualification of candidates [of SK] shall be decided by the
city/municipal Election Officer (EO) whose decision shall be final” applies
only to proceedings before the election. 
This is evident from the use of the word “candidates” in Section 6 and
the phrase “winning candidates” in Section 49. 
The distinction is based on the principle that it is the proclamation
which marks off the jurisdiction of the courts from the jurisdiction of
election officials.  Before proclamation,
cases concerning eligibility of SK officers and members are cognizable by the
Election Officer or EO as he is called in Section 6.  But after the election and proclamation, the
same cases become quo warranto cases cognizable by MTCs, MCTCs, and
MeTCs.

 

The case of Jose M. Mercado vs. Board
of Election Supervisors, in which this Court ruled that election protests
involving SK elections are to be determined by the Board of Election
Supervisors was decided under the aegis of COMELEC Resolution No. 2499, which
took effect on August 27, 1992, Article V, Section 24 of which provides:  “The said board [of election supervisors]
shall have direct general supervision in the conduct of elections of sangguniang
kabataan in the barangay and shall act as final arbiter in the resolution of
all election protests.”  However, COMELEC
Resolution No. 2824, which took effect on February 6, 1996 and was passed
pursuant to R.A. 7808, in relation to Arts. 252-253 of the OEC, has since
transferred the cognizance of such cases from the BES to the MTCs, MCTCs and
MeTCs.  So that Section 49 of COMELEC
Resolution No. 2824, now provides that: “the Metropolitan Trial
Courts/Municipal Trial Courts/Municipal Circuit Trial Courts (MeTC/MTC/MCTC)
shall have original jurisdiction over all election protest cases, whose
decision shall be final . . .” Thus, the doctrine of Mercado is no
longer controlling.

            It is also argued that Section 49 of
COMELEC Resolution applies only to election protests, and does not include quo
warranto suits.  As already stated, quo
warranto suits are now cognizable by the MTCs, MCTCs, and MeTCs pursuant to
Art. 253 of the OEC and RA 7808.  Section
49 of Resolution 2824 must be understood to cover both election protests and quo
warranto cases, otherwise, to limit it only to election protests would
leave parties in an SK election to file their quo warranto cases in the
Regional Trial Court because of the absence of a specific provision. (Marquez vs. Commission on Elections, 313 SCRA 103 [1999],
Purisima, J.).

 

 

2. Regional
Trial Courts

 

§1. A
sworn petition contesting the election of a municipal officer shall be filed
with the proper regional trial court by any candidate who has duly filed a
certificate of candidacy and has been voted for the same office, within ten
days after proclamation of the results of the election. (Article XXI,
Section 251, Batas Pambansa Blg. 881, otherwise known and cited as the Omnibus
Election Code of the Philippines.).

§2. Regional
trial courts shall have exclusive original jurisdiction over contests relating
to the elections, returns and qualifications involving elective municipal
officials. (Part VI, Rule 35, Section 1, Commission on Elections Rules of
Procedure approved on February 15, 1993).

§3. A
petition contesting the election of any municipal official shall be filed with
the proper Regional Trial Court or mailed at the post office as registered
matter addressed to the said Court, together with six (6) legible copies
thereof, by any candidate for the same office who has duly filed a certificate
of candidacy and who was voted in the election. 
Each contest shall refer exclusively to one office, but contests for
offices of the Sangguniang Bayan may be consolidated in one case. (Part VI,
Rule 35, Section 2, Commission on Elections Rules of Procedure approved on
February 15, 1993).

§4. A
voter contesting the election of any municipal official on the ground of
ineligibility or disloyalty to the Republic of the Philippines may file a
petition for quo warranto with the appropriate Regional Trial Court. (Part
VI, Rule 36, Section 1, Commission on Elections Rules of Procedure approved on
February 15, 1993).  

§5. The
provisions of Section 145 of the Code of Civil Procedure authorizing the
vacation of judgments and the granting of new trials, in certain cases, are not
applicable to proceedings had in election contests under the provisions of
Section 27 of Act No. 1582.

Courts of First Instance have no
jurisdiction to vacate final judgments entered by them “determining” election
contests had under the provisions of Section 27 of Act No. 1582. (Arnedo vs.
Llorente and Liongson, 18 Phil. 257 [1911], Carson, J.).

 

§6. The jurisdiction of Courts of
First Instance under Section 27 of the Election Law to try contested election
cases, being special is strictly confined within the provisions of the
statute.  Such courts can take no
additional power from their general jurisdiction in other matters.

 

Section 27, providing, as it does, for
proceedings summary in the highest degree, must be strictly construed and must
be exactly followed by those who act under or in pursuance of the powers
therein conferred.

 

The subject matter of the jurisdiction
conferred by Section 27 is confined to those matters which may be decided by an
inspection of the registry list and of the ballots, and their RES GESTAE.
(Castro vs. Wislizenus, 12 Phil. Rep., 468) (Topacio vs. Paredes, 23
Phil. 121 [1912], Trent, J.).

 

§7. In an election protest one of the
essential facts to be alleged and proved is the election of the protestee.  Where it appears that not all of the
candidates who, at such election, received votes for the office concerning
which the protest is filed were notified of the protest as required by law, the
court acquires no jurisdiction of the proceeding.  Service of the notice of protest upon all of
such candidates, as required by law, is one of the steps necessary to give the
court jurisdiction to proceed. (Navarro vs. Veloso, 23 Phil. 625 [1912],
Moreland, J.).

 

§8. Section 576 of the Administrative
Code confers plenary jurisdiction on Courts of First Instance with respect to
election contests; and, as a necessary consequence, they have full power to
decide every question within the issues which may arise during the progress of
the contest.

 

If it should be held that a court loses
jurisdiction every time it receives and counts a ballot which is in fact
illegal there would be no termination of an election contest as every decision
as to the validity of a ballot might lead to a petition for certiorari to this
court. (Alvendia vs. Moir and Dinio, 35 Phil. 356 [1916], Moreland, J.).

 

§9. Where the jurisdiction of a court
over the person or the subject matter depends upon the resolution of a question
of fact and the court upon evidence presented determines the question of fact
and decides in favor of its jurisdiction, such finding is conclusive on the
Supreme Court in a petition for a writ of certiorari based upon the ground that
the court had no jurisdiction of the subject matter or of the person.

 

The determination of whether or not an
order dismissing an election contest for lack of jurisdiction shall be vacated
and set aside on motion of the party alleged to have been aggrieved and be
given an opportunity to be reheard upon additional evidence set out in his
moving papers, does not affect the jurisdiction of the court and does not
deprive it of jurisdiction whichever way the question may be decided.  An order denying such a motion cannot be
reviewed by certiorari proceedings.

 

A Court of First Instance has no power or
authority to proceed with an election contest until it has been demonstrated in
the manner required by law that all of the persons who are necessary parties to
the contest have been made such and notified as required by law. (Campos vs.
Wislizenus and Aldanese, 35 Phil. 373 [1916], Moreland, J.).

 

§10. Courts of First Instance have
plenary jurisdiction over election contests and they are accordingly authorized
in proper cases to annul elections as well as to order the returns corrected.

 

Even though it be admitted for the
purposes of discussion that the finding of the court, that the ballots cast by
illiterates and persons physically disabled were illegal, was erroneous, that
fact does not affect its jurisdiction. 
It is authorized to decide; and whether it decides right or wrong is
immaterial to the question of its jurisdiction. (Bustos vs. Moir and
Fajardo, 35 Phil. 415 [1916], Moreland, J.).

 

§11. A writ of certiorari will not
lie to review a judgment of the Court of First Instance in a municipal election
contest on the alleged ground that the court was without jurisdiction because
all the candidates were not notified, where it appears that the petitioner
(contestee below) agreed in open court that he and the respondent (contestant
below) were the only candidates for the office in question. (Javier vs.
Nadres, 36 Phil. 226 [1917], Trent, J.).

 

§12. A motion of contest, if signed
by a duly licensed and practicing attorney upon the authority of the
contestant, confers jurisdiction upon the court over the subject matter of the
proceedings, provided the necessary jurisdictional facts are alleged.  The fact that the attorney was only employed
and authorized to prepare, sign, and file the motion of contest does not affect
the court’s jurisdiction. (Bello vs. Reyes and Dacuycuy, 36 Phil. 83 [1917],
Trent, J.).

§13. When the court which takes
cognizance of an election contest has jurisdiction over the subject-matter of
the controversy and the persons of the parties the decisions upon all questions
material to the case are decisions rendered within its jurisdiction and no
matter how irregular or erroneous they may be they can not be corrected by
means of a writ of certiorari.  (Topacio
vs. Paredes, 23 Phil., 240.)

 

Under the provisions of Articles 479 and
481 of Act No. 2711, the Court of                         First Instance which
takes cognizance of an election contest has jurisdiction to admit or reject
evidence, to receive the report of referees, and to weigh them according to
legal criterion and the mere error in the exercise of said jurisdiction does
not constitute an excess thereof.

 

It is not an excess of jurisdiction for
the court to receive the report of the referees appointed to open the ballot
boxes without holding a public session in which the parties may be present. The
court may receive it in person or by means of the clerk just as any other
report or pleading submitted by the parties. (Guerrero vs. Villareal and
Guerrero, 41 Phil. 50 [1920], Villamor, J.).

 

§14. In election cases what confers
jurisdiction upon the court is not the appearance of the protestee or other
candidates voted for in an election, but the filing of the protest in the court
of the proper district within two weeks after the proclamation of the result of
the election, the notification of said protest to all candidates voted for
within the period of twenty days from the filing of the protest and the filing
of the corresponding bond within the period fixed by the court. (Ocampo vs.
Mina and Arejola, 41 Phil. 308 [1920], Villamor, J.).

 

§15. In courts of special and limited
jurisdiction the record must show             
jurisdictional facts.  The
Election Law makes the Court of First Instance a court of                     special jurisdiction, and
provides a special procedure for hearing and determining a  “motion of protest” in election cases.  The Court of First Instance has no
jurisdiction                  over an
election protest until the special facts upon which it may take jurisdiction
are expressly shown in the “motion of protest.” 
There is no presumption in favor of the jurisdiction of a court of
limited or special jurisdiction.  When a
court is given special statutory jurisdiction, under proceedings different from
the ordinary proceedings, the special jurisdictional facts must appear, both
with respect to the subject-matter as well as with respect to the parties. Such
court cannot, by a supposed analogy to ordinary proceedings, exercise any power
beyond that which the legislature has given. (Tengco vs. Jocson, 43 Phil.
715 [1922], Johnson, J.).

§16. The jurisdiction of the courts
of first instance over election contests has been construed by this court on
several occasions, especially in the cases of Hontiveros vs. Altavas (24
Phil., 632); Manalo vs. Sevilla (24 Phil., 609); Valenzuela vs. Judge
of First Instance of Bulacan (40 Phil., 163); and it was uniformly held
that said jurisdiction presupposes the filing in court of an election
protest.  The jurisdiction granted by law
to the courts of first instance refers only to contested elections to which
there is no other legal provision applicable. 
And it is a well-known fact that Section 18 of the Jones Law confers
exclusive jurisdiction upon the Senate and the House of Representatives to hear
and determine election protests against members elect of each respective
house.  (Veloso vs. Boards of
Canvassers of Leyte and Samar, 39 Phil., 886). (Rafols vs. Court of First
Instance and Fiscal of Cebu, 47 Phil. 736 [1925], Villamor, J.).

 

§17. The mere fact that in Section 27
of Act No. 3210 was omitted the provision contained in section 481 of the
Administrative Code, as amended, to the effect that election contests shall be
taken cognizance of “not upon pleadings or by action,” does not change the
jurisdiction of the courts of first instance over election contests from
special and limited into a general one.

 

While the courts of first instance are
superior courts of general jurisdiction, yet in taking cognizance of election
contests, they exercise special jurisdiction conferred by a special law (Sec.
479, Administrative Code, as amended by Section 25 of Act No. 3210). (Viola
vs. Court of First Instance of Camarines Sur, 47 Phil. 849 [1925].

 

§18. In view of the provision
contained in the last paragraph of section 465 of the Election Law, the proper
Court of First Instance has jurisdiction to authorize election inspectors to
correct the returns sent to the provincial board, after said inspectors’
petition to that effect.  The proviso
contained in said legal provision is permissive and, as such, gives the inspectors
permission or authority which they may or may not exercise as they deem most
convenient. (Benitez vs. Paredes and Dizon, 52 Phil. 1 [1928], Villamor,
J.).

 

§19. In order to confer jurisdiction
on the Court of First Instance over an election protest, it is sufficient to
file a motion to that effect, alleging the following facts: (a) That the
protestant has duly registered his candidacy and received votes in the election
(Tengco vs. Jocson, 43 Phil., 715); (b) that the protestee has
been proclaimed elected in said election (Manalo vs. Sevilla, 24 Phil.,
609); and (c) that the motion of protest be filed within two weeks after
such proclamation (Navarro vs. Veloso, 23 Phil., 625; Manalo vs.
Sevilla, supra; Hontiveros vs. Altavas, 39 Phil., 226), and it is not
necessary to allege that copies of the motion were furnished the sheriff to
notify and summon the protestees, inasmuch as the purpose of the summons is to
give the court jurisdiction over the persons of said protestees and not over
the subject matter in controversy.  (Ferrer
vs. Gutierrez David and Lucot, 43 Phil. 795).  (Pobre vs. Quevedo, 52 Phil. 359 [1928],
Villa-Real, J.).

 

§20. In view of the repeated
decisions of this court it is held that since the proclamation of an elected
candidate is an essential fact of a jurisdictional character the same must
appear in the motion of protest, otherwise the court in which the motion is
filed does not acquire jurisdiction to try the case and such defect cannot be
cured by a motion of amendment filed after the lapse of the period fixed by law
for the filing of an election protest.

 

Inasmuch as the facts which confer special
jurisdiction are not presumed, but must clearly appear in the motion, the trial
court could not have acquired jurisdiction. 
(Tengco vs. Jocson, 43 Phil., 715; Viola vs. Court of First
Instance of Camarines Sur and Adolfo, 47 Phil., 849.). (Saldaña vs.
Consunji, 52 Phil. 433 [1928], Villa-Real, J.).

 

§21. Since the motion of protest
alleged all the essential facts for conferring jurisdiction on the court and
included the names of the parties, protestant and protestee, which latter was
summoned, and of the other registered candidates voted for, who appeared of
their own free will, the respondent Court of First Instance acquired
jurisdiction to try and decide the case. (Torres vs. Court First Instance of
Capiz, and Molo, 52 Phil. 478 [1928], Villa-Real, J.).

 

§22. The election law provides
that in order that the court may acquire jurisdiction, the contestant must
allege that he is a candidate voted for at such election, and that he has duly
filed his certificate of candidacy. 
(Sec. 479 of the Election Law.) 
The word “duly” has acquired a fixed legal meaning, and when used before
any word implying action, it means that the act was done properly, regularly,
and according to law, or some rule of law. (Anis vs. Contreras, 55 Phil. 923
[1931], Villamor, J.).

 

§23. The correction of any error in
the order of the Commission on Elections to suspend the proclamation of the
winner in an election does not lie within the authority of Courts of First
Instance because Article X, Section 2 of the Constitution expressly prescribes
“that the decisions, orders and rulings of the Commission shall be subject to
review by the Supreme Court” and by no other tribunal (Luison vs. Garcia,
G.R. No. L-10916, May 20, 1957).  The
Commission on Elections would be reduced to impotence if the Court of First
Instance of every province were to arrogate unto itself the power to disregard,
suspend, or contradict any of its orders. (Albano vs. Arranz, 114 Phil. 318
[1962]; 4 SCRA 386 [1962], Reyes, J.B.L., J.).

 

§24. The
authority given to a Court of First Instance to allow recount of votes under
Section 163 of the Revised Election Code is restrictive in nature.  The law is explicit that the proceeding is
summary in character and merely consists in the mathematical counting of the
votes received by each candidate.  It
does not involve any appreciation of the ballots or determination of their
validity as is required in an election contest. 
Its only purpose is to count the number of votes as they appear in the
face of the ballots.

The
purpose of the law is to offer a prompt relief to a simple controversy that can
immediately be settled through a summary judicial proceeding that may dispense
with the long drawn and complicated proceedings of a full-dressed election
contest and, at the same time, x x x to restore tranquility by dispelling all
doubts as to the true number of votes cast in a given precinct.  Legal technicalities should be used to
help in arriving at a clear intention of the law and not to defeat said
intention. (Albano vs. The Provincial Board of Canvassers of
Isabela, 115 Phil. 6 [1962]; 5 SCRA 13 [1962], Bautista Angelo, J.).

§25. Decisions
of the Court of First Instance in election protests affecting the position of
vice-mayor in regular municipalities are not appealable except on pure
questions of law (Sec. 178, Republic Act No. 180, as amended; Calano vs.
Cruz, 91 Phil. 247;  Tumakay vs.
Orbiso, 97 Phil. 431), and the question whether the name written on the ballot
is “Sasablo” or “Sasapco” is one of fact (Florido vs. Velez, 97 Phil.
984). (Perfecto vs. Sapico, et al., 17 SCRA 968 [1966], Concepcion, J.).

§26. The
general rule is, of course, that once a Court of First Instance has acquired
jurisdiction by virtue of the filing of an election protest all questions
relative thereto must be decided in the case itself and not in a separate
proceeding before a different forum (Reyes v. Reyes, L-28476, Jan. 31,
1968; Acain v. Board of Canvassers, L-16445, May 23, 1960).

The
peculiar circumstances obtaining in the present case, in our opinion, justify
its being treated as an exception to the general rule.  In Reyes v. Reyes, the petition for
annulment of the proclamation was filed in the Commission on Elections on
December 2, 1967, and the election protest was filed by the same petitioner in
the Court of First Instance on December 4. 
There was clearly a deliberate intent to abandon the proceeding in the
Commission by a subsequent voluntary submission of the same question to the
Court.  A choice or option was open to
the party seeking relief, with full knowledge of the fact that when he filed
his protest his petition for annulment had already been lodged.

An election protest may be lodged only
against a proclaimed candidate and within fourteen days thereafter (Sec. 174,
Election Code). (Tuburan vs. Ballener, 24 SCRA 941 [1968], Makalintal, J.).

§27. Under Sections 163 and 168 of
the Revised Election Law, the Court of First Instance has no concurrent jurisdiction
with that of the board of canvassers to determine the question of whether or
not there is discrepancy among authentic returns or outright falsification; the
law requires that the board of canvassers first resolve the question of
whether such discrepancy exists before the Court of First Instance can exercise
its jurisdiction under said law. (Abrigo vs. Commission on Elections, 31
SCRA 26 [1970], Sanchez, J.).

 

§28. Courts of first instance have no
jurisdiction to nullify votes cast in a congressional election, and even if it
has, there must first be a showing that the alleged illegal votes cast would
affect the result of the election. (Osmeña vs. Hontanosas, 31 SCRA 48
[1970], Per Curiam).

 

§29. The provisions of Section
187 of the Revised Election Code vesting exclusive jurisdiction on the Court of
First Instance to conduct preliminary investigations of election offenses is
explicit.  While Provincial Fiscals are
authorized to conduct preliminary investigations under the general law (Rep.
Act No. 732), Section 187 of the Revised Election Code, which gives Courts of
First Instance exclusive original jurisdiction to make preliminary
investigations for violation of said Code, must be construed as a limitation
upon the powers of the fiscal to conduct the preliminary investigations of
criminal offenses. (Astorga vs. Puno, 67 SCRA 182 [1975], Antonio, J.).

 

§30. (C)onsequently, the Court of
First Instance of Masbate acquired jurisdiction over the controversy to the
exclusion of the Commission on Elections, before which the so-called
pre-proclamation petition was filed only four days later—on February 11,
1980.  This is consistent with the
established rule that: “Once a court of first instance has acquired
jurisdiction by virtue of the filing of an election protest, all questions
relative thereto will be decided in the case itself and not in another
proceeding before a different forum”.  (Mogueis,
Jr. vs. Commission on Elections, 104 SCRA 576 [1981], Makasiar, J.).

 

§31. Period within which to appeal to the Court
of First Instance from a city court’s decision in a barangay election protest
is 10 days. (Villa vs. Llanes, Jr., 120 SCRA 81 [1983],
Plana, J.).

 

§32. The COMELEC not the CFI has
jurisdiction under its enlarged powers to act on a petition contesting the qualification
of a mayoral-candidate elect on the ground of changing party-affiliation. (Gabatan
vs. Commission on Elections, 122 SCRA 1 [1983], Fernando, C.J.).

§33. It is not true that, as
contended by the petitioners, the jurisdiction of the Regional Trial Court
under the election laws is limited to criminal actions for violations of the
Omnibus Election Code.  The Constitution
itself grants to it exclusive original jurisdiction over contests involving
elective municipal officials.  Neither
can We agree with the petitioners’ assertion that the Special Civil Action
filed in the court below involves the prosecution of election offenses; the
said action seeks some reliefs incident to or in connection with alleged
election offenses; specifically, what is sought is the prevention of the
further commission of these offenses which, by their alleged nature, are
continuing. (Gallardo vs. Tabamo, Jr., 218 SCRA 253 [1993], Davide, Jr., J.)

 

§34. Under the circumstances above
described, and in consonance with the above-stated legal provision, it is
patently evident that the controversy brought before the respondent Judge was a
pre-proclamation controversy outside of the jurisdiction of the Regional Trial
Court. (Re: Comelec Resolution No. 2521, A. M. No. 92-12-916-RTC, July 8,
1994; 234 SCRA 1 [1994], Kapunan, J.).

 

            §35. The fact that petitioner
initially paid P150.00 with the Regional Trial Court is of no moment.  The Regional Trial Court has no appellate
jurisdiction over decisions of the Municipal Trial Court in election cases
involving the barangay elections.

 

            Petitioner cannot invoke to his aid
the provision of Section 18, Rule 40 of the COMELEC Rules and Procedure for the
simple reason that under said Rule, the COMELEC is precisely given the
discretion, in a case where the prescribed fees are not paid, to either refuse
to take action on the case until the fees are paid, or to dismiss the action or
proceeding.  The COMELEC, unfortunately
for petitioner, chose to exercise the second option.
(Rodillas vs. Commission on Elections, 245 SCRA 702 [1995], Quiason, J.).

 

§36. In reality, Borja’s
petition was nothing but a simple election protest involving an elective
municipal position which, under Section 251 of the Election Code, falls within
the exclusive original jurisdiction of the appropriate Regional Trial Court. x
x x. 

 

The COMELEC in turn exercises appellate
jurisdiction over the trial court’s decision pursuant to Article IX-C, Section
2 (2) of the Constitution x x x.  (Borja,
Jr. vs. Commission on Elections, 260 SCRA 604 [1996], Romero, J.).

 

§37. In view of the Flores
case, jurisprudence has consistently recognized that the COMELEC Rules of
Procedure are controlling in election protests heard by a regional trial
court.  The Court en banc has held
in Rodillas vs. COMELEC that “the procedure for perfecting an appeal
from the decision of the Municipal Trial Court in a barangay election protest
case is set forth in the COMELEC Rules of Procedure.”  More recently, in Calucag vs. Commission
on Elections, the Court en banc had occasion to state that:  “It follows that after the promulgation of Flores,
the same arguments propounded therein by the petitioner may no longer be
employed.  Article 8 of the Civil Code
states that “(j)udicial decisions applying or interpreting the laws or the
constitution shall form part of the legal system of the Philippines.”  Said pronouncement of the Court, having
formed part of the law of the land, ignorance thereof can no longer be
countenanced.  Therefore, the COMELEC
is the proper appellate court clothed with jurisdiction to hear the appeal,
which appeal must be filed within five days after the promulgation of the MTC’s
decision. The erroneous filing of the appeal with the RTC did not toll the
running of the prescriptive period.  x x
x. The five-day period having expired without the aggrieved party filing the
appropriate appeal before the COMELEC, the statutory privilege of petitioner to
appeal is deemed waived and the appealed decision has become final and executory.”

 

Equally devoid of merit is the contention
that petitioner was fast tracked because the COMELEC did not require the
parties to file their appeal briefs; that the dismissal was issued motu
proprio without prior notice and hearing; and that dismissal of the appeal
defeats the people’s will on procedural points. 
Suffice it to state that the period for filing an appeal is by no means
a mere technicality of law or procedure. 
It is an essential requirement without which the decision appealed from
would become final and executory as if no appeal was filed at all.  The right of appeal is merely a statutory
privilege and may be exercised only in the manner prescribed by, and in
accordance with, the provisions of the law. 
Further, by virtue of Section 9 (d), Rule 22 of the COMELEC Rules of
Procedure which provides that “an appeal may be dismissed upon motion of either
party or at the instance of the Commission for failure to file a notice of
appeal within the prescribed period,” the COMELEC is precisely given the
discretion, in a case where the appeal is not filed on time, to dismiss the
action or proceeding. (Antonio vs. Commission on Elections, 315 SCRA 62
[1999], Gonzaga-Reyes, J.).

 

 

3. Supreme
Court

 

§1. In accordance with the provision
of Section 9 of Commonwealth Act No. 657, this court cannot review the rulings
or findings of fact of the Commission on Elections. (Sotto vs. Commission on
Elections, 76 Phil. 516 [1946], Feria, J.).

 

§2. Although
Section 178 of the Revised Election Code provides that the decisions of courts
of first instance in election protests affecting the offices of vice-mayor and
municipal councilors of regular municipalities shall not be appealable, the
Supreme Court shall nevertheless entertain appeals therefrom in view of the
constitutional mandate to the effect that said Court may not be deprived of its
jurisdiction to review, reverse, modify or affirm on appeal, certiorari or writ
of error, final judgments and decrees of inferior court in all cases in which
an error or question of law is involved. (Calano vs. Cruz, 50 Off. Gaz., 610). (Sarmiento
vs. Quemado, 115 Phil. 434 [1962]; 5 SCRA 438 [1962], Concepcion, J.).

§3. Section
178 of the Revised Election Code, in providing for an appeal to the Supreme
Court or Court of Appeals, as the case may be, from any decision of the Court
of First Instance in protests against the eligibility or the election of
governors, board members, city councilors and mayors, impliedly denies the
right to appeal from said decision in election protests involving the office of
vice-mayor and municipal councilors. 
However, whenever legal questions are raised, a review may be sought
from the Supreme Court. (Nalog vs. De Guzman, 20 SCRA 338 [1967],
Concepcion, C.J.).

§4. The
factual findings of the Court of Appeals in election cases on evidence aliunde
submitted by the parties are not open for review.  The function of the Supreme Court is limited
to a determination of whether the appreciation of ballots made by the Court of
Appeals, apart from the evidence, was made in accordance with the rulings of
the Supreme Court. (Juliano vs. Court of Appeals, 20 SCRA 808 [1967],
Zaldivar, J.).

            §5. While it is true that under Section 178 of
the Revised Election Code, which provides for appeal from the decision in an
election contest, there is no mention about appeal from a decision rendered by
the Court of First Instance in an election contest involving the office of
vice-mayor, it is now a settled rule that decisions of the Court of First
Instance on election contests involving the office of vice-mayor (and also of
municipal councilor) can be appealed to the Supreme Court on questions of law.

            Where the record shows that
petitioner filed his notice of appeal in due time and he made it clear in his
notice of appeal that he was appealing on questions of law alone and where it
is also shown that petitioner wanted to file the appeal bond as required by
law, then respondent judge had no discretion whether to give, or not to give,
due course to the appeal of petitioner to the Supreme Court.  It is not for the trial judge to control the
issues that would be raised, or could be raised, by the appellant before the
Supreme Court.  It is the Supreme Court,
and the Supreme Court alone, that will determine whether or not the appeal
brought before it involves purely questions of law, as announced in the notice
of appeal.  Once this Court finds that
the issue involved in the appeal before it coming directly from the trial court
relates to questions of fact, or to mixed questions of fact and law, this Court
will necessarily dismiss the appeal or remand the appeal to the Court of
Appeals as the case may be. (Deananeas vs. Mangosing, 21 SCRA 1051 [1967],
Zaldivar, J.)

§6. Where the issue posed by
appellant in relation to the ballots disputed in his brief is factual, going as
it does into the appreciation of the ballots, the decision of the trial court
on the admissibility of said ballots is final and the Supreme Court lacks
jurisdiction to review the appeal. (Balason vs. Balido, 21 SCRA 1136 [1967],
Angeles, J.).

 

§7. The Supreme Court cannot review
the rulings or findings of fact of the Commission on Elections, for the
following reasons: (1) the Constitution uses the term “review,” not “appeal,”
and these terms have different connotations in our jurisdiction; (2) Congress
is deemed to retain its general power to define the manner in which the Supreme
Court shall exercise its power of review, in the absence of clear and specific
provision to the contrary, and no such provision exists; (3) pursuant to our
Administrative Law, the findings of fact of administrative organs created by
ordinary legislation will not be disturbed by courts of justice, except when
there is absolutely no evidence or no substantial evidence in support of such
findings, and there is no reason to believe that the framers of our
Constitution intended to place the Commission on Elections — created and
explicitly made “independent” by the Constitution itself — on a lower level
than said statutory administrative organs; and (4) the last paragraph of
section 9 of Commonwealth Act No. 657 which provides that the Supreme Court may
only review the rulings of the Commission on Elections by writ of certiorari,
which means that only questions of law could be raised and decided, is presumed
to be valid until otherwise declared by competent court. (Lucman vs.
Dimaporo, 33 SCRA 387 [1970], Concepcion, C.J.).

 

§8. The same approach is reflected in
the opinion of the Chief Justice in Lucman v. Dimaporo when as he
pointed out if “pursuant to our Administrative Law, the findings of fact of
administrative organs created by ordinary legislation will not be disturbed by
courts of justice, except when there is absolutely no evidence or no
substantial evidence in support of such findings * * * there is no reason to
believe that the framers of our Constitution intended to place the Commission
on Elections—created and explicitly made ‘independent’ by the Constitution
itself—on a lower level than said statutory administrative organs. (Puñgutan
vs. Abubakar, 43 SCRA 1 [1972], Fernando, J.).

 

§9. While under the Constitution of
1935, “the decisions, orders and rulings of the Commission shall be subject to
review by the Supreme Court” (Sec. 2, first paragraph, Article X) and pursuant
to the Rules of Court, the petition for “certiorari or review” shall be on the
ground that the Commission “has decided a question of substance not theretofore
determined by the Supreme Court, or has decided it in a way not in accord with
law or the applicable decisions of the Supreme Court” (Sec. 3, Rule 43), and
such provisions refer not only to election contests but even to
pre-proclamation proceedings, the 1973 Constitution provides somewhat
differently thus:  “Any decision, order
or ruling of the Commission may be brought to the Supreme Court on certiorari
by the aggrieved party within thirty days from his receipt of a copy
thereof” (Section 11, Article XII c), even as it ordains that the Commission
shall “be the sole judge of all contests relating to the elections, returns and
qualifications of all members of the National Assembly and elective provincial
and city officials” (Section 2 [2]). (Aratuc vs. Commission on Elections, 88
SCRA 251 [1979], Barredo, J.).

 

§10. Under the 1935 Constitution,
this Court exercised appellate jurisdiction to review any decision, ruling or
order of the Comelec.  Under the present
Constitution, any decision, ruling or order of the Comelec can be assailed in
this court only by means of the special civil action of certiorari.  It should be stressed that the decisions,
orders or rulings of the Comelec in pre-proclamation controversies, of which it
is sole judge, are final and executory. (Sec. 175, 1978 Election Code).

 

That is the proper norm of conduct because
“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 administrations of the
laws relative to the conduct of elections” “we must not by any excessive zeal
take away from the Commission the initiative which by constitutional and legal
mandates properly belongs to it.”  (Sumulong
vs. Commission on Elections, 73 Phil. 288, 295-296).

 

“The Commission may err, so may this Court
also.  It should be allowed considerable
latitude in devising means and methods that will insure the accomplishment of
the great objective for which it was created — free, orderly and honest
elections”. (Omar vs. Commission on Elections, 102 SCRA 611 [1981], Aquino,
J.).

 

§11. As was said in the early case of
Morrero vs. Bocar, et al., 66 Phil. 429, the decision of the COMELEC is
beyond judicial interference except upon a clear showing of such arbitrary and
improvident use of its power as will constitute denial of due process of law. (Santos
vs. Commission on Elections, 103 SCRA 628 [1981], De Castro, J.).

 

§12. “Indeed, in special civil
actions for certiorari, the main issue is one of jurisdiction—lack of
jurisdiction or grave abuse of discretion amounting to excess of jurisdiction
whereas petitions for review on certiorari are limited to the consideration of
questions of law”  (Lucman vs.
Dimaporo, L-31558, May 29, 1970, 33 SCRA 387, 399-400.  See Bashier vs. Commission on Elections,
L-33692, February 24, 1972 and two other cases, 43 SCRA 238).  A review of the decision, order or ruling of
the Comelec by means of certiorari means that this Court cannot review its
factual findings (Sotto vs. Commission on Elections, 76 Phil. 516, 521).   (Ticzon vs. Commission on Elections, 103
SCRA 671 [1981], Aquino, J.).

§13. This Court has invariably
followed the principle that in the absence of any jurisdictional infirmity or
an error of law of the utmost gravity, the conclusion reached by respondent
Commission on a matter that falls within its competence is entitled to the
utmost respect. (Sidro vs. Commission on Elections, 123 SCRA 759 [1983],
Fernando, C.J.).

 

§14. Absent any arbitrariness the
factual findings of the COMELEC are binding on the Supreme Court in a
certiorari proceeding. (Paredes vs. Commission on Elections, 127 SCRA 653
[1984], Fernando, C.J.).

 

§15. The principal relief sought by petitioner
is predicated on the certiorari jurisdiction of this Court as provided in
Section 11, Article XII-C, 1973 Constitution. 
It is, as explained in Aratuc vs. Commission on Elections, “not
as broad as it used to be” under the old Constitution and it “should be
confined to instances of grave abuse of discretion amounting to patent and
substantial denial of due process.” 
Moreover, the legislative construction of the constitutional provision
has narrowed down “the scope and extent of the inquiry the Court
is supposed to undertake to what is strictly  the office of certiorari as
distinguished from review.”  And
in Lucman vs. Dimaporo, a case decided under the Constitution of 1935,
this Court, speaking through then Chief Justice Concepcion, ruled that “this
Court can not x x x review rulings or findings of fact of
the Commission on Elections,” as there is “no reason to believe that the
framers of our Constitution intended to place the [said] Commission—created and
explicitly made ‘independent’ by the Constitution itself—on a lower level” than
statutory administrative organs (whose factual findings are not “disturbed  by courts of justice, except  when there is absolutely no evidence or
no substantial evidence in support of such findings”).  Factual matters were deemed not proper for
consideration in proceedings brought either “as an original action for
certiorari or as an appeal by certiorari. . . 
[for] the main issue in . . . certiorari is one of jurisdiction—lack of
jurisdiction or grave abuse of discretion amounting to excess of jurisdiction”
while “petitions for review on certiorari are limited to the consideration of
questions of law.” (Padilla vs. Commission on
Elections, 137 SCRA 424 [1985], De La Fuente, J.).

 

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

 

Obviously, the provision of Article IX-C,
Section 2(2) of the Constitution that “decisions, final orders, or rulings of
the Commission on election contests involving elective municipal and barangay
offices shall be final, executory, and not appealable” applies only to
questions of fact and not of law.  That
provision was not intended to divest the Supreme Court of its authority to
resolve questions of law as inherent in the judicial power conferred upon it by
the Constitution.  We eschew a literal
reading of that provision that would contradict such authority. (Flores vs.
Commission on Elections, 184 SCRA 484 [1990], Cruz, J.).

 

§17. In Filipinas Engineering and
Machine Shop vs. Ferrer, this Court held that “what is contemplated by the
term ‘final orders, rulings and decisions’ of the COMELEC reviewable on certiorari
by the Supreme Court as provided by law are those rendered in actions or
proceedings before the COMELEC and taken cognizance of by said body in the
exercise of its adjudicatory or quasi-judicial powers. “ (People vs.
Delgado, 189 SCRA 715 [1990], Gancayco, J.)

 

§18. In the present case, after a
review of the trial court’s decision, the respondent COMELEC found that fifteen
(15) ballots in the same precinct containing the letter “C” after the name
“Galido” are clearly marked ballots.  May
this COMELEC decision be brought to this court by a petition for certiorari by
the aggrieved party (the herein petitioner)? 
Under Article IX (A), Section 7 of the Constitution, which petitioner
cites in support of this petition, it is stated:  “(U)nless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each (Constitutional)
Commission may be brought to the Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy thereof.”  On the other hand, private respondent relies
on Article IX, (C), Section 2(2), paragraph 2 of the Constitution which
provides that decisions, final orders, or rulings of the Commission on
Elections in contests involving elective municipal and barangay offices shall
be final, executory, and not appealable.  We resolve this issue in favor of the
petitioner.  The fact that decisions,
final orders or rulings of the Commission on Elections in contests involving
elective municipal and barangay offices are final, executory and not
appealable, does not preclude a recourse to this Court by way of a special
civil action of certiorari. (Galido vs. Commission on Elections, 193 SCRA 78
[1991], Padilla, J.).

 

§19. The environmental facts of this
petition are similar to those in the Galido case (G.R. No. 95346,
decided 18 January 1991).  The issue of
whether the decisions of the COMELEC in election contests involving elective
municipal and barangay officials, being final and executory and not appealable,
preclude the filing of a special civil action of certiorari, was decided in the
said Galido case. The Court held: 
“Under Article IX (A), Section 7 of the Constitution, which petitioner
cites in support of this petition, it is stated:  ‘(U)nless otherwise provided by the
Constitution or by law, any decision, order or ruling of each (Constitutional)
Commission may be brought to the Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy thereof.’  On the other hand, private respondent relies
on Article IX, (C), Section 2 (2), paragraph 2 of the Constitution which
provides that decisions, final orders, or rulings of the Commission on
Elections in contests involving elective municipal and barangay offices shall
be final, executory and not appealable.  (Emphasis supplied)  We resolve this issue in favor of the
petitioner.  The fact that decisions,
final orders or rulings of the Commission on Elections in contests involving
elective municipal and barangay offices are final, executory and not
appealable, does not preclude a recourse to this Court by way of a special
civil action of certiorari.  x x x  Earlier, the Court had occasion to resolve
the same issue in the case of Flores vs. COMELEC, (G.R. No. 89604, 20
April 1990) where the Court stated: 
“Obviously, the provision of Article IX-C, Section 2(2) paragraph 2 of
the Constitution that ‘decisions, final orders, or rulings of the Commission on
election contests involving elective municipal and barangay offices shall be
final, executory, and not appealable’ applies only to questions of fact and not
of law.  That provision was not intended
to divest the Supreme Court of its authority to resolve questions of law as
inherent in the judicial power conferred upon it by the Constitution.  We eschew a literal reading of that provision
that would contradict such authority.” (Rivera vs. Commission on Elections,
199 SCRA 178 [1991], Padilla, J.).

 

§20. A perusal of our election laws
shows that they do not explicitly provide for an appeal from the COMELEC to the
Supreme Court.  Section 7, Art. IX-A of
the 1987 Constitution provides that: 
“unless otherwise provided by this Constitution or by law, any decision,
order or ruling of each [Constitutional] Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty (30)
days from receipt of a copy thereof.” 
The petition for certiorari shall be filed under Rule 65 of the Rules of
Court (Rivera vs. COMELEC, 199 SCRA 178; Galido vs. COMELEC, 193
SCRA 79; Dario vs. Mison, 176 SCRA 84; Pedalizo vs. Mariano, UDK-9819,
March 15, 1990).

 

Since no constitutional provision or law
fixes a shorter period, the reglementary period within which a petition for
certiorari may be filed in the Supreme Court against the COMELEC is thirty (30)
days from receipt of a copy of the COMELEC’s order, decision, or ruling.  Respondents did not correctly invoke Sec. 3,
Rule 39 of the COMELEC Rules of Procedure because this is a petition for
certiorari under Rule 65 of the Rules of Court, hence, it falls under Sec. 1
Rule 39 of the COMELEC Rules of Procedure and Sec. 257 of the Omnibus Election
Code.  This petition was therefore
seasonably filed on July 23, 1992, within thirty (30) days after the petitioner
received the COMELEC resolution on June 23, 1992. (Sardea vs. Commission on
Elections, 225 SCRA 374 [1993], Griño-Aquino, J.).

 

§21. Conformably
to these provisions of the Constitution all election cases, including
pre-proclamation controversies, must be decided by the COMELEC in
division.  Should a party be dissatisfied
with the decision he may file a motion for reconsideration before the COMELEC en
banc.  It is, therefore, the
decision, order or ruling of the COMELEC en banc that, in accordance
with Art. IX, A, Section 7 “may be brought to the Supreme Court on certiorari.”
(Reyes vs. Regional Trial Court of Oriental Mindoro, Br. XXXIX, 244 SCRA 41
[1995], Mendoza, J.).

§22. This
provisIon is inapplicable as there was no case or matter filed before the
COMELEC.  On the contrary, it was the
COMELEC’s resolution that triggered this controversy.  The “case” or “matter” referred to by the
Constitution must be something within the jurisdiction of the COMELEC, i.e., it
must pertain to an election dispute.  The
settled rule is that “decision, rulings, order” of the COMELEC that may be
brought to the Supreme Court on certiorari under Sec. 7, Art. IX-A are those
that relate to the COMELEC’s exercise of adjudicatory or quasi-judicial
powers involving “elective regional, provincial, and city
officials.”  In this case, what is being
assailed is the COMELEC’s choice of an appointee to occupy the Gutalac Post
which is an administrative duty done for the operational set-up of an agency. (Garces
vs. Court of Appeals, 259 SCRA 99 [1996], Francisco, J.).            

§23. “We
have interpreted this provision to mean final orders, rulings and decisions of
the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial
powers.”  This decision must be a final
decision or resolution of the Comelec en banc, not of a division,
certainly not an interlocutory order of a division.  The Supreme Court has no power to review via
certiorari, an interlocutory order or even a final resolution of a Division
of the Commission on Elections.

The
mode by which a decision, order or ruling of the Comelec en banc may be
elevated to the Supreme Court is by the special civil action of certiorari under
Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64,
1997 Rules of Civil Procedure, as amended. 
Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires
that there be no appeal, or any plain, speedy and adequate
remedy in the ordinary course of law. 
A motion for reconsideration is a plain and adequate remedy
provided by law.  Failure to abide by
this procedural requirement constitutes a ground for dismissal of the
petition.

In like
manner, a decision, order or resolution of a division of the Comelec must be
reviewed by the Comelec en banc via a motion for reconsideration before
the final en banc decision may be brought to the Supreme Court on
certiorari.  The pre-requisite filing of
a motion for reconsideration is mandatory.

Under the existing Constitutional scheme,
a party to an election case within the jurisdiction of the Comelec in division
can not 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 and resolved by the Division.  The instant case does not fall under any of
the recognized exceptions to the rule in certiorari cases dispensing with a
motion for reconsideration prior to the filing of a petition.  In truth, the exceptions do not apply to
election cases where a motion for reconsideration is mandatory by
Constitutional fiat to elevate the case to the Comelec en banc, whose
final decision is what is reviewable via certiorari before the Supreme
Court. (Ambil, Jr., vs. Commission on Elections, 344 SCRA 358 [2000], Pardo,
J.).

 

§24. In Garces vs. Court of
Appeals (259 SCRA 99 [1996]) and Filipinas Engineering and Machine Shop
vs. Ferrer  (135 SCRA 25 [1985]), we
found occasion to interpret the foregoing provision in this wise: “x x x.  What is contemplated by the term ‘final
orders, rulings and decisions’ of the COMELEC reviewable by certiorari by the
Supreme Court as provided by law are those rendered in actions or proceedings
before the COMELEC and taken cognizance of by the said body in the exercise of
its adjudicatory or quasi-judicial powers.” 
In Filipinas, we have likewise affirmed that the powers vested by
the Constitution and the law on the Commission on Elections may either be
classified as those pertaining to its adjudicatory or quasi-judicial functions,
or those which are inherently administrative and sometimes ministerial in
character.

 

As aptly explained by the Solicitor
General, in the instant case, after the COMELEC ascertained the issuance of the
ordinance and resolution declaring the abolition of barangay San Rafael,
it issued COMELEC Resolution No. 2987 calling for a plebiscite to be held in
the affected barangays, pursuant to the provisions of Section 10 of
Republic Act No. 7160.  We agree with the
Solicitor General that “x x x. [t]he issuance of [COMELEC] Resolution No. 2987
is thus a ministerial duty of the COMELEC that is enjoined by law and is part
and parcel of its administrative functions.  It involves no exercise of discretionary
authority on the part of respondent COMELEC; let alone an exercise of its
adjudicatory or quasi-judicial power to hear and resolve controversies defining
the rights and duties of party-litigants, relative to the conduct of elections
of public officers and the enforcement of the election laws.”  (Citation omitted.)  Briefly, COMELEC Resolution No. 2987 which
provides for the rules and regulations governing the conduct of the required
plebiscite, was not issued pursuant to the COMELEC’s quasi-judicial functions
but merely as an incident of its inherent administrative functions over the conduct
of plebiscites, thus, the said resolution may not be deemed as a “final order”
reviewable by certiorari by this Court. 
Any question pertaining to the validity of said resolution may be well
taken in an ordinary civil action before the trial courts. (Salva vs.
Makalintal, 340 SCRA 506 [2000] Buena, J.).

 

 

 CHAPTER IX
Commission on Elections

 

1. Creation, Organization and
Membership

 

§1. The Constitutional Commissions,
which shall be independent, are the Civil Service Commission, the Commission on
Elections, and the Commission on Audit. (Article IX (A), Section 1, The 1987
Philippine Constitution).

 

§2. There shall be a Commission on
Elections composed of a Chairman and six Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their appointment, at least
thirty-five years of age, holders of a college degree, and must not have been
candidates for any elective position in the immediately preceding elections.  However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in the
practice of law for at least ten years. (Article IX (C), Section 1 (1), The
1987 Philippine Constitution).

 

§3. The Chairman and the
Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without
reappointment.  Of those first appointed,
three Members shall hold office for seven years, two Members for five years,
and the last Members for three years, without reappointment.  Appointment to any vacancy shall be only for
the unexpired term of the predecessor. 
In no case shall any Member be appointed or designated in a temporary or
acting capacity. (Article IX (C), Section 1 (2), The 1987 Philippine
Constitution).

 

 

2. Nature
and Character of the Commission

 

§1. The Commission on Elections is a
constitutional body.  It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions that
would be fully warranted in the case of less responsible organization.  The Commission may err, so may this Court
also.  It should be allowed considerable
latitude in devising means and methods that will insure the accomplishment of
the great objective for which it was created—free, orderly and honest
elections.  We may not agree fully with
its choice of means, but unless these are clearly illegal or constitute gross
abuse of discretion, this court should not interfere.  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. (Sumulong vs. Commission on Elections, 73 Phil.
288 [1941], Abad Santos, J.).

§2. 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. x x x 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. (Brillantes, Jr. vs. Yorac, 192 SCRA 358
[1990], Cruz, J.).

3. Qualifications

§1. Practice of law means any
activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. 
“To engage in the practice of law is to perform those acts which are
characteristics of the profession.  Generally,
to practice law is to give notice or render any kind of service, which device
or service requires the use in any degree of legal knowledge or skill.” (111
ALR 23) Interpreted in the light of the various definitions of the term
“practice of law”, particularly the modern concept of law practice, and taking
into consideration the liberal construction intended by the framers of the
Constitution, Atty. Monsod’s past work experiences as a lawyer-economist, a
lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of
contracts, and a lawyer-legislator of both the rich and the poor—verily more
than satisfy the constitutional requirement—that he has been engaged in the
practice of law for at least ten years. 
(Cayetano vs. Monsod, 20I SCRA 210 [1991], Paras, J.).

 

4. Term of Office

§1. In
Republic vs. Imperial (96 Phil. 770 [1955], we said that “the operation
of the rotational plan requires two conditions, both indispensable to its
workability: (1) that the terms of the first three (3) Commissioners should
start on a common date, and (2) that any vacancy due to death, resignation or
disability before the expiration of the term should only be filled for unexpired
balance of the term.”  Consequently,
the terms of the first Chairmen and Commissioners of the Constitutional
Commissions under the 1987 Constitution must start on a common date,
irrespective of the variations in the dates of appointments and qualifications
of the appointees, in order that the expiration of the first terms of
seven, five and three years should lead to the regular recurrence of the
two-year interval between the expiration of the terms.

Applying
the foregoing conditions to the case at bar, we rule that the appropriate starting
point of the terms of office of the first appointees to the Constitutional
Commissions under the 1987 Constitution must be on February 02, 1987,
the date of the adoption of the 1987 Constitution.  In case of a belated appointment or
qualification, the interval between the start of the term and the actual
qualification of the appointee must be counted against the latter.

In the
law of public officers, there is a settled distinction between “term” and
“tenure.”  “[T]he term of an office must
be distinguished from the tenure of the incumbent.  The term means the time during which the
officer may claim to hold office as of right, and fixes the interval after
which the several incumbents shall succeed one another.  The tenure represents the term during which
the incumbent actually holds the office. 
The term of office is not affected by the hold-over.  The tenure may be shorter than the term for
reasons within or beyond the power of the incumbent.”  (Topacio Nueno v. Angeles, 76
Phil. 12, 21-22 [1946]; Alba v. Evangelista, 100 Phil. 683, 694 [1957]; Paredes
v. Abad, 155 Phil. 494 [1974]; Aparri v. Court of Appeals, 127 SCRA
240 [1948] ).

What
the above-quoted Transitory Provisions contemplate is “tenure” not “term” of
the incumbent Chairmen and Members of the Civil Service Commission, the
Commission on Elections and the Commission on Audit, who “shall continue in
office for one year after the ratification of this Constitution, unless
they are sooner removed for cause or become incapacitated to discharge the
duties of their office or appointed to a new term thereunder.”  The term “unless” imports an exception to the
general rule.  (Tajanlangit v.
Cazenas, 115 Phil. 568 [1962]). 
Clearly, the transitory provisions mean that the incumbent members of
the Constitutional Commissions shall continue in office for one year after the
ratification of this Constitution under their existing appointments at the
discretion of the appointing power, who may cut short their tenure by: (1)
their removal from office for cause; (2) their becoming incapacitated to
discharge the duties of their office, or (3) their appointment to a new term
thereunder, all of which events may occur before the end of one year period
after the effectivity of the Constitution. (Gaminde vs. Commission on Audit,
347 SCRA 655 [2000], Pardo, J.).

 

5. Factors
Securing Independence

a.) Under the 1935 Constitution

§1. The
membership of the Commission is for a fixed period of nine years, except as to
the first members appointed who were to hold office for nine, six and three
years.  With these periods, it was the
intention to have one position vacant every three years, so that no President
can appoint more than one Commissioner, thereby preserving and safeguarding the
independence and impartiality of the Commission. (Nacionalista Party vs.
Bautista, 85 Phil. 101 [1949], Padilla, J.).

§2. The prohibition against
reappointment comes as a continuation of the requirement that the Commissioners
shall hold office for a term of nine years. 
This imports that the Commissioners may not be reappointed only after
they have held office for nine years. 
Reappointment is not prohibited when a Commissioner has held office only
for, say, three or six years, provided his term will not exceed nine years in
all. (Nacionalista Party vs. De Vera, 85 Phil. 126 [1949], Moran, C.J.).

 

§3. The
provision that of the first three commissioners appointed “one shall hold
office for 9 years, another for 6 years, and the third for 3 years,” when taken
together with the prescribed term of office for 9 years, without reappointment,
evidences a deliberate plan to have a regular rotation or cycle in the membership
of the commission, by having subsequent members appointable only once every
three years.  This had already been
indicated in previous opinions of the Supreme Court (Nacionalista Party vs.
Bautista Angelo, 47 Off. Gaz. 2356; Nacionalista Party vs. Vera, 47
Off. Gaz. 2375), where it was declared that “with these periods it was the
intention to have one position vacant every three years, so that no President
can appoint more than one Commissioner, thereby preserving and safeguarding the
independent and impartiality of the Commission” as a body for the
impartiality and independence of such individual Commissioner’s tenure was
safeguarded by other provisions in the same Article X of the fundamental
charter.  Now, the operation of the
rotational plan requires two conditions, both indispensable to its workability:
(1) that the terms of the first three commissioners should start on a common
date, June 21, 1941; and (2) that any vacancy due to death, resignation or
disability before the expiration of the term should only be filled only for the
unexpired balance of the term. Without satisfying these conditions, the
regularity of the intervals between appointments would be destroyed, and the
evident purpose of the rotation (to prevent that a four-year administration
should appoint more than one permanent and regular commissioner) would be
frustrated. (Republic vs. Imperial and Perez, 96 Phil. 770 [1955], Reyes,
J.B.L., J.).

§4. In
the decision of this Court in Republic 
vs. Imperial, 51 Off. Gaz. 1886, three lines of succession were
established, to wit: (1) that of the chairman; (2) that of the second member,
Enage; and (3) that of the third member. 
The terms of office were therein indicated.

When a member in the third line of
succession was appointed chairman and assumes office, he left that third line
and entered the line of succession of the chairman, with his tenure
unimpaired.  Therefore, his successor
merely occupied the position vacated by him whose fixed term of office (third
line) expired on June 20, 1962.  This
latter appointment could neither affect nor extend such fixed term of office in
the third line.

Although the appointment of
the chairman or of a member is generally for a period of nine years, his tenure
can not extend beyond the fixed term of the position he is supposed to occupy
in the fixed line of succession already indicated. (Visarra
vs. Miraflor, 8 SCRA 1 [1963], Bengzon, C.J.).

b.) Under the 1987 Constitution

§1. No member of a Constitutional
Commission shall, during his tenure, hold any other office or employment.  Neither shall he engage in the practice of
any profession or in the active management or control of any business which in
any way may be affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any franchise
or privilege granted by the Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or
their subsidiaries. (Article IX-A, Section 2, The 1987 Philippine
Constitution).

 

§2. The salary of the Chairman and
the Commissioners shall be fixed by law and shall not be decreased during their
tenure.  (Article IX, (A), Section 3,
Ibid.).

 

§3. The Commission shall enjoy fiscal
autonomy.  Their approved annual
appropriations shall be automatically and regularly released. (Article IX,
(A), Section 5, Ibid.).

 

§4. The President, Vice-President,
the Members of the Supreme Court, the members of the Constitutional Commission,
and the Ombudsman may be removed from office, on impeachment for, and
conviction of, culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust.  All other public officers and employees may be
removed from office as provided by law, but not by impeachment. (Article XI,
Section 2, Ibid.).

 

§5. Our fundamental law has placed
the agency charged with the enforcement and administration of all laws relative
to the conduct of elections beyond the control of the Executive and beyond the
power of Congress to abolish it (the agency), in addition to adopting other
measures tending to give thereto a reasonable degree of independence.  This notwithstanding, the nature of its
powers has remained essentially the same, namely, executive in character. (Ututalum
vs. Commission on Elections, 15 SCRA 465 [1965], Concepcion, J.).

 

 

6. Powers
and Functions

 

§1. The Commission on Elections
shall exercise the following powers and functions:

(1) Enforce and administer all laws
and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall.

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

Decisions, final orders, or rulings of the
Commission on election contests involving elective municipal and barangay
offices shall be final, executory, and not appealable.

(3) Decide, except those involving
the right to vote, all questions affecting elections, including the
determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of
the President, law enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the Philippines, for the exclusive
purpose of insuring free, orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient
publication, political parties, organizations, or coalitions which, in addition
to other requirements, must present their platform or program of government;
and accredit citizens’ arms of the Commission on Elections.  Religious denominations and sects shall not
be registered.  Those which seek to
achieve their goals through violence or unlawful means, or refuse to uphold and
adhere to this Constitution, or which are supported by any foreign government
shall likewise be refused registration.

Financial contributions from foreign
governments and their agencies to political parties, organizations, coalitions,
or candidates related to elections constitute interference in national affairs,
and, when accepted, shall be an additional ground for the cancellation of their
registration with the Commission, in addition to other penalties that may be
prescribed by law.

(6) File, upon a verified complaint,
or on its own initiative, petitions in court for inclusion or exclusion of
voters; investigate and, where appropriate, prosecute cases of violations of
election laws, including acts or omissions constituting election frauds,
offenses, and malpractices.

(7) Recommend to the Congress
effective measures to minimize election spending, including limitation of
places where propaganda materials shall be posted, and to prevent and penalize
all forms of election frauds, offenses, malpractices, and nuisance candidacies.

 

(8) Recommend to the President the
removal of any officer or employee it has deputized, or the imposition of any
other disciplinary action, for violation or disregard of, or disobedience to
its directive, order, or decision.

 

(9) Submit to the President and the
Congress a comprehensive report on the conduct of each election, plebiscite,
initiative, referendum, or recall. (Article IX (C), Section 2, The 1987
Philippine Constitution).

 

§2. 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.
(Article IX (C), Section 3, Ibid.).

 

§3. The Commission may, during the
election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency,
or instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary.  Such
supervision or regulation shall aim to ensure equal opportunity, time and
space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.
(Article IX (C), Section 4, Ibid.).

 

§4. No pardon, amnesty, parole, or
suspension of sentence for violation of election laws, rules, and regulations
shall be granted by the President without the favorable recommendation of the
Commission. (Article IX (C), Section 5, Ibid.).

 

 

a.) Enforce election laws

 

§1. The Commission on Elections is an
independent administrative body which was established by our Constitution to
take charge of the enforcement of all laws relative to the conduct of elections
and devise means and methods that will insure the accomplishment of free,
orderly, and honest elections (Sumulong vs. Commission on Elections, 73
Phil., 288; Nacionalista Party vs. The Solicitor General, 85 Phil. 101;
47 Off. Gaz.                         
2356). (Guevara vs. Commission on Elections, 104 Phil. 268 [1958],
Bautista Angelo, J.).

 

§2. Under the Constitution, the
Commission on Elections has exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections and shall
exercise all other functions which may be conferred upon it by law. (Zaldivar
vs. Estenzo, 23 SCRA 533 [1968], Fernando, J.).

 

§3. The power of the Commission in the language
of the Constitution is to “have exclusive charge of (the) enforcement and
administration of all laws relative to the conduct of elections and shall
exercise all other functions which may be conferred upon it by law.”

 

The scope of activity of the Comelec is
circumscribed by the Election Code. 
Subsequent amendments may broaden its field of action, but they must so
provide, whether in express terms or by clear implication.  It is not vested with direct constitutional
authority unlike the executive, legislative and judicial departments.  There are set boundaries to its power, limits
beyond which it cannot go.  Outside lies
a terrain where its writ will not run. 
It is not vested with a roving commission to inquire into all electoral
evils and correct them.  It is thus
cabined and combined. (Dipatuan vs. Commission on Elections, 47 SCRA 258
[1972], Fernando, J.).

 

§4. In Zaldivar vs. Estenzo,
(23 SCRA 533) this Court emphatically ruled that since the Commission on
Elections is vested by the Constitution with the exclusive charge of the
enforcement of all laws relative to the conduct of elections, assumption of
jurisdiction by the Regional Trial Court over a case involving the enforcement
of the Election Code “is at war with the plain constitutional command, the
implementing statutory provisions and the hospitable scope afforded such grant
of authority so clear and unmistakable in recent decisions”. (Gallardo vs.
Tabamo, Jr., 232 SCRA 690 [1994], Kapunan, J.; Re: COMELEC Resolution No. 2521,
A.M. No. 92-12-916-RTC, July 8, 1994; 234 SCRA 1 [1994]).

 

 §5. The big issue, one of first
impression, is whether the COMELEC committed grave abuse of discretion
amounting to lack of jurisdiction when it ordered a manual count in light of
R.A. No. 8436.  The post election
realities on ground will show that the order for a manual count cannot be
characterized as arbitrary, capricious or whimsical.

 

It bears stressing that the ballots used
in the case at bar were specially made to suit an automated election.  The ballots were uncomplicated.  They had fairly large ovals opposite the
names of candidates.  A voter needed only
to check the oval opposite the name of his candidate.  When the COMELEC ordered a manual count of
the votes, it issued special rules as the counting involved a different kind of
ballot, albeit, more simple ballots. The Omnibus Election Code rules on
appreciation of ballots cannot apply for they only apply to elections where the
names of candidates are handwritten in the ballots.

 

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 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. (Loong vs. Commission on Elections, 305 SCRA 832 [1999],
Puno, J.).

 

§6. 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, 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.  RA 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 . . . (Maruhom vs. Commission on Elections, 331
SCRA 473 [2000], Ynares-Santiago, J.).

b.) Insure free, orderly, honest,
peaceful and credible elections

 

§1. The Commission on Elections has
been established as an independent body by constitutional mandate, for the
purpose of insuring free, orderly and honest elections.  The Constitution has entrusted to the
Commission on Elections the enforcement and administration of all laws relative
to the conduct of elections x x x. (Lava vs. Hon. Lopez Vito, 73 Phil. 390
[1941], Abad   Santos, J.).

 

§2. The purpose of the Revised
Election Code is to protect the integrity of elections and to suppress all
evils that may violate its purity and defeat the will of the voters. The purity
of elections is one of the 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, it 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, unless they are clearly illegal or constitute grave abuse of discretion,
should not be interfered with. 
Technicalities, which may defeat the will of the sovereign people, as
expressed in their votes, should not be allowed to hamper the Commission in the
performance of its duties. (Cauton vs. Commission on Elections, 126 Phil.
291 [1967]; 19 SCRA 911 [1967], Zaldivar, J.).

 

§3. In the performance of its
constitutional duty of insuring free, orderly and honest elections the Comelec
possesses a wide latitude of discretion which, unless shown to have been
exercised in an arbitrary or improvident manner, will not be interfered with by
the Supreme Court. (Ligot vs. Commission on Elections, 31 SCRA 45 [1970],
Resolution, Per Curiam).

 

§4. That is the proper norm of
conduct because “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 administrations of the
laws relative to the conduct of elections” “we must not by any excessive zeal
take away from the Commission the initiative which by constitutional and legal
mandates properly belongs to it.”  (Sumulong
vs. Commission on Elections, 73 Phil. 288, 295-6.). The Commission may err,
so may this Court also.  It should be
allowed considerable latitude in devising means and methods that will insure
the accomplishment of the great objective for which is was created – free,
orderly and honest elections. (Omar vs. Commission on Elections, 102 SCRA
611 [1981], Aquino, J.).

§5. From the foregoing, it is clear
that the COMELEC has ample power to see to it that the elections are held in a
clean and orderly manner and it may decide all questions affecting the
elections and has original jurisdiction on all matters relating to election
returns, including the verification of the number of votes received by opposing
candidates in the election returns as compared to the statement of votes in
order to insure that the true will of the people is known.  Such a clerical error in the statement of
votes can be ordered corrected by the COMELEC. (Villaroya vs. Commission on
Elections, 155 SCRA 633 [1987], Gancayco, J.).

 

 

c. Decide administrative questions
affecting elections

 

§1. 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 the laws relative to the conduct of elections, as well as in
the appointment of election inspectors, we must not by any excessive zeal take
away from the Commission on Elections the initiative which by constitutional
and legal mandates properly belongs to it x x x. (Sumulong vs. The
Commission on Elections, 73 Phil. 288 [1941], Abad Santos, J.).

 

§2. The power given to the Commission
by Section 2 of Article X of the Constitution, “to decide all administrative
questions concerning location of polling places, is a power that should be
exercised when a question is brought before the Commission, and its decision
should be rendered in accordance with law and not in contravention of law.  The functions and powers of the Commission on
Elections are limited by law.  It has no
legislative power to change or modify the law, nor may such power be delegated
to the Commission.” (Cortez vs. Commission on Elections, 79 Phil. 352
[1947],  Moran, C.J.).

 

§3. The Commission has the power to
decide all administrative questions affecting elections, except the question
involving the right to vote. (Cauton vs. Commission on Elections, 126 Phil.
291 [1967]; 19 SCRA 911 [1967], Zaldivar, J.).

 

§4. Decisions, orders and rulings of
the Commission on Elections on administrative questions affecting elections are
reviewable only by the Supreme Court. 
Since the power of the Commission are limited to matters connected with
the conduct of elections, necessarily its adjudicatory or quasi-judicial powers
are likewise limited to controversies connected with the conduct of
elections.  This phrase covers all the
administrative process of preparing and operating the election machinery so
that the people could exercise their right to vote at the given time.  All questions and controversies that may
arise therefrom are to be resolved exclusively by the Commission, subject to
review only by the Supreme Court. (Monroy vs. Court of Appeals, 20 SCRA 620
[1967], Bengzon, J.P., J.).

                       

§5. A declaration of a failure to
elect, notwithstanding the fact that 1,363 valid votes have been cast and
recounted, cannot be considered an “administrative question” affecting an
election that the Comelec has power to decide. 
Such a certification has no bearing on the conduct of the
elections or the electoral process, but concerns the results thereof. (Antonio,
Jr. vs. Comelec, 32 SCRA 319 [1970], Reyes, J.B.L., J. ).

 

§6. From the foregoing, it is clear
that the COMELEC has ample power to see to it that the elections are held in a
clean and orderly manner and it may decide all questions affecting the
elections and has original jurisdiction on all matters relating to election
returns, including the verification of the number of votes received by opposing
candidates in the election returns as compared to the statement of votes in
order to insure that the true will of the people is known.  Such a clerical error in the statement of votes
can be ordered corrected by the COMELEC. (Villaroya vs. Commission on
Elections, 155 SCRA 633 [1987], Gancayco, J.).

 

§7. By virtue of that power, added to
its over-all function to “decide all questions affecting elections” (Article IX
[C]) Section 2[3], 1987 Constitution), a question pertaining to the proceedings
of said Board may be raised directly with the COMELEC as a pre-proclamation
controversy. (Duremdes vs. Commission on Elections, 178 SCRA 746 [1989],
Melencio-Herrera, J.).

 

§8. In Filipinas
Engineering and Machine Shop vs. Ferrer, this Court held that “what is
contemplated by the term ‘final orders, rulings and decisions’ of the COMELEC
reviewable on certiorari by the Supreme Court as provided by law are
those rendered in actions or proceedings before the COMELEC and taken
cognizance of by said body in the exercise of its adjudicatory or
quasi-judicial powers.”  Thus, the
decisions of the COMELEC on election contests or administrative questions
brought before it are subject to judicial review only by this Court. (People
vs. Delgado, 189 SCRA 715 [1990], Gancayco, J.).

 

 

d.) Supervise and control election officials, board      

    of
election inspectors and board of canvassers

 

§1. The duty of the Commission on
Elections to investigate and act on the propriety or legality of a canvass of
election made by the municipal board of canvassers, is discretionary, and said
commission may not therefore be compelled to perform such duty through mandamus
proceedings. (Ramos vs. Commission on Elections, et al., 80 Phil. 722
[1948], Paras, J.).                 

 

§2. Although the Commission on
Elections is an administrative body, it has power to see to it that officers
performing administrative functions connected with elections shall comply with
the duties assigned to them.

 

The duty of the board of canvassers to
make the proclamation in accordance with the election returns of all the
precincts of the municipality is ministerial; so that, where the board proclaimed
only four councilors, where six councilors should have been proclaimed – the
Commission may order it to reconvene and make a new proclamation by including
the other two councilors who received the highest number of votes. (Olano
vs. Ronquillo, 118 Phil. 204 [1963]; 8 SCRA 204 [1963], Bengzon, C.J.).

 

§3. Since the dismissal of the
petition for recount and the dissolution of the writ of preliminary injunctions
were premised on a finding by the court of lack of jurisdiction to act thereon
in view of the ruling of the Commission on Elections regarding the futility of
said recount because of its findings that one of the returns was found to be
falsified, which was impliedly upheld by the Supreme Court, the Commission on
Elections acted properly and within its functions and prerogatives when it
suspended four members of the municipal board of canvassers and substituted
them with others upon their refusal to proceed with the canvass as ordered by
the said Commission.

 

The pretext of the suspended members of the
municipal board of canvassers, that they refused to make a new canvass as
ordered by the Commission on Elections because they might be held in contempt
of court in view of the motion filed by one of the candidates for a
reconsideration of the decision of the court dissolving the injunction and
dismissing the petition for recount of votes, is flimsy considering that the
injunction had already been dissolved and that they were ordered to comply with
their duty by a superior constitutional authority whose power under the law is
clear.  It was an attempt on their part
to further delay the canvass of votes and befuddle the situation in the hope
that in the process they might still succeed in proclaiming their colleague thru
a ruse or a technicality. (Municipal Board of
Canvassers of Bansud, Oriental Mindoro vs. Commission on Elections, 116 Phil.
307 [1962]; 5 SCRA 1154 [1962], Bautista Angelo, J.).

 

§4. A valid directive of a
representative of the Commission on Elections directing the suspension of the
proclamation of a mayoralty candidate serves to nullify the continuation of the
canvass and consequent proclamation of a candidate to the contested
position.  The Commission on Elections
can order the suspension of a municipal board of canvassers and appoint substitutes
to take their place in a new canvass of the election returns of all the
precincts even after the old board had completed the canvass and proclamations
were made in violation of the lawful order of the Commission.  The defiance by the original members of a
board of canvassers of a lawful order and instruction of the Commission on
Elections is a valid cause for their removal and substitution by qualified
persons.  There is no res judicata in
the dismissal by the Court of First Instance of a petition for recount of votes
based on the fact that a winner for the contested position has been proclaimed,
where said proclamation was declared null and void for violation of lawful
orders of the Commission on Elections.  (Javier
vs. Commission on Elections, 13 SCRA 156 [1965], Barrera, J.).

 

§5. The Commission on Elections has
the power to investigate and act on the propriety or legality of the canvass of
election returns made by the board of canvassers. The power of the Commission
in this respect is simply administrative and supervisory. It is intended to
secure the proclamation of the winning candidate based on the true count of the
votes cast.

 

The object of the canvass is to determine
the result of the elections based on the official election returns.  In order that the result of the canvass would
reflect the true expression of the people’s will, it must be based on genuine
and untampered election returns.  The
Commission exercises its jurisdiction, relative to the conduct of elections, in
order to attain that result. (Cauton vs. Commission on Elections, 126 Phil.
291 [1967]; 19 SCRA 911 [1967], Zaldivar, J.).

 

§6. The Commission on Elections, by
specific articulation in Section 3 of the Revised Election Code, possesses
supervisory powers over boards of canvassers. 
The latter cannot, with impunity, disregard any order of the Commission
made in pursuance of its constitutional duty of enforcement and administration
of all laws relative to the conduct of elections, and of insuring free, orderly
and honest elections.  It certainly is
within the realm of the Commission’s concerns to direct that only genuine
returns be considered where, as here, dastardly attempts were made to subvert
the people’s choice by a resort to patently doctored returns. (Espino vs.
Zaldivar, 21 SCRA 1204 [1967], Sanchez, J.).

 

§7. The
board of canvassers is a ministerial body enjoined by law to canvass all votes
on election returns submitted to it in due form, and its powers are
“limited generally to the mechanical or mathematical functions of ascertaining
and declaring the apparent results of the election by adding or compiling the
votes cast for each candidate as shown on the face of the returns before them,
and then declaring or certifying the result so ascertained”  (29 CJS., p. 656).  The Comelec is the constitutional body
charged with the duty to enforce all laws relative to elections, duty bound to
see to it that the board of canvassers perform its proper function (Sec. 3,
Revised Election Code; Cauton vs. Comelec, L-25467, April 27, 1967).  Neither Constitution nor statute has granted
Comelec or the board of canvassers the power, in the canvass of election
returns, to look beyond the face thereof, once satisfied of their authenticity.

Where
the petition does not indicate that the election returns have been falsified after
they had left the hands of the election inspectors or that such returns are
not genuine, the Supreme Court cannot give its stamp of approval to
suspend canvass and proclamation, for, to stop both Comelec and the board of canvassers
from their legal duty, and worse, to suspend canvassing and proclamation at a
late date, may result in a vacuum in office of elective officials after the
term of the present incumbents shall have ended on December 31st. 
Canvassing and proclamation must proceed, otherwise, it  “would result in a lack of incumbents in the
offices concerned after the termination of the current term and while the case
remains pending in court”  (City Board
of Canvassers vs. Moscoso, L-16365, Sept. 3, 1963).   (Abes vs. Commission on Elections, 21
SCRA 1252 [1967], Sanchez, J.).

§8. The
city board of canvassers is an entity that is entirely different and distinct
from the city board or city council of a chartered city.  Similarly, a provincial board of canvassers,
or a municipal board of canvassers, is an entity entirely different and
distinct from the provincial board of a province, or the municipal council of a
municipality, as the case may be.  While
members of a city board (or city council), or a provincial board or of a
municipal council, are members also of a city board of canvassers, or
provincial board of canvassers, or of a municipal board of canvassers, as the
case may be, they do not act in the board of canvassers, in the capacity of
city councilmen, or in the capacity of a member of the provincial board, or in
the capacity of a member of a municipal council, but as election officials to
perform functions specially provided by law.

The
specific function of a board of canvassers is to canvass the results of the election
as shown in the election returns and to proclaim the winning candidates.  Once this specific function had been
performed the existence of the board of canvassers is ended and terminated.  (Cordero v. CFI of Rizal, 40 Phil.
246).

Members of the board of canvassers are
election officials.  Since under the
provision of Section 2 of Article X of the Constitution, the Commission on
Elections is empowered to appoint “other officials, ” it follows that when
there is a vacancy in the membership of the board of canvassers, the only authority
empowered to appoint a member to fill the vacancy is the Comelec.  Said constitutional provision was implemented
by Sections 159 and 167 of the Revised Election Code.  And even under the Revised Election Code, no
authority other than the Comelec is empowered to appoint substitute members in
the board of canvassers.

  The Comelec must appoint as substitute
members of the board of canvassers the officials specifically mentioned in said
Section 159, and if more substitutes are needed after those officials have been
appointed, the Comelec may appoint other officials of the province or city
until the provincial or city board of canvassers, as the case may be, had been
fully constituted.  The power of the
Comelec to appoint officials within a province or city, other than those
mentioned in Section 159 of the Revised Election Code has been upheld in at
least two decided cases (See City Board of Canvassers of Tacloban City v.
Moscoso, L-16065, Sept. 30, 1963; and Espino v. Zaldivar, etc.,
L-22325, Dec. 11, 1967).

For
said Section 28 of the Revised Election Code has become obsolete when the
provincial board, municipal or city councils have been relieved of duties
relative to elections since the enactment of Republic Act No. 599 on March 28,
1951.  With the passage of Republic Act
No. 599 aforesaid, Section 28 of the Revised Election Code would serve no more
purpose.

The
decision of this Court in the Torres case must be understood to mean
that in the event of vacancies in the provincial board of canvassers the
Commission on Elections must appoint substitutes from among officials that are
named in Section 159 of the Revised Election Code, if they are available. x
x x.  That dictum in the decision
does not preclude an appointment by the Comelec of other officials in case
those named in Section 159 who have been appointed are not available and there
is need of appointing more substitutes in order to complete the membership of
the board of canvassers. (Aquino vs. Commission on Elections, 22 SCRA 288
[1968], Zaldivar, J.).

§9. Where
a member of the Board of Canvassers designated by law is excluded from the
canvass by reason of which he did not take part therein, the canvass and the
resulting proclamation are both null and void.

The
canvassing board will not be compelled to canvass returns which are obviously
manufactured.  But this does not mean
that the board and Comelec should right away disregard the votes cast in
precincts where the returns are doctored. 
It is the duty of the Board to report the matter to the Comelec.

Where the election returns are tampered,
it is within the power of the Comelec to issue such order as would ascertain
the existence of the genuine, authentic and untampered election returns.  It should inquire into the copies of the
returns from the provincial treasurer. 
And if these copies are not authentic it should look into the copies of
the returns in the ballot boxes.

The
broad sweep of the Comelec’s duty to administer and enforce the election law
gives it ample authority to direct the board of canvassers to include in the
canvass returns from the questioned precincts. 
It should summon the members of the board of inspectors, take evidence
and ascertain which are the genuine returns; then it should direct the board to
use these returns in the canvass of the votes. (Pacis vs. Commission on
Elections, 22 SCRA 539 [1968], Sanchez, J.).

§10. While
the Comelec in its role as senatorial canvasser has the power to reject returns
before it which in its opinion were illegal and not authentic, neither law nor
precedent authorizes it to impose the same criterion in advance upon the
provincial boards of canvassers.  The
latter are entitled to use their own judgment in determining whether the
irregularities appearing on the returns before them warrant their rejection. (Alonto
vs. Commission on Elections, 22 SCRA 878 [1968], Reyes, J.B.L., Actg. C.J.).

§11. Where
the return sought to be voided is regular and complete on its face, so that
when it was canvassed, the petitioner did not raise any objection to it or
point to any defect or infirmity in its contents, said return is not “obviously
manufactured” within the meaning of this Court’s decision in Lagumbay vs.
Commission on Elections, L-25444, January 21, 1966, just because of a
discrepancy between the statement therein that 279 ballots had been cast and an
entirely different document, namely, the certification of the election
registrar that only 80 voters actually voted. 
This certification was not material insofar as the board of canvassers
was concerned, since its ministerial duty was to read and canvass the result of
the election on the basis of the returns, once satisfied that the same were
genuine. (Dizon vs. Tizon, 22 SCRA 1317 [1968], Makalintal, J.).

§12. The
duty of the municipal board of canvassers to count the votes cast for
candidates for municipal offices as shown in all the election returns
produced by the municipal treasurer, can not be avoided.  The board is to be guided by election returns transmitted
to it which are in due form.  Indeed,
the board must be satisfied of the genuineness of the returns.  A canvass made on incomplete returns may be
annulled.

By Section 3 of the Revised Election Code,
Comelec has “direct and immediate supervision” over the municipal board of
canvassers.  That statutory provision
empowers Comelec to suspend from the performance of their duties any member of
the board of canvassers who shall fail to comply with its instructions, orders,
decisions, or rulings and appoint their temporary substitutes.  This, of course, is in pursuance of Comelec’s
constitutionally prescribed duty to enforce “all laws relative to the conduct
of elections,” to decide “all administrative questions affecting elections,”
and to insure “free, orderly, and honest elections.” (Pedido vs. Commission
on Elections, 22 SCRA 1403 [1968], Sanchez, J.).

§13. The purpose of the Election Code
“to protect the integrity of elections and to suppress all evils that may
vitiate its purity and defeat the will of the voters” gives Comelec authority
to ascertain whether the genuineness of a given election return may yet be
salvaged by an examination of said return. 
Otherwise, the unscrupulous can easily prevent the proclamation of the
true winner by falsifying the returns. 
For this reason, the Comelec has all the power to order the municipal
board of canvassers to use, other than the copy for the municipal treasurer,
Comelec’s own finding of correct votes obtained, and the votes as indicated in
the provincial treasurer’s copy if it finds that the copy of the municipal
treasurer was tampered with.

 

An election return prepared at the point
of a gun is no return at all.  It is no
better than a falsified or spurious return. (Pacis vs. Commission on
Elections, 25 SCRA 377 [1968], Sanchez, J.).

 

§14. While nominally, the procedure
of bringing to the Commission objections to the actuations of boards of
canvassers has been quite loosely referred to in certain quarters, even by the
Commission and by this Court, such as in the guidelines of May 23, 1978 quoted
earlier in this opinion, as an appeal, the fact of the matter is that the
authority of the Commission in reviewing such actuations does not spring from
any appellate jurisdiction conferred by any specific provision of law, for
there is none such provision anywhere in the Election Code, but from the
plenary prerogative of direct control and supervision endowed to it by the
above-quoted provision of Section 168. (Aratuc vs. Commission on Elections,
88 SCRA 251 [1979], Barredo, J.).

§15. The COMELEC did not abuse its
discretion in changing the San Pablo City board of canvassers, directing the
canvassing to be held in Manila, and allowing a recanvass as the COMELEC’s
action was based on its fact-finding investigation. (Ticzon vs. Commission
on Elections, 103 SCRA 671 [1981], Aquino, J.).

§16. DUREMDES’ proclamation having
been based on an incomplete canvass, no grave abuse of discretion can be
ascribed to the COMELEC for directing the Provincial Board of Canvassers of
Iloilo “to immediately reconvene and to include in the canvass of votes for
Vice-Governor the questioned/contested returns.”  All the votes cast in an election must be
considered because to disregard returns is in effect to disenfranchise the
voters (Mutuc vs. COMELEC, L-28517, February 21, 1968, 22 SCRA
662).  A canvass can not be reflective of
the true vote of the electorate unless all returns are considered and none is
omitted. (Duremdes vs. Commission on Election, 178 SCRA 746 [1989],
Melencio-Herrera, J.).

e.) Postpone elections

§1. The
functions of the Commission on Elections under the Constitution are essentially
executive and administrative in nature. Upon the other hand, the authority to
order the holding of elections on any date other than that fixed in the Revised
Election Code is merely incidental to or an extension or modality of the power
to fix the date of elections.  This is,
in turn, neither executive nor administrative, but legislative in
character, not only by nature, but, also, insofar as national elections are
concerned, by specific provisions of the Constitution, for, pursuant thereto,
the elections for Senators and Members of the House of Representatives and
those for President and Vice-President, shall be held on the dates “fixed by
law” (Article VI, Sec. 8 [1] and Article VII, Sec. 4, Constitution),
meaning an Act of Congress.  Hence, no
elections may be held on any other date, except when so provided by another
act of Congress or upon orders of a body or officer to whom Congress may
have delegated, either its aforementioned power, or the authority to
ascertain or fill in the details in the execution of said power.  There is, however, no such statutory grant of
authority to the Commission on Elections.

Under
Section 8 of the Revised Election Code, the power to postpone an election is
vested exclusively in the President, although “upon recommendation” of the
Commission.  Besides, the language of
Section 8 indicates that the power therein granted must be exercised before the
election or not later than the date thereof. (Ututalum vs. Commission
on Elections, 15 SCRA 465 [1965], Concepcion, J.).

§2. Nothing
in Section 2, Article X of the Constitution will imply authority for Comelec to
annul an election.  So, too, did the
Revised Election Code withhold from it such specific power.

Enforcement
and administration of all election laws by Comelec do not include the power to
annul an election which may not have been free, orderly and honest, as such
power is merely preventive, and not curative, and if it fails to accomplish
that purpose, it is not for such body to cure or remedy the resulting evil, but
for some other agencies of the Government: The Senate Electoral Tribunal, the
House Electoral Tribunal, or the courts, as the case may be, who have the power
to decide election contests (Nacionalista Party vs. Comelec, 85 Phil.
149, 155-156).

There is no constitutional or legal
precept that empowers the Comelec to direct a new election after one had
already been held.  All that there is in
the statute books is Section 8 of the Revised Election Code which empowers the
President to postpone an election fixed by law upon recommendation of
the Comelec, but this refers to postponement before elections, and not a
remedy thereafter.

The Comelec being powerless to annul an
election or to direct a new one, no grave abuse of discretion is involved, and
mandamus will not issue. (Abes vs. Commission on Elections, 21 SCRA 1252
[1967], Sanchez, J.).

§3. The basic issue implicit in the
petition concerns the authority of the COMELEC to order the holding of a new
election in a particular precinct where, for some reason, the election failed
to take place on the date specified by law, and, by inference, the authority of
this Court to direct the COMELEC to issue such an order. There are two
provisions in the Revised Election Code which have to do with the contingency
thus envisioned.  In either, the
authority is given to the President: in the first (Sec. 8), to postpone the
election upon the recommendation of the COMELEC, the order of postponement, by
its very nature, to be issued before the date fixed by law for the election
arrives; and in the second (Sec. 21 [c]), to issue a proclamation calling for a
special election to fill the office concerned. 
There is no law which gives similar authority to the courts or to the
COMELEC. (Janairo vs. Commission on Elections, 21 SCRA 1173 [1967],
Makalintal, J.).

§4. Section 5 of the Omnibus Election
Code enumerates the causes which may justify the COMELEC to postpone the
election. Where after hearing, the Commission finds that there is extreme
difficulty in conducting a free, orderly, honest, peaceful, and credible
election on the date set by law and there is need for close supervision by the
Commission and effective military presence, which either can definitely provide
if elections were not postponed, the Commission may postpone the election in
the province or locality concerned. (Agpalo, Ruben, E., Comments on the
Omnibus Election Code, 1998 Revised Edition, p. 22, citing Dimaporo vs.
Commission on Elections, G.R. No. 81151, Jan. 7, 1988).

§5. No other body or officer has the
power to postpone or reset an election date except the Commission en banc itself.  Hence, the postponement or resetting of the
election date by the COMELEC Assistant Director or the COMELEC Special Action
Team, not having any authority to do so, is invalid. (Ibid., citing
Sumbing vs. Davide, G.R. No. 86850, July 20, 1989).

 §6. The setting of the special
elections not later than thirty days after the cessation of the cause of the
postponement of election or suspension of the election or failure to elect is
directory depending upon the exigencies and peculiar circumstances attendant as
determined by the Commission, and its determination, in the absence of abuse of
discretion, is binding. (Ibid., citing Sumbing vs. Commission on
Elections, G.R. No. 91545, June 18, 1990).

 f.) Declare failure of elections

 §1. The basic issue implicit in the petition
concerns the authority of the COMELEC to order the holding of a new election in
a particular precinct where, for some reason, the election failed to take place
on the date specified by law, and, by inference, the authority of this Court to
direct the COMELEC to issue such an order. 
There are two provisions in the Revised Election Code which have to do with
the contingency thus envisioned.  In
either, the authority is given to the President: in the first (Sec. 8), to
postpone the election upon the recommendation of the COMELEC, the order of
postponement, by its very nature, to be issued before the date fixed by law for
the election arrives; and in the second (Sec 21 [c]), to issue a proclamation
calling for a special election to fill the office concerned.  There is no law which gives similar authority
to the courts or to the COMELEC.

 The alternative prayer of the petitioners,
that this Court recommend to the President that he call a special election in
Precinct No. 10 of Caluya, Antique, must likewise be denied for several
reasons: first, the function of this Court is to adjudicate justiciable cases,
not to make recommendation concerning the powers and functions of the other
department of the government; second, the petitioners may make such
recommendation by themselves; and third, it is at best doubtful if the fact
that no election was held in one out of eleven precincts in the municipality
may be considered as a failure of “election for a local office to take place on
the date fixed by law,” as provided in Section 21(c) of the Revised Election
Code. (Janairo vs. Commission on Elections, 21 SCRA 1173 [1967], Makalintal,
J.).

 §2. The destruction and loss of the
copies of the election returns intended for the Municipal Board of Canvassers
on account of violence committed on May 13, 1992 is not one of the causes that
would warrant the declaration of a failure of election because voting actually
took place as scheduled on May 11, 1992 and other valid election returns still
existed.  Moreover, the incident did not
affect the result of the election.

 Section 233 of B.P. 881 ought to be
harmonized with Section 27, par. b (5) of R.A. 7166.  Section 27, par. b (5) of R.A. 7166
presupposes that other copies of the election returns are existent and may be
compared with the copies of the MTC.  It
does not preclude the use of such authentic copies in the canvass when the
copies submitted to the Board of Canvassers have been lost or destroyed.  The letter of Provincial Election Supervisor
Atty. Adolfo Ilagan dated May 15, 1992 and the minutes of the special meeting
of respondent COMELEC held on May 22, 1992 constitute sufficient authority for
the use of such returns in the canvass. (Sardea vs. Commission on Elections,
225 SCRA 374 [1993], Griño-Aquino, J.).

§3. 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 resulted in failure to elect; and, second, the votes not
cast would affect the result of the election.

 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. 
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. (Mitmug vs. Commission on Elections, 230 SCRA 54 [1994],
Bellosillo, J.).      

§4. In the case of Mitmug vs.
Commission on Elections, we held that before COMELEC can act on a verified
petition seeking to declare a failure of election, two (2) conditions must
concur: first, no voting has taken place in the precincts concerned on the date
fixed by law or, even if there was voting, the election nevertheless resulted
in failure to elect; and, second, the votes not cast would affect the result of
the election.  We must add, however, that
the cause of such failure of election should have been any of the following:
force majeure, violence, terrorism, fraud or other analogous causes. (Loong
vs. Commission on Elections, 257 SCRA 1 [1996], Hermosisima, J.).

§5. The mere fact that the transfer
of polling place was not made in accordance with law does not warrant a
declaration of failure of election and the annulment of the proclamation of the
winning candidate, unless the number of uncast votes will affect the result of
the election. (Balindong vs. Commission on Elections, 260 SCRA 494 [1996],
Mendoza, J.).

§6. A petition to declare a failure
of election is neither a pre-proclamation controversy as classified under
Section 5(h), Rule 1 of the Revised COMELEC Rules of Procedure, nor an election
case. 

It must be remembered that Capco was duly
elected and proclaimed as Mayor of Pateros. 
“Such proclamation enjoys the presumption of regularity and
validity.”  To destroy the presumption, Borja
must convincingly show that his opponent’s victory was procured through
extra-legal means.  This he tried to do
by alleging matters in his petition which he thought constituted failure of
election, such as lack of notice of the date and time of canvass; fraud,
violence, terrorism and analogous causes; disenfranchisement of voters;
presence of flying voters; and unqualified members of the Board of Election
Inspectors.  These grounds, however, as
correctly pointed out by the COMELEC, are proper only in an election contest
but not in a petition to declare a failure of election and to nullify a
proclamation.

In
other words, the COMELEC can call for the holding or continuation of election
by reason of failure of election only when the election is not held, is
suspended or results in a failure to elect. 
The latter phrase, in turn, must be understood in its literal sense,
which is “nobody was elected.”  None of
these circumstances is present in the case at bar.  At best, the “grounds” cited by Borja are
simply events which give rise to the three consequences just mentioned.

In
reality, Borja’s petition was nothing but a simple election protest involving
an elective municipal position which, under Section 251 of the Election Code,
falls within the exclusive original jurisdiction of the appropriate Regional
Trial Court. (Borja, Jr., vs. Commission on Elections, 260 SCRA 604 [1996],
Romero, J.).

§7. [n]onetheless,
in the instant case, the June 17, 1995 electoral exercise was not a failed
election, as voting had taken place and the election did not result in a
failure to elect.  In other words, the
people spoke freely and honestly in a contest voluntarily participated in by
both parties herein.  Hence, the popular
will as clearly expressed in the votes cast and counted should prevail over
dubious election documents of a previous failed election in the same precinct. (Garay
vs. Commission on Elections, 261 SCRA 222 [1996], Panganiban, J.).

§8. In
several cases, the Court has ruled that the pre-conditions for declaring a
failure of election are:  (1) that no
voting has been held in any precinct or precincts because of force majeure,
violence or terrorism, and (2) that the votes not cast therein suffice to
affect the results of the elections.  The
concurrence of these two (2) circumstances are required to justify the calling
of a special election. (Hassan vs. Commission on Elections, 264 SCRA
125  [1996], Kapunan, J.).

§9. 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.

Canicosa
bewails that the names of the registered voters in the various precincts did
not appear in their respective lists of voters. 
But this is not a ground to declare a failure of election.  The filing of a petition for declaration of
failure of election therefore is not the proper remedy.  The day following the last day for registration
of voters, the poll clerk delivers a certified list of voters to the election
registrar, election supervisor and the COMELEC, copies of which are open to
public inspection.  On the same day, the
poll clerk posts a copy of the list of registered voters in each polling place.  Each member of the board of election
inspectors retains a copy of the list which may be inspected by the public in
their residence or in their office during office hours. (Canicosa vs.
Commission on Elections, 282 SCRA 512 [1997], Bellosillo, J.).

§10. Under
the pertinent codal provision of the Omnibus Election Code, there are only
three (3) instances where a failure of elections may be declared, namely: (a)
the election in any polling place has not been held on the date fixed on
account of force majeure, violence, terrorism, fraud, or other analogous
causes; (b) the election in any polling place had been suspended before
the hour fixed by law for the closing of the voting on account of force
majeure, violence, terrorism, fraud, or other analogous causes; or (c)
after the voting and during the preparation and transmission of the election
returns or in the custody or canvass thereof, such election results in a
failure to elect on account of force majeure, violence, terrorism,
fraud, or other analogous causes. (Sison vs. Commission on Elections, 304
SCRA 170 [1999], Romero, J.).

§11. However,
as election officer, she has no authority to declare a failure of
election.  Indeed, only the Comelec
itself has legal authority to exercise such awesome power.  An election officer alone, or even with the
agreement of the candidates, cannot validly postpone or suspend the elections. (Basher
vs. Commission on Elections, 330 SCRA 736 [2000], Panganiban, J.).

§12. While petitioner may have
intended to institute an election protest by praying that the said action may
also be considered an election protest, in our view, petitioner’s action is a
petition to declare a failure of elections or annul election results.  It is not an election protest.  First, his petition before the COMELEC was
instituted pursuant to Section 4 of Republic Act No. 7166 in relation to
Section 6 of the Omnibus Election Code. 
Section 4 of RA 7166 refers to “postponement, failure of election and
special elections” while Section 6 of the Omnibus Election Code relates to
“failure of election.”  It is
simply captioned as “Petition to Declare Failure of Elections and/or For
Annulment of Elections.”

Petitioner argues that the COMELEC should
not have treated his prayer for annulment of elections as a prayer for
declaration of failure of elections. 
This argument is plainly gratuitous as well as immaterial.  A prayer to declare failure of elections and
a prayer to annul the election results for vice mayor in this case are actually
of the same nature.  Whether an action is
for declaration of failure of elections or for annulment of election results,
based on allegations of fraud, terrorism, violence or analogous cause, the
Omnibus Election Code denominates them similarly.  No positive gain will accrue to petitioner’s
cause by making a distinction without a difference. (Banaga, Jr. vs.
Commission on Elections, 336 SCRA 701 [2000], Quisumbing, J.).

g.) Annul elections

§1. Where the evidence shows that in
a particular precinct the secrecy of the vote was violated x x x and tampered
with the ballots and mixed them; the election in said precinct must be
annulled, as the intent to defraud the will of the electorate is manifest, and
it is impossible to tell with certainty just what was the true result of the
election.

 Where the legal votes cannot be separated
from the illegal votes, it is improper to deduct a certain number of votes from
those obtained by one candidate and award them to another and the election in
that precinct must be annulled. (Cailles vs. Gomez and Barbaza, 42 Phil. 496
[1921], Villamor, J.).

 §2. When the fraudulent ballots are
so mixed up with the legal ballots that the legal cannot be separated from the
illegal ballots, and the election returns are not reliable by reason of certain
marks thereon, indicating that they have been falsified, the election must be
annulled. (Mandac vs. Samonte, 49 Phil. 284 [1926], Villamor, J.).

 §3. Elections should never be held
void unless they are clearly illegal; it is the duty of the court to sustain an
election authorized by law if it has been so conducted as to give a free and
fair expression of the popular will, and the actual result thereof is clearly
ascertained.  It has been held that gross
irregularities not amounting to fraud do not vitiate an election.  (20 C.J., 181, par. 222.)

 The power to throw out an entire election
should be exercised with the greatest care and only under circumstances which
demonstrate beyond all reasonable doubt either that the disregard of the law
has been so fundamental or so persistent and continuous that it is impossible
to distinguish what votes are lawful and what are unlawful, or to arrive at any
certain result whatsoever, or that the great body of the voters have been
prevented by violence, intimidation and threats from exercising their
franchise.  (20 C.J., pars. 179-181.). (Demeterio
vs. Lopez, 50 Phil. 45 [1927], Villa-Real, J.).

 §4. The registration of voters made
outside the date fixed by law, though void, is not sufficient reason for the
annulment of the election.  Annulment of
an election can be justified where as a result of said irregularity “many
voters, without any qualification whatsoever succeeded in having their names
inscribed in the official list” and that it was “impossible to segregate the
legal from the illegal votes” and because the frauds and irregularities
committed had affected the entire election to such an extent that it is
impossible to ascertain the true will of the voters authorized to exercise the
right of suffrage (Reyes v. Bitong, 57 Phil. 100, 113-114 [1932]). (Florendo,
Sr. vs. Buyser, 21 SCRA 1106 [1967], Castro, J.).

 §5. In other words, in line
with the plenitude of its powers and its function to protect the integrity of
elections, the COMELEC must be deemed possessed of authority to annul elections
where the will of the voters has been defeated and the purity of elections
sullied.  It would be unreasonable to
state that the COMELEC has the legal duty to perform and at the same time deny
it the wherewithal to fulfill that task. 
The fact that widespread terrorism occurred after the elections, and not
in the casting of votes, should make no difference. (Sanchez vs. Commission
on Elections, 114 SCRA 454 [1982], Melencio-Herrera, J.).

 §6. While, however, the COMELEC acted within
its jurisdiction in taking cognizance of the private respondents’ petition to
annul the election results of or to declare failure of elections in Parang,
Sulu, it committed grave abuse of discretion when confronted with essentially
the same situation in petitioners’ own petition to annul the elections of or to
declare failure of elections in the municipalities of Tapul, Panglima Estino,
Pata, Siasi and Kalinggalang Caluang. 
The COMELEC arbitrarily and without valid ground dismissed the said
petition respecting the aforementioned five municipalities.  The untimeliness of the petition is an
untenable argument for such dismissal, because as Commissioner Regalado
Maambong pointed out in his own dissenting opinion, no law provides for a
reglementary period within which to file annulment of elections when there is
as yet no proclamation.

 It was also grave abuse of discretion on the part of
the COMELEC to have, after assuming jurisdiction over SPA No. 95-284 upon the
strength of its statutory grant of power under Section 4 of R.A. No. 7166 in
relation to Section 6 of the Omnibus Election Code of the Philippines,
disregarded the mandate of said provisions and done away with the holding of
special elections in Parang, Sulu. While the majority acknowledged that a
decision annulling an election no less requires a special election in its
aftermath, citing the aforecited legal provisions, the majority considered such
provisions anyway negotiable from which they can deviate by using “reasonable,
practicable and equitable” solutions “to end the instant election controversy”
because “exceptional and supervening events so preponderate.” (Loong vs. Commission on Elections, 257 SCRA 1 [1996], Hermosisima,
Jr., J.).
 

h.) Hold special elections

 §1. A reading of Section 17 (e) of
Republic Act 6132 makes it apparent that Congress has delegated to the Comelec
the power to call for a special election—a power essentially legislative in
nature, being merely an incident to or an extension or modality of the power to
fix the date of the elections.  However,
in the proper exercise of the delegated power, Congress saw fit to require the
Comelec to ascertain that (1) no voting has been held in any precinct or
precincts because of force majeure, violence or terrorism, and (2)
that the votes not cast therein suffice to affect the results of the
elections.  The language of the provision
clearly requires the concurrence of the two circumstances to justify the
calling of a special election.

The Comelec concedes that what transpired
in Karomatan constitutes “not merely a simple case of irregularity in the
voting but a case of no voting or no election at all.”  However, the Comelec attributes this to
“massive fraud” rather than to force majeure, violence or terrorism—the
three causes explicitly enumerated by Section 17 (e).  Unlike Section 17 (d) which empowers the
Comelec to postpone the election in any political division or subdivision
whenever it finds that the holding of a free, orderly and honest election
therein is rendered impossible by reason of fraud, violence, coercion,
terrorism, or any other serious cause or causes, Section 17 (e) excludes the
situation where no voting has been held because of fraud.  Furthermore, doubt exists whether or not the
irregularities committed in Karomatan properly partake of violence or
terrorism.  This being the case, we find
that the first circumstance is not attendant. (Usman vs. Commission
on Elections, 42 SCRA 667 [1971], [Castro, J.).

§2. Clearly, under Section 5 of Batas
Pambansa Blg. 52, above-quoted, when the election results in a failure to
elect, the COMELEC may call for the “holding or continuation of the election as
soon as practicable.”  We construe this
to include the calling of a special election in the event of a failure to elect
in order to make the COMELEC truly effective in the discharge of its
functions.  In fact, Section 8 of the
1978 Election Code, supra, specifically allows the COMELEC to call a
special election for the purpose of filling a vacancy or a newly created
position, as the case may be.  There
should be no reason, therefore, for not allowing it to call a special election
when there is a failure to elect.

 It
would be to circumscribe the power of the COMELEC to ensure free, orderly and
honest elections if we were to hold that the COMELEC authority to call for the
holding of the election is applicable only when the causes therefor occurred before
the elections; in other words, that the grounds for calling special
elections do not include post-election terrorism.  That interpretation would not only hamper the
effectiveness of the COMELEC in the discharge of its functions but it would
also, in case of failure to elect due to post-election terrorism, delay the
opportunity to the voters to cast their votes at the earliest possible
time.  The electorate should not be
disenfranchised for long and the COMELEC should not be prevented from taking
the necessary steps to complete the elections. 
After all, the casting of ballots is not the only act constitutive of
elections.  An election is not complete
until proclamation has been made. (Sanchez vs. Commission on Elections, 114
SCRA 454 [1982], Melencio-Herrera, J.).

§3. Similarly, where there is failure
of election due to loss of lists of voters in the precincts affected, the
Commission may order the holding of special election in the said precincts if
the number of voters therein may affect the results of the election. (Agpalo,
Ruben, E., Comments on the Omnibus Election Code, 1998 Revised Edition, p. 28,
citing Barabu vs. Commission on Elections, G.R. No. 78820, May 17, 1988).

§4. Where the voters were not
notified of the clustering of precincts so that a great number of voters were
unable to vote, resulting in failure of election, the Commission is empowered
to call a special election in the precincts affected. (Ibid., citing
Mangudadatu vs. Commission on Elections, G.R. No. 86953, May 4, 1988).

§5. There are, therefore, two
requisites for the holding of special elections under Section 6 of the Omnibus
Election Code, viz., (1) that there is a failure of election, and (2)
that such failure would affect the results of the election.

Pursuant to Section 6 of the Omnibus
Election Code (B.P. Blg. 881), a special election may be held in Precinct No.
13 only if the failure of the election therein “would affect the result of the
election.”  This “result of the election”
means the net result of the election in the rest of the precincts in a given
constituency, such that if the margin of a leading candidate over that of his
closest rival in the latter precincts is less than the total number of votes in
the precinct where there was failure of election, then such failure would
certainly affect “the result of the election”; hence, a special election must
be held.

In the course of the deliberations on
these cases, the Court considered the possible application, by analogy, of
Section 10, Article VII of the 1987 Constitution providing that no special
election in the event of a vacancy in the Offices of the President and
Vice-President “shall be called if the vacancy occurs within eighteen months
before the date of the next presidential election,” and of the second paragraph
of Section 4 of R.A. No. 7166.  x x
x  A view was expressed that we should
not hold the special election because the underlying philosophy for the
prohibition to hold the special election if the vacancy occurred within a
certain period before the next presidential election or the next regular
election, as the case may be, is obviously the avoidance of the expense to be
incurred in the holding of a special election when a regular election is, after
all, less than a year away.  The Court
ultimately resolved that the aforesaid constitutional and statutory
proscriptions are inapplicable to special elections which may be called under
Section 6 of the Omnibus Election Code. (Lucero vs. Commission on Elections,
234 SCRA 280 [1994], Davide, Jr., J.).

§6. In several cases, the Court has
ruled that the pre-conditions for declaring a failure of election are:  (1) that no voting has been held in any
precinct or precincts because of force majeure, violence or terrorism,
and (2) that the votes not cast therein suffice to affect the results of the
elections.  The concurrence of these two
(2) circumstances are required to justify the calling of a special election. (Hassan
vs. Commission on Elections, 264 SCRA 125 [1996], Kapunan, J.).

§7. If the special election and
counting of ballots were to be held only for the position of mayor, then
unfairness would result.  In Tupay T.
Loong v. Commission on Elections and Abdusakur Tan, we held that a special
election only for the position of Governor cannot be sanctioned since other
officials already serving their terms were proclaimed on the basis of the same
manually counted votes.  Thus, to hold a
special election only for one position would be discriminatory and violative of
the private respondent’s right to equal protection of the laws.  Such is not the case here. (Immam vs.
Commission on Elections, 322 SCRA 866 [2000], Ynares-Santiago, J.).

 i.) Act as a national board of
canvassers

§1. Section
166 of the Revised Election Code constitutes the Commission on Elections as a
national board of canvassers with respect to the election of senators. Such a
board is a ministerial body empowered only to accept as correct returns
transmitted to it which are in due form and to ascertain and declare the result
as its appears therefrom.  Questions of
illegal voting and fraudulent practices are passed on by another tribunal.
However, it must satisfy itself of the genuineness of the returns. Where the
returns are obviously manufactured, as where they show a great excess of votes
over what could legally have been cast, the board will not be compelled to
canvass them. (Nacionalista Party vs. Commission on Elections, 85 Phil. 149
[1949], Ozaeta, J.).

§2. While the Comelec in its role as
senatorial canvasser has the power to reject returns before it which in its
opinion were illegal and not authentic, neither law nor precedent authorizes it
to impose the same criterion in advance upon the provincial boards of
canvassers.  The latter are entitled to
use their own judgment in determining whether the irregularities appearing on
the returns before them warrant their rejection. (Alonto vs. Commission on
Elections, 22 SCRA 878 [1968], Reyes, J.B.L., Actg., C.J.).

j.) Suspend/annul canvass and
proclamation

§1. In
a number of cases, the Supreme Court has held that the Commission on Elections
has the authority to annul proclamations on certain grounds, such as an illegal
canvass (Mintu vs. Enage, et al., G. R. No. L- 1834, December 31, 1947; Ramos
vs. Commission on Elections, 80 Phil., 722); proclamation based on
incomplete returns (Abendante vs. Relatato, 94 Phil., 8); proclamation
made despite a timely petition filed with the board of canvassers by all the
members of the Board of Election Inspectors calling attention to an inadvertent
and unintentional mistake in the election return and correcting the same, as
well as a petition by the candidate affected, for suspension to give an
opportunity to go to court, both of which petitions were denied by the board (Lacson
vs. Commission on Elections, G. R. No. L-16261, December 28, 1959); and a
proclamation made in an unauthorized meeting of the board of canvassers because
held over the objections of the Commission’s representative and against the
express instructions of the Commission itself in the exercise of its
supervisory powers (Santos vs. Commission on Elections, 106 Phil., 877).
(Salcedo, Jr., vs. Commission on Elections, et al., 108 Phil. 1164 [1960],
Barrera, J.).

§2. In
view of the exclusive authority conferred upon it by the Constitution for the
administration and enforcement of all laws relative to elections, the
Commission on Elections has the power to suspend the proclamation of the
winning candidate pending an inquiry into irregularities brought to its
attention.  The Commission has the right
to inquire whether or not discrepancies exist between the various copies of
election returns for the precincts in question, and suspend the canvass in the
meantime, so the parties can ask for a recount in case of variance.

The correction of any error in the order
of the Commission on Elections to suspend the proclamation of the winner in an
election does not lie within the authority of Courts of First Instance, because
Article X, Section 2 of the Constitution expressly prescribes “that the
decisions, orders and rulings of the Commission shall be subject to review by
the Supreme Court” and by no other tribunal (Luison vs. Garcia, G.R. No.
L-10916, May 20, 1957).  The Commission
on Elections would be reduced to impotence if the Court of First Instance of
every province were to arrogate unto itself the power to disregard, suspend, or
contradict any of its orders. (Albano vs. Arranz, 114 Phil. 318 [1962]; 4
SCRA 386 [1962], Reyes, J.B.L., J.).

§3. Where, as in the case at bar,
there were patent erasures and superimpositions in words and figures on the
face of the election returns submitted to the board of canvassers, it was
imperative for said board to stop the canvass so as to allow time for
verification of authentic copies and recourse to the courts (Javier vs.
Commission on Elections, L-22248, January 30, 1965).  A canvass or proclamation made
notwithstanding such patent defects, without awaiting proper remedies, is null
and void (Ibid).

 Where a candidate was prevented from
securing the Commission on Elections’ copies of the returns to establish a
discrepancy between them and the Provincial Treasurer’s copies, the failure to
submit the said copies to the board should not prejudice his right to petition
for recount before the court.

 Patent erasures and superimpositions in
words and figures of the votes stated in the election returns strike at the
reliability of said returns as basis for canvass and proclamation.  A comparison with the other copies, and, in
case of discrepancy, a recount, is the only way to remove grave doubts as to
the correctness of said returns as well as of ascertaining that they reflect
the will of the people. (Purisima vs. Salanga, 122 Phil. 1084 [1965]; 15
SCRA 704 [1965], Bengzon, J.P., J.).

 §4. It is the ministerial function of
a board of canvassers to count the results as they appear in the returns which
on their face do not reveal any irregularities or falsities.  The return in this case shows nothing on its
face from which the canvassers might conclude that it does not speak the
truth.  It is only when it is compared
with the certificate of the election registrar that a discrepancy appears as to
the number of registered voters.  The
return therefore is by no means “obviously manufactured” so to justify its
exclusion.

It is now settled doctrine that the COMELEC has the
power to annul an illegal proclamation as when they are based on incomplete
returns, and order a new canvass to be made by counting the returns wrongfully
excluded. (Demafiles vs. Commission on Elections, 21
SCRA 1462 [1967], Castro, J.).

§5. The duty of the municipal board
of canvassers to count the votes cast for candidates for municipal offices as shown
in all the election returns produced by the municipal treasurer, can not
be avoided.  The board is to be guided by
election returns transmitted to it which are in due form.  Indeed, the board must be satisfied of the
genuineness of the returns.  A canvass
made on incomplete returns may be annulled. (Pedido vs. Commission on
Elections, 22 SCRA 1403 [1968], Sanchez, J.).

§6. Time and again, the Supreme Court
has given its imprimatur on the principle that Comelec is with authority to
annul any canvass and proclamation which was illegally made.  The fact that a candidate proclaimed has
assumed office is no bar to the exercise of such power.  Therefore, a petition before the Comelec
which is directed at the annulment of the canvass and proclamation is within
the area allocated by the Constitution and the law to the Comelec to inquire.

Advanced copies of election returns cannot
be the basis of proclamation. 
Proclamation should be based on the copies of the returns for the
municipal treasurer, or if unserviceable, on three other authentic copies of
the returns, namely: that for the Comelec, or for the provincial treasurer, or
that in the ballot box.

It is true that after proclamation the
usual remedy of any party aggrieved in an election is to be found in an
election protest.  But that is only on
the assumption that there has been a valid proclamation.  Where the proclamation itself is illegal, the
assumption of office cannot in any way affect the basic issues.

The election law does not provide for a
time limit within which a candidate may challenge the validity of a
proclamation before the Comelec.  But
inaction for an unreasonable period may block such remedy to challenge the
validity of the proclamation. 
Considering the steps taken by respondent in the case at bar, first, in
the Court of First Instance, and second, in the Comelec, the time gap between
the alleged illegal proclamation of November 20, 1967 and the petition before
the Comelec of January 6, 1968 does not authorize this Court to say that respondent
Alim Balindong is guilty of laches. (Aguam vs. Commission on Elections, 23
SCRA 883  [1968], Sanchez, J.).

§7. Boards of Canvassers may suspend
the canvass only if it should clearly appear: (1) that another copy or other
authentic copies of the statement of the election return from an election
precinct submitted to the board give to a candidate a different number of votes
and the difference affects the result of the election; or (2) that there is a
difference between the votes of the same candidate written in words and those
written in figures in the same election return; or (3) that the entry of votes
in the election return is on its face clearly falsified; or (4) that it is not
legible.  In this case, precinct No. 5
does not come under any of these situations. (Felix vs. Commission on
Elections, 23 SCRA 1288 [1968], Concepcion, C.J.).

§8. Where the board of canvassers
with knowledge that the return from one precinct is undoubtedly vitiated by
clerical mistake, continued the canvass and proclaimed a winner based on the
result of such canvass, the proclamation may be annulled. (Solidum vs.
Macalalag, 28 SCRA 200 [1969], Sanchez, J.).

§9. Proclamation cannot be held where
there are still questions pending before the Court of First Instance involving
the election returns.

Where the canvassing board has found the
provincial treasurer’s copies to be authentic, clean and regular on their face,
and the Comelec copies were tampered, the canvass should be based on the
provincial treasurer’s untampered copies without need of requiring Comelec to
make a comparison between the different copies if the purpose is to ascertain
whether said copies were prepared by different hands.

Once the election return is made and the
certificate of votes of candidates is issued, no one, including the inspectors
themselves, may make any change without authority.  Where the chairman of the board of inspectors
made a correction on the return without the authority of the other members of
the board and such correction not having been initiated by them, the original
entry in the return may not be considered as altered.

Failure
of the board of inspectors of the precinct to write the name of the candidate
on the returns makes the same incomplete. 
Because of the incompleteness of the returns, no complete canvass of
votes can be had and cannot be the basis of a subsequent proclamation.  In such a case, the Comelec should order the
board of inspectors concerned to open the ballot boxes, count the votes and
make new returns for the candidates whose name and votes were not reflected in
the returns. (Tiglao vs. Commission on Elections, 31 SCRA 719 [1970],
Sanchez, J.).

§10. Failure
of the Board of Canvassers to investigate and to disregard patent
irregularities such as where some of the returns considered by the canvassers
were plainly irregular on their face, authorizes the Comelec to annul the
canvass and resulting proclamation.  (Antonio,
Jr. vs. Commission on Elections, 32 SCRA 319 [1970], Reyes, J.B.L., J.).

§11. Under the circumstances,
therefore, and considering that any error in the Statement of Votes would
affect the proclamation made on the basis thereof, and primordially, in order
to determine the true will of the electorate, the COMELEC Decision ordering the
Board of Canvassers to reconvene and prepare a new Statement of Votes and
Certificate of Canvass should be upheld.

It is DUREMDES’ further submission that his proclamation
could not be declared null and void because a pre-proclamation controversy is
not proper after a proclamation has been made, the proper recourse being an
election protest.  This is on the
assumption, however, that there has been a valid proclamation.  Where a proclamation is null and void, the
proclamation is no proclamation at all and the proclaimed candidate’s
assumption of office cannot deprive the COMELEC of the power to declare such
nullity and annul the proclamation.

DUREMDES’ proclamation having been based
on an incomplete canvass, no grave abuse of discretion can be ascribed to the
COMELEC for directing the Provincial Board of Canvassers of Iloilo “to
immediately reconvene and to include in the canvass of votes for Vice-Governor
the questioned/contested returns.”  All
the votes cast in an election must be considered because to disregard returns
is in effect to disenfranchise the voters (Mutuc vs. COMELEC, L-28517,
February 21, 1968, 22 SCRA 662).  A
canvass can not be reflective of the true vote of the electorate unless all
returns are considered and none is omitted. (Duremdes vs. Commission on
Elections, 178 SCRA 746 [1989], Melencio-Herrera, J.).

§12. Assuming however that the date
of proclamation was January 24, 1988, the filing of the protest on February 4,
1988 was still within the period since private respondent filed a
“Pre-Proclamation Protest Appeal” on January 24, 1988 effectively suspending
the running of the period for filing an election protest as provided for in
Section 248, Article XX of BP 881:  “Sec.
248.  Effect of filing petition to annul
or to suspend the proclamation.¾The
filing with the Commission of a petition to annul or to suspend the
proclamation of any candidate shall suspend the running of the period within
which to file an election protest or quo warranto proceedings.” (Macias
II vs. Commission on Elections, 182 SCRA 137 [1990], Paras, J.).

§13. The filing of the petition on 05
April 1993, following petitioner’s proclamation on 28 March 1993, is well
within the ten-day period required for the purpose.  This Court has held that the filing of a
petition to annul a proclamation suspends the running of the ten-day period
within which to file an election protest or a petition for quo warranto,
provided that there are allegations which, when proved, will render the
proclamation null and void.  Such
petition may be filed directly with the COMELEC even as a pre-proclamation
controversy provided that it is done within ten (10) days following the
proclamation.

The petitioner argues that after
proclamation and assumption of office, a pre-proclamation controversy is no
longer viable.  Indeed, we are aware of
cases holding that pre-proclamation controversies may no longer be entertained
by the COMELEC after the winning candidate has been proclaimed.  This rule, however, is premised on an
assumption that the proclamation is valid. 
Where a proclamation is null and void, the proclamation is no
proclamation at all and the proclaimed candidate’s assumption of office cannot
deprive the COMELEC of the power to make such declaration a nullity. (Mentang
vs. Commission on Elections, 229 SCRA 666 [1994], Vitug, J.).

§14. Where, as in this case, the
proclamation is null and void, the same is no proclamation at all and the
proclaimed candidate’s assumption of office does not deprive the COMELEC of the
power to declare such nullity and annul the proclamation. (Benito vs.
Commission on Elections, 235 SCRA 436 [1994], Kapunan, J.).

§15. It is settled jurisprudence that
COMELEC can suspend the canvass of votes pending its inquiry whether there
exists a discrepancy between the various copies of election returns from the
disputed voting centers.  Corollarily,
once the election returns were found to be falsified or tampered with, the
COMELEC can annul the illegal canvass and order the Board of Canvassers to
reconvene and proclaim the winners on the basis of the genuine returns or, if
it should refuse, replace the members of the board or proclaim the winners
itself. (Mastura vs. Commission on Elections, 285 SCRA 493 [1998],
Bellosillo, J.).

k.) Compel new proclamation

§1. The duty of the board of
canvassers to make the proclamation in accordance with the election returns of
all the precincts of the municipality is ministerial; so that, where the board
proclaimed only four councilors, where six councilors should have been
proclaimed—the Commission may order it to reconvene and make a new proclamation
by including the other two councilors who received the highest number of votes.
(Olano vs. Ronquillo, 118 Phil. 205 [1963]; 8 SCRA 204 [1963], Bengzon,
C.J.).

l.) Deputize law enforcement agencies

§1. The contention of private
respondents that the deputation by the Comelec of the prosecuting arms of the
Government would be warranted only before the elections and only to ensure
free, honest, orderly, peaceful and credible elections, that is, to perform the
peace-keeping functions of policemen, lacks substance.  There is nothing in Section 2 (4) of Article
IX-C of the Constitution which requires such a pinched and niggardly
interpretation of the authority of the Comelec to appoint as its deputies,
officials or employees of other agencies and instrumentalities of the
government. The prompt investigation and prosecution and disposition of
election offenses constitute an indispensable part of the task of securing
free, orderly, honest, peaceful and credible elections.  The investigation and prosecution of election
offenses are, in an important sense, more important than the maintenance of
physical order in election precincts.  x
x x.  The only limitation the
Constitution itself places upon the Comelec’s authority over its deputies
relates to the enforcement of such authority through administrative
sanctions.  Such sanctions—e.g.,
suspension or removal—may be recommended by the Comelec to the President (Sec.
2 [8], Article IX-C, 1987 Constitution) rather than directly imposed by the
Comelec, evidently, to pre-empt and avoid potential difficulties with the
executive department of the Government where the prosecution and other officers
deputized are ordinarily located.  All
this the respondent Judge disregarded when he motu proprio dismissed the
criminal informations filed in this case. 
The cases he cited in his identical orders—De Jesus v. People,
120 SCRA 760 (1983) and Corpus, et al.. v. Tanodbayan, 149 SCRA 281
(1987) can offer him no comfort at all; for these cases do not relate to
the authority of the Comelec to deputize the regular prosecution arms of the
Government for the investigation and prosecution of election offenses and those
cases are not in conflict with our ruling here.   (People vs. Basilla, 179 SCRA 87 [1989],
Feliciano, J.).

§2. It should be stressed that the
administrative case against petitioner, taken cognizance of by, and still
pending with, the COMELEC, is in relation to the performance of his duties as
an election canvasser and not as a city prosecutor.  The COMELEC’s mandate includes its authority
to exercise 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.  In order to help ensure that such duly
deputized officials and employees of government carry out their respective
assigned tasks, the law has also provided that upon the COMELEC’s
recommendation, the corresponding proper authority (the Secretary of the
Department of Justice in the case at bar) shall take appropriate action, either
to suspend or remove from office the officer or employee who may, after due
process, be found guilty of violation of election laws or failure to comply
with instructions, orders, decisions or rulings of the COMELEC. (Tan vs.
Commission on Elections, 237 SCRA 353 [1994], Vitug, J.).

m.) Investigate and prosecute election offenses

§1. 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.  To divest the COMELEC
of the authority to investigate and prosecute offenses committed by public
officials in relation to their office would thus seriously impair its
effectiveness in achieving this clear constitutional mandate. (De Jesus vs.
People, 120 SCRA 760 [1983], Escolin, J.).

§2. In effect the 1987 Constitution
mandates the COMELEC not only to investigate but also to prosecute cases of
violation of election laws.  This means
that the COMELEC is empowered to conduct preliminary investigations in cases
involving election offenses for the purpose of helping the Judge determine probable
cause and for filing an information in court. 
This power is exclusive with the COMELEC.

Hence, the Provincial Fiscal, as such,
assumes no role in the prosecution of election offenses.  If the Fiscal or Prosecutor files an
information charging an election offense or prosecutes a violation of election
law, it is because he has been deputized by the COMELEC.  He does not do so under the sole authority of
his office.  (People vs. Inting, 187
SCRA 788 [1990], Gutierrez, Jr., J.).

§3. Under the present law, however,
except in case of urgent need, the appointment or hiring of new employees or
the creation or filling up of new positions in any government office, agency or
instrumentality, whether national or local, including government-owned or
controlled corporations, is banned during the period of forty-five (45) days
before a regular election and thirty (30) days before a special election if
made without the prior authority of the Commission on Elections.  A violation thereof constitutes an election
offense.  Then too, no less than the
present Constitution¾and
not just the Election Law as was the case at the time of Zaldivar¾expressly provides that the Commission may
“[R]ecommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or
disregard of, or disobedience to its directive, order, or decision.”  Moreover, the present Constitution also
invests the Commission with power to “investigate and, where appropriate, prosecute
cases of violations of election laws, including acts or omissions constituting
election frauds, offenses, and malpractices.”

It is not true that, as contended by the
petitioners, the jurisdiction of the Regional Trial Court under the election
laws is limited to criminal actions for violations of the Omnibus Election
Code.  The Constitution itself grants to
it exclusive original jurisdiction over contests involving elective municipal
officials.  Neither can We agree with the
petitioners’ assertion that the Special Civil Action filed in the court below
involves the prosecution of election offenses; the said action seeks some
reliefs incident to or in connection with alleged election offenses;
specifically, what is sought is the prevention of the further commission of
these offenses which, by their alleged nature, are continuing.

Under the COMELEC Rules of Procedure,
initiation of complaints for election offenses may be done motu proprio
by the Commission on Elections or upon written complaint by any citizen,
candidate or registered political party or organization under the party-list
system or any of the accredited citizens arms of the Commission.  However, such written complaints should be
filed with the “Law Department of the Commission; or with the offices of the
Election Registrars, Provincial Election Supervisors or Regional Election
Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal.” (Gallardo
vs. Tabamo, Jr., 218 SCRA 253 [1993], Davide, Jr., J.).

n.) Supervise and regulate use of franchise

§1. Consistent with the opinion
expressed in the cases of Imbong vs. Comelec and Gonzales vs. Comelec
(L-32432 & L-32443, Sept. 11, 1970), this slight limitation of the freedom
of expression of the individual, whether candidate or not, as expressed in par.
F of Sec. 12, is only one of the many devices employed by the law to prevent a
clear and present danger of the perversion and prostitution of the electoral
apparatus and of the denial of the equal protection of the laws. 

The fears and apprehensions of petitioner
concerning his liberty of expression in these two cases, applying the less
stringent balancing-of-interests criterion, are far outweighed by the
all-important substantive interests of the State to preserve the purity of the
ballot and to render more meaningful and real the guarantee of the equal
protection of the laws.

Special recognition should be made of the
circumspection with which Congress couched the limitation in par. F of Sec. 12,
revealing its deep respect for the freedom of expression guaranteed in the Bill
of Rights.  It should be noted that
Congress did not impose on the publishers of newspapers, magazines and
periodicals the duty to allocate for free a Comelec space in their newspapers,
magazines or periodicals, but merely required the Comelec to endeavor to
acquire such free Comelec space for the benefit of all the candidates.  Congress thereby realized that to compel the
publishers to provide free Comelec space would be an undue abridgment of the
publisher’s own freedom.

We cannot with justification pontificate
that the limitation contained in Sec. 12 (F) of R.A. 6132 is not a reasoned and
reasonable judgment on the part of Congress, which is also the ultimate
guardian of the liberties and welfare of the people in quite as great a degree
as the Courts. (Badoy, Jr., vs. Commission on Elections, 35 SCRA 285 [1970],
Makasiar, J.).

§2.  (I)t is clear from Art. IX-C of
the 1987 Constitution that what was granted to the Comelec was the power to
supervise and regulate the use and enjoyment of franchises, permits or other
grants issued for the operation of transportation or other public
utilities, media of communication or information to the end that equal
opportunity, time and space, and the right to reply, including reasonable,
equal rates therefor, for public information campaigns and forums among
candidates are ensured.  The evil
sought to be prevented by this provision is the possibility that a franchise
holder may favor or give any undue advantage to a candidate in terms of
advertising space or radio or television time. 
This is also the reason why a columnist, commentator, announcer or
personality, who is a candidate for elective office is required to take
a leave of absence from his work during the campaign period (2nd par. Section 11 (b) R.A. 6646).  It cannot be gainsaid that a columnist or
commentator who is also a candidate would be more exposed to the voters to the
prejudice of other candidates unless required to take a leave of absence.

(N)either Article IX-C of the Constitution
nor Section 11 (b), 2nd par. of R.A. 6646 can be construed to mean
that the Comelec has also been granted the right to supervise and regulate the
exercise by media practitioners themselves of their right to expression
during plebiscite periods.  Media
practitioners exercising their freedom of expression during plebiscite periods
are neither the franchise holders nor the candidates.  In fact, there are no candidates involved in
a plebiscite.  Therefore, Section 19 of
Comelec Resolution No. 2167 has no statutory basis.

In the case of Badoy, Jr. vs. Comelec,
L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of
certain forms of election propaganda was assailed, We ruled therein that the
prohibition is a valid exercise of the police power of the state “to prevent
the perversion and prostitution of the electoral apparatus and of the denial of
equal protection of the laws.”  The evil
sought to be prevented in an election which led to Our ruling in that case does
not obtain in a plebiscite.  In a
plebiscite, votes are taken in an area on some special political matter unlike
in an election where votes are cast in favor of specific persons for some
office.  In other words, the electorate
is asked to vote for or against issues, not candidates in a plebiscite. 

Anent respondent Comelec’s argument that
Section 19 of Comelec Resolution 2167 does not absolutely bar
petitioner-columnist from expressing his views and/or from campaigning for or
against the organic act because he may do so through the Comelec space and/or
Comelec radio/television time, the same is not meritorious.  While the limitation does not absolutely bar
petitioner’s freedom of expression, it is still a restriction on his choice
of the forum where he may express his view. 
No reason was advanced by respondent to justify such abridgment.  We hold that this form of regulation is
tantamount to a restriction of petitioner’s freedom of expression for no
justifiable reason.

Plebiscite issues are matters of public
concern and importance.  The people’s
right to be informed and to be able to freely and intelligently make a decision
would be better served by access to an unabridged discussion of the issues,
including the forum.  The people affected
by the issues presented in a plebiscite should not be unduly burdened by
restrictions on the forum where the right to expression may be exercised.  Comelec spaces and Comelec radio time may
provide a forum for expression but they do not guarantee full dissemination of
information to the public concerned because they are limited to either specific
portions in newspapers or to specific radio or television times. (Sanidad
vs. Commission on Elections, 181 SCRA 529 [1990], Medialdea, J.).

§3. The Comelec has thus been expressly
authorized by the Constitution to supervise or regulate the enjoyment or
utilization of the franchises or permits for the operation of media of
communication and information.  The
fundamental purpose of such “supervision or regulation” has been spelled out in
the Constitution as the ensuring of “equal opportunity, time, and space, and
the right to reply,” as well as uniform and reasonable rates of charges for the
use of such media facilities, in connection with “public information campaigns
and forums among candidates.” 

Section 11 (b) does, of course, limit the
right of free speech and of access to mass media of the candidates themselves.
The limitation, however, bears a clear and reasonable connection with the
constitutional objective set out in Article IX (C) (4) and Article II (26) of
the Constitution.  For it is precisely in
the unlimited purchase of print space and radio and television time that the
resources of the financially affluent candidates are likely to make a crucial
difference. (National Press Club vs. Commission on Elections, 207 SCRA 1
[1992], Feliciano, J.).

§4. The
COMELEC’s prohibition on posting of decals and stickers on “mobile” places
whether public or private except in designated areas provided for by the
COMELEC itself is null and void on constitutional grounds.

The
resolution prohibits the posting of decals and stickers not more than eight and
one-half (8-1/2) inches in width and fourteen (14) inches in length in any
place, including mobile places whether public or private except in areas
designated by the COMELEC.  Verily, the
restriction as to where the decals and stickers should be posted is so broad
that it encompasses even the citizen’s private property, which in this case is
a privately-owned vehicle.  In
consequence of this prohibition, another cardinal rule prescribed by the
Constitution would be violated.  Section
1, Article III of the Bill of Rights provides that no person shall be deprived
of his property without due process of law. (Adiong vs. Commission on
Elections, 207 SCRA 712 [1992], Gutierrez, Jr., J.).

§5.
That Resolution No. 2772 does not, in express terms, threaten publishers who
would disregard it or its implementing letters with some criminal or other
sanction, does not by itself demonstrate that the Comelec’s original
intention was simply to solicit or request voluntary donations of print space
from publishers.  A written communication
officially directing a print media company to supply free print
space, dispatched by a government (here a constitutional) agency and signed
by a member of the Commission presumably legally authorized to do so, is bound
to produce a coercive effect upon the company so addressed. 

To compel
print media companies to donate: “Comelec space” of the dimensions
specified in Section 2 of Resolution No. 2772 (not less than one-half page),
amounts to: “taking” of private personal property for public use or
purposes.  (Philippine Press
Institute, Inc. vs. Commission on Elections, 244 SCRA 272 [1995], Feliciano,
J.).

§6. The
term political “ad ban,” when used to describe Section 11(b) of R.A. No. 6646,
is misleading, for even as Section 11 (b) prohibits the sale or donation of
print space and air time to political candidates, it mandates the COMELEC to
procure and itself allocate to the candidates space and time in the media.  There is no suppression of political ads but
only a regulation of the time and manner of advertising. 

On the other hand, the validity of
regulations of time, place and manner, under well-defined standards, is
well-nigh beyond question.  What is
involved here is simply regulation of this nature.  Instead of leaving candidates to advertise
freely in the mass media, the law provides for allocation, by the COMELEC, of
print space and air time to give all candidates equal time and space for the
purpose of ensuring “free, orderly, honest, peaceful, and credible elections.”

The main purpose of Section 11(b) is
regulatory.  Any restriction on speech is
only incidental, and it is no more than is necessary to achieve its purpose of
promoting equality of opportunity in the use of mass media for political
advertising.  The restriction on speech,
as pointed out in NPC, is limited both as to time and as to scope. (Osmeña
vs. Commission on Elections, 288 SCRA 447 [1998], Mendoza, J.).

§7. For reasons hereunder given, we hold that
Sec. 5.4 lays a prior restraint on freedom of speech, expression, and the press
by prohibiting the publication of election survey results affecting candidates
within the prescribed periods of fifteen (15) days immediately preceding a
national election and seven (7) days before a local election.  Because of the preferred status of the
constitutional rights of speech, expression and the press, such a measure is
vitiated by a weighty presumption of invalidity.  (Ayer Productions Pty. Ltd. vs. Capulong, 160
SCRA 861, 873 [1988]).

(t)he grant of power to the COMELEC under
Art. IX-C, Sec. 4 is limited to ensuring “equal opportunity, time, space, and
the right to reply” as well as uniform and reasonable rates of charges for the
use of such media facilities for “public information campaigns and forums among
candidates.”  (National Press Club vs.
COMELEC, 207 SCRA 1 [1992]; Osmena vs. COMELEC, 288 SCRA 447
[1998]).

What test should then be employed to
determine the constitutional validity of Sec. 5.4?  The United States Supreme Court, through
Chief Justice Warren, held in United States vs. O’Brien:

[A] government regulation is sufficiently justified
[1] if it is within the constitutional power of the Government; [2] if it
furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free expression; and
[4] if the incidental restriction on alleged First Amendment freedoms [of
speech, expression and press] is no greater than is essential to the
furtherance of that interest.  (391 U.S.
367, 377, 20 L.Ed.2d 672, 680 [1968]).

This is so far the most influential test
for distinguishing content-based from content-neutral regulations and is said
to have “become canonical in the review of such laws”.  (G. GUNTHER & K. SULLIVAN, CONSTITUTIONAL
LAW 1217, 13TH ED.
1997).

The prohibition may be for a limited time,
but the curtailment of the right of expression is direct, absolute, and
substantial.  It constitutes a total
suppression of a category of speech and is not made less so because it is only
for a period of fifteen (15) days immediately before a national election and
seven (7) days immediately before a local election.

This sufficiently distinguishes Sec. 5.4
from R.A. No. 6646, Sec. 11 (b), which this Court found to be valid in National
Press Club vs. COMELEC and Osmena v. COMELEC.  For the ban imposed by R.A. No. 6646,
Sec. 11 (b) is not only authorized by a specific constitutional provision,
(Art. IX-C, Sec. 4.) but it is also provided an alternative so that, as this
Court pointed out in Osmena, there was actually no ban but only a
substitution of media advertisements by the COMELEC space and COMELEC hour.

To summarize then, we hold that Sec. 5.4
is invalid because (1) it imposes a prior restraint on the freedom of
expression, (2) it is a direct and total suppression of a category of
expression even though such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be achieved by means other than
the suppression of freedom of expression. 
(Social Weather Stations, Incorporated vs. Commission on Elections,
G.R. No. 147571, May 5, 2001, Mendoza, J.).

o.) Initiative

§1. In initiative and referendum, the
Comelec exercises administration and supervision of the process itself, akin to
its powers over the conduct of elections. 
These law-making powers belong to the people, hence the respondent
Commission cannot control or change the substance or the content of
legislation.  In the exercise of its
authority, it may (in fact it should have done so already) issue relevant and
adequate guidelines and rules for the orderly exercise of these “people-power”
features of our Constitution. (Subic Bay Metropolitan Authority vs.
Commission on Elections, 262 SCRA 492 [1996], Panganiban, J.).

§2. It logically follows that the COMELEC
cannot validly promulgate rules and regulations to implement the exercise of
the right of the people to directly propose amendments to the Constitution
through the system of initiative.  It
does not have that power under R.A. No. 6735. 
Reliance on the COMELEC’s power under Section 2(1) of Article IX-C of
the Constitution is misplaced, for the laws and regulations referred to therein
are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the
Constitution, or (b) a law where subordinate legislation is authorized and
which satisfies the “completeness” and the “sufficient standard” tests.

Under Section 2 of Article XVII of the
Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on
the Constitution must be signed by at least 12% of the total number of
registered voters of which every legislative district is represented by at
least 3% of the registered voters therein. 
The Delfin Petition does not contain signatures of the required number
of voters.  Delfin himself admits that he
has not yet gathered signatures and that the purpose of his petition is
primarily to obtain assistance in his drive to gather signatures. Without the
required signatures, the petition cannot be deemed validly initiated.

The COMELEC acquires jurisdiction over a
petition for initiative only after its filing. 
The petition then is the initiatory pleading. Nothing before its
filing is cognizable by the COMELEC, sitting en banc.  The only participation of the COMELEC or its
personnel before the filing of such petition are (1) to prescribe the form of
the petition; (2) to issue through its Election Records and Statistics Office a
certificate on the total number of registered voters in each legislative
district; (3) to assist, through its election registrars, in the establishment
of signature stations; and (4) to verify, through its election registrars, the
signatures on the basis of the registry list of voters, voters’ affidavits, and
voters’ identification cards used in the immediately preceding election.

Since the Delfin Petition is not the
initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it
cannot be entertained or given cognizance of by the COMELEC.  The respondent Commission must have known
that the petition does not fall under any of the actions or proceedings under
the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason
it did not assign to the petition a docket number.  Hence, the said petition was merely entered
as UND, meaning, undocketed.  That
petition was nothing more than a mere scrap of paper, which should not have
been dignified by the Order of 6 December 1996, the hearing on 12 December
1996, and the order directing Delfin and the oppositors to file their memoranda
or oppositions.  In so dignifying it, the
COMELEC acted without jurisdiction or with grave abuse of discretion and merely
wasted its time, energy, and resources. (Defensor
Santiago vs. Commission on Elections, 270 SCRA 106 [1997], Davide, Jr., J.).

p.) Reapportionment
of legislative districts

§1. District
apportionment laws are subject to review by the courts.  The constitutionality of a legislative
apportionment act is a judicial question. (Macias vs. Commission on
Elections, 3 SCRA 1 [1961], Bengzon, C.J.).

§2. The basic powers of respondent COMELEC, as
enforcer and administrator of our election laws, are spelled out in black and
white in Section 2(c), Article IX of the Constitution.  Rightly, respondent COMELEC does not invoke
this provision but relies on the Ordinance appended to the 1987 Constitution as
the source of its power of redistricting which is traditionally regarded as
part of the power to make laws.  The
Ordinance is entitled “Apportioning the Seats of the House of Representatives
of the Congress of the Philippines to the Different Legislative Districts in
Provinces and Cities and the Metropolitan Manila Area.”

Clearly then, the Constitutional
Commission denied to the COMELEC the major power of legislative
apportionment as it itself exercised the power. 
Section 2 of the Ordinance only empowered the COMELEC “to make minor adjustments
of the reapportionment herein made.”

Consistent with the limits of its power to
make minor adjustments, Section 3 of the Ordinance did not also give the respondent
COMELEC any authority to transfer municipalities from one legislative
district to another district.  The power
granted by Section 3 to the respondent COMELEC is to adjust the number
of members (not municipalities) “apportioned to the province out of
which such new province was created. . .”

The issue involves a problem of
reapportionment of legislative districts and petitioner’s remedy lies with
Congress.  Section 5(4), Article VI of
the Constitution categorically gives Congress the power to reapportion, thus:
“Within three (3) years following the return of every census, the Congress
shall make a reapportionment of legislative districts based on the standards
provided in this section.”  In Macias
vs. COMELEC, we ruled that the validity of a legislative apportionment is a
justiciable question.  But while this
Court can strike down an unconstitutional reapportionment, it cannot itself
make the reapportionment as petitioner would want us to do by directing respondent
COMELEC to transfer the municipality of Tolosa from the First District
to the Second District of the province of Leyte.  (Montejo vs. Commission on Elections, 242
SCRA 415 [1995], Puno, J.).

q.) Promulgate rules of procedure

§1. Cognizance may also be taken of
the fact that at the time PENAFLORIDA filed the Supplemental Petition on 20
June 1988, there was no clear-cut rule on the matter.  It was only in the COMELEC Rules of
Procedure, which took effect on 15 November 1988, wherein it was provided under
subparagraph (2), paragraph (a), Section 4 of Rule 27, that the matter of
correction of the statement of votes may be the subject of a pre-proclamation
case which may be filed directly with the Commission.  Nonetheless, there should be no question, considering
the aforequoted Section 241 in relation to Section 227 of the Omnibus Election
Code, that the issue is one that can be raised directly with the COMELEC.  It is a procedure that best recommends itself
specially considering that the Statement of Votes is a vital component in the
electoral process.  It supports the
Certificate of Canvass and is the basis for proclamation.

Said rule, therefore, cannot be given
retroactive effect the legal truth being that laws of procedure may be
retroactively applied provided no substantial rights are impaired.  (Duremdes vs. Commission on Elections, 178
SCRA 746 [1989], Melencio-Herrera, J.).

§2. Assuming however that the date of
proclamation was January 24, 1988, the filing of the protest on February 4,
1988 was still within the period since private respondent filed a
“Pre-Proclamation Protest Appeal” on January 24, 1988 effectively suspending
the running of the period for filing an election protest as provided for in
Section 248, Article XX of BP 881:  “Sec.
248.  Effect of filing petition to annul
or to suspend the proclamation.¾The
filing with the Commission of a petition to annul or to suspend the
proclamation of any candidate shall suspend the running of the period within
which to file an election protest or quo warranto proceedings.”

Anent the second issue, petitioner argues
that because private respondent failed to allege in his original petition that
he “duly filed a certificate of candidacy,” respondent COMELEC did not acquire
jurisdiction over the election protest. 
Petitioner’s argument is untenable. 
As correctly held by the COMELEC in the assailed Decision:  “The Commission, First Division, notes that
the above-mentioned legal provision does not require that a protest must state
that it is being filed “by a candidate who has duly filed his certificate of
candidacy.”  Sec. 250 of the Omnibus
Election Code only provides that a protest must be filed by a candidate who
“has duly filed his certificate of candidacy and has been voted for the same office”,
without requiring in said section that this matter must be specifically alleged
in the protest. (Macias II vs. Commission on Elections, 182 SCRA 137 [1990],
Paras, J.).

§3. It is settled that the best
authority to interpret a rule is the source itself of the rule (Advincula v.
Commission on Appointments, 5 SCRA 1179), in this case the COMELEC.  The COMELEC rejects the petitioner’s
interpretation as a misreading of the rule. Its own interpretation must
prevail, of course.  At any rate, it is
established that there was in fact such an initial evaluation and that the
ballots revised were actually examined by the Third Division before it issued
the show-cause order.  The record belies
the petitioner’s allegation that the COMELEC sent for the ballots only after
its show-cause order.

We find
that the public respondent committed no error in issuing the show-cause order
in accordance with its own interpretation of its own rule.

As for
the allegedly fake ballots, no better authority than the COMELEC itself can
determine their authenticity, having itself ordered and supervised the printing
of all the official ballots. (Bocobo vs. Commission on Elections, 191 SCRA
576 [1990], Cruz, J.).

§4. It
is clear from the abovequoted provision of the 1987 Constitution that election
cases include pre-proclamation controversies, and all such cases must first be
heard and decided by a Division of the Commission.  The Commission, sitting en banc, does
not have the authority to hear and decide the same at the first instance.  In the COMELEC RULES OF PROCEDURE,
pre-proclamation controversies are classified as Special Cases and, in
compliance with the above provision of the Constitution, the two (2) Divisions
of the Commission are vested with the authority to hear and decide these
Special Cases.  Rule 27 thereof governs
Special Cases; specifically, Section 9 of the said Rule provides that appeals
from rulings of the Board of Canvassers are cognizable by any of the Divisions
to which they are assigned and not by the Commission en banc. (Sarmiento
vs. Commission on Elections, 212 SCRA 307 [1992], Davide, Jr., J.).

§5. No
violation of due process, amounting to grave abuse of discretion or lack of
jurisdiction, was committed by the COMELEC’s First Division when it promulgated
the Resolution of 18 September 1992 without any hearing, and by the COMELEC en
banc when it likewise resolved petitioner’s motion for reconsideration
without a hearing.

It is precisely for this reason, and his
awareness of the legal consequences thereof, that the petitioner carefully
avoided characterizing the Callar report as “hearsay”.  Nowhere in his pleadings are We to find any
objections to the Callar report on that ground. 
Petitioner purposely omitted such argument because he knew only too well
that the Callar report is an official act of an officer of the COMELEC made
after an investigation conducted in the performance of a lawful official
duty.  It thus enjoys the presumption of regularity.  Besides, by the parties’ compliance with the
aforesaid paragraph (e), Section 8, Rule 27 of the COMELEC Rules of Procedure,
petitioner was estopped from objecting to the admission in evidence of the Callar
report, in effect leaving to the PBC—and then the First Division of the COMELEC
on appeal¾the determination of the factual issue
concerning the validity of the COC in question. 
More importantly, the Callar report falls under Section 44, Rule 130 of
the Rules of Court which provides for an exception to the hearsay rule.  The Rules of Court applies suppletorily to
proceedings before the COMELEC.

We have said, through then Chief Justice
Concepcion in Lucman vs. Dimaporo (33 SCRA 387), that this Court cannot
review rulings or findings of fact of the Commission on Elections as there is
no reason to believe that the framers of the Constitution intended to place the
Commission, created and explicitly made independent by the Constitution
itself, on a lower level than ordinary administrative organs, the findings of
which are not even disturbed by courts of justice except when there is
absolutely no evidence or no substantial evidence to support the same.  These exceptions, just as any other in
respect to the rule on conclusiveness of findings of fact of the Court of
Appeals, which may equally apply to the findings of fact of the COMELEC, are
not present in this case. (Pangarungan vs. Commission on Elections, 216 SCRA
522 [1992], Davide, Jr., J.).

§6. The present Constitution,
however, implicitly grants the Commission the power to promulgate such rules
and regulations.  The pertinent portion
of Section 2 of Article IX-C thereof reads as follows:  “SEC. 2. 
The Commission on Elections shall exercise the following powers and
functions:  (1) Enforce and administer
all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.” (Emphasis supplied). x x x The
word regulations is not found in either the 1935 or 1973
Constitutions.  It is thus clear that its
incorporation into the present Constitution took into account the Commission’s
power under the Omnibus Election Code (Batas Pambansa Blg. 881), which was
already in force when the said Constitution was drafted and ratified, to: x x x
“Promulgate rules and regulations implementing the provisions of this Code or
other laws which the Commission is required to enforce and administer, x x x.” (Gallardo
vs. Tabamo, Jr., 218 SCRA 253 [1993], Davide, Jr., J.).

§7. Petitioner filed the election protest
(Civil Case No. 343-M-92) with the Regional Trial Court, whose proceedings are
governed by the Revised Rules of Court. 
Section 1, Rule 13, Part III of the COMELEC Rules of Procedure is not
applicable to proceedings before the regular courts.  As expressly mandated by Section 2, Rule 1,
Part I of the COMELEC Rules of Procedure, the filing of motions to dismiss and
bill of particulars, shall apply only to proceedings brought before the
COMELEC.

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 the regular courts.

Constitutionally speaking, the COMELEC
cannot adopt a rule prohibiting the filing of certain pleadings in the regular
courts.  The power to promulgate rules
concerning pleadings, practice and procedure in all courts is vested on the
Supreme Court.

Private respondent received a copy of the
order of the Regional Trial Court denying his motion for a bill of particulars
on August 6, 1992.  Under Section 1(b),
Rule 12 of the Revised Rules of Court, a party has at least five days to file
his answer after receipt of the order denying his motion for a bill of
particulars.  Private respondent,
therefore, had until August 11, 1992 within which to file his answer.  The Answer with Counter-Protest and
Counterclaim filed by him on August 11, 1992 was filed timely. (Aruelo, Jr.
vs. Court of Appeals, 227 SCRA 311 [1993], Quiason, J.).

§8. The
Supplemental Petition which was meant to be suppletory to the original petition
involving a pre-proclamation controversy, is a prohibited pleading. Rule 13 of
the 1993 COMELEC Rules of Procedure states: “Section 1.  What Pleadings are not Allowed: x x x “(g)
supplemental pleadings in special actions and in special cases.  A pre-proclamation controversy is a special
case in accordance with Section 5 (h), Rule 1, 1993 COMELEC Rules of Procedure,
thus:  “Sec. 5.  Meaning of Words.¾Whenever used in
these Rules, the following words or terms shall mean: x x x “(h) Special
Cases¾shall refer to Pre-proclamation cases.”

As the name connotes, a supplemental
petition merely supplies deficiencies in aid of the original petition.  It cannot be used to introduce a new matter
or a new cause of action or defense which is precisely what the petitioner had
done in the instant case. “A supplemental pleading is not like an amended
pleading¾a
substitute for the original one.  It does
not supersede the original, but assumes that the original pleading is to stand,
and the issues joined under the original pleading remain as issues to be tried
in the action.”  (Trinidad vs.
Commission on Elections, 320 SCRA 836 [1999], Buena, J.).

r.) Power of contempt

§1. Contempt proceedings are in their
nature penal, and denial of a motion for contempt after trial amounts to a
virtual acquittal from which an appeal would not lie  (II Moran’s Comments on the Rules of Court,
3rd ed. 125). (Pajao vs. Provincial Board of Canvassers of Leyte, 88 Phil.
588 [1951], Reyes, J.).

§2. Under
Section 2, Article X of the Constitution and Section 5 of the Revised Election
Code, the Commission on Elections not only has the duty to enforce and
administer all laws relative to the conduct of elections but the power to try,
hear and decide any controversy that may be submitted to it in
connection with the elections.  And as an
incident of this power, it may also punish for contempt in those cases provided
for in Rule 64 of the Rules of Court under the same procedure and with the same
penalties provided therein.  In this
sense, the Commission, although it cannot be classified as a court of justice
within the meaning of the Constitution (Section 13, Art. VIII) for it is merely
an independent administrative body (The Nacionalista Party vs. Vera, 85
Phil., 126), may however exercise quasi-judicial functions in so far as
controversies that by express provision of the law come under its
jurisdiction.  As to what questions may
come within this category, neither the Constitution nor the Revised Election
Code specifies. The former merely provides that it shall come under its
jurisdiction, saving those involving the right to vote, all administrative
questions affecting elections, including the determination of the number and
location of polling places, and the appointment of elections inspectors and
other election officials, while the latter is silent as to what questions
may be brought before it for determination. 
But it is clear that, to come under its jurisdiction, the questions
should be controversial in nature and must refer to the enforcement and
administration of all laws relative to the conduct of elections. (Guevara
vs. Commission on Elections, 104 Phil. 268 [1958], Bautista Angelo, J.).

§3. We
had occasion to stress in the case of Guevara vs. The Commission on
Elections (G.R. No. L-12596, July 31, 1958) that under the law and the
constitution, the Commission on Elections has not only the duty to enforce and
administer all laws relative to the conduct of elections, but also the power to
try, hear and decide any controversy that may be submitted to it in connection
with the elections.  In this sense, we
said, the Commission, although it cannot be classified as a court of justice
within the meaning of the Constitution (Section 30, Article VIII), for it is
merely an administrative body, may however exercise quasi-judicial functions
insofar as controversies that by express provision of law come under its
jurisdiction.  The difficulty lies in
drawing the demarcation line between the duty which inherently is
administrative in character and a function which calls for the exercise of the
quasi-judicial function of the Commission. 
In the same case, we also expressed the view that when the Commission
exercises a ministerial function it cannot exercise the power to punish for
contempt because such power is inherently judicial in nature, as can be clearly
gleaned from the following doctrine we laid down therein: x x x.

The
Commission on Elections, in the exercise of its ministerial functions, such as
the distribution of ballots and other election paraphernalia among the
different municipalities, has no power to punish for contempt, because such
power is inherently judicial in nature. (Masangcay vs. Commission on Elections,
6 SCRA 27 [1962], Bautista Angelo, J.).

7. Jurisdiction

a.) Original Jurisdiction

§1. The Commission on Elections shall
exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial,
and city officials, x x x (Article IX (C), Section 2, The 1987 Philippine
Constitution)

§2. 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. (Article XXI, Section 253, Batas Pambansa Blg. 881, otherwise
known and cited as the Omnibus Election Code of the Philippines).

§3. An election protest filed by one
of the losing candidates with the Electoral Tribunal pending the election
contest with the Comelec does not deprive the Comelec of its jurisdiction where
the protest was filed ex abundante cautela. (Antonio, Jr. vs.
Commission on Elections, 32 SCRA 319 [1970], Reyes, J.B.L., J.).

§4. Anyway the question whether there
has been substitution of ballots and what the actual result of the election is,
will still be determined by the Commission when it undertakes its own
independent evaluation and appreciation of the contested ballots and election
documents. x x x.  As for the allegedly
fake ballots, no better authority than the COMELEC can determine their
authenticity, having itself ordered and supervised the printing of all the
official ballots. We cannot overemphasize the fact that the Commission on
Elections under the Constitution is the agency vested with exclusive original
jurisdiction over election contests involving regional, provincial and city
officials x x x. (Bulaong vs. Commission on Election, 241 SCRA 180 [1995],
Mendoza, J.).

§5. Blanco was not denied due process
when the COMELEC (First Division) suspended his proclamation as mayor pending
determination of the petition for disqualification against him.  Section 6 of R.A. No. 6646 and Sections 4 and
5 of the Rule 25 of the Comelec Rules of Procedure merely require that
evidence of guilt should be strong to justify the COMELEC in suspending a
winning candidate’s proclamation.  It
ought to be emphasized that the suspension order is provisional in nature and
can be lifted when the evidence so warrants. It is akin to a temporary
restraining order which a court can issue ex parte under exigent
circumstances.

In any event, Blanco was given all the
opportunity to prove that the evidence on his disqualification was not
strong.  On May 25, 1995, he filed a
Motion to Lift or Set Aside the Order suspending his proclamation.  On May 29, 1995, he filed his Answer to the
petition to disqualify him. The COMELEC considered the evidence of the parties
and their arguments and thereafter affirmed his disqualification.  The hoary rule is that due process does not
mean prior hearing but only an opportunity to be heard.  Petitions for disqualification are subject to
summary hearings. (Nolasco vs. Commission on Elections, 275 SCRA 762 [1997],
Puno, J.).

§6. Further, Section 6, Rule 20 of
the COMELEC Rules of Procedure reads: 
“When the allegations in a protest or counter-protest so warrant, or
whenever in the opinion of the Commission or Division, the interest of justice
so demands, it shall immediately order the ballot boxes containing ballots and
their keys, list of voters with voting records, book of voters, and other
documents used in the election to be brought before the Commission, and shall
order the revision of the ballots.” 
While the abovementioned rule pertains to election protests falling
within the exclusive original jurisdiction of the Commission, the same
procedure is prescribed for election contests which are within the exclusive
original jurisdiction of courts of general jurisdiction as well as election
contests within the exclusive original jurisdiction of courts of limited
jurisdiction. (Miguel vs. Commission on Elections, 335 SCRA 172 [2000],
Buena, J.).

b.) Appellate Jurisdiction

§1. A court order granting or denying
the board of inspectors’ unanimous petition for correction of the election
return is unappealable and the summary proceeding comes to an end with the
court’s ruling.

No matter how worthy the COMELEC’s motives
may be, it lacks jurisdiction and authority to review the judicial correction
ordered by the court of first instance as the court of competent jurisdiction
under Section 154 of the Revised Election Code. 
(Tiglao vs. Commission on Elections, 43 SCRA 535 [1972], Teehankee,
J.). 

§2. The jurisdiction of the COMELEC
does not cover protests over the organizational set-up of the katipunan ng mga
barangay composed of popularly elected punong barangays as prescribed by
law whose officers are voted upon by their respective members.  The COMELEC exercises only appellate
jurisdiction over election contests involving elective barangay officials
decided by the Metropolitan or Municipal Trial Courts which likewise have
limited jurisdiction.  The authority of
the COMELEC over the katipunan ng mga barangay is limited by law to
supervision of the election of the representative of the katipunan concerned
to the sanggunian in a particular level conducted by their own
respective organization (Sec. 43, Batas Pambansa Blg. 337). (Taule vs.
Santos, 200 SCRA 512 [1991], Gancayco, J.).

§3. We have already ruled in Gallardo
vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro
vs. COMELEC, 171 SCRA 468, that pre-proclamation controversies may no
longer be entertained by the COMELEC after the winning candidates have been
proclaimed and assumed office.  The
proper remedy of the aggrieved party is an election contest in the Regional
Trial Court as provided in Sec. 250 of B.P. 881 and Sec. 2(2), Art. IX-C of the
Constitution.

Section 17, R.A. 7166 deals with the
commencement of pre-proclamation controversies while Sec. 19 provides that
“parties adversely affected by a ruling of the Board of Canvassers on
questions affecting the composition or proceedings of the board may appeal the
matter to the Commission within three (3) days from a ruling thereon.”
(Sardea vs. Commission on Elections, 225 SCRA 374 [1993], Griño-Aquino, J.).

§4. In the face of the foregoing
disquisitions, the Court must, as it now does, abandon the ruling in the Garcia
and Uy and Veloria cases. 
We now hold that the last paragraph 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.  (Relampagos vs. Cumba,
243 SCRA 690 [1995], Davide, Jr., J.).

§5. Section 252 of the Omnibus
Election Code and that portion of paragraph (2), Section 2, Article IX-C of the
Constitution on the COMELEC’s exclusive appellate jurisdiction over contests
involving elective barangay officials refer to the elective barangay officials
under the pertinent laws in force at the time the Omnibus Election Code was
enacted and upon the ratification of the Constitution.  That law was B. P. Blg. 337, otherwise known
as the Local Government Code, and the elective barangay officials referred to
were the punong barangay and the six sangguniang bayan members. They were to be
elected by those qualified to exercise the right of suffrage.  They are also the same officers referred to
by the provisions of the Omnibus Election Code of the Philippines on election
of barangay officials.  Metropolitan and
municipal trial courts had exclusive jurisdiction over contests relating to
their election.  The decisions of these
courts are appealable to the Regional Trial Courts. (Mercado vs. Board of
Election Supervisors of Ibaan, Batangas, 243 SCRA 422 [1995], Davide, Jr., J).

§6. The present rule therefore
established by the aforecited case of Relampagos v. Cumba, G.R. No.
118861 (April 27, 1995), is as follows: “In the face of the foregoing
disquisitions, the Court must, as it now does, abandon the ruling in the Garcia
and Uy and Veloria cases. 
We now hold that the last paragraph of Section 50 of B. P. Blg. 697 * *
* remains in full force and effect but only in such cases where, under
paragraph (2), Section 1, Article IX-C of the Constitution, it [COMELEC} 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.” (Edding vs. Commission on Elections, 246 SCRA 502 [1995],
Francisco, J.).

§7. Under paragraph (2), Section 2,
subdivision C, Article IX of the Constitution, it is the COMELEC, and not the
Regional Trial Courts, that has exclusive appellate jurisdiction over all
contests involving elective barangay officials decided by courts of limited
jurisdiction, which are the Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts.  In Flores
vs. Commission on Elections, this Court struck out as unconstitutional that
portion of Section 9 of R.A. No. 6679 vesting upon the Regional Trial Courts
appellate jurisdiction over such cases. (Guieb vs. Fontanilla, 247 SCRA 348
[1995], Davide, Jr., J).

§8. In reality, Borja’s
petition was nothing but a simple election protest involving an elective
municipal position which, under Section 251 of the Election Code, falls within
the exclusive original jurisdiction of the appropriate Regional Trial Court. x
x x. 

The COMELEC in turn exercises appellate
jurisdiction over the trial court’s decision pursuant to Article IX-C, Section
2 (2) of the Constitution x x x.  (Borja,
Jr. vs. Commission on Elections, 260 SCRA 604 [1996], Romero, J.).

§9. By Constitutional fiat,
the Commission on Elections (Comelec) has appellate jurisdiction over election
protest cases involving elective municipal officials decided by courts of
general jurisdiction, as provided for in Article IX (C), Section 2 of the 1987
Constitution.

The Comelec has original jurisdiction to
issue writs of certiorari, prohibition and mandamus involving election cases in
aid of its appellate jurisdiction.

Both the Supreme Court and Comelec have
concurrent jurisdiction to issue writs of certiorari, prohibition, and mandamus
over decisions of trial courts of general jurisdiction (regional trial courts)
in election cases involving elective municipal officials.  The Court that takes jurisdiction first shall
exercise exclusive jurisdiction over the case. (Carlos vs. Angeles, 346 SCRA
571 [2000], Pardo, J.).

 

CHAPTER X
Registration
of Political Parties

 1. Political Parties

§1. In concurrence with a “political
group” in the locality, the political party is entitled to preferential
recognition, if it had taken part in the immediately preceding election and had
received votes and the claim of the party to representation is made in good
faith.  (Sumulong vs. Commission on
Elections, 70 Phil. 703 [1940], Laurel, J.).

§2. Under the Constitution, the
Commission on Elections is empowered to decide administrative questions
affecting the appointment of election inspectors and other election officials,
and the requirement that, to be entitled to propose the appointment of one
inspector and his substitute, a political party must have polled at least ten per
centum of the total number of votes cast in the preceding election, is
germane to the general subject of the reorganization of the Commission on
Elections. (Sumulong vs. Commission on Elections, 73 Phil. 288 [1941], Abad
Santos, J.).

§3. The right to have the name of a
candidate included in a party ticket is granted by law not to the candidate,
but to the party concerned.

The Commission was justified in requiring
the petitioner to state specifically the party to which he belongs, in view of
the express provision of Section 27 of the Election Code that the candidate
shall state in his certificate of candidacy the name of the political party to
which he belongs, if he belongs to any party. 
(Lava vs. Hon. Lopez Vito, 73 Phil. 390 [1941], Abad Santos, J.).

§4. `The Commission on Elections has
no jurisdiction to determine a question regarding a matter of policy of a party
(Section 3, Commonwealth Act No. 657 in connection with Section 2, Article X,
Philippine Constitution). (Sotto vs. Commission on Elections, 76 Phil. 516
[1946], Feria, J.).

§5. Not illegal for a political party
to adopt a complete set of candidates of another political party. (Lakas ng
Bayan vs. Commission on Elections, 82 SCRA 196 [1978], Barredo, J.).

§6. The COMELEC’s determination of
whether the KBL was a political party from the inception of its existence,
distinct and separate from the NP is undoubtedly an exercise of its
constitutional power of administering the laws relative to the conduct of
elections.  This power is exclusive. (Santos
vs. Commission on Elections, 103 SCRA 628 [1981], De Castro, J.).

§7. More importantly, under the express
provisions of Section 77 of the Code, not just any person, but only “an
official candidate of a registered or accredited political party” may be
substituted. In Bautista vs. Comelec (G.R. No. 133840, November 13,
1998), this Court explicitly ruled that “a cancelled certificate does not
give rise to a valid candidacy”.  A
person without a valid certificate of candidacy cannot be considered a
candidate in much the same way as any person who has not filed any certificate
of candidacy at all can not, by any stretch of the imagination, be a candidate
at all. (Miranda vs. Abaya, 311 SCRA 617 [1999], Melo, J.).

§8. The fact that EMMANUEL was an independent
candidate prior to his nomination is immaterial.  What is more significant is that he had
previously withdrawn his certificate of candidacy as independent candidate for
Sangguniang member before he filed his certificate of candidacy as a
substitute for TEODORO at which time he was, for all intents and purposes,
already deemed a member of the LAKAS party “MATUGAS wing.”  As such, EMMANUEL is obliged to pursue and
carry out the party’s ideology, political ideas and platforms of
government.  As the official candidate of
an organized political party, he is bound by the party’s rule.  He owes loyalty to the party, its tenet and
its policies, its platforms and programs of government.  To the electorate he represents the party,
its principles, ideals and objectives.

Even the fact that EMMANUEL only became a member of
the LAKAS party after the disqualification of TEODORO, will not affect the
validity of the substitution.  There is
nothing in the Constitution or the statute which requires as a condition
precedent that a substitute candidate must have been a member of the party
concerned for a certain period of time before he can be nominated as such.  Section 77 of the Omnibus Election Code only
mandates that a substitute candidate should be a person belonging to and certified
by the same political party as the candidate to be replaced.  We cannot provide for an additional
requirement or condition not provided under the said provision without
encroaching into the domain of the legislative department.

We also agree with the contention of
EMMANUEL that the decision as to which member a party shall nominate as its
candidate is a party concern which is not cognizable by the courts.  A political party has the right to identify
the people who constitute the association and to select a standard bearer who
best represents the party’s 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 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 party affairs,
including nominations, in such manner as party rules may establish.

An election in which the voters have
fully, fairly, and honestly expressed their will is not invalid even though an
improper method is followed in the nomination of candidates.  This is because in determining the effect of
a particular irregularity in a party nomination for office on the result of the
general election, the pivotal issue is whether the irregularity complained of
has prevented a full, fair and free expression of the public will.  Thus, in the absence of a statutory provision
to the contrary, an election may not even be invalidated by the fact that the
nomination of the successful candidate was brought about by fraud, and not in
the manner prescribed by the statute, provided it appears that non-compliance
with the law did not prevent a fair and free vote. (Sinaca vs. Mula, 315
SCRA 266 [1999], Davide, Jr., C.J.).     

 2. Party-List

§1. The
Constitution makes the number of district representatives the determinant in
arriving at the number of seats allocated for party-list lawmakers, a
formulation which means that any increase in the number of district
representatives, as may be provided by law, will necessarily result in a
corresponding increase in the number of party-list seats.

Section
5 (2), Article VI of the Constitution is not mandatory – it merely provides a
ceiling for party-list seats in Congress.

The prerogative to determine whether to
adjust or change the two percent threshold rests in Congress, as the function
of the Supreme Court, as well as of all judicial and quasi-judicial agencies,
is to apply the law as they find it, not to reinvent or second-guess it.

Under a republican or representative state,
all government authority emanates from the people, but is exercised by
representatives chosen by them, but to have meaningful representation, the
elected persons must have the mandate of a sufficient number of people.

The statutory provision on the two percent
requirement is precise and crystalline – when the law is clear, the function of
courts is simple application, not interpretation or circumvention.

“Qualified” as used in Republic Act 7941
means having hurdled the two percent vote threshold.

 Under the Niemeyer formula, the
number of additional seats to which a qualified party would be entitled is
determined by multiplying the remaining number of seats to be allocated by the
total number of votes obtained by that party and dividing the product by the
total number of votes garnered by all the qualified parties.

The Niemeyer formula, while no
doubt suitable for Germany, finds no application in the Philippine setting,
because of our three-seat limit and the non-mandatory character of the
twenty-percent allocation.

Parameters of the Filipino Party-List
System: First, the twenty percent allocation – the combined number of
all party-list congressmen shall not exceed twenty percent of
the total membership of the House of Representatives, including those elected
under the party list.  Second, the two
percent threshold – only those parties garnering a minimum of two
percent of the total valid votes cast for the party-list system are “qualified”
to have a seat in the House of Representatives. 
Third, the three-seat limit – each qualified party, regardless of
the number of votes it actually obtained, is entitled to a maximum of three
seats; that is, one “qualifying” and two additional seats. Fourth,
proportional representation – the additional seats which a qualified party
is entitled to shall be computed “in proportion to their total number of
votes.”

Obtaining absolute proportional
representation is restricted by the three-seat-per party limit to a maximum of
two additional slots. (Veterans Federation Party vs. Commission on
Elections, 342 SCRA 244 [2000], Panganiban, J.).

§2. We disagree.  At bottom, petitioners attack the validity of
Comelec Omnibus Resolution 3785 for having been issued with grave abuse of
discretion, insofar at it allowed respondents to participate in the party-list
elections of 2001.  Indeed, under both
the Constitution (Section 1, Article VIII of the Constitution) and the Rules of
Court, such challenge may be brought before this Court in a verified petition
for certiorari under Rule
65.

Moreover, the assailed Omnibus Resolution
was promulgated by Respondent Commission en banc; hence, no motion for
reconsideration was possible, it being a prohibited pleading under Section 1
(d), Rule 13 of the Comelec Rules of Procedure.

In any
event, this case presents an exception to the rule that certiorari shall lie
only in the absence of any other plain, speedy and adequate remedy (Section 1,
Rule 65.  See Filoteo v.
Sandiganbayan, 263 SCRA 222, October 16, 1996; BF Corporation v. CA, 288
SCRA 267, March 27, 1998; GSIS v. Olisa, 304 SCRA 421, March 10, 1999;
National Steel Corporation v. CA, GR No. 134437, January 31, 2000;
Sahali v. Comelec, GR No. 134169, February 2, 2000).  It has been held that certiorari is
available, notwithstanding the presence of other remedies, “where the issue
raised is one purely of law, where public interest is involved, and in case of
urgency. (Republic v. Sandiganbayan, 269 SCRA 316, March 7, 1997, per
Panganiban, J.  See also ABS-CBN
Broadcasting Corporation v. Commission on Elections, GR No. 133486, January
28, 2000; Central Bank v. Cloribel, 44 SCRA 307, April 11, 1972).

Moreover,
this case raises transcendental constitutional issues on the party-list system,
which this Court must urgently resolve, consistent with its duty to “formulate
guiding and controlling constitutional principles, precepts, doctrines, or
rules.” (Salonga v. Cruz Pano, 134 SCRA 438, February 18, 1985, per
Gutierrez, Jr., J.  See also
Tanada v. Angara, 272 SCRA 18, May 2, 1997; Guingona v. Gonzales, 219
SCRA 326, March 1, 1993).

Finally,
procedural requirements “may be glossed over to prevent a miscarriage of
justice, when the issue involves the principle of social justice x x x when the
decision 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.” (ABS-CBN v. Comelec, GR No. 133486, January 28, 2000, per
Panganiban, J.).

We now
rule on this issue.  Under the
Constitution and RA 7941, private respondents cannot be disqualified from the
party-list elections, merely on the ground that they are political parties.  Section 5, Article VI of the Constitution
provides that members of the House of Representatives may  be “elected through a party-list system of
registered national, regional, and sectoral parties or
organizations.”

Furthermore,
under Sections 7 and 8, Article IX (C) of the Constitution, political parties
may be registered under the party-list system. (Emphasis supplied.  See also Sections 17 and 18, Article
VI of the Constitution).

For its
part, Section 2 of RA 7941 also provides for “a party-list system of registered
national, regional and sectoral parties or organizations or coalitions
thereof, x x x.”  Section 3 expressly
states that a “party” is “either a political party or a sectoral party or a
coalition of parties.”  More to the
point, the law defines “political party” as “an organized group of citizens
advocating an ideology or platform, principles and policies for the general
conduct of government and which, as the most immediate means of securing their
adoption, regularly nominates and supports certain of its leaders and members
as candidates for public office.”

Furthermore,
Section 11 of RA 7941 leaves no doubt as to the participation of political
parties in the party-list system.

Indubitably,
therefore, political parties – even the major ones – may participate in the
party-list elections.

That
political parties may participate in the party-list elections does not mean,
however, that any political party – or any organization or group for
that matter – may do so.  The requisite
character of these parties or organizations must be consistent with the purpose
of the party-list system, as laid down in the Constitution and RA 7941.  Section 5, Article VI of the Constitution,
provides as follows:

x x x                            x
x x                            x x x                            x x x

The
foregoing provision on the party-list system is not self-executory.  It is, in fact, interspersed with phrases
like “in accordance with law” or  “as may
be provided by law”; it was thus up to Congress to sculpt in granite the lofty
objective of the Constitution.  Hence, RA
7941 was enacted.  It laid out the
statutory policies in this wise:

x x x                            x
x x                            x x x                            x x x

The
foregoing provision mandates a state policy of promoting proportional
representation by means of the Filipino-style party-list system, which will
“enable” the election to the House of Representatives of Filipino citizens,

1.         who
belong to marginalized and underrepresented sectors,  organizations and parties; and

2.         who
lack well-defined constituencies; but who could contribute to the formulation
and enactment of appropriate legislation that will benefit the nation as a
whole.

The key words in this policy are “proportional representation,”
“marginalized and underrepresented,” and “lack [of] well-defined
constituencies.”

“Proportional representation” here does not refer to the number
of people in a particular district, because the party-list election is national
in scope.  Neither does it allude to
numerical strength in a distressed or oppressed group.  Rather, it refers to the representation of
the “marginalized and underrepresented” as exemplified by the enumeration in
Section 5 of the law; namely, “labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals.”

However, it is not enough for the candidate to claim
representation of the marginalized and underrepresented, because representation
is easy to claim and to feign.  The
party-list organization or party must factually and truly represent the
marginalized and underrepresented constituencies mentioned in Section 5.  Concurrently, the persons nominated by the
party-list candidate-organization must be “Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties.”

Finally, “lack of well-defined constituenc[y]” refers to the
absence of a traditionally identifiable electoral group, like voters of a
congressional district or territorial unit of government.  Rather, it points again to those with
disparate interests identified with the “marginalized or underrepresented.”

In
the end, the role of the Comelec is to see to it that only those Filipinos who
are “marginalized and underrepresented” become members of Congress under the
party-list system, Filipino-style.

The
intent of the Constitution is clear: to give genuine power to the people, not
only by giving more law to those who have less in life, but more so by enabling
them to become veritable lawmakers themselves. 
Consistent with this intent, the policy of the implementing law, we
repeat, is likewise clear: “to enable Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties, x x x to
become members of the House of Representatives.”

While
the enumeration of marginalized and underrepresented sectors is not exclusive,
it demonstrates the clear intent of the law that not all sectors can be
represented under the party-list system. 
It is fundamental principle of statutory construction that words
employed in a statute are interpreted in connection with, and their meaning is
ascertained by reference to, the words and phrases with which they are
associated or related.  Thus, the meaning
of a term in a statute may be limited, qualified or specialized by those in
immediate association (82 C.J.S. Statutes Sec. 331).

From
its assailed Omnibus Resolution, it is manifest that the Comelec failed to
appreciate fully the clear policy of the law and the Constitution.  On the contrary, it seems to have ignored the
facet of party-list system discussed above.

§3. Guidelines for screening Party-list
participants culled from the law and
the Constitution:

First, the political party, sector, organization
or coalition must represent the marginalized and underrepresented groups
identified in Section 5 of RA 7941.

Second,
while even major political parties are
expressly allowed by RA 7941 and the Constitution to participate in the
party-list system, they must comply with the declared statutory policy of
enabling “Filipino citizens belonging to marginalized and underrepresented
sectors x x x to be elected to the House of Representatives.”

Third, in view of the objections directed against
the registration of Ang Buhay Hayaang Yumabong, which is allegedly a
religious group, the Court notes the express constitutional provision that the
religious sector may not be represented in the party-list system.

Fourth,
a party or an organization must not be
disqualified under Section 6 of RA 7941, which enumerates the grounds for
disqualification as follows: x x x.

Fifth, the party or organization must not be an
adjunct of, or a project organized or an entity funded or assisted by, the
government.  By the very nature of the
party-list system, the party or organization must be a group of citizens,
organized by citizens and operated by citizens. 
It must be independent of the government.  The participation of the government or its
officials in the affairs of a party-list candidate is not only illegal (See
Sec. 2 (4), Article IX (B) of the Constitution. 
See also Article 261 (o) BP 881).  

Sixth, the party must not only comply with the
requirements of the law, its nominees must likewise do so.  Section 9 of RA 7941 reads as follows: x x x.

Seventh,
not only the candidate party or
organization must represent marginalized and underrepresented sections; so also
must its nominees.  To repeat, under
Section 2 of RA 7941, the nominees must be Filipino citizens “who belong to
marginalized and underrepresented sectors, organizations and parties.”

Eighth, as previously discussed, while
lacking a well-defined political constituency, the nominee must likewise be
able to contribute to the formulation and enactment of appropriate legislation
that will benefit the nation as a whole. (Ang Bagong Bayani-OFW Labor Party
(under the acronym OFW), represented herein by its Secretary-General, Mohammad
Omar Fajardo vs. Commission on Elections, 359 SCRA 698 [2001], Panganiban, J.).

CHAPTER XI
Registration of Voters

 

1. Qualified Voter

§1. Registration in a given precinct
is mentioned in Section 98 of the Revised Election Code in order that a person
“may vote in said precinct.”  Said
Section 98 cannot be construed as adding registration to the original
requirements of a qualified voter, for, otherwise, it would conflict with
Article V of the Constitution, under which “Suffrage may be exercised by male
citizens of the Philippines not otherwise disqualified by law, who are
twenty-one years of age or over and are able to read and write, and who shall
have resided in the Philippines for one year and in the municipality wherein
they propose to vote for at least six months preceding the election xxx”. (Aportadera
vs. Sotto, 3 SCRA 626 [1961], Concepcion, J.).

§2. The language of Section 92 of
Republic Act No. 4413, the charter of the City of Rajah Buayan, is clear and
unequivocal.  When the Congress used the
phrase “majority of qualified voters” it could not have meant “majority of the
votes cast.”  The two phrases are as
different as the words employed, and it stands to reason that the Congress did
not intend the first to be taken in the same sense as the latter is understood.  And in this jurisdiction the phrase “majority
of the qualified voters” means “majority of the registered voters”.  Consequently the charter of the City of Rajah
Buayan was not duly accepted by such majority of the qualified voters of the
municipality of General Santos in the elections of November 9, 1965 as provided
in Republic Act No. 4413. (Leyva vs. Commission on Elections, 18 SCRA 504
[1966], Makalintal, J.).

§3. Registration as a voter is not a
qualification for a candidate or a voter, within the meaning of “qualified
voter” in Section 2174 of the Revised Administrative Code; it is merely a step
towards voting (Rocha v. Cordis, 103 Phil. 327). (Lacuna vs. Abes, 24
SCRA 780 [1968], Reyes, J.B.L., J.). 

2. Registered Voter

§1. The term “registered voters” is
not synonymous with “actual voters.”  It
is of judicial notice that not all registered voters vote on election day. (Calimbas
vs. Commission on Elections, 139 SCRA 171 [1985], Melencio-Herrera, J.).

§2. In a representative democracy such as ours,
the right of suffrage, although accorded a prime niche in the hierarchy of
rights embodied in the fundamental law, ought to be exercised within the proper
bounds and framework of the Constitution and must properly yield to pertinent
laws skillfully enacted by the Legislature, which statutes for all intents and
purposes, are crafted to effectively insulate such so cherished right from
ravishment and preserve the democratic institutions our people have, for so
long, guarded against the spoils of opportunism, debauchery and abuse.

As to the procedural limitation, the right
of a citizen to vote is necessarily conditioned upon certain procedural
requirements he must undergo: among others, the process of registration.  Specifically, a citizen in order to be
qualified to exercise his right to vote, in addition to the minimum
requirements set by the fundamental charter, is obliged by law to register, at
present, under the provisions of Republic Act No. 8189, otherwise known as the
“Voter’s Registration Act of 1996.”

Proceeding from the significance of
registration as a necessary requisite to the right to vote, the State
undoubtedly, in the exercise of its inherent police power, may then enact laws
to safeguard and regulate the act of voter’s registration for the ultimate
purpose of conducting honest, orderly and peaceful election.

Likewise, Section 35 of R.A. 8189, x x x
speaks of a prohibitive period within which to file a sworn petition for
exclusion of voters from the permanent voter’s list. (Akbayan-Youth, et al.
vs. Commission on Elections, 355 SCRA 318 [2001], Buena, J.). 

3. Registration Outside Date Fixed by
Law

§1. The registration of voters on January 11
and 12, 1964, even if there was an agreement by the parties to permit the
registration of additional voters after January 5, 1964, which in this case was
the deadline date fixed by law, was palpably void.  No manner of form or agreement by the parties
can validate registration of voters held subsequent to the deadline date fixed
by law.

The registration of voters made outside
the date fixed by law, though void, is not sufficient reason for the annulment
of the election.  Annulment of an
election can be justified where as a result of said irregularity “many voters,
without any qualification whatsoever succeeded in having their names inscribed
in the official list” and that it was “impossible to segregate the legal from
the illegal votes”.

The trial court erred in annulling the
election without making factual findings which would justify the annulment
because the factual findings of the municipal court were necessarily vacated by
the appeal and the case stood for trial de novo, as though the same had
never been tried before and had been originally there commenced. (Florendo,
Sr. vs. Buyser, 21 SCRA 1106 [1967], Castro, J.).

4. Annulment of List of Voters

§1. The Commission on Elections is authorized
to annul illegal registry lists of voters.  (Feliciano, et al. vs. Lugay et al., 93 Phil. 744 [1953], Paras,
C.J.).

§2. The subsequent annulment
of the precinct book of voters in a separate proceeding initiated motu
proprio by COMELEC and in which the protagonists were not parties, cannot
retroactively and without due process result in nullifying accepted election
returns in a previous election simply because such returns came from towns
where the book of voters were ordered annulled due to serious irregularities in
their preparation. (Bashier vs. Commission on Elections, 43 SCRA 238 [1972],
Teehankee, J.).

5. Voters
in highly urbanized cities

§1. The purpose of an election is to
enable the electorate to choose the men that run their government, whether
national, provincial, municipal, or city. 
If so, no useful end will be served by allowing — in the absence of
express legislative preference — the voters of a city to participate in the
election of the officials of the province which has ceased to have any
governmental jurisdiction and authority over said city. (Teves vs.
Commission on Elections, 90 Phil. 370 [1951], Paras, C.J.).

 §2. Voters in highly urbanized cities
do not have the right to select elective provincial officials. (Ceniza vs.
Commission on Elections, 95 SCRA 763 [1980], Concepcion, Jr., J.).

CHAPTER XII
Certificate of Candidacy

1. Filing of Certificate of Candidacy

§1. Generally a candidate for an
office is one who offers himself or is offered by others for an office.  Any one who seeks an office is a candidate;
it is not necessary that he should have been nominated for the particular
office.  A candidate is one who offers
himself or is put forward by others as a suitable person, or an aspirant, or a
contestant for an office, privilege or honor. (Santos vs. Miranda and
Clemente, 35 Phil. 643 [1916], Johnson, J.).

§2. The certificate of candidacy is
in the nature of a formal manifestation to the whole world of the candidate’s
political creed or lack of political creed. (Papa vs. Municipal Board of
Manila, 47 Phil. 694 [1925], Malcolm, J.).

§3. In the expression “voted
candidate, with certificate of candidacy” used in a motion of protest, the last
phrase “with certificate of candidacy” is not equivalent to the word
“registered,” and therefore said motion of protest does not meet one of the
essential requirements prescribed by the law in order that the court may
acquire jurisdiction to try and decide said protest (Viola vs. Court of
First Instance of Camarines Sur and Adolfo, 47 Phil. 849).  (Tabada vs. Zandueta and Vergara, 47 Phil.
859 [1925], Villa-Real, J.).

§4. While Act No. 3030, in its
Section 3, requires the candidate to file a “certificate of candidacy duly
verified,” that is, sworn to, in order that he may be eligible, yet the lack of
oath of the certificate of candidacy, while fatal to the recognition of the
status of the candidate before election, is not a sufficient ground for
annulling his election after the people has manifested its will, the provincial
secretary having certified that said candidate was a legal candidate for the
office. (De Guzman vs. Board of Canvassers of La Union and Lucero, 48 Phil.
211 [1925], Villamor, J.).

§5. Certificates of candidacy, like
any other documentary evidence, must be presented to the court during the
probatory period. For reasonable grounds, however, upon proper motion, they may
be presented after said period and admitted for due consideration of the
contentions of the parties. (Cecilio vs. Belmonte, 51 Phil. 540 [1928],
Villamor, J.).

§6. Where
a candidate for municipal office has filed his certificate of candidacy in
proper form, the election inspectors have no authority to ignore votes cast for
him for said office on the ground that he was not enrolled as a voter in any
precinct of the municipality.The
question of the eligibility of a candidate for office is one with which the
inspectors have no concern, their duties being confined to the conduct of the
election, the counting of the votes, and the certification of the results, in
so far as relates to the certified candidates.

The
ineligibility of the mover of an election contest is not available as a defense
in the contest proceeding. The contest raises merely a question as to the
number of votes received by the different certified candidates; while the
eligibility of the candidate depends upon different considerations. The issue
of the eligibility of a candidate is incongruous with the issue involved in the
election contest. (Caesar vs. Garrido, 53 Phil. 97 [1929], Street, J.).

§7. Failure
of a candidate to state in his certificate of candidacy a nickname by which he
is likewise known, bars him from claiming in his favor certain ballots in which
he was voted by that nickname (Reyes vs. Mendiola, G. R. No. 36304, 56
Phil. 851). (Villavert vs. Lim, 62 Phil. 178 [1935], Villa-Real, J.).

§8. That
the lack of a sworn statement in the certificates of candidacy of the
petitioners cannot be invoked by the respondents as a ground to prevent them
from prosecuting the protest which they have commenced, nor does the defect
deprive the respondent court of the jurisdiction which it has acquired by
virtue of the protest filed in due time and form. (Gundan vs. Court of First
Instance of Cagayan, 66 Phil. 125 [1938], Imperial, J.).

§9. The
Commission on Elections cannot go beyond its powers and arrogate unto itself
the dangerous prerogative of determining whether to give due course to a
candidacy or not, on its own belief or impressions, even when a candidate has
all the qualifications and none of the disqualifications prescribed by law.  Such arrogation of powers is beyond the
jurisdiction of the Commission. (Reyes vs. Commission on Elections, 103
Phil. 940 [1958], Labrador, J.).

§10. While the Commission on
Elections may look into patent defects in the certificates of candidacy, it may
not go into matters not appearing on their face.  The question of eligibility or ineligibility
of a candidate for nonage is beyond the usual and proper cognizance of said
body and could not have consequently been litigated therein. (Sanchez vs.
Del Rosario, 111 Phil. 733 [1961]; 1 SCRA 1102 [1961], Reyes, J.B.L., J.).

§11. If the winning candidate was not
eligible to be a candidate for the office because he failed to file properly
his certificate of candidacy as required by law, the remedy is to contest his
election after he has been duly proclaimed. 
But such remedy can only be availed of within one (1) week after the
proclamation of the winning candidate. (Miralles vs. Gariando, 111 Phil.
1001 [1961]; 2 SCRA 63  [1961], Bautista
Angelo, J.).

§12. The fact that the certificate of
candidacy filed by the Chairman of a local chapter of a political party is
without the signature of its Secretary does not render said certificate
invalid, and the departure from the form prescribed by Sec. 35 of the Revised
Election Law, when not used as a means for fraudulent practice, will be
considered a harmless irregularity.

The amendment of the certificate in
question, although made at a date after the deadline for filing the same, but
before the election, is a substantial compliance with the law and cures the
defect of said certificate. (Alialy vs. Commission on Elections, 112 Phil.
856 [1961]; 2 SCRA 957 [1961], Paredes, J.).

§13. The filing of a certificate of
candidacy is a rule that should be enforced before the election, but can be
disregarded after the electorate has made the choosing. (Collado vs. Alonzo,
122 Phil. 957 [1965]; 15 SCRA 562 [1965], Bengzon, C.J.).

§14. It is true that Sections 31 and
32 of the Revised Election Code relating to certificates of candidacy are mandatory
in terms.   However, as regards election
laws, it is an established rule of interpretation that mandatory provisions
requiring certain steps before elections will be construed as directory, after
the elections, to give effect to the will of the electorate.

The defects in the certificate of
candidacy should be questioned on or before the election and not after the will
of the people has been expressed through the ballots. (Lambonao vs. Tero, 15
SCRA 716 [1965], Bengzon, J.P., J.).

§15. The former (candidate) according
to Act No. 4880 “refers to any person aspiring for or seeking an elective
public office, regardless of whether or not said person has already filed his
certificate of candidacy or has been nominated by any political party as its
candidate.” (Gonzales vs. Commission on Elections, 27 SCRA 835 [1969],
Fernando, J.).  

§16. The mere filing of a certificate
of candidacy constitutes forfeiture of his right to the controverted office
under Section 29 of the Election Code of 1978. (Perez vs. Provincial Board
of Nueva Ecija, 113 SCRA 187 [1982], Escolin, J.).

§17. Indeed, it would be entirely
different where the protestant pursued the new position through a popular
election, as in the case of Protestant Santiago who filed a certificate of
candidacy for Senator on 8 May 1995 election, campaigned for such office, and
submitted herself to be voted upon.  She
knew that the term of office of the Senators who would then be elected would be
six years, to commence at noon on the thirtieth day of June next following
their election and to end at noon of 30 June 2001.  Knowing her high sense of integrity and
candor, it is most unlikely that during her campaign, she promised to serve the
electorate as Senator, subject to the outcome of this protest.  In short, she filed her certificate of
candidacy for the Senate without any qualification, condition, or
reservation.  In so doing, she entered
into a political contract with the electorate that if elected, she would assume
the office of Senator, discharge its functions and serve her
constituency as such for the term for which she was elected.  These are givens which are in full accord
with the principle enshrined in the Constitution that public office is a public
trust, and public officers and employees must at all times be accountable to
the people and serve them with utmost responsibility, integrity, loyalty and
efficiency. (Defensor-Santiago vs. Ramos, 253 SCRA 559 [1996], Resolution).

2. Effect
of Filing Certificate of Candidacy

§1. The resignation of the office by
the contestee does not remove him ipso facto as an adversary of the
contestant.  Even if the contestee has no
personal interest in the proceedings, he has a party interest, which is to keep
his political opponent out of the office and to see that the man who succeeded
him by appointment is not disturbed. (De los Angeles vs. Rodriquez, 46 Phil.
595 [1924], Malcolm, J.).

§2. By filing said certificate of candidacy,
the respondent automatically lost and forfeited any right which he might have
had to the office of justice of the peace of Solano and Bagabag.

 Sec. 26, Article II of the Election Code
contemplates the complete severance and cutting off of all relations with and
right to a public appointive office on the part of one who files his certificate
of candidacy in an election. (Maddumba vs. Ozaeta, 82 Phil. 345 [1948],
Montemayor, J.).

§3. The vice-mayor who had filed a
certificate of candidacy for reelection to the same post, and who on the next
day became Mayor, due to the vacancy in the mayoralty, should not be considered
resigned from office, since he was a candidate for a position that he was
actually holding at the time he filed his certificate of candidacy.  That he came later to the mayoralty by
operation of law does not alter the case. 
Section 27 of the Election Law (R. A. No. 180) provides that the
vacating shall be made effective as of the moment of the filing of the
certificate of candidacy.  It does not
decree that an elective municipal official must be considered resigned if he
runs for an office other than the one held by him at or subsequently to
the filing of his certificate of candidacy; neither does it decree that he must
vacate if he runs for an office other than the one actually held by him at
any time before the day of the election. (Castro vs. Gatuslao, 98
Phil. 194 [1956], Reyes, J.B.L., J.).

§4. While Section 31 of the Revised
Election Code is definite in requiring the filing of a certificate of candidacy
within the statutory period, and in providing that if one files certificates of
candidacy for more than one office, he shall not be eligible for any of them,
neither said section nor any other section provides that the withdrawal of a
certificate should be made on or before the last day of filing the same.  In the present case, the petitioner’s
withdrawal of his certificate of candidacy for provincial board member one day
after the expiration of the statutory period, was effective for all legal
purposes, and left in full force his certificate of candidacy for mayor.  There is no provision of law forbidding
withdrawal of candidacy at any time before the election. (Montinola vs.
Commission on Elections, 98 Phil. 220 [1956], Paras, C.J.).

§5. A Vice-Mayor who files his
certificate of candidacy for the office of Mayor, even while acting as Mayor,
is considered resigned from the Office of Vice-Mayor for the reason that that
is the only office that he “actually holds” within the contemplation of Section
27 of the Revised Election Code and the office he is running for (Mayor) is naturally
other than the one he is actually holding (Vice-Mayor); and that having ceased
to be a Vice-Mayor, he automatically lost all right to act as Mayor.  Section 27 of Republic Act 180 in providing
that a local elective official running for an office other than the one he is
actually holding, is considered resigned from his office, must necessarily
refer to an office which said official can resign, or from which he could be
considered resigned, even against his will. 
A Vice-Mayor acting as Mayor cannot resign or be made to resign from the
office of Mayor because the law itself requires that as Vice-Mayor he must act
as Mayor during the temporary disability of the regular or incumbent.  Considered from the point of view of the
incumbent retaining his office provided that he runs for the office, as
Vice-Mayor acting as Mayor and running for said office of Mayor, may not and
cannot keep the office of Mayor up to the end of the term because his holding
the same is temporary and may end at any time that the incumbent Mayor returns
to duty. (Salaysay vs. Castro, et al., 98 Phil. 364 [1956], Montemayor, J.).  

§6. The
approval, by the Commission on Elections, of the withdrawal of a certificate of
candidacy for a Congressional seat does not give rise to any administrative
question or controversy reviewable by the Supreme Court. 

The
legal issue of whether a mayor, who filed a certificate of candidacy for the
position of Congressman and who later withdrew said certificate with the
approval of the Commission on Elections, forfeited his position as mayor
properly falls within the cognizance of the courts.  It did not give rise to any ruling of the
Commission on Elections reviewable by the Supreme Court. 

An
elective provincial, municipal or city official running for an office, other
than the one which he is actually holding, is considered resigned from his
office from the moment of the filing of his certificate of candidacy.  The forfeiture is automatic and irrevocably
effective upon the filing of the certificate of candidacy for another
office.  Only the moment and act
of filing are considered.  Once the
certificate is filed, the position is forever forfeited and nothing, save a new
election or appointment, can restore the ousted official.  The forfeiture is not dependent upon future
contingencies, unforeseen or unforeseeable, since the vacating is expressly
made as of the moment of the filing of the certificate of candidacy. 

The
withdrawal of a certificate of candidacy does not necessarily render it void ab
initio.  Once filed, the permanent
legal effects produced thereby remain even if the certificate itself be
subsequently withdrawn.  (Monroy vs.
Court of Appeals, 20 SCRA 620 [1967], Bengzon, J.P., J.).

§7. It
goes without saying that although petitioner, by filing his certificate of
candidacy for the Batasan Pambansa ceased, ipso facto, to be an
appointive member of the Sangguniang Panlungsod, he remains an elective
Barangay Captain from which position he may be considered as having been on
“forced leave of absence.”  (Sanciangco
vs. Roño, 137 SCRA 671 [1985], Melencio-Herrera, J.).  

§8. In
Monroy vs. Court of Appeals, a case involving Section 27 of R.A. No. 180
above-quoted, this Court categorically pronounced that “forfeiture (is)
automatic and permanently effective upon the filing of the certificate of
candidacy for another office.  Only the moment
and act of filing are considered. 
Once the certificate is filed, the seat is forever forfeited and
nothing save a new election or appointment can restore the ousted
official. 

As the mere act of filing the certificate
of candidacy for another office produces automatically the permanent forfeiture
of the elective position being presently held, it is not necessary, as
petitioner opines, that the other position be actually held. (Dimaporo vs.
Mitra, Jr., 202 SCRA 779 [1991], Davide, Jr., J.)

§9. Be this as it may, it seems
obvious to the Court that a government-owned or controlled corporation does not
lose its character as such because not possessed of an original charter but
organized under the general law.  If a
corporation’s capital stock is owned by the Government, or it is operated and
managed by officers charged with the mission of fulfilling the public
objectives for which it has been organized, it is a government-owned and
controlled corporation even if organized under the Corporation Code and not
under a special statute; and employees thereof, even if not covered by the
Civil Service but by the Labor Code, are nonetheless “employees in
government-owned or controlled corporations,” and come within the letter of
Section 66 of the Omnibus Election Code, declaring them “ipso facto
resigned from * * office upon the filing of * * (their) certificate of
candidacy.” (PNOC-Energy Development Corporation vs. NLRC, 222 SCRA 831
[1993], Narvasa, C.J.).

3. Withdrawal
of Certificate

§1. There is no question as to the right of a
candidate to withdraw or annul his own certificate of candidacy, there being no
legal prohibition against such withdrawal.

 A candidate voted for who has not
presented a certificate of candidacy has no right to contest the election.

The only instance wherein the law permits
the filing of a certificate of candidacy after the expiration of the time limit
for filing it is when a candidate with a certificate of candidacy duly filed
dies or becomes disqualified. (Monsale vs. Nico, 83 Phil. 758  [1949], Ozaeta, J.).

§2. The approval, by the Commission on
Elections, of the withdrawal of a certificate of candidacy for a Congressional
seat does not give rise to any administrative question or controversy
reviewable by the Supreme Court.

An
elective provincial, municipal or city official running for an office, other
than the one which he is actually holding, is considered resigned from his
office from the moment of the filing of his certificate of candidacy.  The forfeiture is automatic and irrevocably
effective upon the filing of the certificate of candidacy for another
office.  Only the moment and act
of filing are considered.  Once the
certificate is filed, the position is forever forfeited and nothing, save a new
election or appointment, can restore the ousted official. The forfeiture is not
dependent upon future contingencies, unforeseen or unforeseeable, since the
vacating is expressly made as of the moment of the filing of the certificate of
candidacy.

The
withdrawal of a certificate of candidacy does not necessarily render it void ab
initio.  Once filed, the permanent
legal effects produced thereby remain even if the certificate itself be
subsequently withdrawn. (Monroy vs. Court of Appeals, 20 SCRA 620 [1967],
Bengzon, J.P., J.).

§3. Upon
a restudy of the case, the Court finds merit in the reconsideration prayed for,
which would respect the will of the electorate instead of defeating the same
through the invocation of formal or technical defects.  (De Guzman vs. Board of Canvassers, 48
Phil. 211 [1925], citing Lino Luna vs. Rodriguez, 39 Phil. 208 [1918]; Badelles
vs. Cabili, 27 SCRA 121 [1969]; Yra vs. Abaño, 52 Phil. 380 [1928]; Canceran
vs. Comelec, 107 Phil. 607 [1960]; Corocoro vs. Bascara, 9 SCRA 522
[1963], Pungutan vs. Abubakar, 43 SCRA 1 [1972]; and Lacson, Jr. vs.
Posadas, 72 SCRA 170 [1976]).

The
fact that Mendoza’s withdrawal was not sworn is but a technicality which should
not be used to frustrate the people’s will in favor of petitioner as the
substitute candidate.  In Guzman vs.
Board of Canvassers, 48 Phil. 211, clearly applicable, mutatis
muntandis, this Court held that “(T)he will of the people cannot be
frustrated by a technicality that the certificate of candidacy had not been
properly sworn to.  This legal provision
is mandatory and non-compliance therewith before the election would be fatal to
the status of the candidate before the electorate, but after the people have
expressed their will, the result of the election cannot be defeated by the fact
that the candidate has not sworn to his certificate of candidacy”  (See also Gundan vs. Court of First
Instance, 66 Phil. 125).  As likewise
ruled by this Court in Canceran vs. Comelec, 107 Phil. 607, the legal
requirement that a withdrawal be under oath will be held to be merely directory
and Mendoza’s failure to observe the requirement should be “considered a harmless
irregularity.”

The
Comelec’s post-election act of denying petitioner’s substitute candidacy
certainly does not seem to be in consonance with the substance and spirit of
the law.  Section 28 of the 1978 Election
Code provides for such substitute candidates in case of death, withdrawal or
disqualification up to mid-day of the very day of the elections.  Mendoza’s withdrawal was filed on the last
hour of the last day for regular filing of candidacies on January 4,
1980, which he had filed earlier that same day.  For all intents and purposes, such withdrawal
should therefore be considered as having been made substantially and in truth after
the last day, even going by the literal reading of the provision by
the Comelec.  Indeed, the statement of
former Chief Justice Enrique M. Fernando in his dissent that “the bona fides
of petitioner Crisologo Villanueva y Paredes as a substitute candidate
cannot, (in his opinion), be successfully assailed.  It follows that the votes cast in his favor
must be counted.  Such being the case,
there is more than sufficient justification for his proclamation as Vice Mayor.
(Villanueva vs. Commission on Elections, 140 SCRA 352  [1985], Teehankee, J.).

4. Substitution
of Candidate

§1. Substitution of a candidate by
reason of withdrawal of such candidate is proper only when such withdrawal is
made after the last day for filing certificates of candidacy, not when the
withdrawal is effected on or before such last day. (Paredes vs. Commission
on Elections, 122 SCRA 636  [1983], De
Castro, J.).

§2. Petitioner capitalizes on the
fact that the Comelec ruled to disqualify Jose “Pempe” Miranda in the May 5,
1998 resolution and he heavily relies upon the above-quoted provision allowing
substitution of a candidate who has been disqualified for any cause.  While there is no dispute as to whether or
not a nominee of a registered or accredited political party may substitute for
a candidate of the same party who had been disqualified for any cause, this does
not include those cases where the certificate of candidacy of the person to be
substituted had been denied due course and cancelled under Section 78 of the
Code.  Expressio unius est exclusio
alterius. While the law enumerated the occasions where a candidate may be
validly substituted, there is no mention of the case where a candidate is
excluded not only by disqualification but also by denial and cancellation of
his certificate of candidacy. Under the foregoing rule, there can be no valid
substitution for the latter case, much in the same way that a nuisance
candidate whose certificate of candidacy is denied due course and/or cancelled
may not be substituted.  If the intent of
the lawmakers were otherwise, they could have so easily and conveniently included
those persons whose certificates of candidacy have been denied due course
and/or cancelled under the provisions of Section 78 of the Code.

By its express language, the foregoing
provision of law is absolutely mandatory. 
It is but logical to say that any person who attempts to run for an elective
office but does not file a certificate of candidacy, is not a candidate at
all.  No amount of votes would catapult
him into office.  In Gador vs. Comelec
(95 SCRA 431 [1980]), the Court held that a certificate of candidacy filed
beyond the period fixed by law is void, and the person who filed it is not, in
law, a candidate.  Much in the same
manner as a person who filed no certificate of candidacy at all and a person
who filed it out of time, a person whose certificate of candidacy is cancelled
or denied due course is no candidate at all. 
No amount of votes should entitle him to the elective office aspired
for.

A
deceased candidate is required to have duly filed a valid certificate of
candidacy, otherwise his political party would not be allowed to field a
substitute candidate in his stead under Section 77 of the Code.  In the case of withdrawal of candidacy, the
withdrawing candidate is required to have fully filed a valid certificate of
candidacy in order to allow his political party to field a substitute candidate
in his stead.  Most reasonable it is
then, under the foregoing rule, to hold that a valid certificate of
candidacy is likewise an indispensable requisite in the case of a substitution
of a disqualified candidate under the provisions of Section 77 of the Code,
just as it is in the two previous instances. (Miranda vs. Abaya, 311 SCRA
617 [1999], Melo, J.).

§3. The
rule on substitution of an official candidate of a registered or accredited
political party who dies, withdraws or is disqualified for any cause after the
last day for the filing of certificates of candidacy is governed by Section 77
of the Omnibus Election Code which provides: 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 maybe 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.  Thus,
under the said provision it is necessary, among others, that the substitute
candidate must be of the same political party as the original candidate and
must be duly nominated as such by the political party.

A
certificate of candidacy is in the nature of a formal manifestation to the
whole world of the candidate’s 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. 
(Sinaca vs. Mula, 315 SCRA 266 [1999], Davide, Jr., C.J.).

§4. Whether respondent Fariñas
validly substituted Chevylle V. Fariñas and whether respondent became a
legitimate candidate, in our view, must likewise be addressed to the sound
judgment of the Electoral Tribunal.  Only
thus can we demonstrate fealty to the Constitutional provision that the
Electoral Tribunal of each House of Congress shall be the “sole judge of
all contests relating to the election, returns, and qualifications of their
respective members.” (Guerrero vs. Commission on Elections, 336 SCRA 458
[2000], Quisumbing, J.).

5. False Representation in the Certificate

§1. The
petition filed by private respondent Ututalum with the respondent Comelec to
disqualify petitioner Loong on the ground that the latter made a false
representation in his certificate of candidacy as to his age, clearly does not
fall under the grounds of disqualification as provided for in Rule 25 but is
expressly covered by Rule 23 of the Comelec Rules of Procedure governing
petitions to cancel certificate of candidacy. 
Moreover, Section 3, Rule 25 which allows the filing of the petition at
any time after the last day for the filing of certificates of candidacy but not
later than the date of proclamation, is merely a procedural rule issued by
respondent Commission which, although a constitutional body, has no legislative
powers.  Thus, it can not supersede
Section 78 of the Omnibus Election Code which is a legislative enactment. (Loong
vs. Commission on Elections, 216 SCRA 760 
[1992], Padilla, J.).

§2. As stated in the law, in order
to justify the cancellation of the certificate of candidacy under Section 78,
it is essential that the false representation mentioned therein pertain to a
material matter for the sanction imposed by this provision would affect the
substantive rights of a candidate – the right to run for the elective post for
which he filed the certificate of candidacy. 
Although the law does not specify what would be considered as a “material
representation,” the Court has interpreted this phrase in a line of decisions
applying Section 78 of the Code.

The
Court has likened a proceeding under Section 78 to a quo warranto
proceeding under Section 253 since they both deal with the qualifications of a
candidate.  In the case of Aznar vs.
Commission on Elections, wherein a petition was filed asking the Comelec to
disqualify private respondent Emilio Osmena on the ground that he does not
possess the requisite Filipino citizenship, the Court said – 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 under the Omnibus Election Code (B.P. Blg.
881), to wit:  “(1) Before election,
pursuant to Section 78 thereof; and (2) After election, pursuant to
Section 253 thereof.”

The only difference between the two
proceedings is that, under Section 78, the qualifications for elective office
are misrepresented in the certificate of candidacy and the proceedings must be
initiated before the elections, whereas a petition for quo warranto
under Section 253 may be brought on the basis of two grounds – (1)
ineligibility or (2) disloyalty to the Republic of the Philippines, and must be
initiated within ten days after the proclamation of the election results.  Under Section 253, a candidate is ineligible
if he is disqualified to be elected to office, and he is disqualified if he
lacks any of the qualifications for elective office.

It may be concluded that the material
misrepresentation contemplated by Section 78 of the Code refer to
qualifications for elective office.  This
conclusion is strengthened by the fact that the consequences imposed upon a
candidate guilty of having made a false representation is his certificate of
candidacy are grave – to prevent the candidate from running or, if elected,
from serving, or to prosecute him for violation of the election laws.  It could not have been the intention of the
law to deprive a person of such a basic and substantive political right to be
voted for a public office upon just and innocuous mistake.

Aside from the requirement of materiality,
a false representation under Section 78 must consist of a “deliberate attempt
to mislead, misinform or hide a fact which would otherwise render a candidate
ineligible.”  In other words, it must be
made with an intention to deceive the electorate as to one’s qualifications for
public office.  The use of a surname,
when not intended to mislead or deceive the public as to one’s identity, is not
within the scope of the provision. (Salcedo II vs. Commission on Elections,
312 SCRA 447 [1999], Gonzaga-Reyes, J.).

6. Cancellation of Certificate

§1. Under the same Rules of
Procedure, jurisdiction over a petition to cancel a certificate of candidacy
lies with the COMELEC sitting in Division, not en banc. Cases before a
Division may only be entertained by the COMELEC en banc when the
required number of votes to reach a decision, resolution, order or ruling is
not obtained in the Division.  Moreover,
only motions to reconsider decisions, resolutions, orders or rulings of the
COMELEC in Division are resolved by the COMELEC en banc.  It is therefore the COMELEC sitting in
Division that can hear and decide election cases. x x x  In the instant case, the COMELEC en banc
did not refer the case to any of its Divisions upon receipt of the
petition.  It therefore acted without
jurisdiction or with grave abuse of discretion when it entertained the petition
and issued the order of May 2, 1996. (Garvida vs. Sales, Jr., 271 SCRA 767
[1997], Puno, J.).

§2. 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]).

Strictly speaking, a cancelled certificate
cannot give rise to a valid candidacy, and much less to valid votes.  (Bautista vs. Commission on Elections, 298
SCRA 480 [1998], Melo, J.).

7. Correction
of Certificate

§1. 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 of Municipal 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.

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 Elections 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 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. (Conquilla vs. Commission on
Elections, 332 SCRA 861 [2000], 
Bellosillo, J.).

 

CHAPTER XIII
Disqualifications

 

1. Non-Filipino Citizen

§1. A
perusal of the above provision would readily disclose that the Comelec can
legally suspend the proclamation of petitioner Labo, his reception of the
winning number of votes notwithstanding, especially so where, as in this case,
Labo failed to present any evidence before the Comelec to support his claim of
reacquisition of Philippine citizenship.

Undoubtedly,
petitioner Labo, not being a Filipino citizen, lacks the fundamental
qualification for the contested office. 
Philippine citizenship is an indispensable requirement for holding an
elective office.  As mandated by
law:  “An elective local official must be
a citizen of the Philippines.”  (Labo,
Jr. vs. Commission on Elections, 211 SCRA 297 [1992], Bidin, J.).

§2. Inasmuch
as Frivaldo had been declared by this Court as a non-citizen, it is therefore
incumbent upon him to show that he has reacquired citizenship; in fine, that he
possesses the qualifications prescribed under the said statute. (Frivaldo
vs. Commission on elections, 257 SCRA 727 [1996], Panganiban, J.)

2. Lack
of Residency

§1. The contention that the dismissal
of the pre-proclamation controversy would render the disqualification case
(lack of residency) moot and academic is also untenable.  The two cases are independent of each other
and one may be resolved separately without affecting the other.  The purpose of a pre-proclamation controversy
is to ascertain the winner or winners in the elections on the basis of the
election returns duly authenticated by the boards of inspectors and admitted by
the board of canvassers.  The purpose of
a disqualification proceeding is to prevent the candidate from running or, if
elected, from serving, or to prosecute him for violation of the election
laws.  Obviously, the mere fact that a
candidate has been proclaimed elected does not signify that his
disqualification is deemed condoned and may no longer be the subject of a
separate investigation. (Abella vs. Larrazabal, 180 SCRA 509 [1989], Cruz,
J.).

3. Term Limits

§1. Not only historical examination
but textual analysis as well supports the ruling of the COMELEC that Art. X,
Section 8 contemplates service by local officials for three consecutive terms
as a result of election.  The first
sentence speaks of “the term of office of elective local officials” and
bars “such official [s]” from serving for more than three consecutive
terms.  The second sentence, in
explaining when an elective local official may be deemed to have served his
full term of office, states that “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.”  The term served must therefore be one “for
which [the official concerned] was elected.” 
The purpose of this provision is to prevent a circumvention of the
limitation on the number of terms an elective local official may serve.  Conversely, if he is not serving a term for
which he was elected because he is simply continuing the service of the
official he succeeds, such official cannot be considered to have fully served
the term notwithstanding his voluntary renunciation of office prior to its
expiration.

To recapitulate, the term limit for
elective local officials must be taken to refer to the right to be elected as
well as the right to serve in the same elective position.  Consequently, it is not enough that an
individual has served three consecutive terms in an elective local
office, he must also have been elected to the same position for the same
number of times before the disqualification can apply. (Borja, Jr., vs.
Commission on Elections, 295 SCRA 157 [1998], Mendoza, J.).

§2. This Court held that the two
conditions for the application of the disqualification must concur: 1) that the
official concerned has been elected for three consecutive terms in the same
local government post and 2) that he has fully served three consecutive
terms.  It stated:  “To recapitulate, the term limit for elective
local officials must be taken to refer to the right to be elected as well as
the right to serve in the same elective position.  Consequently, it is not enough that an
individual has served three consecutive terms in an elective local
office, he must also have been elected to the same position for the same
number of times before the disqualification can apply.”

The petitioner cannot be deemed to have
served the May 1995 to 1998 term because he was ordered to vacate his post
before the expiration of the term.  The
respondents’ contention that the petitioner should be deemed to have served one
full term from May 1995-1998 because he served the greater portion of that term
has no legal basis to support it; it disregards the second requisite for the
application of the disqualification, i.e., that he has fully served
three consecutive terms.  The second
sentence of the constitutional provision under scrutiny states, “Voluntary
renunciation of office for any length of time shall not be considered as
an interruption in the continuity of service for the full term for which he was
elected.” The clear intent of the framers of the constitution to bar any
attempt to circumvent the three-term limit by a voluntary renunciation of
office and at the same time respect the people’s choice and grant their elected
official full service of a term is evident in this provision.  Voluntary renunciation of a term does not
cancel the renounced term in the computation of the three-term limit;
conversely, involuntary severance from office for any length of time short of
the full term provided by law amounts to an interruption of continuity of
service.  The petitioner vacated his post
a few months before the next mayoral elections, not by voluntary renunciation
but in compliance with the legal process of writ of execution issued by the
COMELEC to that effect.  Such involuntary
severance from office is an interruption of continuity of service and thus, the
petitioner did not fully serve the 1995-1998 mayoral term.

The petitioner’s contention that the COMELEC ceased
to have jurisdiction over the petition for disqualification after he was
proclaimed winner is without merit.  The
instant petition for disqualification was filed on April 21, 1998 or before the
May 1998 elections and was resolved on May 21, 1998 or after the petitioner’s
proclamation.  It was held in the case of
Sunga vs. COMELEC and Trinidad that the proclamation nor the
assumption of office of a candidate against whom a petition for
disqualification is pending before the COMELEC does not divest the COMELEC of
jurisdiction to continue hearing the case and to resolve it on the merits.  Section 6 of RA 6646 specifically mandates
that:  “Sec. 6.  Effects 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.”

 This court held that the clear legislative
intent is that the COMELEC should continue the trial and hearing of the
disqualification case to its conclusion, i.e., until judgment is
rendered.  The outright dismissal of the
petition for disqualification filed before the election but which remained
unresolved after the proclamation of the candidate sought to be disqualified
will unduly reward the said candidate and may encourage him to employ delaying
tactics to impede the resolution of the petition until after he has been
proclaimed. (Lonzanida vs. Commission on Elections, 311 SCRA 602 [1999],
Gonzaga-Reyes, J.).

4. Ineligibility

§1. Any voter contesting the election
of any municipal or barangay official on the ground of ineligibility or
disloyalty to the Republic of the Philippines may file a petition for quo
warranto with the regional trial court or metropolitan or municipal trial
court, respectively, within ten days after the proclamation of the results of
the election. (Article XXI, Section 253, Batas Pambansa Blg. 881). 

§2. A protest to disqualify a
protestee on the ground of ineligibility is different from that of a protest
based on frauds and irregularities where it may be shown that protestant was
the one really elected for having obtained a plurality of the legal votes. (Luison
vs. Garcia, 103 Phil. 453 [1958], Bautista Angelo, J.).

§3. 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 for quo 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.

Moreover, quo warranto was not the
proper remedy because both the petitioner and the private respondent claimed to
have assumed the office of the mayor of Kabuntalan.  In a quo warranto proceeding, the
petitioner is not occupying the position in dispute.  Moreover, under the Omnibus Election Code, quo
warranto is proper only for the purpose of questioning the election of a
candidate on the ground of disloyalty or ineligibility.

A petition for quo warranto under
the Omnibus Election Code raises in issue the disloyalty or ineligibility of
the winning candidate.  It is a
proceeding to unseat the respondent from office but not necessarily to install
the petitioner in his place. (Samad vs. Commission on Elections, 224 SCRA
631 [1993], Cruz, J.).

§4. 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, Section 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. (Perez
vs. Commission on Elections, 317 SCRA 641 [1999], Mendoza, J.).

5. Misconduct

 §1. The next question is whether the
reelection of petitioner rendered the administrative charges against him moot
and academic.  Petitioner invokes the
ruling in Aguinaldo v. COMELEC, in which it was held that a public
official could not be removed for misconduct committed during a prior term and
that his reelection operated as a condonation of the officer’s previous
misconduct to the extent of cutting off the right to remove him therefor.  But that was because in that case, before the
petition questioning the validity of the administrative decision removing
petitioner could be decided, the term of office during which the alleged
misconduct was committed expired. 
Removal cannot extend beyond the term during which the alleged
misconduct was committed.  If a public
official is not removed before his term of office expires, he can no longer be
removed if he is thereafter reelected for another term.  This is the rationale for the ruling in the
two Aguinaldo cases. 

Garcia’s plea that the votes cast for
Reyes be invalidated is without merit.  The
votes cast for Reyes are presumed to have been cast in the belief that Reyes
was qualified and for that reason can not be treated as stray, void, or
meaningless.  The subsequent finding that
he is disqualified cannot retroact to the date of the elections so as to
invalidate the votes cast for him. (Reyes vs. Commission on Elections, 254
SCRA 514 [1996], Mendoza, J.).

§2. Blanco was not denied due process
when the COMELEC (First Division) suspended his proclamation as mayor pending
determination of the petition for disqualification against him.  Section 6 of R.A. No. 6646 and Sections 4 and
5 of the Rule 25 of the Comelec Rules of Procedure merely require that
evidence of guilt should be strong to justify the COMELEC in suspending a
winning candidate’s proclamation.  It
ought to be emphasized that the suspension order is provisional in nature and
can be lifted when the evidence so warrants. It is akin to a temporary
restraining order which a court can issue ex-parte under exigent
circumstances.

In any event, Blanco was given all the
opportunity to prove that the evidence on his disqualification was not
strong.  On May 25, 1995, he filed a
Motion to Lift or Set Aside the Order suspending his proclamation.  On May 29, 1995, he filed his Answer to the
petition to disqualify him. The COMELEC considered the evidence of the parties
and their arguments and thereafter affirmed his disqualification.  The hoary rule is that due process does not
mean prior hearing but only an opportunity to be heard.  Petitions for disqualification are subject to
summary hearings. (Nolasco vs. Commission on Elections, 275 SCRA 762 [1997],
Puno, J.).

6. Fugitive from Justice

§1. The Court believes and thus
holds, albeit with some personal reservations of the ponente
(expressed during the Court’s en banc deliberations), that Article 73 of
the Rules and Regulations Implementing the Local Government Code of 1991, to
the extent that it confines the term “fugitive from justice” to refer only to a
person (the fugitive) “who has been convicted by final judgment,” is an
inordinate and undue circumscription of the law.

Unfortunately, the COMELEC did not make
any definite finding on whether or not, in fact, private respondent is a
“fugitive from justice” as such term must be interpreted and applied in the
light of the Court’s opinion.  The
omission is understandable since the COMELEC dismissed outrightly the petition
for quo warranto on the basis instead of Rule 73 of the Rules and
Regulations promulgated by the Oversight Committee.  The Court itself, not being a trier of facts,
is thus constrained to remand the case to the COMELEC for a determination of
this unresolved factual matter. (Marquez, Jr., vs. Commission on Elections,
243 SCRA 538 [1995], Vitug, J.).

§2. To reiterate, a “fugitive from
justice”:  “x x x includes not only
those who flee after conviction to avoid punishment but likewise who, after
being charged, flee to avoid prosecution.” 
The definition thus indicates that the intent to evade is the
compelling factor that animates one’s flight from a particular
jurisdiction.  And obviously, there can
only be an intent to evade prosecution or punishment when there is
knowledge by the fleeing subject of an already instituted indictment, or of a
promulgated judgment of conviction.

 Rodriguez’ case just cannot fit in this
concept.  There is no dispute that his
arrival in the Philippines from the US on June 25, 1985, as per certifications
issued by the Bureau of Immigrations dated April 27 and June 26 of 1995, preceded
the filing of the felony complaint in the Los Angeles Court on November 12,
1985 and of the issuance on even date of the arrest warrant by that same
foreign court, by almost five (5) months.  It was clearly impossible for Rodriguez to
have known about such felony complaint and arrest warrant at the time he left
the US, as there was in fact no complaint and arrest warrant – much less
conviction – to speak of yet at such time. 
What prosecution or punishment then was Rodriguez deliberately running
away from with his departure from the US? 
The very essence of being a “fugitive from justice” under the MARQUEZ
Decision definition, is just nowhere to be found in the circumstances of
Rodriguez.

However, Marquez and the COMELEC (in its
“COMMISSION’S EVALUATION” as earlier quoted) seem to urge the Court to redefine
“fugitive from justice.”  They
espouse the broader concept of the term as culled from foreign authorities
(mainly of U.S. vintage) cited in the MARQUEZ Decision itself,
i.e., that one becomes a “fugitive from justice” by the mere fact that
he leaves the jurisdiction where a charge is pending against him, regardless of
whether or not the charge has already been filed at the time of his
flight.  Suffice it to say that the “law
of the case” doctrine forbids the Court to craft an expanded redefinition
of “fugitive from justice” (which is at variance with the MARQUEZ
Decision) and proceed therefrom in resolving the instant petition.

To elaborate, the same parties (Rodriguez
and Marquez) and issue (whether or not Rodriguez is a “fugitive from
justice”) are involved in the MARQUEZ Decision and the instant
petition.  The MARQUEZ Decision
was an appeal from EPC No. 92-28 (the Marquez’ quo warranto petition
before the COMELEC).  The instant
petition is also an appeal from EPC No. 92-28 although the COMELEC resolved the
latter jointly with SPA No. 95-089 (Marquez’ petition for the disqualification
of Rodriguez).  Therefore, what was
irrevocably established as the controlling legal rule in the MARQUEZ
Decision must govern the instant petition. 
And we specifically refer to the concept of ”fugitive from justice”
as defined in the main opinion in the MARQUEZ Decision which highlights
the significance of an intent to evade but which MARQUEZ and the
COMELEC, with their proposed expanded definition, seem to trivialize. (Rodriguez
vs. Commission on Elections, 259 SCRA 296 [1996], Francisco, J.).

7. Turncoatism

 §1. There is thus no proper course to
take in the premises other than to remand also the present cause and give full
force and effect to Singco’s proclamation without prejudice to the
disqualification suit with the directive that COMELEC should hold a full dress
hearing in accordance with the requirements of due process, and the parties
given full opportunity to present all evidence relevant to the issue of
turncoatism. x x x

Pendency of a disqualification case before
the COMELEC will not justify suspension of proclamation of a candidate after
winning the election. (Singco vs. Commission on Elections, 101 SCRA 420
[1980], De Castro, J.).

§2. After the election a claim of
disqualification on the ground of turncoatism should be sought in a quo
warranto petition. (Aguinaldo vs. Hon. Commission on Elections, 102 SCRA
1 [1981], Fernando, C.J.).

CHAPTER XIV
Electoral Campaign, Contributions and Expenditures

 

1. Campaign

§1. “Election campaign” or “partisan
political activity” refers to “acts designed to have a candidate elected or not
or promote the candidacy of a person or persons to a public office.” (Gonzales
vs. Commission on Elections, 27 SCRA 835 [1969], Fernando, J.).

§2. Threats by persons prominent in
local government and adherents of a particular faction, addressed to electors
on election day as they were entering the polls, that a candidate for
reelection to the office of provincial governor would be governor until
October, that they had better vote for him, and that if they did not look out
as he would be governor until October anyway, accompanied by the forcible
substitution of provisional ballots of another candidate for those of the
candidate favored by these persons, must be considered as having prevented a
free and untrammeled expression of the popular will. (Gardiner vs. Romulo,
26 Phil. 254 [1914], Trent, J.).

§3. In the case of Badoy, Jr. v.
Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the
prohibition of certain forms of election propaganda was assailed, We ruled
therein that the prohibition is a valid exercise of the police power of the
state “to prevent the perversion and prostitution of the electoral apparatus
and of the denial of equal protection of the laws.”  The evil sought to be prevented in an
election which led to Our ruling in that case does not obtain in a plebiscite.  In a plebiscite, votes are taken in an area
on some special political matter unlike in an election where votes are cast in
favor of specific persons for some office. 
In other words, the electorate is asked to vote for or against issues,
not candidates in a plebiscite.

Anent Respondent Comelec’s argument that
Section 19 of Comelec Resolution 2167 does not absolutely bar
petitioner-columnist from expressing his views and/or from campaigning for or
against the organic act because he may do so through the Comelec space and/or
Comelec radio/television time, the same is not meritorious.  While the limitation does not absolutely bar
petitioner’s freedom of expression, it is still a restriction on his choice
of the forum where he may express his view. 
No reason was advanced by respondent to justify such abridgment.  We hold that this form of regulation is
tantamount to a restriction of petitioner’s freedom of expression for no
justifiable reason.

Plebiscite issues are matters of public
concern and importance.  The people’s
right to be informed and to be able to freely and intelligently make a decision
would be better served by access to an unabridged discussion of the issues,
including the forum.  The people affected
by the issues presented in a plebiscite should not be unduly burdened by
restrictions on the forum where the right to expression may be exercised.  Comelec spaces and Comelec radio time may
provide a forum for expression but they do not guarantee full dissemination of
information to the public concerned because they are limited to either specific
portions in newspapers or to specific radio or television times.  Accordingly, the instant petition is
GRANTED.  Section 19 of Comelec
Resolution No. 2167 is declared null and void and unconstitutional. (Sanidad
vs. Commission on Elections, 181 SCRA 529 
[1990], Medialdea, J.).

§4. The
term political “ad ban,” when used to describe Section 11(b) of R.A. No. 6646,
is misleading, for even as Section 11(b) prohibits the sale or donation of
print space and air time to political candidates, it mandates the COMELEC to
procure and itself allocate to the candidates space and time in the media.  There is no suppression of political ads but
only a regulation of the time and manner of advertising.

In Adiong v. COMELEC this Court
quoted the following from the decision of the U.S. Supreme Court in a case
sustaining a Los Angeles City ordinance which prohibited the posting of
campaign signs on public property: A government regulation is sufficiently
justified if it is within the constitutional power of the Government, if it
furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the
incident restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest 
(Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673,  City Council v. Taxpayers For Vincent, 466
US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984]). 
This test was actually formulated in United States v. O’Brien.  It is an appropriate test for restrictions on
speech which, like Section 11(b), are content-neutral.  Unlike content-based restrictions, they are
not imposed because of the content of speech. For this reason, content-neutral
restrictions are tests demanding standards. 
For example, a rule such as that involved in Sanidad v. COMELEC,
prohibiting columnists, commentators, and announcers from campaigning either
for or against an issue in a plebiscite must have a compelling reason to
support it, or it will not pass muster under strict scrutiny.  These restrictions, it will be seen, are
censorial and therefore they bear a heavy presumption of constitutional
invalidity.  In addition, they will be
tested for possible overbreadth and vagueness.

Justice Panganiban’s dissent invokes the
clear-and-present-danger test and argues that “media ads do not partake of the
‘real substantive evil’ that the state has a right to prevent and that
justifies the curtailment of the people’s cardinal right to choose their means
of expression and of access to information.” 
The clear-and-present-danger test is not, however, a sovereign remedy
for all free speech problems.  As has
been pointed out by a thoughtful student of constitutional law, it was
originally formulated for the criminal law and only later appropriated for free
speech cases.  For the criminal law is
necessarily concerned with the line at which innocent preparation ends and a
guilty conspiracy or attempt begins. 
Clearly, it is inappropriate as a test for determining the constitutional
validity of laws which, like Section 11(b) of R.A. No. 6646, are not concerned
with the content of political ads but only with their incidents. To apply the
clear-and-present-danger test to such regulatory measures would be like using a
sledgehammer to drive a nail when a regular hammer is all that is needed.

The reason for this difference in the
level of justification for the restriction of speech is that content-based
restrictions distort public debate, have improper motivation, and are usually
imposed because of fear of how people will react to a particular speech.  No such reasons underlie content-neutral
regulations, like regulations of time, place and manner of holding public
assemblies under B.P. Blg. 880, the Public Assembly Act of 1995.  Applying the O’Brien test in this
case, we find that Section 11(b) of R.A. No. 6646 is a valid exercise of the
power of the State to regulate media of communication or information for the
purpose of ensuring equal opportunity, time and space for political campaigns;
that the regulation is unrelated to the suppression of speech; that any
restriction on freedom of expression is only incidental and no more than is
necessary to achieve the purpose of promoting equality. (Osmeña vs.
Commission on Elections, 288 SCRA 447 
[1998], Mendoza, J.).

§7. An exit poll is a species of
electoral survey conducted by qualified individuals or groups of individuals
for the purpose of determining the probable result of an election by
confidentially asking randomly selected voters whom they have voted for,
immediately after they have officially cast their ballots. The results of the
survey are announced to the public, usually through the mass media, to give an
advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted.  In
our electoral history, exit polls had not been resorted to until the recent May
11, 1998 elections. (ABS-CBN Broadcasting Corporation vs. Commission on
Elections, 323 SCRA 811 [2000], Panganiban, J.).

2. Contributions
and Expenditures

§1. The circumstance that a candidate
for the office of provincial governor made a small contribution for the repair
of a dangerous road leading to one of the precincts and that a few electors
testified that they voted for him because of this liberality, does not justify
the subtraction of their votes from the votes of said candidate in a contest
subsequently instituted over the office. A manifestation of interest by a
candidate in public work of this nature is not to be reprehended. (Lucero
vs. De Guzman, 45 Phil. 852 [1924], Street, J.).

§2. A promise made by a candidate for
election that he will, if elected, donate his salary for the education of
indigent but deserving students, is not prohibited by Section 49 of the
Election Law.  (Collado vs. Alonzo,
122 Phil. 957 [1965]; 15 SCRA 562 [1965], Bengzon, C.J.).

§3. The prohibition contained in the
Revised Election Code, R.A. 180, against a candidate spending for his election
campaign more than the equivalent of one year’s salary for the position he is
running for applies also to non-candidates who makes excess contributions. (Vda.
de Halili vs. Court of Appeals, 83 SCRA 633 [1978], Aquino, J.).

§4. Section 14 of R.A. No. 7166
states that “every candidate” has the obligation to file his statement of
contributions and expenditures.

Well-recognized is the rule that where the
law does not distinguish, courts should not distinguish.  Ubi lex non distinguit nec nos distinguere
debemos (Philippine British Assurance Co., Inc. v. Intermediate
Appellate Court, 150 SCRA 520 [1987]; cf. Olfato v. Commission on
Elections, 103 SCRA 741 [1981]).  No
distinction is to be made in application of a law where none is indicated.

In the case at bench, as the law makes no
distinction or qualification as to whether the candidate pursued his candidacy
or withdrew the same, the term “every candidate” must be deemed to refer not
only to a candidate who pursued his campaign, but also to one who withdrew his
candidacy.

The COMELEC, the body tasked with the enforcement
and administration of all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall (The Constitution of
the Republic of the Philippines, Art. IX[C], Sec. 2[1]), issued Resolution No.
2348 in implementation or interpretation of the provisions of Republic Act No.
7166 on election contributions and expenditures.  Section 13 of Resolution No. 2348
categorically refers to “all candidates who filed their certificates of
candidacy.”

Lastly, we note that under the fourth
paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election Code of
the Philippines, it is provided that “[t]he filing or withdrawal of certificate
of candidacy shall not affect whatever civil, criminal or administrative
liabilities which a candidate may have incurred.”  Petitioner’s withdrawal of his candidacy did
not extinguish his liability for the administrative fine. (Pilar vs.
Commission on Elections, 245 SCRA 759 [1995], Quiason, J.).

 

CHAPTER XV
Casting and Counting of Votes

 

1. Precincts
and Polling Places

§1. The
requirements of the Election Law providing for the location of polling stations
and the construction of booths and guard rails for the latter may be departed
from in some particulars and yet preserve in substantial form the secrecy which
the law requires.  But the failure to
provide doors and guard rails for the booths and the placing of the writing
shelf so that it faces the side instead of the rear of the booth are, combined,
a fatal disregard of the law, inasmuch as such an arrangement does not offer,
even in substantial form, the secrecy and seclusion which, according to the
purpose and spirit of the Election Law, is its most mandatory requirement. (Gardiner
vs. Romulo, 26 Phil. 254 [1914], Trent, J.). 

§2. While
the law provides the manner of constructing voting booths, and while the
provisions are in a sense mandatory yet the purpose of the law is to require
voting booths which afford the voter an opportunity, if he desires, to prepare
his ballot in absolute secrecy.  Secrecy
is the object of the booth.  An opportunity
to prepare the ballot in private is the purpose of the provision. When the
booth affords that protection the purpose of the law is fulfilled.  To hold otherwise—to establish a different
rule—would make the manner of performing a public duty more important than the
performance of the duty itself.                     (Luna vs. Rodriguez, 39
Phil. 208 [1918], Johnson, J.).  

§3. The
circumstance that the walls and partitions of the voting booths were
constructed of light and fragile material and that a few small holes existed in
the plaited coconut leaves of which the partitions were constructed does not
constitute a sufficient irregularity to justify the annulment of the election,
especially where there is no convincing proof that the defects referred to were
used for the commission of fraud in the conduct of the election. (Lucero vs.
De Guzman, 45 Phil. 852 [1924], Street, J.).     

§4. The fact that the walls of the
election booths were only 80 centimeters high, permitting those on the outside
to see within, is not sufficient reason for annulling the election in a
precinct, it not appearing that the secrecy of the ballot was violated  (20 C.J., 173). (Demeterio vs. Lopez, 50
Phil. 45 [1927], Villa-Real, J.).  

§5. The mere fact that the transfer
of polling place was not made in accordance with law does not warrant a
declaration of failure of election and the annulment of the proclamation of the
winning candidate, unless the number of uncast votes will affect the result of
the election. Thus, in Co v. COMELEC (G.R. No. 78820, May 17, 1988), We
upheld the transfer of polling places ordered by the Election Registrar four
days before the election, allegedly because the teachers, who were members of
the Board of Election Inspectors, were afraid of reported terrorists’ plans to
disrupt the elections in the affected areas. 
Only barangay captains in the areas were notified of the change.  Despite claims that the transfer of polling
place was illegal, because it was made in disregard of Sections 152, 153 and
154 of the OEC, and that it had resulted in the disfranchisement of 15,000
voters, We upheld the COMELEC in refusing to declare a failure of election, it
appearing that the disfranchised voters were only 2,978 and represented only
22.6% of the entire electorate, and their votes would not affect the result of
the election even if they were counted. (Balindong vs. Commission on
Elections, 260 SCRA 494 [1996], Mendoza, J.).

§6. It must be noted that under the
Omnibus Election Code, there should be at least one precinct per barangay.  In designating election precincts, the
COMELEC usually refers to them by number. 
Nevertheless, the determination of whether a certain election precinct
actually exists or not and whether the voters registered in said precinct are
real voters is a factual matter.  On such
issue, it is a time-honored precept that factual findings of the COMELEC based
on its own assessments and duly supported by evidence, are conclusive upon this
Court, more so, in the absence of a substantiated attack on the validity of the
same.  Upon review of the records, the
Court finds that the COMELEC had exerted efforts to investigate the facts and
verified that there were no public or private buildings in the said place,
hence its conclusion that there were no inhabitants.  If there were no inhabitants, a fortiori, there
can be no registered voters, or the registered voters may have left the place.

The
findings of administrative agency cannot be reversed on appeal or certiorari
particularly when no significant facts and circumstances are shown to have been
overlooked or disregarded which when considered would have substantially
affected the outcome of the case. (Sarangani vs. Commission on Elections,
334 SCRA 379  [2000], Buena, J.).

2. Voting
Time

§1. The law provides that “at all
elections, the polls shall be open from seven o’clock in the morning until six
o’clock in the afternoon.”  The polls
should be open and closed in strict accord with said provisions.  Voters who do not appear and offer to vote within
the hours designated by the law should not be permitted to vote if the time for
closing the polls has arrived.  Upon the
other hand, if the voter is prevented, during the voting hours, from voting,
and is not permitted to vote by reason of the failure of the inspectors to do their
duty, then, certainly, in the absence of some fraud, neither such
votes nor the entire vote of the precinct should be annulled simply because
some votes were cast after the regular hours x x x.  The election inspectors should be held to
comply strictly with the law.  If they
violate the law, they should be punished and not the innocent voter.
(Luna vs. Rodriquez, 39 Phil. 208 [1918], Johnson, J.).

§2. At the hour appointed by law for
the closing of the election many voters had been unable to vote owing to lack
of facilities and excessive number of persons desiring to vote. The polls were,
however, promptly closed, with the result that many were disenfranchised. It
was held that the closing of the election at the hour appointed supplied no
ground for nullifying the returns as the proof did not show that any systematic
and effective effort had been made by the election officers to discriminate
persons of any particular faction or party.

In another precinct the proof showed that,
by the devices of the precinct leaders of the two dominant political factions,
voters who were known to be supporters of the contestant were systematically
excluded from the polls during the lawful hours of voting, and this had been
done with the approval of the election inspectors.  Nevertheless in this case the polls were kept
open until everybody who desired to vote had voted.  It was held that under the circumstances
stated the irregularity was non-prejudicial to the contestant and afforded no
ground for annulling the election in that municipality. (Valenzuela vs.
Carlos and Lopez de Jesus, 42 Phil. 428 [1921], Street, J.).  

§3. Where it was proven that some
ballots were distributed and cast in a election precinct even after the
permitted hour of 6:00 o’clock p.m. on election day, but there is no way of
determining which of the ballots read by the board of inspectors were cast
after said hour, it is held that the action of the trial court and the
respondent Court in preferring to leave the ballots as they are is not
incorrect. (Protacio vs. De Leon, 118 Phil. 1310 [1963]; 9 SCRA 472 [1963],
Paredes, J.).

3. Board of Election Inspectors

 §1. Where the election inspectors are
conclusively proved guilty of perpetrating frauds in the marking of ballots of
illiterates, the presumption of veracity which ordinarily attaches to their
records is destroyed, and he who claims under them is put to his proof. (Gardiner
vs. Romulo, 26 Phil. 254 [1914], Trent, J.). 

§2. It
has been the constant practice of the courts to see that a minority party is
given representation on the election board so as to make the election as pure
as possible. (Aquisola vs. Municipal Council of Barili, 43 Phil. 286 [1922],
Malcolm, J.).

§3. Bi-partisan
representation on the board of inspectors is only possible, as indeed is
expressly provided by law, “should there be in such municipality one or more
political parties or branches or fractions thereof, or political groups”
(Section 417, as amended, of the Election Law). 
(De los Angeles vs. Rodriguez, 46 Phil. 595 [1924], Malcolm, J.).

§4. For
the sole purpose of securing the data needed to complete the returns, the Board
of Inspectors may open the ballot boxes, in the premises of the Comelec, in its
presence and under its supervision, after satisfying itself that the identity
and the integrity of the ballot boxes have not been violated, and also in the
presence of the representatives of the parties. 
But none may recount the votes or read the ballots contained in the
ballot boxes.  (Claudio vs. Commission
on Elections, 42 SCRA 586 [1971], Barredo, J.).  

§5. The
appreciation of the ballots cast in the precincts is not a “proceeding of the
board of canvassers” for purposes of pre-proclamation proceedings under Section
241, Omnibus Election Code, but of the boards of election inspectors who are
called upon to count and appreciate the votes in accordance with the rules of
appreciation provided in Section 211, Omnibus Election Code.  Otherwise stated, the appreciation of ballots
is not part of the proceedings of the board of canvassers.  The function of ballots appreciation is
performed by the boards of election inspectors at the precinct level. (Sanchez
vs. Commission on Elections, 153 SCRA 67 
[1987], Per Curiam).

§6. As
a general rule, the failure on the part of the officials to do their duties
will not invalidate the ballot, for to rule otherwise would disenfranchise the
voters and place a premium on official ineptness and make it possible for a
small group of functionaries, by their negligence or their deliberate inaction
to frustrate the will of the electorate. (Fernandez vs. Commission on
Elections, G.R. No. 91351, {April 3, 1990}, Supreme Court En Banc Minute
Resolution).

§7. It is a well-settled rule that the failure of the BEI
chairman or any of the members of the board to comply with their mandated
administrative responsibility, i.e., signing, authenticating and thumbmarking
of ballots, should not penalize the voter with disenfranchisement, thereby
frustrating the will of the people. (Punzalan vs. Commission on Elections,
289 SCRA 702 [1998], Kapunan, J.).

§8. Under the rules prevailing during
the 1997 Barangay Elections, the failure to authenticate the ballots shall no
longer be cause for the invalidation thereof. 
Rather, the BEI shall merely note such failure in the minutes and
declare the failure to authenticate the ballots as an election offense.

In applying election laws, it would be far
better to err in favor of popular sovereignty than to be right in complex but
little understood legalisms. (Malabaguio vs. Commission on Elections, 346
SCRA 699 [2000}, Ynares-Santiago, J.). 

4. Illiterate
or Physically Disabled Voters

§1. Under the facts stated in the
opinion, (1) that the fact that incapacitated voters had been permitted to vote
without taking the oath did not invalidate the election, that the election
inspectors who permitted incapacitated voters to vote without taking the oath
of office may be prosecuted criminally; (2) that ballots which are marked
before they are cast should not be counted, that ballots marked after they are
cast should be counted; (3) that voting booths must be constructed so as to
afford the voter an opportunity to prepare his ballot in secret. (Paulino
vs. Cailles, 37 Phil. 825 [1918], Johnson, J.).

§2. The election inspector, in giving
assistance to a disabled voter, has but one function to perform, namely, the
mechanical act of preparing the ballot. 
The exercise of any discretion as to the selection of candidates for the
voter assisted is prohibited to the marker, and the substitution of his own for
the voter’s choice in such selection is a flagrant violation of an official
trust. (United States vs. Cueto, 38 Phil. 935 [1918], Malcolm, J.).

§3. In the absence of fraud, however,
all of the ballots of the precinct should not be invalidated by the mere fact
that the inspectors did not comply with their duty.  Innocent voters should not be deprived of their
participation in the election for a violation of the law for which they were in
no way responsible.  Incapacitated
persons are usually persons who are unable to acquaint themselves with the
provisions of the law. They are, therefore, absolutely dependent upon the
advice and counsel of others.  Generally,
they have no idea whatever as to the form and requirements in casting their
ballots. (Luna vs. Rodriquez, 39 Phil. 208 [1918], Johnson, J.).

§4. The failure of an illiterate
voter to take an oath as to his incapacity before voting does not invalidate
his vote, unless it appears that it was a part of a fraudulent scheme to defeat
the free expression of the will of the voter. The requirement that the
illiterate or incapacitated should take an oath is mandatory before the
election, that is, the vote cast by an illiterate who has not taken the
prescribed oath to his incapacity, may be challenged before it is deposited in
the box, on the ground that he was assisted by other persons in preparing it
without having taken the required oath as to his incapacity, and in that case
it should not be admitted, but if the voter is not challenged and his vote is
actually deposited in the box, then it cannot be annulled, in the absence of
evidence of fraud  (Valenzuela vs.
Carlos and Lopez de Jesus, supra.). (Cailles vs. Gomez and Barbaza,
42 Phil. 496 [1921], Villamor, J.).

§5. It is presumed that the persons
who took an oath to assist the voters complied therewith, and the contrary not
having been proven, it must be taken for granted that they were assisted x x x.
The taking of the oath gives rise to the presumption that the incapacity sworn
to is real, unless the contrary is shown. 
(Demeterio vs. Lopez, 50 Phil. 45 [1927], Villa-Real, J.).   

§6. Petitioner’s complaints about
supposed irregularities involving illiterate voters appear to assume that it is
improper or unlawful for a third person — e.g., the assistor who had helped the
illiterate to cast his vote — to write the name of the assisted illiterate in
the voting record.  As the Comelec
pointed out, however, the proper procedure for indicating that illiterate
voters have cast their votes has not been specifically set out in the Omnibus
Election Code. (Dipatuan vs. Commission on Elections, 185 SCRA 86 [1990],
Feliciano, J.).  

 5. Ballots and Election Documents

 §1. Where the conservation of the
boxes is prima facie shown and their contents are found intact upon
being opened according to law, the ballots themselves become the best evidence
of the votes cast; and it is the duty of the court to determine the contest, so
far as dependent upon the count, by the proof afforded by the ballots.

Ballots which are found in the box for
spoiled ballots cannot be counted for any candidate in the absence of proof
that such ballots were lawfully cast and were placed in the wrong box by
mistake.  The appearance of the ballot
itself cannot be accepted as supplying the necessary proof that it was a valid
ballot. (Lucero vs. De Guzman, 45 Phil. 852 [1924], Street, J.).

§2. Section
38 of the Election Law, Act No. 3030, clearly indicates that the ballot boxes,
which must be kept by the municipal treasurer after the elections, are subject
to the order of the courts of competent jurisdiction until the final
determination of any protest, or at any event, if no protest is presented, for
the period of six months. (Rafols vs. Court of First Instance and Fiscal of
Cebu, 47 Phil. 736 [1925], Villamor, J.).

§3. A
ballot found in a box of invalid ballots which, in the opinion of the court was
placed there by mistake, may be valid.  (Mandac
vs. Samonte, 49 Phil. 284 [1926], Villamor, J.)

§4. x
x x, so that if in the revision of the ballots some illegal ballots are found
which have not been specifically impugned in the motion of protest, the court
may reject them motu proprio, since it is not essential that the
contestant set forth the grounds of his contest with the same precision
required of a pleading in ordinary civil cases. The trial court, did not err in
taking into account in the revision of the ballots, irregularities not set
forth in the motion of protest. (Yalung vs. Atienza, 52 Phil. 781 [1929],
Villa-Real, J.).

§5. The
fact that neither of the parties raised the question of the illegality of
certain ballots either at the trial or in their pleadings, does not deprive the
trial court of jurisdiction to examine them, for as this court held in the case
of Yalung vs. Atienza, 52 Phil., 781, the institution of suffrage is a
public and not a private interest, and the trial court may examine all the
ballots after the ballot boxes are opened in order to determine which are legal
and which are illegal, even when neither of the parties raised any question as
to their illegality. (Olano vs. Tibayan, 53 Phil. 168 [1929], Villa-Real,
J.).

§6. In
the absence of evidence showing with sufficient certainty that the substituted
ballots had been cast for the contestant, there is no ground for holding that
they were indeed cast for him. No matter how strong the presumption may be that
the substituted ballots were made out in his favor, it is not sufficient to
sustain a finding to that effect. (Kiamzon vs. Pugeda, 54 Phil. 755 [1930],
Villamor, J.).

§7. In the instant controversy, it would
appear that the HRET “reviewed and passed upon the validity of all the ballots
in the protested and counter-protested precincts, including those not contested
and claimed by the parties.”  The
Tribunal, added that “(t)his course of action was adopted not only to give
effect to the intent of each and every voter, but also to rectify any mistake
in appreciation, deliberate or otherwise, committed at the precinct level and
overlooked during the revision stage of this case.”  In holding that the absence of the signature
of the Chairman of the BEI at the back of the ballot does not invalidate it,
the HRET has ratiocinated in this wise: 
“No spurious ballot was found in this case.  For a ballot to be rejected for being
spurious, the ballot must not have any of the following authenticating marks:
a) the COMELEC watermark; b) the signatures or initial of the BEI Chairman at
the back of the ballot; and c) red and blue fibers.  In the present case, all the ballots examined
by the Tribunal had COMELEC watermarks.”

As so aptly observed by the Solicitor General, House
Bill (“HB”) No. 34811 (which later become R.A. No. 7166), approved by the House
of Representatives on third reading, was a consolidation of different
bills.  Two of the bills consolidated and
considered in drafting H.B. No. 34811 were H.B. No. 34639 and H.B. No.
34660.  Section 22 of the two latter
bills provided that:  “In every case
before delivering an official ballot to the voter, the chairman of the Board of
Election Inspectors, shall in the presence of the voter, affix his signature at
the back thereof.  Any ballot which is not
so authenticated shall be deemed spurious. 
Failure to so authenticate shall constitute an election offense.”  During the deliberation of the Committee on
Suffrage and Electoral Reforms, held on 08 August 1991, the members agreed to
delete the phrase “Any ballot which is not so authenticated shall be deemed
spurious.”

Reliance by petitioner on this alleged
“ruling,” obviously deserves scant consideration.  What should, instead, be given weight is the
consistent rule laid down by the HRET that a ballot is considered valid and
genuine for as long as it bears any one of these authenticating marks, to
wit:  (a) the COMELEC watermark; or (b)
the signature or initials, or thumbprint of the Chairman of the BEI; and (c) in
those cases where the COMELEC watermarks are blurred or not readily apparent to
the naked eye, the presence of red and blue fibers in the ballots.  It is only when none of these marks appears
extant that the ballots can be considered spurious and subject to rejection. (Libanan
vs. House of Representatives Electoral Tribunal, 283 SCRA 520 [1997], Vitug,
J.).

6. Spoiled
Ballots

§1. x x x, deposited by the election
inspectors in the spoiled-ballot box, not because it was spoiled, since it does
not bear the words “spoiled ballot” as required by Section 454 of the Election
Law, but because in the column for municipal president appears a little
slanting pencil line which the inspectors considered as a distinguishing mark
and hence rejected the ballot as marked, cannot be considered spoiled, and its deposit
in the spoiled-ballot box was due to an error. (Yalung vs. Atienza, 52 Phil.
781 [1929], Villa-Real, J.).

§2. Where the election returns showed
that 254 valid ballots were cast in the election for the candidates for a
particular office and that the spoiled ballots were 33 in number, and upon
opening the boxes only 253 ballots were found in the box of used ballots while
34 were found in the box for spoiled ballots, including an apparently good one
for one of the candidates to the contested office, the court sustained the
trial judge in holding that the apparently good ballot found in the box of
spoiled ballots might be claimed by the contestant, with the result that the
official returns with respect to the vote for the contested office were allowed
to stand. (Aviado vs. Talens, 52 Phil. 665 [1929], Street, J.).

§3. The ballots found in the boxes
for spoiled ballots are presumed to be spoiled ballots, and if it was the duty
of the court to examine said ballots, the petitioner had, of course, the right
to present evidence with respect thereto. (Balon vs. Moreno, 57 Phil. 60
[1932], Vickers, J.).

§4. The mere fact that a ballot
otherwise having no sign or indication of being legally a spoiled one is found
in the course of the trial inside the red box for spoiled ballots does not
preclude the court from determining whether or not it is a valid ballot
mistakenly or inadvertently placed in said red box. (Moraleja vs. Relova, 42
SCRA 10 [1971], Barredo, J.).

 7. Excess Ballots

 §1. But the
trial judge entertained the view that many persons had voted more than once in
this precinct, resulting in an excess of ballots. This may have been the case,
as there is some evidence tending to show that on election day the voters were
admitted to the polling place in this precinct without identification. If so,
the inspectors, at the beginning of the count, would have been confronted with
the fact that they had decidedly more ballots on hand than would be accounted
for by the number who had voted. In view of this, it is a plausible conjecture
that the inspectors may have discarded excess ballots sufficient to reduce the
number of used ballots to about the number who ought to have voted. (Valenzuela
vs. Carlos and Lopez de Jesus, 42 Phil. 428 [1921], Street, J.).

§2. There are nine senatorial
candidates who received votes ranging from 300 to 375, or a total number of
votes of 3,265.  The maximum number of
votes cast by the 375 voters will be only 3,000 votes, assuming that all of
them voted and cast their votes.  The total
number of votes credited for the aforesaid nine candidates for senator is
3,265.  There is therefore produced an
excess 265 votes.  The foregoing facts
appearing on the face of said election return itself show that the election
return is obviously manufactured. (Tagoranao vs.
Commission on Elections, 22 SCRA 978 [1968], Castro, J.).

§3. As the rule of our jurisprudence
now stands, a conclusion of statistical improbability may be drawn only from
what appears on the face of a return, but evidence aliunde may be
admitted to overcome the same.

Excess votes is not a matter of
statistical improbability; it is plain mathematical impossibility, if all the
relevant facts are extant in the return. 
In any event, the decisive point is the number of alleged excess
votes.  The test is whether the number of
excess votes is within the margin of possible error or mistake, which, cannot
be so categorized if not honest.  The
fact that the number of votes which appear to have been credited to petitioner
of 525 is unusually big compared with the highest number of votes among all the
other candidates in said precinct in the 1967 elections of 315, even if added
to the other fact that the total of the votes for all the candidates for
Governor and Vice-Governor were only 367 and 359, respectively, do not
sufficiently exclude the possibility of error in any of such entries. (Villalon
vs. Commission on Elections, 34 SCRA 594 [1970], Barredo, J.).

§4. We are not here dealing with
occasional or sporadic irregularities that succeeded in surprising the good
faith of the election inspectors.  All
the evidence and circumstances point to a systematic plan of allowing persons
who were not registered voters in Sagada to cast their ballots in all the
precincts of Sagada, and to count such spurious ballots and take them into
account in the returns.  There is thus no
alternative but to consider said returns as deliberately prepared with a view
to alter the real results of the voting, through either malice or coercion.  In their case, the returns must be deemed
manufactured or falsified, without any title to be included in the canvass of
votes for delegates by the Provincial Board of Canvassers for the Mountain
Province. (Diaz, Sr. vs. Commission on Elections, 42 SCRA 426 [1971], Reyes,
J.B.L., J.).

§5. We see no cogent reason, and
petitioner has not shown any, why returns in voting centers showing that the
votes of the candidate obtaining the highest number of votes exceeds the
highest possible number of valid votes cast therein should not be deemed as
spurious and manufactured just because the total number of excess votes in said
voting centers were not more than 40%. (Aratuc vs. Commission on Elections,
88 SCRA 251 [1979], Barredo, J.).

§6. The decisive factors in the
determination of the existence of excess votes should be the number of
registered voters, the number of registered voters who actually cast their
votes, and the number of ballots found in the ballot box. (Calimbas vs.
Commission on Elections, 139 SCRA 171 [1985], Melencio-Herrera, J.).

8. Counting of Votes

§1. Petitioner may not claim
ignorance of the aforesaid provisions as these are matters directly affecting
his political fortune.  Consequently,
with or without notice, it was the duty of the petitioner and all candidates
for that matter to assign their watchers or representatives in the counting of
votes and canvassing of election returns in order to insure the sanctity and
purity of the ballots  (Sabeniano vs.
Comelec, 101 SCRA 289, 301).  It is a
matter of judicial notice that the candidates, their representatives and
watchers station or deploy themselves among the various voting and canvassing
centers to watch the proceedings from the first hour of voting through the
counting of votes in the voting centers until the completion of the canvassing
of election returns so that they can make of record in the minutes of the
election committee and canvassing board their objections or remarks regarding
the conduct of the proceedings.

There is therefore no merit in
petitioner’s claim that respondent Commission on Elections gravely abused its
discretion in issuing its questioned decision. 
And, as emphatically stated in Sidro v. Comelec, 102 SCRA 853,
this Court has invariably followed the principle that “in the absence of any
jurisdictional infirmity or an error of law of the utmost gravity, the
conclusion reached by the respondent Commission on a matter that falls within
its competence is entitled to the utmost respect, x x x x.”  There is justification in this case to
reiterate this principle. (Quilala vs. Commission on Elections, 188 SCRA 502
[1990], Paras, J.).

 

CHAPTER XVI
Appreciation of Ballots

 

1. Liberal
Interpretation

§1. The utmost liberality must be
observed in reading ballots written by persons unskilled in the use of the
pen.  Errors of spelling and casual blurs
and erasures are to be ignored, where the intention to vote for a particular
person is discoverable. (Valenzuela vs. Carlos and Lopez de Jesus, 42 Phil.
428 [1921], Street, J.).

 §2. It is sufficient to observe,
however, in this connection that whatever might have been said in cases
heretofore decided, no technical rule or rules should be permitted to defeat
the intention of the voter, if that intention is discoverable from the ballot
itself, not from evidence aliunde. This interpretation goes to the very
root of the system. (Moya vs. Del Fierro, 69 Phil. 199 [1939],
Laurel, J.).                                                                                                        

 §3. The purpose of election laws is
to give effect to, rather than frustrate the will of the voter.  Thus, extreme caution should be observed
before any ballot is invalidated and in the appreciation of ballots, doubts are
to be resolved in favor of their validity. 
(Silverio vs. Castro, 125 Phil. 917 [1967]; 19 SCRA 520 [1967],
Bengzon, J.P., J.).

§4. No ballot shall be rejected
unless clear and sufficient reasons justify that action, and any doubt must be
resolved in favor of the legality of the ballot. (Juliano vs. Court of
Appeals, 20 SCRA 808 [1967], Zaldivar, J.).

§5. The cardinal objective in the
appreciation of the ballots is to discover and give effect to the intention of
the voter.  That intention would be
nullified by the strict interpretation of the said section as suggested by the
petitioner for it would result in the invalidation of the ballot even if duly
accomplished by the voter, and simply because of an omission not imputable to
him but to the election officials. (Fernandez vs. Commission on Elections,
G.R. No. 91351, [April 3, 1990], Supreme Court En Banc Minute Resolution).

2. Rules for the Appreciation of
Ballots

In the reading and appreciation of
ballots, every ballot shall be presumed to be valid unless there is clear and
good reason to justify its rejection. (Section 211, Omnibus Election Code)

Rule 1:  Only the first name of a candidate  or only his
surname is written.

§1. Where
only the first name of 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. (Section 211, Omnibus Election Code,
par. 1).

            §2. The
ballot in which only the initial letter of the Christian name and the surname
of one candidate, or his surname only appears, or where there are written
first, the surname, and then the Christian name, is valid for said candidate. (Cailles
vs. Gomez and Barbaza, 42 Phil. 496 [1921], Villamor, J.).

§3. The
ballots which contain only the initials of the candidate, upon positive proof,
must be counted in his favor, and it is not necessary to prove the intention of
the voter by his testimony. And those which contain only the surname of the
candidate must also be counted in his favor when it is not claimed that there
are more than one candidate with the same name. 
(Mandac vs. Samonte, 49 Phil. 284 [1926], Villamor, J.).              

§4. The
fact that in an election a vote is cast for a person designated on the ballot
by only his Christian name or by only his surname does not, in the absence of
indications of intentional marking of the ballot, invalidate the ballot as to
other candidates voted for. (Guekeko vs. Pascual, 50 Phil. 221 [1927],
Ostrand, J.).             

§5. The
circumstance that the voter writes the Christian name after the surname of the
person voted for does not invalidate the ballot. (Aviado vs. Talens, 52
Phil. 665 [1929], Street, J.).

§6. According
to the doctrine laid down by this court in the case of Cailles vs. Gomez and
Barbaza (42 Phil., 496), “a Christian name without the surname is not
sufficient to identify the intention of the voter.” (Yalung vs. Atienza, 52
Phil. 781 [1929], Villa-Real, J.).

§7. Since the contestant and
appellant, Simeon Y. Abiera, did not state in his certificate of candidacy that
he was also known as Simeon Abiera or S. Abiera, he cannot claim the ballots
where those names appear, as votes cast in his favor; such votes, however, may
be claimed by the contestee and appellee, Simeon P. Abiera, who stated that he
was known by said names, in his certificate of candidacy filed in the general
elections of June, 1925, as well as in his certificate of candidacy filed in
the general elections held on June 5, 1928. (Abiera  vs. Abiera, 54 Phil. 793 [1930], Villa-Real,
J.).

§8. Where it appears that no other
candidate for the same office has the same Christian name and surname, or the
same initials, and the voter’s intention to vote for the candidate with the
Christian name and the initial of the surname which he writes in his ballot is
manifest, the will of said voter must be complied with. (Namocatcat vs. Adag,
52 Phil., 789). (Balon vs. Moreno, 57 Phil. 60 [1932], Vickers, J.).

§9. x x x, [t]hat where a ballot
contains a Christian name distinct from that of the candidate the ballot cannot
be counted for him although the surname be the same, because in the cited cases
and other later ones the Christian names appearing in the ballots are so different
from those of the candidates, that it was not possible to confuse them x x x .
In enunciating the cited rule, this court meant that a candidate cannot claim
in his favor a ballot containing a Christian name so different from his that
the voter could not have been confused. (Villavert vs. Lim,  62 Phil. 178 [1935], Villa-Real, J.).

§10. Under Rule No. 1 of Section 149
of the Revised Election Code, any ballot where only the Christian name of a
candidate or only his surname appears is valid for such candidate if there is
no other candidate with the same name or surname for the same office.  The purpose of this new rule is to validate
the vote provided the name written on the ballot identifies the candidate voted
for beyond any question or possible confusion with any other candidate for the
same office. (Abrea vs. Lloren, 81 Phil. 809 [1948], Ozaeta, J.).

§11. Paragraph (1), Section 149 of
the Revised Election Code refers to the case when only the Christian
name, or the surname, or one word, which is the Christian name of a
candidate and the surname of his opponent, has been written by the voter.  It does not apply when said word is accompanied
by initials, as in the ballots involved in the case at bar.  Neither does paragraph (6) of the said
Section apply when the initials or initial and the surname written are those of
another candidate, although for another office, inasmuch as the latter must be
deemed to be the person voted for.  (Calo
vs. Court of Appeals, 118 Phil. 1056 [1963]; 9 SCRA 222  [1963], Concepcion, J.).

§12. Where the ballot contains
a Christian name distinct and different from that of the candidate, although
the surname written is correct, said ballot cannot be counted for him, even
there is no other candidate bearing the same surname. (Protacio vs. De Leon,
118 Phil. 1310 [1963]; 9 SCRA 472 [1963], Paredes, J.).

§13. Where two candidates have the same surname
and middle name, the initial of their Christian names may be the deciding
factor in the appreciation of votes. 
Thus, where the lower court rejected the vote as invalid for the
protestee on the ground that the family name “Gadon” (which is the family name
of both the protestant and the protestee) is preceded only by the letter R,
which is the middle initial of both, it is held that the ruling is
erroneous, because the letter is not R at all but P, which stands for Pedro,
the Christian name of the protestee. (Gadon vs. Gadon,
118 Phil. 1502 [1963]; 9 SCRA 652 [1963], Makalintal, J.).

          §14. That ballot with “Teodoro R.”
written slightly below the line for mayor but not on a space for another office
is valid for private respondent Rodriguez because the voter intended to vote
for him and Section 189, par. 1 of the Election Code of 1971, provides:  “Where only the Christian names of a
candidate x x x is written, the vote for such candidate is valid, if there is
no other candidate with the same name or surname for the same office. (Lontoc vs. Pineda, 64 SCRA 681 [1975], Esguerra, J.).

Rule 2:  Only the first name
of a candidate is written which  has a sound similar to the surname  of another candidate

§1. Where only the first name of a
candidate is written on the ballot, which when read, has a sound similar to the
surname of another candidate, the vote shall be counted in favor of the
candidate with such surname.  If there
are two or more candidates with the same full name, first name or surname and
one of them is the incumbent, and on the ballot is written only such full name,
first name or surname, the vote shall be counted in favor of the incumbent. (Section
211, Omnibus Election Code, par.2).

§2. Rule 16 on the appreciation of
ballots provides that if there are two or more candidates bearing the same name
or surname, the voter shall add the correct name, surname, or initial that will
identify the candidate for whom he votes. 
This only means that the voter, to identify his vote, should add either
the initial of the correct name, the initial of the correct surname, or any
initial that might identify the candidate for whom he votes.  The word initial does not necessarily refer
either to the name or surname of the candidate, it being sufficient that it
identifies the candidate chosen by the voter.

The voter may write on the ballot not only
the initial letter of a correct name or surname, but also the initial letter of
any intermediate name the candidate may have.

Ballots bearing the words “D. Seno” were
held valid in his favor, because the word initial in Rule 16 can also apply to
a nickname. (Gonzaga vs. Seno, 117 Phil. 751 [1963]; 7 SCRA 741  [1963], Bautista Angelo, J.).

§3. “Lavilla” is not idem sonans to
“Eleuterio,” Christian name of De Leon. 
Where the ballot contains a Christian name distinct and different from
that of the candidate, although the surname written is correct, said ballot
cannot be counted for him, even if there is no other candidate bearing the same
surname  (Lucero v. De Guzman, 45
Phil. 852; Villavert v. Lim, 62 Phil. 178; Villavert v. Fornier,
47 O.G., 1789; Gutierrez v. Aquino, L-14252, Feb. 28, 1959).  P-65 is, therefore, invalid for De Leon. (Protacio
vs. De Leon, 118 Phil. 1310 [1963]; 9 SCRA 472 [1963], Paredes, J.).

Rule 3: Candidate is a woman who uses her maiden or 
married surname or both    

§1. In case the candidate is a
woman who uses her maiden or married surname or both and there is another
candidate with the same surname, a ballot bearing only such surname shall be
counted in favor of the candidate who is an incumbent. (Section 211, Omnibus
Election Code, par. 3).

          §2. These two
ballots containing the name “Conui” and “C. Conui” voted for in the proper
spaces for councilors, respectively, were counted by the lower court in favor
of Asuncion Conui-Omega under the rule that a ballot where only the surname of
the candidate appears is valid (Sec. 149, par. 1, Revised Election Code).  We agree with this ruling it appearing that
there is no dispute that “Conui” is the maiden surname of appellee.  On the second ballot, the initial “C” before
“Conui” is the correct initial of appellee’s nickname Conching (Gonzaga v.
Seno, G.R. No. L-20522, April 23, 1963). 
In the case of Ochoa v. Calo (46 O.G., 2657), it was held that
the name “E. Rosales” was valid vote for Elisa Ochoa whose maiden name was
Elisa Rosales.  These two ballots were
correctly counted for appellee.

A ballot where only the maiden surname of the
candidate appears is valid; but a ballot where only the nickname of the
candidate appears cannot be counted in her favor. (Conui-Omega
vs. Samson, 118 Phil. 1333 [1963]; 9 SCRA 493 
[1963], Bautista Angelo J.).

            §3. In her certificate of candidacy, Lerias gave
her full name as “Rosette Yniguez Lerias.” 
It is for this reason that the Tribunal during the appreciation of the
ballots in its executive sessions admitted as votes for Lerias ballots
containing, “Yniguez R”, “Yniguez L”, “Yniguez Roset”, “R. Yniguez” or “L.
Yniguez” written on the first line of senators for it is very clear that said
ballots were intended to be cast for Lerias. 
Under subsec. 3 of Section 211 of the Omnibus Election Code, said
ballots should be counted as votes for Lerias inasmuch as there is no other
candidate for the same position of Representative who is an incumbent. (Lerias vs. House of Representatives Electoral Tribunal, 202 SCRA
808 [1991], Paras, J.)

Rule 4: Two or more words are written on the same line on
the ballots, all of which are the surnames of two
or more candidates or two or more words are  written on different lines on the ballot

§1. When two of more words are
written on the same line on the ballot, all of which are the surnames of two or
more candidates, the same shall not be counted for any of them, unless one is a
surname of an incumbent who has served for at least one year in which case it
shall be counted in favor of the latter.

When two or more words are written on
different lines on the ballot all of which are the surnames of two or more
candidates bearing the same surname for an office for which the law authorize
the election of more than one and there are the same number of such surnames
written as there are candidates with that surnames, the vote shall be counted
in favor of all the candidates bearing the surname. (Section 211, Omnibus
Election Code, par. 4).

§2. There being no person voted for
mayor on the space provided for it in the ballot, the word “Mayor” on the third
space for councilors and the name “F. del Castillo” on the fourth space for
councilors written by the voter sufficiently indicate his intention to vote in favor
of F. del Castillo for mayor of the municipality. The vote must be counted in
his favor. (Caraecle vs. Court of Appeals, 94 Phil. 308 [1954], Padilla,
J.).

            §3. x
x x [t]he persons who prepared these ballots appear to be well educated,
judging from their good penmanship. They could have had no possible reason to
write “Nietes” twice, except to mark their respective ballots. (Sarmiento
vs. Quemado, 115 Phil. 434 [1962]; 5 SCRA 438 [1962], Concepcion, J.).

Rule 5: Single word which is the
first name of a candidate and
which is at the same time the surname of his opponent                       

            §1. When on the ballot is written a
single word which is the first name of a candidate and which is at the same
time the surname of his opponent, the vote shall not be counted in favor of the
latter. (Section 211, Omnibus Election Code, par. 5).

Rule 6:  Two words are written on the ballot, one 
of which is the first name of the candidate 
and the other is the surname of his opponent

            When two words are written on the ballot,
one of which is the first name of the candidate and the other is the surname of
his opponent, the vote shall not be counted for either. (Section 211,
Omnibus Election Code, par. 6).

Rule 7:  A name or surname incorrectly written which,
when read has a sound similar to the name or
surname of a candidate

§1. A
name or surname incorrectly written which, when read, has a sound similar to
the name or surname of a candidate when correctly written shall be counted in his
favor. (Section 211, Omnibus Election Code, par. 7).

§2. When
the name and surname appear incorrectly written they should be admitted,
whenever they give the same or similar sound, when read, to that of the true
name of the candidate, under the rule generally known as “idem sonans.”  (Cailles vs. Gomez and Barbaza, 42 Phil.
496 [1921], Villamor, J.).

§3. The
idem sonans rule is that if the name as spelled in the ballot, although
different from its orthographically correct spelling, sounds practically the
same when pronounced, according to our methods of pronunciation, it is a
sufficient designation of the individual to whom it refers, and the error of
the writer must not be taken into account. 
But if the ballot is so defective that the intention of the voter cannot
be determined, it must be rejected.  (Mandac
vs. Samonte, 49 Phil. 284 [1926], Villamor, J.).

          §4. The
Christian names “Roberto”, “Roperto” and “Mamerto” cannot easily be confused
with “Alberto”, although they are idem sonans to a certain extent, when
the scribes thereof fairly know how to write said names.  (Villavert vs. Lim, 62 Phil. 178 [1935], Villa-Real, J.).

§5. The
vote “Cebarle” has the same sound as “Caraecle” and should be counted for the
latter. (Caraecle vs. Court of Appeals, 94 Phil. 308 [1954], Padilla, J.).

§6. The
words “S. Amado” and “Serafin”, written on the ballots in the spaces for
vice-mayor, are idem sonans with the name of Serafin Quemado, a
candidate for vice-mayor, and should be counted in his favor. (Sarmiento vs.
Quemado, 115 Phil. 434 [1962]; 5 SCRA 438 [1962], Concepcion, J.).

§7. The
words “Cadia” and “Cuans” appearing on the line for mayor, respectively, do not
sufficiently identify the candidate for whom the vote was intended. The rule of
idem sonans, the test of which is whether the sound of the variant
spelling is the same or similar, does not apply to these two ballots. (Tajanlangit
vs. Cazeñas, 115 Phil. 564 [1962]; 5 SCRA 567 [1962], Bautista Angelo, J.).

§8. Under
the idem sonans rule “F. Vuvis”, “F. Pabes (or Pabis), Sr.”, “F. Babes”,
or “F. Babeis”, or “F. Bobkis”, written on the space for mayor, should be
counted in favor of Francisco Bobis, Sr., a candidate for said office.  Under this rule “S.arsaaa”, written on the
space for mayor, is a valid vote for E. Arzaga, candidate for that office.

“F.
Boslro”, written on the space for mayor, has no similarity with Francisco
Bobis, Sr., a candidate for that office, and may not be counted in his favor. (Arzaga
vs. Bobis, Sr., 116 Phil. 702 [1962]; 6 SCRA 386 [1962], Reyes, J.B.L., J.).

§9. Where
the name written on the space for mayor is “S. Kato”, considering that “K” is
used in many parts of the Philippines in lieu of “C” and that the “t” in “Kato”
is written like an “I”, although with a horizontal bar at the top and the voter
has a very poor handwriting, said word “Kato” may be considered idem sonans with
“Calo”. (Calo vs. Court of Appeals, 118 Phil. 1056 [1963]; 9 SCRA 222
[1963], Concepcion, J.).

§10. The word “Comga” in a ballot is idem
sonans with “Conui-Omega”, where it was prepared by a poor writer who might
have intended the letter C as initial for appellee’s middle name “Conui”,
connected with the word “Omga” which might have been intended for Omega.  Also, the word “B. Omegas” was properly
admitted for appellee, the erroneous initial “B” does not annul the vote in her
favor.  So, also, the words “C. Omuga”
and “C. Omga” are valid for appellee under the same rule of idem sonans. “Sansor”
is idem sonans with “Samson”. (Conui-Omega
vs. Samson, 118 Phil. 1333 [1963]; 9 SCRA 493 [1963], Bautista Angelo J.).

§11. The following votes were considered idem
sonans with and valid for Añonuevo: 
“R. Ano”, “A. Anebo”, and “Anonuivo”; while the vote for “Monarin” was
considered idem sonans with and valid for Ferraren. (Ferraren vs. Añonuevo, 118 Phil. 1428 [1963]; 9 SCRA 583 [1963],
Regala, J.).

§12. Section 149 (2), Revised
Election Code (rule on idem sonans) appears to be applicable.  This applies, however, only to cases of
misspelling the name or surname or both of the candidates.  The claim that the letter “A” in “A. Ramos”
stands for “Ando”, the common contraction of the name “Fernando” cannot be
sustained.  Section 149 (1) and (6) of
the Revised Election code speaks of initial of a name or surname, not of a
nickname. (Domingo vs. Ramos, 124 Phil. 153 [1966]; 17 SCRA 749 [1966],
Regala, J.).

 §13. Appellee Querubin Perfecto established
that in some places, he is familiarly known or addressed as “Ruben”.  His testimony that “votes having ‘Ruben
Perfecto’ can be identified,” means that the candidate voted for, when
the name written was Ruben Perfecto, could be identified.  “Ruben” is idem sonans with Querubin. (Perfecto vs. Sapico,  et al.,
17 SCRA 968 [1966], Concepcion, J.).

§14. Following the rule of idem sonans, a
vote for “Sabilo yran” (the only vote cast) on the space for mayor should be
counted for petitioner Isabelo Lloren, a candidate for that position.  In the second ballot, the word “Eisabilo”
written on the first space for provincial board members appeared to have been
erased.  And, on the space for mayor, the
voter tried to write the name of his candidate, but his effort produced only
the word “Eisabi”.  The intent of the
voter, who is another poor writer, to cast his vote for the petitioner is
apparent. (Lloren vs. Court of Appeals, 125 Phil. 529
[1967]; 19 SCRA 110 [1967], Reyes, J.B.L., J.).

 §15. The word “Peisna” is idem sonans with
Espina, a candidate for councilor.  The
name “M. Ncso” is idem sonans with Inciso, the name of the protestee. (Trajano vs. Inciso, 125 Phil. 746 [1967]; 19 SCRA 340 [1967], Bengzon, J.P.,
J.).

 §16. The word “Conoyaes” or “Conozaes” is idem
sonans with Gonzales, a candidate for councilor. (Silverio
vs. Castro, 125 Phil. 917 [1967]; 19 SCRA 520 [1967], Bengzon            J.P., J.).                     

§17. The name “Narog” written on the space for
vice-mayor is idem sonans with “Nalog”, the name of candidate for
vice-mayor.  It should be credited as a
vote for Nazario Nalog.  The same is true
with the name “Naro”. (Nalog vs. De Guzman, 126 Phil.
701 [1967]; 20 SCRA 338 [1967], Concepcion, C. J.).

§18. A vote for “P. Matilaza” is a
valid vote for Pablo Monteza.  The
initial “P” corresponds to his first name, while Matilaza is idem sonans with
Monteza.  (Monteza vs. Court of
Appeals, 20 SCRA 773 [1967], Reyes, J.B.L., J.).

 §19. “Isidoro” or “Isidro” are idem
sonans to “Teodoro,” so is “Ente” for “Vicente”. (Lontoc vs. Pineda, 64
SCRA 681 [1975], Esguerra, J.).

 §20. Furthermore, since votes for “GIRLIE”
written in the space for Representative were in fact claimed by VILLAROSA
and credited in her favor, then the HRET correctly ruled that “JTV” votes
or variations thereof, under the idem sonans rule, cannot be counted for
VILLAROSA because only one nickname or stage name is allowed. (Villarosa
vs. The House of Representatives Electoral Tribunal, 340 SCRA 396 [2000],
Davide, Jr., C. J.).

 §21. Incorrect spelling of a
candidate’s name does not invalidate the ballot.  The Comelec was not correct when it ruled that
Exhibit “ZZZ” of Precinct 28A, 28A1 was invalid considering that the voter
“appeared to be literate.”  Even the most
literate person is bound to commit a mistake in spelling. (Ong vs.
Commission on Elections, 347 SCRA 681 [2000], Pardo, J.)

Rule 8:   A name of
a candidate appears in a space of the ballot for an office for which he is a candidate and in
another space for which he is not a candidate

§1. When
a name of a candidate appears in a space of the ballot for an office for which
he is a candidate and in another space for which he is not a candidate, it
shall be counted in his favor for the office for which he is a candidate and
the vote for the office for which he is not a candidate shall be considered as
stray, except when it is used as a means to identify the voter, in which case,
the whole ballot shall be void.

If the
word or words written on the appropriate blank on the ballot is the identical
name or surname or full name, as the case may be, of two or more candidates for
the same office none of whom is an incumbent, the vote shall be counted in
favor of that candidate to whose ticket belong all the other candidates voted
for in the same ballot for the same constituency. (Section 211, Omnibus
Election Code, par. 8).

§2. A
vote in favor of a candidate for a certain office is not to be discarded merely
because the name of the same person appears to be voted in connection with some
other different office for which he is not a candidate. (Valenzuela vs.
Carlos and Lopez de Jesus, 42 Phil. 428 [1921], Street, J.).

§3. When the name of one candidate
appears written in two spaces of the ballot, it shall be counted in favor of
the candidate for the position with respect to which he has presented his
certificate of candidacy. (Cailles vs. Gomez and Barbaza, 42 Phil. 496
[1921], Villamor, J.).

§4. Where names of candidates have
been written on the ballots in spaces designated for votes for offices other
than those for which said candidates were registered, the entire ballot is
invalid under Section 19 of Act No. 3210 of the Administrative Code, as
amended. (Guekeko vs. Pascual, 50 Phil. 221 [1927], Ostrand, J.).

§5. In order that a vote may be counted in
favor of the candidate for a particular office, his name must be written in the
space reserved on the ballot for the name of the candidate for that
office.  If the name is written in the
space reserved for another office, the ballot cannot be counted as a vote for
such person for the office for which he is a candidate. (Aviado vs. Talens, 52 Phil. 665 [1929], Street, J.).

 §6. The provision of Section 135 of
the Revised Election Code that the voter shall fill his ballot by writing in
the proper space for each office the name of the person for whom he desires to
vote, does not necessarily invalidate votes cast for a candidate for provincial
governor whose name is written not on the dotted line following the words
“Provincial Governor” but on the double line immediately above said words and
below the instructions to the voter.  The
purpose of said provision is to identify the office for which each candidate is
voted.  It cannot be doubted that the
intention of the voter in writing the name of said candidate was to vote for
him for one of the offices specified on the ballot.  Neither can there be any reasonable doubt
that the office for which the voter intended to vote said candidate was that of
provincial governor (1) because that was the office for which he was a
registered candidate, (2) because the space on which his name was written was
such that the vote could not have been intended for a member of the provincial
board or for any other office specified farther down in the ballot, and (3)
because no other name was written on the dotted line immediately following the
words “Provincial Governor.”

If the intention of the voter can be
ascertained in an indubitable manner, as in this case, it should be given
effect – not frustrated. (Villavert vs. Fornier, 84 Phil. 756 [1949],
Ozaeta, J.).

 §7. Under Section 149 paragraph 13 of
the Revised Election Code, a vote cast in favor of a candidate for an office
for which he did not present himself is void but will not invalidate the whole
ballot. The vote is merely considered stray vote.  Since there is no evidence showing an
intention to mark the ballot, the votes for these candidates shall only be
considered stray votes which cannot have the effect of invalidating the vote in
favor of the appellant. (Ferrer vs. De Alban, 101 Phil. 1018 [1957],
Bautista Angelo, J.). 

 §8. The name “Nietes” — a candidate
for mayor — was written after the printed word “vice-mayor”.  Immediately following the printed term
“councilors” and at the same level thereof — but not in the space for
councilors — the voter wrote “Sarmiento” — the protestant.  Below the same, in the space for councilors,
he wrote the names of the persons voted therefor.  It was held that Protestant Sarmiento
cannot be credited with the vote, because the space for vice-mayor had not been
left blank, but the name of Nietes is written thereon, and there is no means by
which to justify its being counted as a vote in favor of Sarmiento, for the
office.

 Where the name of a candidate for
vice-mayor is written slightly under the space for vice-mayor, but outside the
space for other officers, the vote should be credited to that candidate. (Sarmiento
vs. Quemado, 115 Phil. 434 [1962]; 5 SCRA 438 [1962], Concepcion, J.).

 §9. Space for vice-mayor filled up with name
of candidate for mayor; name of protestant for office of vice-mayor written on
space immediately following space for councilors, protestant not to be credited
with vote.

 Name of candidate for vice-mayor under space for
vice-mayor but outside space for other officers, vote counted in favor of said
candidate for vice-mayor.

Name of candidate for vice-mayor written in wrong
space but sufficiently described and located to indicate voter’s intent. (Ibid.)

§10. Rule 3, Section 149, of the
Revised Election Code, contemplates the writing of a name of a candidate in two
spaces of the ballot, whereby the vote for the office for which he is not
candidate shall be counted as stray vote; but the rule is inapplicable to a
case where the name of a candidate was written three or more times on the same
ballot, in which case the ballot shall be considered invalid as marked  (Gutierrez vs. Aquino, L-14252, Feb. 28,
1959). (Arzaga vs. Bobis, Sr., 116 Phil. 702 [1962]; 6 SCRA 386 [1962],
Reyes, J.B.L., J.).

            §11. The
circumstance that the name of a candidate for mayor appears not only on the
space for mayor but also on the space for senator, does not invalidate the
ballot.  The vote cast for senator should
be considered merely as a stray vote. (Pangontao vs. Alunan, 116 Phil. 1170
[1962]; 6 SCRA 853 [1962], Dizon, J.).

§12. The name “A. Ramos” was written on the
space for mayor and on the first line for councilors; and there was one name —
that of a candidate for vice-mayor — written on the space between them.  Held: 
Having written the same name on both spaces, the voter must be
deemed to have intended to vote for the same individual, since identity of
names necessarily connotes identity of persons, unless the contrary is
satisfactorily established by competent evidence.  Hence, said name cannot be considered a vote
for mayor candidate Fernando Ramos. (Domingo vs. Ramos,
124 Phil. 153 [1966]; 17 SCRA 749 
[1966], Regala, J.).

 §13. Where there were two candidates for
councilor known as Ding Cristino and “Doc” Cristino, brothers, all ballots
containing the name “D. Cristino” for councilor should be considered stray
votes since it cannot be ascertained as to who was intended by the voters when
they placed said name on their ballots. 
The intention of the voter should be given effect, not stifled or
frustrated, but then his intention cannot be known by means of surmise,
speculation or guesswork.  While it is
true that Ding Cristino was running for reelection, and “Doc” Cristino was not,
the rule that “when two or more candidates have the same surname and one of
them is seeking reelection, a ballot wherein only such surname is written shall
be counted in favor of the candidate seeking reelection”, cannot be applied
because the name written in the contested ballots was not “Cristino” alone but “D.
Cristino”. (Cristino vs. Cavite, 125 Phil. 757 [1967];
19 SCRA 350 [1967], Sanchez, J.).

§14. The writing of a name more than twice on
the ballot is considered to be intentional and serves no other purpose than to
identify the ballot.

 The letters “MEND K.” on the space for vice-mayor
cannot be credited as a vote for either Mendoza or Katigbak, the candidates for
vice-mayor.  The voter’s intention is not
clear. (Katigbak vs. Mendoza, 125 Phil. 943 [1967]; 19
SCRA 543 [1967], Regala, J.).

§15. Votes for the candidate for vice-mayor
written on the space, other than that for vice-mayor, are stray votes.  They cannot be counted for him. (Nalog vs. De Guzman, 126 Phil. 701 [1967]; 20 SCRA 338 [1967],
Concepcion, C.J.).

§16. Where the name of a candidate is
not written in the proper space in the ballot but is preceded by the name of
the office for which he is a candidate, the vote should be counted as valid for
such candidate.  Such rule stems from the
fact that in the appreciation of the ballot, the object should be to ascertain
and carry into effect the intention of the voter, if it could be determined
with reasonable certainty. (Farin vs. Gonzales, 53 SCRA 237 [1973], Antonio,
J.).

 §17. The rule that if the name is
written in the space reserved for another office, the ballot cannot be counted
as a vote for such person for the office for which he is a candidate (Section
155 [5] and [15] of the 1978 Election Code) admits of exceptions, where, as in
this case, the intention of the voters to vote for protestant CORDERO and
protestee ORRICA, respectively, is unmistakable and should not be
frustrated. (Cordero vs. Moscardon, 132 SCRA 413 [1984], Melencio-Herrera,
J.).

 §18. Exhibit “6” was invalidated by
both respondent court and the city court as stray vote on the ground that
petitioner’s name, written as “Bo. Barangay Bautista” was placed on the first
line intended for councilmen.  In the
case of Farin v. Gonzales and C.A.-G.R. No. L-36893, September
28, 1973, 53 SCRA 237, cited by petitioner, it was ruled that where the name of
a candidate is not written in the proper space in the ballot but is preceded by
the name of the office for which he is a candidate, the vote should be counted
as valid for such candidate.  Such rule
stems from the fact that in the appreciation of the ballot, the object should
be to ascertain and carry into effect the intention of the voter, if it could
be determined with reasonable certainty. (Bautista vs. Castro, 206 SCRA 305
[1992], Medialdea, J.)

Rule 9:  A name of a candidate is erased 
and another is clearly written

§1. When in a space in the ballot
there appears a name of a candidate that is erased and another clearly written,
the vote is valid for the latter. (Section 211, Omnibus Election Code, par.
9).

§2. When in a given space of the
ballot there is a name that is erased and another clearly written, the ballot
is valid for the latter. (Cailles vs. Gomez and Barbaza, 42 Phil. 496
[1921], Villamor, J.).

§3. Although erasures appear on
ballots, if it is clearly shown that it was the voter’s intention to vote for
the candidate whose name appears to have been written over the one previously
erased, the ballot is valid. (Mandac vs. Samonte, 49 Phil. 284 [1926], Villamor, J.).

§4. The fact alone that a name written under
that of a candidate, in a ballot, has been erased, is not sufficient to
constitute a distinguishing mark. (Balon vs. Moreno, 57
Phil. 60 [1932], Vickers, J.).

§5. A candidate’s name written over an
erasure. – The fact that a voter erroneously wrote “L. Importante” in the space
for the office of provincial governor, and on noting his mistake, erased the
same and wrote over it the name “A. Lim”, does not invalidate his ballot,
inasmuch as in the space for the office of municipal president he wrote the
name “L. Importante.” (Villavert vs. Lim, 62 Phil. 178
[1935], Villa-Real, J.).

§6. The name “N. Nalog” written on the space
for vice-mayor, having been crossed-out, cannot be counted as a vote for
Nalog.  (Nalog
vs. De Guzman, 126 Phil. 701 [1967]; 20 SCRA 338 [1967], Concepcion, C.J.).

§7. The vote having been cancelled,
it may not be counted for any candidate, for such cancellation indicates
desistance.  Although an initial
remained, the same could not be considered as a valid vote for a candidate, as
ballots with initial only are considered not a valid vote. (Farin vs.
Gonzales, 53 SCRA 237 [1973], Antonio, J.).  

§8. The erasures in Exhibits “YYY”
and “JJJJ” of Precinct 28A, 28A1 would not invalidate the ballot absent any
showing that another person wrote the name of Ong after the erasure was
made.  In fact, the rules on appreciation
of ballots provide that: “When in a space in the ballot there appears a name of
candidate that is erased and another clearly written, the vote is valid for the
latter”. (Ong vs. Commission on Elections, 347 SCRA 681 [2000], Pardo, J.).

Rule 10:  Erroneous
initial of the first name which accompanies
the correct  surname of a
candidate; erroneous initial
of the surname accompanying the correct first name of
a candidate; or erroneous middle initial of the candidate 

§1. The erroneous initial of the
first name which accompanies the correct surname of a candidate, the erroneous
initial of the surname accompanying the correct first name of a candidate, or
the erroneous middle initial of the candidates shall not annul the vote in
favor of the latter. (Section 211, Omnibus Election Code, par. 10).

 §2. The ballots which contain only
the initials of the candidate upon positive proof, must be counted in his
favor, and it is not necessary to prove the intention of the voter by his
testimony.  And those which contain only
the surname of the candidate must also be counted in his favor when it is not
claimed that there are more than one candidate with the same name. (Mandac
vs. Samonte, 49 Phil. 284 [1926], Villamor, J.).

 §3. The voter may write on the ballot
not only the initial letter of a correct name or surname, but also the initial
letter of any intermediate name the candidate may have. (Gonzaga vs. Seno,
117 Phil. 751 [1963]; 7 SCRA 741 [1963], Bautista Angelo, J.).

§4. Paragraph (1), Section 149 of the Revised
Election Code refers to the case when only the Christian name, or the surname,
or one word, which is the Christian name of a candidate and the surname of his
opponent, has been written by the voter. 
It does not apply when said word is accompanied by initials, as in the
ballots involved in the case at bar. 
Neither does paragraph (6) of the said Section apply when the initial or
initials and the surname written are those of another candidate, although for
another office, inasmuch as the latter must be deemed to be the person voted
for. (Calo vs. Court of Appeals, 118 Phil. 1056 [1963];
9 SCRA 222 [1963], Concepcion, J.).

§5. Candidate for mayor Fernando Ramos claims
as votes cast for him ballots with “A. Ramos” written on the spaces for
mayor.  In the same election there was
candidate for councilor named Aurora Ramos. 
Held:  The votes cast for
“A. Ramos” for mayor are stray.  Since
the written name was accompanied by an initial, paragraph (1), Section
149 of the Revised Election Code does not apply.  This provision refers to a case when only
the Christian name, or one word, which is the Christian name of a candidate and
the surname of his opponent, has been written by the voter.  Neither does paragraph (6) of the said
Section 149 apply, because the initial and the surname written are those of
another candidate, although for another office, in which case the latter
must be deemed to be the person voted for (Calo vs. Court of Appeals, L-21256,
September 30, 1963). (Domingo vs. Ramos, 124 Phil. 153
[1966]; 17 SCRA 749 [1966], Regala, J.).

 §6. An erroneous initial of the name which
accompanies the correct surname of a candidate does not annul the vote in his
favor. (Bisnar vs. Lapasa, 125 Phil. 932 [1967]; 19
SCRA 534 [1967], Makalintal, J.).

§7. Regarding ballots with wrong initials of
respondent Rodriguez (J.M. Rodriguez), the law (Sec. 189, par. 8, of the
Election Code of 1971) succinctly provides that erroneous initial of the name
and middle name of a candidate will not annul the vote in his favor. (Lontoc vs. Pineda, 64 SCRA 681 [1975], Esguerra, J.).

Rule 11:  Another
person who is not a candidate having the first name or surname of a candidate

§1. The fact that there exists
another person who is not a candidate with the first name or surname of a
candidate shall not annul the vote in favor of the latter. (Section 211,
Omnibus Election Code, par. 11).

Rule  12:  Ballots containing prefixes

§1. Ballots which contain prefixes
such as “Sr.”. “Mr.”. “Datu”, “Don”, “Ginoo”, “Hon.”, “Gob.” Or suffixes like
“Hijo”, “Jr.”, “Segundo”, are valid. (Section 211, Omnibus Election Code,
par. 12).

§2. The ballots which bear the
prefixes: “Mr.,” “Don,” “Guinoo,” “Hon.,” “Dr.” and the suffixes: “hijo”
(junior),  “segundo,” are valid. (Cailles
vs. Gomez and Barbaza, 42 Phil. 496 [1921], Villamor, J.).

§3. Under Section 149, paragraph 5 of
the Revised Election Code, ballots which contain prefixes such as “Hon.” are
valid. (Ferrer vs. De Alban, 101 Phil. 1018 [1957], Bautista Angelo, J.).

§4. The voter wrote, in the space for
Provincial Vice-Governor, “Mayor Magluyan” and in the spaces for members of the
provincial board, “Visi S. Quemada sobranco, O Ncon la grnosa, V Junco L.
Jungco”.  Held: This ballot should
be counted for Serafin Quemado, candidate for vice-mayor not only because his
name is preceded by the prefix “visi” meaning “vice”, but, also, because in the
space immediately preceding the voter wrote “Mayor Magluyan”, thereby
indicating that the latter was a vote for “mayor” and that the name immediately
following the same was intended for the “vice-mayor”. (Sarmiento vs.
Quemado, 115 Phil. 434 [1962]; 5 SCRA 438 [1962], Concepcion, J.).

 §5. Although Section 149, paragraph
5, of the Revised Election Code provides that ballots which contain prefixes
are valid, yet this law only applies where the prefixes were not used as
identification marks.

The lower court committed no error in
rejecting as “marked” ballots containing the prefixes “Sr.”, “Mr.”, “Datu”,
“Don”, “Ginoo”, “Hon.”, “Dra.”, “Gob.”, etc., 
where these prefixes were used under the following circumstances among
others: (a) in every ballot only one candidate is given a prefix, the rest
none; and (b) in several ballots in the same precinct, the prefixes given to
one and the same candidate are of different nature, never repeated to
facilitate the identification of the electors who prepared them. (Jimenez
vs. Lofranco, 118 Phil. 1303 [1963]; 9 SCRA 465 [1963], Bengzon, C.J.).

          §6. Prefixes
before the names of candidates are not considered marks on the ballots, in the
absence of valid evidence aliunde to support such claim. (Felisilda
vs. Achacoso, 118 Phil.1366 [1963]; 9 SCRA 523 [1963], Barrera J.).

§7. Although Rule 5, Section 149 of
the Revised Election Code allows the prefix “Dr.”, it can be tolerated only if
not used as an identification mark. 
Where it recurs in a pattern or system to mark and identify ballots and
votes in different precincts, the ballots containing the same should be
rejected as marked ballots.  The same
rule applies to the word “Datu”.  A
ballot wherein the word “Datu” was placed before the name of Sarmiento is not
marked.  The word was not used in other
ballots.  There is no discernible pattern
in the use of the word “Datu” which would reveal an intention to mark the
ballots.

The placing of “(Catigbak)” in the middle
of the name of candidate “Consing Aguilon”, although allegedly denoting that,
to the voter’s mind, Consing Aguilon is Senator Katigbak’s counterpart in the
town of Cateel, clearly serves to identify said ballot.  A ballot, wherein suffix “Jr.” was written
after the name of “P. Castro” so that the space separating them is longer than
the space covered by the name itself, is a marked ballot. (Silverio vs.
Castro, 125 Phil. 917 [1967]; 19 SCRA 520 [1967], Bengzon, J.P., J.).

         §8. It cannot be said that these
writings were accidental.  As a general
rule, a voter must write on the ballot only the names of candidates voted for
the offices appearing thereon.  Certain
exceptions, however, were provided in Section 149 of the Revised Election
Code.  For example, prefixes such as
“Sr.,” “Mr.,” and the like and suffixes such as “hijo,” “Jr.,” etc. will not
invalidate the ballot (par. 5).  Initials
(paragraph 15), nicknames or appellation of affection and friendship will not
invalidate the ballot, if accompanied by the name or surname of the candidate,
and above all, if they were not used as a means to identify the voter.  Even under a liberal view, the words written
on the ballots under consideration cannot be considered as falling within the
exception to the rule.  Consequently,
they are irrelevant expressions that nullified the ballots  (Lloren v. CA, et al., No. L-25907,
January 25, 1967, 19 SCRA 110).  Hence,
respondent court excluded Exhibits “Z” and “Z-1.” (Bautista vs. Castro, 206 SCRA 305 [1992],
Medialdea, J.).

Rule 13: Use of nicknames and appellations of affection and friendship accompanied by the
first name or surname of the candidate

 §1. The use of the nickname and
appellations of affection and friendship, if accompanied by the first name or
surname of the candidate, does not annul such vote, except when they were used
as a means to identify the voter, in which case the whole ballot is invalid:
Provided, That if the nickname used is unaccompanied by the name or surname of
a candidate and it is the one by which he is generally or popularly known in
the locality, the name shall be counted in favor of said candidate, if there is
no other candidate for the same office with the same nickname. (Section 211,
Omnibus Election Code, par. 13).

1.) Nicknames

§1. Neither is it considered as a
distinguishing or identification mark if upon the ballot appear the name of a
woman, names with pet names, nicknames, names of councilors with the same
surnames, or different surnames with the same name, names with surnames of Chinese
origin, names of priests, or contemptuous or exclamatory names. (Cailles vs.
Gomez and Barbaza, 42 Phil. 496 [1921], Villamor, J.).

§2. Although in the case of Mandac
vs. Samonte (54 Phil., 706), it was held that the ballots bearing only the
name or nicknames were admitted because in that case there was only one
candidate for the same office with the said name and nickname, this court has
not adopted this rule in the other cases wherein the same question was raised.  The rule uniformly followed by this court is
that votes cast in which the name or nickname alone appears are not valid and
should not be counted.

Following the rule laid down in the case
of Lucero vs. De Guzman (45 Phil., 852), said ballots should not be
counted as validly cast in favor of the appellant because the Christian names
do not correspond to his. (Reyes vs. Bitong, 57 Phil. 100 [1932],              Imperial, J.).

 §3. Failure of a candidate to state
in his certificate of candidacy a nickname by which he is likewise known, bars
him from claiming in his favor certain ballots in which he is voted by that
nickname.  (Villavert vs. Lim, 62
Phil. 178 [1935], Villa-Real).

 §4. In
precinct No. 6 of Muñoz, the appellant claims 5 ballots, Exhibits 235 to
239.  In the first two, “Tomi” and “Tomy”
were voted for governor.  The appellant
lays claim to these votes upon the statement in his certificate of candidacy
that he is known by said familiar name throughout the Province of Nueva Ecija,
and upon the abundant testimony adduced by him that his friends and
acquaintances have invariably called and known him by said nickname.  We have uniformly held in the cases of Molina
vs. Nuesa (G.R. No. 30548, June 5, 1929, not reported); Alegre vs. Perey
(G.R. No. 31017, March 26, 1929, not reported); Bayona vs. Siaotong
(G.R. No. 36065, 56 Phil., 831); Marquez vs. Santiago (G.R. No. 36502,
57 Phil., 969); Fausto vs. Ramos (G.R. No. 42601, 61 Phil., 1035), and Sarenas
vs. Generoso (61 Phil., 549); that votes cast with only the nickname or
familiar name should not be counted in favor of any candidate because they do
not sufficiently identify the person voted for. (Cecilio vs. Tomacruz, 62
Phil. 689 [1935], Imperial, J.).

§5. Rule No. 9, of Section 149 of the Revised Election Code
provides only for the determination of whether a ballot or vote shall or shall
not be annulled on the ground that it is marked by means of a nickname.  It says that it shall not be annulled on that
ground unless the nickname, accompanied by the name or surname of the
candidate, was used as a means to identify the voter.  It does not say that when a nickname alone is
written to identify the candidate voted for the vote is invalid.  If it had been the intention of the Congress
to annul such vote it would have preserved in the Revised Election Code the
provision of a previous election law (Act No. 4203, section 16), which said: *
* * Nor shall any vote be counted on which the candidate is designated by his
nickname or alias, although mention thereof is made on his certificate of candidacy.

When
the nickname of a candidate is a derivative or contraction of his Christian
name or of his surname, and when he is popularly and commonly known by that
nickname, a ballot where only such nickname appears is valid for such candidate
if there is no other candidate with the same nickname for the same office. (Abrea
vs. Lloren, 81 Phil. 809 [1948], Ozaeta, J.).

§6. The
use of a nickname in a ballot, if accompanied by the name or surname of the
candidate, does not annul such vote, except when it was used as a means to
identify the voter.  And if the family
nickname of the candidate is written between his name and surname, that does
not identify the voter.

When
the nickname of a candidate is a derivative or contraction of his Christian
name or his surname and if he is popularly and commonly known by that nickname,
a ballot where only such nickname appears is valid for such candidate if there
is no other candidate with the same nickname for the same office.  (Illescas vs. Court of Appeals, 94 Phil.
215 [1953], Paras, C.J.).

            §7. The
use of the words “Kiko Padrieno Bobis, Sr.” in the space for mayor, will not
invalidate a ballot as marked, and the vote shall be counted for Francisco
Bobis, Sr., one of the candidates for that office, because “Kiko” is just a nickname
for Francisco and “Padrieno” is but an expression of respect. (Arzaga vs.
Bobis, Sr., 116 Phil. 702 [1962]; 6 SCRA 386 [1962], Reyes, J.B.L., J.).

            §8. Where
the word “Nubia”, which was the name or nickname of a person, was written in
the first line for councilors, the vote cast is a stray vote, but the ballot is
valid. (Pangontao vs. Alunan, 116 Phil. 1170 [1962]; 6 SCRA 853 [1962],
Dizon, J.).

§9. Appellee
was well known in the place where he was a candidate as “Dado Seno”, the first
word being his nickname, and that nickname appears in his sample ballots.  Ballots bearing the words “D. Seno” were held
valid in his favor, because the word initial in Rule 16 can also apply to a
nickname  (Moya vs. Del Fierro, 69
Phil. 199.). (Gonzaga vs. Seno, 117 Phil. 751 [1963]; 7 SCRA 741 [1963],
Bautista Angelo, J.).

            §10. The Court of Appeals committed no error
in counting as valid such votes as were cast in the name by which a candidate
was known in the community, although such name was not given in his certificate
of candidacy, where it appears that, in a meeting with the boards of election
inspectors, his rivals had conceded in writing that votes cast for him in that
name should be counted in his favor. (Corocoro vs.
Bascara, 118 Phil. 1362 [1963]; 9 SCRA 519 [1963], Dizon J.).

§11. A ballot containing only the nickname of a candidate
cannot be counted in his favor, unless accompanied by either his name or
surname (Section 129 [9], Revised Election Code). (Felisilda
vs. Achacoso, 118 Phil. 1366 [1963]; 9 SCRA 523 [1963], Barrera J.).

§12. A vote in the nickname alone,
unaccompanied by the name or surname, of the candidate, is insufficient. (Gadon vs. Gadon, 118 Phil. 1502 [1963]; 9 SCRA 652 [1963], Makalintal,
J.).

§13. The word “lowlow” was written before and
after the name “Compendio”, who was voted for councilor.  In the absence of evidence aliunde that
these words are not a nickname or appellation of affection or friendship, and
were intended to mark the ballot, its validity should be upheld. (Lloren vs. Court of Appeals, et al. 125 Phil. 529 [1967]; 19 SCRA
110 [1967], Reyes, J.B.L., J.).

§14. Ballots containing the nicknames “Oto”,
“Titoy”, “Mano” and “Bobby” are not marked, there being no clear and convincing
proof that they were used to identify the voters. (Silverio
vs. Castro, 125 Phil. 917 [1967]; 19 SCRA 520 [1967], Bengzon, J.P., J.).

§15. For a ballot containing the nickname of a
candidate to be counted in his favor, the nickname must be accompanied by
either his name or surname, unlike a ballot which contains only the Christian
name or surname of a candidate, which is considered valid if there is no
candidate with the same name or surname for the same office.  Ballots containing only the name “Bala” in
the space for vice-mayor cannot be considered in favor of Braulio Lapasa, a
candidate for vice-mayor, there being no proof that that is his nickname, and,
even if it were his nickname, that fact would not justify the counting of said
ballots in his favor. (Bisnar vs. Lapasa, 125 Phil. 932
[1967]; 19 SCRA 534 [1967], Makalintal, J.).

§16. The use of the nickname of a candidate,
without being accompanied by his surname is not a valid vote. (Katigbak vs. Mendoza, 125 Phil. 943 [1967]; 19 SCRA 543 [1967],
Regala, J.).

§17. The use of nicknames, accompanied by the
surname of the candidate, is allowed. 
The prefix “Mr.” is permissible. 
If no evidence of an intent to identify the voter was presented, the
ballot should not be annulled as a marked ballot.  (Monteza vs. Court of Appeals, 20 SCRA 773
[1967], Reyes, J.B.L., J.).

 §18. While the name written was
“BLBIOY,” there was no doubt that the voter intended to vote for “BIBOY,” the
name of which petitioner was popularly known and which nickname was duly registered
in his certificate of candidacy.  Hence,
the respondent court’s decision as regards Exhibit “5” is reversed and the vote
is counted for petitioner. (Bautista vs. Castro, 206 SCRA 305 [1992],
Medialdea, J.).

            §19. Even if VILLAROSA decided to
use “JTV” as her nickname for purposes of the 11 May 1998 elections, one must
never forget that she never used it as a nickname before she filed her
certificate of candidacy.  The nickname
which the second paragraph of Section 74 of the Omnibus Election Code allows to
be included in the certificate of candidacy is that “by which [the candidate]
is generally or popularly known.”  This
clearly means the nickname by which one has been generally or popularly
known BEFORE the filing of the certificate of candidacy, but NOT
what the candidate wants to THEREAFTER use.  By her own statement under oath in her
affidavit of 16 April 1998, VILLAROSA solemnly declared that she was generally
and popularly known in every barangay in Occidental Mindoro as “GIRLIE” BEFORE
and AFTER she filed her certificate of candidacy.  And, as asserted by her counsel during the
oral argument on 15 August 2000, her other nickname before she filed her
certificate of candidacy was “MRS. JTV,” not “JTV.”

Rule 13 of Section 211 of the Omnibus Election
Code cannot be applied in favor of VILLAROSA. That rule allows the use of (a) a
nickname and appellation of affection and friendship, provided that it is
accompanied by the first name or surname of the candidate, unless the nickname
or appellation is used to identify the voter; and (b) a nickname, which
is not accompanied by the name or surname of a candidate, provided that it is
the one by which the candidate is generally or popularly known in the
locality.  In both instances, the vote
cast for the nickname is a valid vote for the candidate concerned.  The “JTV” votes are unaccompanied by
her first name or surname; and “JTV” is not, to repeat, a nickname by
which VILLAROSA was generally and popularly known in the Legislative District
of Occidental Mindoro.  The HRET then
committed no error in not applying in favor of VILLAROSA Rule 13, Section 211 of
the Omnibus Election Code.
(Villarosa vs. House of Representatives Electoral Tribunal, 340 SCRA 396
[2000], Davide, Jr., C.J.).

           §20. The printed name “NIKKI” does
not show any intention on the part of the voters to identify or distinguish
themselves.  Therefore, the ballots are
not considered marked.  The name “NIKKI”
only showed that it was the voters’ intention to emphasize and stress their
adulation for a senator with the name “NIKKI,” rather than to identify
themselves.  The votes are stray for the
senatorial candidates but will not invalidate the entire ballot. (Ong vs. Commission on Elections, 347
SCRA 681 [2000], Pardo, J.).

2.) Appellation
of Affection or Friendship

§1. A ballot, containing the words “Mahal
kong Lloren” on the space for mayor and “Ganon den Lapasa” in the space for vice-mayor
is valid since those expressions are but appellations of friendship or
affection for Isabelo Lloren and Braulio Lapasa, candidates for mayor and
vice-mayor, respectively. (Bisnar vs. Lapasa, 125 Phil.
932 [1967]; 19 SCRA 534 [1967], Makalintal, J.).

§2. The use of the word “Minamahal” is merely
an expression of affection which does not invalidate the ballot. (Monteza vs. Court of Appeals, 20 SCRA 773 [1967], Reyes, J.B.L.,
J.).

 3.) Descriptio Personae

§1. The word “Bulag” written after
the name “Kiliron” on the first space for councilors, was merely descriptio
personae and does not invalidate the ballot 
(Cruz vs. Court of Appeals, L-14095, April 10, 1959). (Pangontao
vs. Alunan, 116 Phil. 1170 [1962]; 6 SCRA 853 [1962], Dizon, J.).

§2. Where the name voted for Mayor was Delfin
Antonio, and evidence aliunde submitted proved that petitioner was also
known as Dr. Antonio, because when he began his medical practice he put up a
drugstore and named it “Farmacia Antonio”, it is held that petitioner is
sufficiently identified and such vote is valid for petitioner. (Protacio vs. De Leon, 118 Phil. 1310 [1963]; 9 SCRA 472 [1963],
Paredes, J.).

            §3. Wherein in the line for Vice-Governor
appear the words “Bomba Arienda”, which is not exactly the name of any of the
candidates for said position, it is the unanimous opinion of the members of the
Court that the trial judge committed no error in counting the ballot as valid,
“ x x x” and the word “Bomba” evidently refers to the name by which the
candidate Roger Arienda is popularly known as a radio-commentator. (Moraleja vs. Relova, 42 SCRA 10 [1971], Barredo, J.).

§4. Insertion of word “apulid” to
describe the candidate does not annul the vote. 
“Apulid” is nothing more than a descriptio personae. (Lontoc
vs. Pineda, 64 SCRA 681 [1975], Esquerra, J.).

Rule 14: Vote containing initials only or
which is illegible or
which does not sufficiently identify the candidate

§1. Any
vote containing initials only or which is illegible or which does not
sufficiently identify the candidate for whom it is intended shall be considered
as a stray vote but shall not invalidate the whole ballot.  (Section 211, Omnibus Election Code, par. 14).

§2. The
ballots, bearing the Christian name only or the Christian name and the initial
of the surname of one candidate, should be rejected as insufficient to identify
the person voted for.  (Cailles vs.
Gomez and Barbaza, 42 Phil. 496 [1921), Villamor, J.).

§3. The
fact that one of the names written in the ballot is illegible does not annul it
as to those whose names are legible. (Mandac vs. Samonte, 49 Phil. 284
[1926], Villamor, J.).

§4. The word “Colonel” alone, written in the
space for Mayor does not identify, with sufficiency, the person voted for.  Being general and not followed by the name or
surname of respondent, it could refer to anybody who was a possessor of such
rank. (Protacio vs. De Leon, 118 Phil. 1310 [1963]; 9
SCRA 472 [1963], Paredes, J.).

§5. Voting with initials only is not valid. (Conui-Omega vs. Samson, 118 Phil. 1333 [1963]; 9 SCRA 493 [1963],
Bautista Angelo J.).

§6. Where the name written is illegible, it
was considered as a stray vote for either party. (Gadon
vs. Gadon, 118 Phil. 1502 [1963]; 9 SCRA 652 [1963], Makalintal, J.).

§7. The claim that the letter “A” in
“A. Ramos” stands for “Ando”, the common contraction of the name “Fernando”,
cannot be sustained.  Section 149 (1) and
(6) of the Revised Election Code speaks of initial of a name or surname, not of
a nickname.  As a matter of fact,
certificates of candidacy cannot contain nicknames of candidates (Section 34,
Revised Election Code). (Domingo vs. Ramos, 125 Phil.
153 [1966]; 17 SCRA 749 [1966], Regala, J.).

 §8. An illegible vote is a stray vote (Rule 15, Sec. 149,
Revised Election Code). (Trajano vs. Inciso, 125 Phil.
746 [1967]; 19 SCRA 340 [1967], Bengzon, J.P., J.).

§9. The
rule is that an erroneous initial of the name which accompanies the correct
surname of a candidate does not annul the vote in his favor (Sec. 149,
paragraph 6, Revised Election Code). 
This is a valid vote for protestee-appellant.

Ballots with the words “Mede”, “Daling”,
“Cardo”, “Rudy”, “Coper” and “Talay”, “Zenon Mones” and “Lowlow”, were
considered valid.  Said words were
considered stray votes. (Bisnar vs. Lapasa, 125 Phil.
932 [1967]; 19 SCRA 534 [1967], Makalintal, J.).

 §10. The
vote having been cancelled, it may not be counted for any candidate, for such
cancellation indicates desistance. 
Although an initial remained, the same could not be considered as a
valid vote for a candidate, as ballots with initials only are considered not a
valid vote. (Farin vs. Gonzales, 53 SCRA 237 [1973], Antonio, J.).

§11. “I.
Rodriguez” considered by the lower court as “T. Rodriguez” appearing on the
space for mayor, was correctly counted for private respondent, the “T.” being
the initial of “Teodoro” and even if the “T” is really an “I.” the erroneous
initial of the name which accompanies the correct surname will not annul the
vote in favor of the candidate (Section 189, par. 8, Election Code of
1971).   (Lontoc vs. Pineda, 64 SCRA
681 [1975], Esguerra, J.).

§12. Under
this rule three kinds of votes are considered stray: (1) a vote
containing initials only, (2) a vote which is illegible, and (3) a vote
which does not sufficiently identify the candidate for whom it is
intended.  The only error of the HRET is
its ruling that if the votes are in initials only, they are to be considered
stray votes if they do not sufficiently identify the candidate for whom the
votes are intended.  The first category
of stray votes under this rule is not to be qualified by the third category in
the sense that votes in initials only may be counted for a candidate
provided that the initials would sufficiently identify the candidate voted for.
Such construction of the rule fails to give meaning to the disjunctive
conjunction OR separating the first category from the second, and the
second from the third.  (Villarosa vs.
The House of Representatives Electoral Tribunal, 340 SCRA 396 [2000], Davide,
Jr., C.J.).

Rule 15: 
First name of a candidate is correctly written
but with a different surname or vice versa

§1. If
on the ballot is correctly written the first name of a candidate but with a
different surname, or the surname of the candidate is correctly written but
with different first name, the vote shall not be counted in favor of any
candidate having such first name and/or surname but the ballot shall be
considered valid for other candidates. (Section 211, Omnibus Election Code,
par. 15).

 §2. It
was held that these votes could not be lawfully counted for the candidate Tomas
F. de Guzman: Bernabe Guzman, Gregorio Guzman, Anastacio Guzman, Alejandro
Guzman, and the like; nor is the case altered by the circumstance that there
was only one candidate for the office of provincial governor bearing the name
of Guzman. Where the ballot contains a complete and distinct name different
from that of the candidate, the ballot cannot be counted for him although the
surname be the same. (Lucero vs. De Guzman, 45 Phil. 852 [1924], Street,
J.).

 §3. Where
the names written on the space for mayor and governor in most of the ballots
involved were either “D.O. PLAZA”, or “Monting Plaza”, and one of the
candidates for governor of the same province was Democrito O. Plaza, the
conclusion drawn by the Court of Appeals that the voters who filled these
ballots had in mind for mayor a person other than the one voted for Governor
is clearly untenable, for, having written the same name in both spaces, the
voter must be deemed to have intended the same individual, since
identity of names necessarily connotes identity of persons, unless the contrary
is satisfactorily established by competent evidence; and therefore said votes
should be considered as stray votes for mayor. (Calo vs. Court of Appeals,
118 Phil. 1056 [1963]; 9 SCRA 222 [1963], Concepcion, J.).

§4. A ballot wherein “Manuel Roxas” and
“Antonio Climaco” were voted for in the space for Senators cannot be considered
marked ballots since there were senatorial candidates named Gerardo Roxas and
Cesar Climaco.  Caution against the
disenfranchisement of electors lean more to the conclusion that the wrong given
name, with correct surname, as written, was an innocent error.  (Monteza vs. Court of
Appeals, 20 SCRA 773 [1967], Reyes, J.B.L., J.).

Rule 16: Ballot written with crayon, lead
pencil, or in ink, wholly or in part

§1. Any
ballot written with crayon, lead pencil, or in ink, wholly or in part, shall be
valid. (Section 211, Omnibus Election Code, par. 16).

 §2. Ballots
on which the names of the candidates are written with lead pencil or with ink
are not invalidated for that reason, there being no prohibition in the Election
Law against the use of such instruments in marking the ballot.  The provision in the Election Law that each
booth shall be furnished with an indelible pencil is not couched in such
language as to make a ballot written with a lead pencil or with a pen invalid. (Manalo
vs. Sevilla, 24 Phil. 609 [1913], Moreland, J.).

 §3. The
ballots written with lead pencil or ink, wholly or in part, will not be
considered as marked for the purposes of Section 452 of the Election Law, in
the absence of proof of fraudulent intent. (Cailles vs. Gomez and Barbaza,
42 Phil. 496 [1921], Villamor, J.).

            §4. Ballots
written with indelible pencil are legal and valid. (Mandac vs. Samonte, 49
Phil. 284 [1926], Villamor, J.).

 §5. The
use of lead pencil, indelible pencil, and pen in certain ballots is not of
itself sufficient to nullify said ballots as marked, in the absence of other
circumstances or evidence indicative that the voter’s intention in availing
himself of said writing instruments was to mark his ballot; because the point
of the indelible pencil may break, and the voter has to resort to a lead
pencil, and the latter may also break, necessitating the use by the voter of a
pen, in view of the fact that the top of the writing desk or table in the
election precincts is rough not being provided with a table-cover (Valenzuela vs.
Carlos and Lopez de Jesus, supra; Sinogba vs. Reganit, G.R. No.
36244, 57 Phil. 955). (Villavert vs. Lim, 62 Phil. 178 [1935], Villa-Real,
J.).

§6. The use of two or more kinds of
writings shall be considered innocent and shall not invalidate the ballot
unless it should appear that they have been deliberately put by the voter to
serve as identification marks  (Article
149 [18], Revised Election Code). (Sarmiento vs. Quemado, 115 Phil. 434
[1962]; 5 SCRA 438 [1962], Concepcion, J.).

Rule 17: 
Two or more candidates voted for in an office
for which the law authorizes the election of one

§1. Where there are two or more
candidates voted for in an office for which the law authorizes the election of
only one, the vote shall not be counted in favor of any of them, but this shall
not affect the validity of the other votes therein. (Section 211, Omnibus
Election Code, par. 17).

§2. When there are two names voted
for the same position for which the law authorizes the election of only one
person, the ballot should not be counted in favor of any of those voted for. (Cailles
vs. Gomez and Barbaza, 42 Phil. 496 [1921], Villamor, J.).

§3. Only names written within the
space (encasillado) set apart for a particular office can be counted as
properly voted for that office; and this rule applies not only where there
appears to have been an error in the placing of the name of a single candidate
but to cases where there is a general misplacement of the entire series of
names intended to be voted for the successive offices.  (Lucero vs. De Guzman, 45 Phil. 852
[1924], Street, J.).

Rule 18: The candidates voted for exceed
the number of those to be elected

 §1. If the candidates voted for
exceed the number of those to be elected, the ballot is valid, but the votes
shall be counted only in favor of the candidates whose names were firstly
written by the voter within the spaces provided for said office in the ballot
until the authorized number is covered. (Section 211, Omnibus Election Code,
par. 18).

§2. When there is an excess of
candidates voted for councilor, the ballot shall not be annulled, and unless
there is evidence to the contrary, the names in excess are not considered as
signatures or as identification marks. (Cailles vs. Gomez and Barbaza, 42
Phil. 496 [1921], Villamor, J.).

Rule 19: 
Vote in favor of a person who has not filed a
certificate of candidacy or  in
favor of a candidate
for an office for  which he is not
a candidate 

§1. Any vote in favor of a person who
has not filed a certificate of candidacy or in favor of a candidate for an
office for which he did not present himself shall be considered as a stray vote
but it shall not invalidate the whole ballot. (Section 211, Omnibus Election
Code, par. 19).

            §2. Writing
in a particular space the name of a person who is not a candidate for said
position, or failing to fill blank spaces, will not be considered as
distinguishing marks.  Neither is it
considered as a distinguishing or identification mark if upon the ballot appear
the name of a woman, names with pet names, nicknames, names of councilors with
the same surnames, or different surnames with the same name, names with
surnames of Chinese origin, name of priests, or contemptuous or exclamatory
names. (Cailles vs. Gomez and Barbaza, 42 Phil. 496 [1921], Villamor, J.).

§3. According to paragraph 3 of
Section 19 of Act No. 3210, any ballot cast for a deceased or imaginary person
or for a person for an office for which he has not filed a certificate of
candidacy or when the circumstances show that the purpose of the voter is to
identify the ballot, shall be illegal, null, and void.  This nullity not only affects the person for
whom the vote was cast, but the whole ballot. (Mandac vs. Samonte, 49 Phil.
284 [1926], Villamor, J.).

§4. Under Section 452 of the Election
Law, as amended by Act No. 3387, the circumstance that the voter votes for a
person for a certain office, when such person is not a candidate for that
office, does not invalidate the ballot; nor does this fact justify the
rejection of the ballot as a marked ballot, with respect to the candidates
whose names appear on the ballot in connection with other offices. (Aviado
vs. Talens, 52 Phil. 665 [1929], Street, J.).

 §5. When the name written in a ballot
is complete and distinct from that of any of the candidates the ballot should
be rejected. (Lucero vs. De Guzman, 45 Phil., 789). (Balon vs.
Moreno, 57 Phil. 60 [1932], Vickers, J.).

§6. Where an intelligent voter wrote
the names of the candidates for mayor on the space intended for senators, could
it be considered as to identify the ballot? 
Under Section 149, paragraph 13 of the Revised Election Code, a vote
cast in favor of a candidate for an office for which he did not present himself
is void but will not invalidate the whole ballot.  The vote is merely considered stray
vote. 

Where the ballots contain names of
relatives of the candidates they shall only be considered as stray votes which
do not invalidate the whole ballot as provided for in Section 149 paragraph 13
of the Revised Election Code. (Ferrer vs. De Alban, 101 Phil. 1018 [1957],
Bautista Angelo, J.).

§7. The voter should write the name
of the person he intends to vote for in the proper space indicated in the
ballot for the office for which he is a candidate in order to avoid doubt or
confusion as to the candidate he intends to vote for.  The provision of the law on this point should
be strictly followed so that a deviation therefrom would render the vote
invalid and of no effect. x x x. The philosophy behind the rulings above
adverted to is to make these legal provisions mandatory in order to avoid any
confusion in the minds of the officials in charge of election as to the
candidates actually voted for and stave off any scheming design to identify the
vote of the elector thereby defeating secrecy of the ballot which is cardinal
feature of our Election Law.

When the name of a candidate appears in
two spaces of the ballot, it shall be counted in favor of the candidate for the
office with respect to which he is a candidate. 
The vote for the office for which he is not a candidate shall be counted
as stray. (Amurao vs. Calangi, 104 Phil. 347 [1958], Bautista Angelo, J.).

 §8. Where the name of the candidate
for the office of mayor was written on other spaces of the ballots pertaining
to the offices of governor, senators, members of the provincial board, and
councilors, said ballots were cast in contravention of Section 149, paragraph
13, of the Revised Election Code, which provides that “Any vote * * * in favor
of a candidate for an office for which he did not present himself, shall be
void and counted as stray.” (Reforma vs. De Luna, 104 Phil. 278 [1958],
Bautista Angelo, J.).

§9. The writing of the name of a
person who is not a candidate on a space intended for an office for which he is
not a candidate, is only considered as stray vote and will not invalidate the
whole ballot. (Jaucian vs. Callos, 104 Phil. 603 [1958], Bautista Angelo,
J.).

§10. Under Rules 3 and 13, Section
149 of the Revised Election Code, any vote in favor of a candidate for an
office for which he did not present himself shall be void and counted as a
stray vote.

Misplaced votes are considered “stray and
invalid for having been cast in violation of the provisions of Sections 135 and
149 (13) of the Revised Election Code.”

It is true that Rule 13, Section 149 of
the Revised Election Code contemplates a vote for a non-candidate which was
innocently placed by the voter in the belief that said person was a candidate,
but if the voter writes the name of a person who is not a candidate three times
on three spaces provided for different offices, such writing is deemed
intentional as it serves no other purpose than to identify or mark the ballot. (Delgado
vs. Tiu, et al., 105 Phil. 835 [1959], Bautista Angelo, J.).

§11. A
ballot should be rejected where the manner in which the candidate’s name is
written gives the impression of an intention to mark or identify the ballot.

In the
absence of evidence aliunde that names of non-candidates were intended
for purposes of identification, the same shall be considered as stray votes
which shall not invalidate the whole ballot.

It is a
well-settled rule in election contest that 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. (Valenzuela vs.
Carlos and Lopez de Jesus, 42 Phil. 428). 
In other words, a mark placed on the ballot by a person other than the
voter himself does not invalidate the ballot as marked. (Tajanlangit vs.
Cazeñas, 115 Phil. 564 [1962]; 5 SCRA 567 [1962], Bautista Angelo, J.).

§12. The writing of the name of a non-candidate
for any office does not invalidate the ballot in the absence of evidence aliunde
that said name was intended for purposes of identification. (Trajano vs. Inciso, 125 Phil. 746 [1967]; 19 SCRA 340 [1967],
Bengzon, J.P., J.).

§13. A vote in favor of a candidate
for an office for which he did not present himself is a stray vote. (Silverio vs. Castro, 125 Phil. 917 [1967]; 19 SCRA 520 [1967],
Bengzon, J.P., J.).

§14. Any vote in favor of a person who has not
filed a certificate of candidacy or in favor of a candidate for any office for
which he did not present himself is void and is counted as a stray vote but it
does not invalidate the whole ballot. (Katigbak vs.
Mendoza, 125 Phil. 943 [1967]; 19 SCRA 543 [1967], Regala, J.).

§15. Likewise,
the word “Sarangaya” written on the first line for senator simply gives rise to
a stray vote for Gaudencio Sarangaya who was a candidate for member of the
provincial board, but does not constitute a mark that would render the ballot
invalid. (Garcia vs. Court of Appeals, 36 SCRA 582 [1970], Zaldivar, J.).

§16. The vote for a person to an
office for which he is not a candidate is considered a stray vote.  It should be noted that the voter wrote
correctly in the proper spaces his choices for Governor, Vice-Governor and
Members of the Provincial Board.  The
name of the candidate which is written in the space for Vice-Mayor is not
preceded by the name of the office for which the said candidate was a
candidate.  The explicit provision of
Section 189, paragraph 15, of Republic Act 6388 states that any vote in favor
of a candidate for an office for which he did not present himself shall be void
and counted as stray. (Farin vs. Gonzales, 53 SCRA 237 [1973], Antonio, J.).

§17. Vote
for non-candidate will not annul the ballot. (Lontoc vs. Pineda, 64 SCRA 681
[1975], Esguerra, J.).

§18. Votes
cast in favor of a non-candidate in view of his unlawful change in party
affiliation cannot be counted in the canvass of election returns. (Ticzon
vs. Commission on Elections, 103 SCRA 671 [1981], Aquino, J.).

§19. It
has also been held that in the absence of evidence aliunde that names of
non-candidates were intended for purposes of identification, the same shall be
considered as stray votes which shall not invalidate the whole ballot.  Further, it is a well-settled rule in
election contests that the marks which shall be considered sufficient to
invalidate the ballots are those which the voter himself deliberately placed on
his ballot for the purpose of identifying it thereafter. (Geromo vs.
Commission on Elections, 118 SCRA 165 [1982], Melencio-Herrera, J.).

§20. The above ballots must be
appreciated in favor of Ong.  There is no
showing that the words/letters/names written therein have been intentionally
placed to identify the voters.  Notice
that these markings are appellations or nicknames of famous showbiz
personalities who might have been mistaken as candidates.  At most, these may be considered as stray
votes for the position where they were written, as provided in Sec. 211 (19),
Omnibus Election Code, to wit: “19.  Any
vote in favor of a person who has not filed a certificate of candidacy or in
favor of a candidate for an office for which he did not present himself shall
be considered as a stray vote but it shall not invalidate the whole ballot.”  (Ong vs. Commission on Elections, 347 SCRA
681 [2000], Pardo, J.).

Rule 20: Name of a candidate printed and pastedor affixed through any mechanical process

 

§1. Ballots containing the name of a
candidate printed and pasted on a blank space of the ballot or affixed thereto
through any mechanical process are totally null and void. (Section 211,
Omnibus Election Code, par. 20).

 

§2. The ballots which bear the names
of the candidates printed on slips of paper and pasted in any space of the
ballot are considered as marked. (Cailles vs. Gomez and Barbaza, 42 Phil.
496 [1921], Villamor, J.).

 

§3. A ballot, where the name of the
candidate for vice-mayor appears printed on a sticker pasted on the space for
vice-mayor is a marked ballot.  It is
void. (Nalog vs. De Guzman, 126 Phil. 701 [1967]; 20 SCRA 338 [1967],
Concepcion, C. J.).

 

Rule 21:  Circles, crosses or lines on the spaces

   
on which the voter has not voted

 

§1. Circles, crosses or lines put on
the spaces on which the voter has not voted shall be considered as signs to
indicate his desistance from voting and shall not invalidate the ballot.
(Section 211, Omnibus Election Code, par. 21).

 

§2. Neither are the ballots
invalidated by one or more circles placed in a space in which the voter failed
to vote, for it is seen that his intention in placing said sign was to indicate
his desistance. (Cailles vs. Gomez and Barbaza, 42 Phil. 496 [1921],
Villamor, J.).

           

§3. A ballot wherein five big circles appear
on the first line for Senators was not considered marked, considering that the
voter appears to be a poor writer who left the spaces blank except those for
mayor and the first line for councilors. 
The disputed circles could have indicated the voter’s desistance to vote
for other candidates (Gutierrez vs. Aquino, L-14252, February 28, 1959). (Lloren vs. Court of Appeals, et al., 125 Phil. 529 [1967]; 19 SCRA
110 [1967], Reyes, J.B.L., J.).

 

§4. The vote having been cancelled,
it may not be counted for any candidate, for such cancellation indicates
desistance.  Although an initial
remained, the same could not be considered as a valid vote for a candidate, as
ballots with initials only are considered not a valid vote. (Farin vs.
Gonzales, 53 SCRA 237 [1973], Antonio, J.).

 

§5. Crosses, lines and other marks
will not invalidate the ballot. (Lontoc vs. Pineda, 64 SCRA 681 [1975],
Esguerra, J.).

 

 

Rule 22: 
Marks not deliberately put by the voter to serve as

   
identification marks such as commas, dots, lines, or

   
hyphens, use of two or more kinds of writing,

   
or accidental flourishes, strokes, 
or strains

 

§1. Unless it should clearly appear
that they have been deliberately put by the voter to serve as identification
marks, commas, dots, lines, or hyphens between the first name and surname of a
candidate, or in other parts of the ballot, traces of the letter “T”, “J”, and
other similar ones, the first letters or syllables of names which the voter does
not continue, the use of two or more kinds of writing and unintentional or
accidental flourishes, strokes, or strains, shall not invalidate the ballot.
(Section 211, Omnibus Election Code, par. 22).

§2. In order for a ballot to be
considered marked, in the sense necessary to invalidate it, it must appear that
the voter has designedly placed some superfluous sign or mark on the ballot
which might serve to identify it thereafter. 
No ballot should be discarded as marked ballot unless its character as
such is unmistakable. (Valenzuela vs. Carlos and Lopez de Jesus, 42 Phil.
428 [1921], Street, J.).     

 

§3. The distinguishing mark which the
law forbids to be placed on the ballot is that which the elector may have
placed with the intention of facilitating the means of identifying said ballot,
for the purpose of defeating the secrecy of the suffrage which the law
establishes.  As this is a question of
fact, it should be resolved with the ballot itself in view.

 

If the mark or sign appears to have been
accidentally placed, and it shall be so presumed unless there is evidence to
the contrary, such as a comma or a period, a dash or a hyphen, between the name
and surname of a candidate, or in another part of the ballot, or if there are
found traces of the letters “t” and “j” etc., or the first letter or syllable
of a name, which the elector abandons in order to write another name; the
perpendicular, parallel, circular, or sinuous lines which at times are found on
the ballots, as if to indicate that the voter did not attempt to vote for the
positions which appear to be so cancelled, these marks or signs will not be
considered as distinguishing marks. 
Unless there is evidence to the contrary, the numbers which are written
in order to indicate the number of persons voted for the position of councilor
or the number of the date of the election such as “3,” “June 3, 1919,” will not
be considered as distinguishing marks. (Cailles vs. Gomez and Barbaza, 42
Phil. 496 [1921], Villamor, J.).

 

§4. In the course of the opinion
numerous trivial defects are pointed out as not affecting the validity of
ballots and the general doctrine reiterated that innocent and unintentional
blemishes resulting from the lack of skill or ignorance of the person writing
the ballot do not affect its validity. (Lucero vs. De Guzman, 45 Phil. 852
[1924], Street, J.).

 

§5. No ballot should be discarded as
marked unless its character as such is unmistakable.

 

The contrast is always between marks that
were apparently accidentally, carelessly, or innocently made, which do not
invalidate the ballot, and marks designedly placed thereon by the voter with a
view to possible future identification of the ballot, which do invalidate it. (Cacho
vs. Abad, 62 Phil. 564 [1935], Malcolm, J.).

 

§6. Although in the contested ballots
the voters exhibited lack of skill in calligraphy their intention to vote for
the protestee was sufficiently manifest to justify the trial court’s
appreciation of votes in protestee’s favor. (Corpuz vs. Ibay, 84 Phil. 184
[1949], Ozaeta, J.). 

 

§7. The determinative factor in the
nullification of ballots for being marked as following a design or pattern, is
the existence of evidence aliunde tending to show the intention or
purpose in the use of the contested manner or means of voting, which is to identify
the ballots. (Gabuya vs. Dajao, 118 Phil. 1046 [1963]; 9 SCRA 213 [1963],
Barrera, J.).

 

§8. The disenfranchisement of electors is not
to be declared except upon the strongest evidence of an intention to sully the
purity of suffrage (Gadon vs. Gadon, L-20015, November 30, 1963).  No ballot should be rejected as marked unless
clear and sufficient reasons justify that action (Amour vs. Calangi,
L-12631, August 22, 1958); and the doubt must be resolved in favor of the
legality of the ballot (Ferrer vs. Alban, 101 Phil. 1018; Pagonatao
vs. Alunan, L-18926, November 30, 1962). (Lloren
vs. Court of Appeals, et al., 125 Phil. 529 [1967]; 19 SCRA 110 [1967], Reyes,
J.B.L., J.).

 

§9. A showing alone that several voters
belonging to the same precinct have written the names of particular candidates
in an identical manner cannot justify the inference that the voters had a plan
to identify their votes.  The
determinative factor in the nullification of ballots for being marked, as
following a design or pattern, is the existence of evidence aliunde tending
to show the intention or purpose in the use of the contested manner or means of
voting, which is to identify the ballot. 
Indeed, an identification mark cannot be presumed. No ballot should be
declared void as marked, unless there are clear and sufficient reasons to
justify such a conclusion.  In the
absence of evidence that the name of a candidate was incorrectly written
designedly to identify the voter, the vote cannot be held invalid for said
candidate. (Katigbak vs. Mendoza, 125 Phil. 943 [1967];
19 SCRA 543 [1967], Regala, J.).

 

§10. No ballot should be discarded as
marked unless its character as such is unmistakable. Distinction should be made
between marks that were accidentally, carelessly or innocently made, and those
designedly placed thereon by the voter with a view to possible identification
of the ballot, which, therefore, invalidates it. In the absence of any
circumstance showing that the intention of the voter to mark the ballot is
unmistakable, or of any evidence aliunde to show that the words were
deliberately written to identify the ballot, the ballot should not be
discarded. (Farin vs. Gonzales, 53 SCRA 237 [1973], Antonio, J.).

 

1. Signs/Marks Not Considered as
Marking

 

            1.
1.) Use of Two or More Kinds of Writing

 

§1. Where it appears that the names
of the candidates from the second space for members of the provincial board
down to the space for councilors were written in capital letters while those of
other candidates were written in small letters. 
Held:  that under Section 149,
paragraph 18 of the Revised Election Code, the use of two or more kinds of
writing cannot have the effect of invalidating the ballot unless it clearly
appears that they had been deliberately put by the voter to serve as
identification mark. (Ferrer vs. De Alban, 101 Phil. 1018 [1957], Bautista
Angelo, J.).

 

§2. The use of two kinds of writing
appearing in the ballot is a good example of the exemption provided in
paragraph 18, Section 149 of the Election Code, which provides that unless it
should clearly appear that it has been deliberately put by the voter to serve
as identification mark, the use of two or more kinds of writing shall be
considered innocent and shall not invalidate the ballot. A ballot should be
rejected where the manner in which the candidate’s name is written gives the
impression of an intention to mark or identify the ballot. (Tajanlangit vs.
Cazeñas, 115 Phil. 564 [1962]; 5 SCRA 567 [1962], Bautista Angelo, J.).

 

§3. The use of two kinds of writings
written by the same hand shall not invalidate the ballot.  (Conui-Omega vs. Samson, 118 Phil. 1333
[1963];  9 SCRA 493 [1963], Bautista
Angelo, J.).

 

§4. The use of two or more kinds of writing
in the ballot, such as ordinary script and block letters, does not invalidate
the ballot or render it a marked ballot unless it should clearly appear that
they have been deliberately used by the voter to serve as identification marks.
(Trajano vs. Inciso, 125 Phil. 746 [1967]; 19 SCRA 340
[1967], Bengzon, J.P., J.).

 

§5. A ballot with votes written in
ordinary script and others in block letters was considered valid. (Silverio
vs. Castro, 125 Phil. 917 [1967]; 19 SCRA 520 [1967], Bengzon, J.P., J).

 

 §6. The use of two or more kinds of
writing on the ballot, in the absence of evidence that the voter had
deliberately done this to identify his ballot, does not invalidate it.  (Juliano vs. Court of Appeals, 20 SCRA 808
[1967], Zaldivar, J.).

 

§7. We already held a long time ago
(Ferrer vs. Alban, 101 Philippine Reports 1018, G.R. No. L-12083, July
31, 1957) that the use of two or more kinds of writing cannot have the effect
of invalidating the ballot unless it clearly appears that they had been
deliberately put by the voter to serve as identification mark.  (Lontoc vs. Pineda, 64 SCRA 681 [1975],
Esquerra, J.).

 

§8. The rule is in favor of the
validity of the ballot, not otherwise. 
The term “unless” imports an exception rather than the general
rule.  This was enunciated in Tajanlangit
vs. Cazeñas, 5 SCRA 567 (1962) where we ruled that: “x x x.  The use of two kinds of writing appearing in
this ballot is a good example of the exception provided for in paragraph
18, Section 149 of the Revised Election Code, which provides that unless it
should clearly appear that it has been deliberately put by the voter to serve
as identification mark, the use of two or more kinds of writing shall be
considered innocent and shall not invalidate the ballot.”

 

The appearance of print and script
writings in a single ballot does not necessarily imply that two persons wrote
the ballot.  The strokes of print and
script handwriting would naturally differ but would not automatically mean that
two persons prepared the same.  A visual
examination of the ballots belies the claim that these ballots were prepared by
two persons.  In the absence of any
deliberate intention to put an identification mark, the ballots must not be
rejected. (Ong vs. Commission on Elections, 347 SCRA 681 [2000], Pardo, J.).

 

1.2.) Writing in Capital Letters

 

§1. While
it is true that some of the names and surnames are written in capital letters
in some of the ballots, it is evident that the voter desired to attain greater
clearness.  As it does not clearly and
positively appear that said manner of writing was adopted by way of
identification, said ballots must be deemed valid. (Yalung vs. Atienza, 52
Phil. 781 [1929], Villa-Real, J.).

§2. The
form of the letters in which certain names of the candidates are written x x x
which is similar to the printed form and different from the ordinary form of
the letters in which the other names are written – does not constitute
distinguishing mark, there being no indication either in the ballots themselves
or in the testimony that the adoption of the form of printed letters in writing
certain names is with a view to marking said ballots for purposes of
identification.

A slight variation in the formation of the
capital letter may be due to the writer’s caprice of the moment, particularly
if he writes well. (Villavert vs. Lim, 62 Phil. 178 [1935], Villa-Real, J.).

§3. In the absence of evidence
showing that the writing of the names of the candidates for mayor and
vice-mayor in capital letters slightly bigger than the capital letters with
which the names of the councilors were written was deliberately done to
identify the ballot, it cannot be considered marked. (Juliano vs. Court of
Appeals, 20 SCRA 808 [1967], Zaldivar, J.).

 

1.3.) Use of Block Letters

 

§1. A ballot, wherein all the names
voted for were written in very large block letters, was not considered
marked.  The appearance of the ballot did
not indicate any irregularity. The size of the writing, maintained uniformly
throughout, simply conforms to the space provided for in the ballot
itself.  The writing could be the voter’s
habitual one. (Silverio vs. Castro, 125 Phil. 917 [1967]; 19 SCRA 520
[1967], Bengzon, J.P., J.).

 

1.4.) Writing of Numbers

                       

§1. Numbers
“3”, ”4” and “5” in the corresponding spaces for senators, were crossed out and
the numerals “4”, “5” and “6”, respectively, were written after the aforesaid
numbers, before filling the names of candidates voted for.  Held: The ballot is not marked.  The poor penmanship of the voter clearly
indicates his humble condition and suggests strongly that he may have deemed it
necessary to reproduce the numbers appearing in the tickets or sample ballots
which are commonly used in rural areas.  (Sarmiento
vs. Quemado, 115 Phil. 434 [1962]; 5 SCRA 438 [1962], Concepcion, J.).  

§2. Where a number written on the
reverse side of a ballot does not appear to have been written by the voter
himself, the ballot is valid. (Pangontao vs. Alunan, 116 Phil. 1170 [1962];
6 SCRA 853 [1962], Dizon, J.)

 

            1.5.) Erasures
and Cancellations

 

§1. Printed
numbers in spaces for senators crossed out and other numbers handwritten by
voter in place thereof, ballot not marked. (Sarmiento vs. Quemado, supra).

§2. Certain erasures and
cancellation, which are plainly corrections of errors, not evidencing any purpose
of marking, did not invalidate the ballots. (Silverio vs. Castro, supra).

 

            1.6.) Parentheses

 

§1. A ballot wherein the name
“Espiritu” appears on the first and last spaces for councilors and on each of
the spaces in-between are two curved lines resembling close parentheses is not
a marked ballot.  (Katigbak vs.
Mendoza, 125 Phil. 943 [1967]; 19 SCRA 543 [1967], Regala, J.).

 

1.7.) Blemishes, Smudges and Fingerprints

 

§1. The big traces of indelible
pencils generally used in election precincts and the impressions of the fingers
of the voter in handling his ballot are not considered distinguishing marks. (Cailles
vs. Gomez and Barbaza, 42 Phil. 496 [1921], Villamor, J.).

 

§2. When the smears on ballots appear
to have been made by the voter’s fingers, the ballot is valid. (Mandac vs.
Samonte, 49 Phil. 284 [1926], Villamor, J.).

 

§3. Ballots with smudges, not fingerprints,
and ballots with fingerprints, which were not proven to be the fingerprints of
the voters who filled them, cannot be considered marked.  The general appearance of the ballots
suggests that the alleged marks were, probably, accidental in nature. (Nalog vs. De Guzman, 126 Phil. 701 [1967]; 20 SCRA 338 [1967],
Concepcion, C. J.).

 

1.8.) Signs Indicative of Desistance

 

a.) Blank Spaces

 

§1. Desistance from completely filling the
spaces in the ballot does not render the ballot marked, where there is no
evidence aliunde of a purpose to identify the ballots through said
means, and where said purpose is not discernible upon the face of said ballots.
(Silverio vs. Castro, 125 Phil. 917 [1967]; 19 SCRA 520
[1967], Bengzon, J.P., J.). 

 

b.) Erasures

 

§1. The vote having been cancelled,
it may not be counted for any candidate, for such cancellation indicates
desistance.  Although an initial
remained, the same could not be considered as a valid vote for a candidate, as
ballots with initials only are considered not a valid vote. (Farin vs.
Gonzales, 53 SCRA 237 [1973], Antonio, J.).

 

c.) Words

 

§1. In Exhibit “BB” of Precinct 28A,
28A1, the term “None that I know” written on the space for party list does not
render the ballot marked.  The term
simply implies that the voter did not know any candidate or did not wish to
vote for any candidate to the position. 
Thus, the Comelec correctly ruled that the ballot is valid for Ong. (Ong
vs. Commission on Elections, 347 SCRA 681 [2000],  Pardo, J.).

 

d.) Parallel lines

 

§1. Two short parallel lines on spaces where
the voter did not vote merely indicate the voter’s desistance from voting and
should not invalidate the ballot. (Katigbak vs.
Mendoza, 125 Phil. 943 [1967]; 19 SCRA 543 [1967], Regala, J.).

 

e.) Diagonal lines

 

§1. A ballot with a diagonal line drawn
across the ballot, from the third to the last space for Senators, is valid,
considering that the first two spaces are properly filled.  The voter must have drawn the line to
indicate his desistance from voting for other senatorial candidates. (Bisnar vs. Lapasa, 125 Phil. 932 [1967]; 19 SCRA 534 [1967], Makalintal,
J.).

 

1.9.) Other
signs/marks not considered as identification or marking

 

§1. The use of surplusage in the
filling out of a ballot by the voter will not invalidate the ballot as a marked
ballot, when it appears that such surplusage was probably due merely to lack of
skill on the part of the voter. Thus, a vote for a candidate for the office of
senator is good although the voter unnecessarily places the word “Senator”
before the name of the candidate. (Aviado vs. Talens, 52 Phil. 665 [1929),
Street, J.).

 

§2. The voters had written “Borja
Borja” in the second space for senators, “Pajo Pajo” in the first space for
senators in another ballot, and ““Eca Pilaez Pilaez” in the last space for
senators in another ballot.  Held: The
three ballots are not marked, because there is no evidence aliunde of
the intent to identify the ballots and such intent is not manifest on the face
thereof. (Sarmiento vs. Quemado, 115 Phil. 434 [1962]; 5 SCRA 438 [1962],
Concepcion, J.).

 

§3. In the absence of any evidence aliunde
showing that the ballot was purposely marked, the writing of “Perez
Bungcad” on one of the spaces for councilors, where there is a candidate for
councilor by the surname of “Bungcad”, should not be considered as mark.  Likewise, in the absence of such evidence as
to the meaning of “Cabus Cabus”, the ballot should not be considered as marked
merely because “R. Perez Cabus Cabus” appears on one of the spaces for
senators. x x x The words “Casoy Guzman”, written on a space for councilors,
the words “Dreo Boro Sosoc”, written on the third space for councilors in
another ballot, and the words “Bienes I Love y Darling”, written on the fourth
space for councilors on the ballot, will not invalidate the ballots as marked
in the absence of evidence aliunde to show the intended meaning of the
word “Casoy” or the words “Dreo Boro Sosoc”. 
The phrase “ I Love y Darling” merely expresses preference for Bienes, a
candidate, and does not invalidate the ballot 
(Delgado vs. Tui, L-14143, May 27, 1959). (Arzaga vs. Bobis,
Sr., 116 Phil. 702 [1962]; 6 SCRA 386 [1962], Reyes, J.B.L., J.).

 

§4. The following circumstances of the
ballots involved in the case at bar do not render them marked ballots: (1)
Writing the word “vocales” on the second space thereof, because one of the
candidates for members of the provincial board was “Morales” and the penmanship
of the voter is so poor that he could have actually intended to write “Morales”
and not “vocales”, and, moreover, this word is the Spanish term for members of
the provincial board; (2) Writing on the space for vice mayor the word
“Conbaburd,” in the absence of evidence aliunde; (3) Writing “E. CHEZ”
on the second space for councilors, in block letters, like the name “PEREZ”
appearing in the next lower space, unlike other names on the ballot, which were
written in ordinary script, especially where there is a candidate for councilor
by the name of Sanchez, and the voter appears to be of the unenlightened type;
(3) Writing “Badong Calo-Nanong”; the last term “Nanong” not being sufficing as
identification mark; (4) Writing the words “That’s all” in the third space for
councilors, after filling the previous spaces; (5) Writing on the first space
for Senators the words “Grand Allaian”, instead of writing the names of persons
on the spaces for Senators; (6) Writing on the third space for councilors the
word “Air” or “Ais”, considering that this word may be idem sonans with
“Asis”, the surname of a candidate for councilor; (7) Writing “sun B sanci” on
the space for vice mayor, “di palsa” on the space for Provincial  Governor, and “Ba Calo” on the space for
mayor, considering the poor penmanship and that there was a candidate surnamed
Sanchez; (8) Writing “Martha” on the last space for councilor, where the intent
to mark is not clear; (9) Writing “Pasing” on the last space for councilor,
without evidence aliunde on the intent to identify the ballot; (10)
Writing “D.O. Plaza ako” on the space for Provincial Governor, the term “ako”
being merely to stress the voter’s desire; (11) Writing the ballot in ink (par.
10, Sec. 149, Revised Election Code). (Calo vs. Court
of Appeals, 118 Phil. 1056 [1963]; 9 SCRA 222 [1963], Concepcion, J.).

 

§5. The following circumstances were
considered in holding the respective ballots as not marked and therefore valid:
(1) indentions not sufficient to identify the voters; (2) writing the word
“sorry” after the name of a candidate, as an expression of regret for having
committed a mistake; (3) writing the words “Street”, or “Grand Alliance”, or “and
party”; (4) canceling names and rewriting them to conform with a sample ballot;
(5) writing a candidate’s name to occupy all three spaces for members of the
Provincial Board; (6) writing the name of a particular candidate for councilor
as the last councilor voted for in each of several ballots; (7) misspelling the
name of a candidate; (8) writing the expression “carancho” before the name of a
candidate, as an appellation of affection or friendship; (9) numerals on the
back of a ballot written by the board of inspectors as a tally guide; (10)
illegible writings, being imprints of other names written on the ballot caused
by the folding of the same; (11) canceling the name of a candidate in a wrong
place and putting it in the right place; (12) different ways of writing the
letter “i” in several ballots caused by individual mannerisms of voters; (13)
writing circles and crosses signifying desistance of voter to write any other
name; and (14) affixing the nickname of a candidate. (Protacio
vs. De Leon, 118 Phil. 1310 [1963]; 9 SCRA 472 [1963], Paredes, J.).

 

§6. Under the following circumstances the
ballots concerned were not considered marked: 
(1) innocent erasures in spaces for mayor and vice-mayor; (2) corrected
name written over cancelled one on space for councilor although he is a
candidate for mayor; (3) mistake in writing names of local candidates in spaces
for senators and writing again the names of his candidates for councilors in
the proper spaces; (4) misspelling innocently the name of a candidate; (5) an
attempt to write the name of a candidate, not constituting a distinguishing
mark; (6) an unintentional or accidental unintelligible mark appearing below
the printed word “Official Ballot”; (7) writing the words “Sampion” after the
name of a candidate and “Mabohay” after another candidate as an expression of
affection and friendship; (8) writing the figure “1” accidentally; (9) writing
the names of prominent politicians not candidates, in the absence of clear
evidence that they were used as identifying marks; (10) unintelligible words
like “Mcino”, “Basual”, and “Oray” on spaces for candidates, in the absence of
evidence of intent to identify; (11) 
writing the word “Afag” before the name of a candidate, referring to an
organization headed by said candidate; (12) accidental placing of a stain; (13)
voting names of non-candidates, in the absence of evidence that these names
were used as identifying marks; (14) writing the word “ala”, the first syllable
of a name which the voter does not continue; (15) writing the word “Oki”,
indicating the voter’s desistance from voting further; (16) writing the words
“Botax”, “Poyon”, and “Balas” in spaces for candidates, in the absence of
evidence of intent to identify. (Conui-Omega vs.
Samson, 118 Phil. 1333 [1963]; 9 SCRA 493 [1963], Bautista Angelo J.).

 

§7. The following expressions set forth
opposite the ballots concerned were not considered written to identify the
voter:  “Madalang”, “Saiyo lamang”, “Sa
Pepe Kit”, “Ponsing”, and “Piniong (or penyong) Alcantara”. (Ferraren vs. Añonuevo, 118 Phil. 1428 [1963]; 9 SCRA 583 [1963],
Regala, J.).

§8. The following circumstances were
considered innocent mistakes and not sufficient to render the ballots marked:
Writing the name “Pajo”, a candidate for Senator, at a wrong place, below the
last line for councilors; writing “Eco Baranda” the names of two candidates,
one for Senator and the other for Provincial Board member, on one line; a
scrawl of an imperfect figure 8 before the name written for mayor, which may
have resulted from the voter’s inexperience in writing; desisting from filling
all the spaces on the ballot; writing the name “Gaac”, a candidate for
Vice-Mayor, on one of the spaces for Senators; writing prefixes to the name of
the candidate like “Manong”, “Nong”, “Ping”, “Don”, “Tio”, where there is no
discernible pattern to the use of such prefixes which would reveal an intention
to mark the ballots; writing the prefixes “manoy”, “mandoy” and “pare enoy”
before the names voted for various positions, where the prefixes are explained
to be colloquial expressions in Visayan which connote respect, equivalent to
the Tagalog “ka” or the English “Mr.”, and, writing the prefix “Dr.” before
names of candidates who are either a Doctor of Medicine or a Doctor of
Pharmacy. (Gadon vs. Gadon, 118 Phil. 1502 [1963]; 9
SCRA 652 [1963], Makalintal, J.).

 

§9. A ballot wherein the name “I. Lloren
Biloy Lloren” in the space for mayor was written is valid.  The voter merely emphasized his intention to
vote for Isabelo Lloren for mayor. (Ibid.).

 

§10. A ballot containing the word
“opalao” written on space 6 for councilors was considered valid.  There was no evidence that the word was used
to identify the ballot. (Bisnar vs. Lapasa, 125 Phil. 932 [1967]; 19 SCRA
534 [1967], Makalintal, J.).

 

§11. Twelve ballots wherein the same
candidates for lieutenant governor, board member and mayor were voted for, were
not considered marked, as that circumstance does not sufficiently indicate a
pattern of marking.  The use of initials,
instead of given names, in the space for councilors in certain ballots was
allowed in the absence of evidence aliunde that this was done for
identification purposes. (Monteza vs. Court of Appeals,
20 SCRA 773 [1967], Reyes, J.B.L., J.).

 

 

2. Signs/Marks
Considered as Marking

 

2.1.) Irrelevant,
Impertinent or Derogatory Remarks

 

§1. A
ballot upon which the voter appears to have intentionally written an irrelevant
or impertinent phrase is properly rejected as a marked ballot; but the general
rule is that no ballot should be considered to be marked because of the fact
that it contains flourishes, touches, or marks innocently or unconsciously
placed by the voter upon the ballot in the course of preparing the same. (Lucero
vs. De Guzman, 45 Phil. 852 [1924], Street, J.).

            §2. When
patently irrelevant or impertinent words appear to have been written on the
ballot for no other purpose than to identify the votes, such ballot should be
rejected.

Although
in contested ballots the voters exhibited lack of skill in calligraphy, their
intention to vote for the protestee was sufficiently manifest to justify the
trial court’s appreciation of said votes in protestee’s favor. (Corpuz vs.
Ibay, 84 Phil. 184 [1949],          
Ozaeta, J.).

§3. The
writing of the capital letters “MBDC” on third space for Senators does not come
under the provisions of Section 149, paragraphs 15 and 18, of the Revised
Election Code.  It is clearly for
identification purposes, and the ballot should be rejected.

The
writing of impertinent expressions on the ballot invalidates it.  The following are impertinent expressions if
written on the ballot: “Daguit (to swoop) written on the last space for
councilors; “Wala na cag walo rine (you do not have 8 here) written on one of
the spaces for councilors; “Datu Bulac” (blind datu); Castillo walamapatay
(Castillo was not killed) written on one of the spaces for Senators; “Datu
Bilat”, “bilat” meaning in Visayan (the genitals of a woman); “Carlos Virgo 17
Lt Inf”.  (Lucero vs. De Guzman,
45 Phil., 852; Fausto vs. Villarta, 53 Phil., 166; Villavert vs.
Lim, 62 Phil., 178; Cecilio vs. Tomacruz, 62 Phil., 689, 710). (Caraecle
vs. Court of Appeals, 94 Phil. 308 [1954], Padilla, J.).

§4. Where
it appears that the capital letter “A” was written on the first space for
councilors in each of them it was held that the use of that letter by several
electors could not be innocent but must have been in pursuance of a previous
agreement to identify these ballots.

Where
the ballot contains an impertinent expression such as “Manila Rum” it is
sufficient to nullify the ballot for it serves no other purpose than to
identify the voter.

Where
the ballot contains insulting words such as “witch” or “gambler” the ballot
should be rejected. (Ferrer vs. De Alban, 101 Phil. 1018 [1957], Bautista
Angelo, J.).

§5. The
use by the voter of indecent words after the name of a candidate invalidates
the ballot as marked.

The appearance of three ballots from the
same precinct, having in connection with a particular candidate, the same
expression “lagare”, which is an impertinent and derogatory word meaning a
person who would want to profit or get from both sides, strongly implies its
use as a mark and therefore invalidates the ballots. (Arzaga vs. Bobis, Sr.,
116 Phil. 702 [1962]; 6 SCRA 386 [1962], Reyes, J.B.L., J.).

 

§6. Considering the evidence aliunde,
the following expressions or remarks opposite the spaces for candidates were
considered written for the purpose of identification and therefore the ballots
affected were held invalid for being marked ballots:  “Nako si Kristo”, “Agdan Pook”, “Tres Lease”,
“A.P.O.”, “Marcos Maligalig”, “Joe”, “D. Florida”. “Pira”, “V. Rayos”, and
“Epolod”. (Ferraren vs. Añonuevo, 118 Phil. 1428
[1963]; 9 SCRA 583 [1963], Regala, J.).

 

§7. The following circumstances were considered
in declaring the ballots affected as marked and invalid.  The unexplained presence of the letters
“O.P.” after the name of one of those voted for councilors, quite prominent
letters written with a remarkably good hand; the word “Daldo” written on the blank
space opposite the word “councilors”, with no reasonable explanation for its
presence; an impertinent unnecessary and identifying expression below the last
line for councilors, namely: “My vote is heartily dedicated”; and, writing a
big figure “O”, not the initial of the candidate.  (Gadon vs. Gadon, 118 Phil. 1502 [1963]; 9
SCRA 652 [1963], Makalintal, J.).

 

§8. The writing of the word “engat” in a
ballot in a way different from the rest of the writings on the same ballot,
cannot be regarded as innocent or unintentional.  It is rather a clear indication that the
voter intended to identify his ballot. 
For the same reason, the irrelevant word “pansay” appearing in a place
other than the proper space for voting cannot be considered as done
accidentally or innocently (Conui-Omega vs. Samson, L-21010, November
11, 1963).

 

The words “seniorito” without accompanying the name
of any candidate, “shot” written downwards on the left margin opposite the
voted candidate for councilors, and the statement “binabati kong vice-mayor ug
Beloy mayor”, written on the right margin, are neither appellations of
friendship nor nicknames of candidates. 
Thus, they could not have been intended for any purpose other than to
identify the ballots.  The appearance of
such words as “engat” or “ingat” or “ensat” or “Menong” or “Minong” or “sorab,”
or “curab” or the name “Mines,” “Menis” or “Menes” in practically the same
spaces in several sets of ballots in the same precincts, is a clear and
convincing proof of a design to identify them (Delgado vs. Tiu, L-14143,
May 17, 1959).  Where in three ballots,
capital letters “AAD” were written uniformly on line 1 for Senators and there
is no showing that these were the initials of any candidate, the appearance of
these initials in three ballots in the same precinct, on the same space, cannot
be merely coincidental, but intended to mark the ballots.  Irrelevant expressions, such as “have a good
time Mr. Pacito,” “forget me not” and “Tse na lang” nullify the ballots on
which they were written. (Lloren vs. Court of Appeals,
125 Phil. 529 [1967]; 19 SCRA 110 
[1967], Reyes, J.B.L., J.).

 

§9. Ballots containing the words
“Egg”, “Toli”, “Pudpud”, “Salokot”, “Towang” and “C Vote” are obviously marked
ballots.  Also considered marked was a
ballot containing the figure “5”, which was not an accidental stroke, and the
figure “7” before the name “Sarmiento” in the space for governor. (Silverio
vs. Castro, 125 Phil. 917 [1967]; 19 SCRA 520 [1967], Bengzon, J.P., J.).

 

§10. Ballots containing the words “engat”
(meaning, luminous in Visayan), “boy”, “Have a good time Mr. Pacito”, “Forget
me not,” “Medi Hingasoko Jabines,” 
“Kowacnit Sigordo,”  “Tse na lang”
and “Ci na lang” which are irrelevant and impertinent expressions, are marked
ballots (Lloren vs. Abrea, L-25907, January 25, 1967).

 

A ballot containing the word “Señorito” was
considered marked.  A ballot where the
initial “R.L.” appears below the seal of the Republic of the Philippines and
the word “Sorab” on the space for governor is marked.  Ballots with the words “Menong” or  “Minong” are marked.

 

A ballot with the initial “A.A.D.” on space 1 for
Senators and a ballot containing the name “C. Pausto” written before the name
“Cuenco” and the name “Pausto” written before the name “De la Rosa” in the
space for Senators are marked ballots. (Bisnar vs.
Lapasa, 125 Phil. 932 [1967]; 19 SCRA 534 [1967], Makalintal, J.).

 

§11. Section 135 of the Revised
Election Code, as amended by R.A. 599 makes it ‘unlawful to use . . . any . . .
means to identify the vote of the voter.’ 
Where in a ballot is written “Pasensya na ang hindi kasama” the same is
an identifying mark which invalidates the ballot.  But the words “Casas-Garapon” written in the
space for councilors where the registered name of a candidate for councilor is
Casas will not invalidate the ballot as the word “Garapon” appears to be no
more than a descriptio personae.  The
same is also true where the words written for councilor are “Bomba Arienda”
since the word “Bomba” evidently refers to candidate Roger Arienda who is
popularly known as a radio-commentator.  (Moraleja
vs. Relova, 42 SCRA 10 [1971], Barredo, J.).

 

§12. There are in the above ballots
distinct initials and words such as “DLR,” “DOLLIN,” “DOLLINS,” “GINA,” “EVA,”
“SOSANG TORIS,” “SABANG BULAC,” “CORY,” “GREECE,” “GRACES,” “LOS,” “LUZ,”
“BONG,” “ELIN,” “ROSE,” “ALONG RARO,” “BONOO,” “ALONG” “PONBI,” “ROVEN GATA,”
“NORMAN,” “RIC,” “VIA,” “AMEN,” “NANIG,” “SABAS,” “MIMIG” and “LOLOY TORRES”
written on spaces for different positions. 
These writings can only be construed as an intention to mark and
identify the ballots since these words were repeatedly written and in other
instances, two or three of these words were written on a single ballot.  These words are impertinent, irrelevant,
unnecessary and clearly show the voter’s purpose to identify the ballots or
voters.  As held in Gadon vs. Gadon, the
unexplained presence of prominent letters and words written with remarkably
good hand marked the ballots and must be considered invalid. (Ong vs.
Commission on Elections, 347 SCRA 681 [2000], Pardo, J.).

 

2.2.) Signed Ballots

 

§1. When the ballot is signed by a
voter, as is the case with the ballot G-25 of the first precinct of the municipality
of San Pablo which is signed “A. Dizon,” and the ballot “T,” signed on the back
“Santiago Lasaga,” of the fourth precinct of the municipality of Santa Cruz, it
should be rejected, because the intention of the voter to identify his ballot
is evident. (Cailles vs. Gomez and Barbaza, 42 Phil. 496 [1921], Villamor,
J.).

 

§2. Where the signature of the voter
as found in the registry list is written on the ballot, that invalidates it.
(Corpuz vs. Ibay, 84 Phil. 184 [1949], Ozaeta, J.).

 

§3. It is well-settled rule that a
ballot signed by the voter himself is a marked ballot. (Ferrer vs. De Alban,
101 Phil. 1018 [1957], Bautista Angelo, J.).

           

2.3.) Indented name

 

§1. Where in each of the four ballots cast in
one precinct, the name of one candidate for senator is clearly and markedly
indented to the right as to render the ballot easily distinguishable, the
ballots should be annulled. (Sarmiento vs. Quemado, 115
Phil. 434 [1962]; 5 SCRA 438 [1962], Concepcion, J.).

 

2.4.) Placing of “x” Mark

 

§1. A ballot with a small “x” written
to the left of the name “Silverio” and another small “x” written after said
name, towards the end of the line, was considered marked.  The ballot was otherwise neat and filled only
with a few names.  But a ballot with a letter
“x” before the name “Peñanueva” for councilor, was held valid, it appearing
that it was meant to be an initial, as shown by the use of initials throughout
the other seven names voted for councilor. (Silverio vs. Castro, 125 Phil.
917 [1967]; 19 SCRA 520 [1967], Bengzon, J.P., J.).

 

2.5.) Design/pattern for
identification

 

§1. Where all the 170 ballots in
dispute were voted for in the following manner: The name of the candidate first
voted for councilor was written with his surname prefixed by a nickname or what
appears to be a derivative or contraction of his first or Christian name, while
the rest of the candidates were voted for by their surnames and initials of
their respective first or Christian names, and there is evidence aliunde that
such manner of voting was planned to identify the votes of certain voters or
groups of voters, it is held that said ballots are marked ballots and
invalid.

 

The determinative factor in the
nullification of ballots for being marked as following a design or pattern, is
the existence of evidence aliunde tending to show the intention or
purpose in the use of the contested manner or means of voting, which is to
identify the ballots. (Gabuya vs. Dajao, 118 Phil. 1046 [1963]; 9 SCRA 213
[1963], Barrera, J.)

 

§2. The fact that the nine (9)
ballots all came from one precinct taken together with the circumstances that
the initials were written preceding the printed numbers on the ballots all of
which correspond to the lines for councilor, impliedly suggests that the
marking was a preconceived pattern designedly placed on the ballot to identify
it there after. (Inting vs. Clarin, 21 SCRA 1421 [1967], Angeles, J.).

 

2.6.) Other signs/marks considered as marking

 

§1. The words “Bienes-OPA”, with the
letter OPA written in capitals at the bottom of the ballot and away from the
rest of the names of the persons voted for, which are all in current script,
invalidates the ballot as marked, in the absence of evidence aliunde as
to the meaning of the words in question, and in the absence of any showing that
the letters were the initials of a candidate. 
(Arzaga vs. Bobis, Sr., 116 Phil. 702 [1962]; 6 SCRA 386 [1962],
Reyes, J.B.L., J.).

 

§2. Where in several ballots the last
person voted for councilor is “Atty. Aquino” and it appears that Atty. Aquino
was a nephew of the protestee and one of the lawyers who represented him in the
election protest, the ballots, being marked, should be considered as invalid. (Pangontao
vs. Alunan, 116 Phil. 1170 [1962]; 6 SCRA 853 [1962], Dizon, J.).

 

§3. The following circumstances of
the ballots involved in the case at bar render them marked ballots: (1) Pasted
stickers bearing the printed name of persons; (2) “Plaza” was written
successively in the first four (4) spaces for Senators; (3) “D.O. Plaza” was written
on the eight (8) spaces for senators apart from the space for Governor; (4)
Written on the fourth space for Senators the words “Mga lider sopsop elang tian
guipaboro”.  (Calo vs. Court of
Appeals, 118 Phil. 1056 [1963]; 9 SCRA 222 [1963], Concepcion, J.).

 

§4. The following circumstances were
considered in holding the respective ballots as marked and therefore
invalid:  (1) The inclusion of the names
of two well known movie stars who were not candidates; (2) writing the name of
a registered voter not a candidate where the handwriting on the ballot is
identical to the signature on the registered voter’s list in the precinct; (3)
the words “Minte” and “Kabayan” in block or printed form, both enclosed in
parenthesis, written after two names in the second and seventh spaces for
councilors; (4) the placing, without explanation, of initials after the
corrected names of candidates for mayor and vice-mayor; (5) the writing of the
phrase “Liberal Party” eleven times on the 
space for vice-governor, on all the spaces for board members and from
the 2nd to the 8th space for councilors, and the word
“Factor” on the first space for councilor; (6) writing the word “saging”
(banana), an irrelevant epithet, after the name of a candidate for councilor;
(7) placing a big letter “X” immediately after the name of a candidate for
councilor; (8) writing the name of “Pelaez” a national political figure and not
a candidate for councilor on the fourth space for councilors and placing a big
“X” immediately after it; (9) writing the name “Sony Boy” on the 8th space for
councilors, which is not related to the name of any candidate for councilor;
(10) writing a big “M” in block or printed letter on the eight space for
councilors, with the remaining spaces in blank; and (11) printing a big “M”
after “R.  Rodriguez” on the sixth space
for senators conspicuously and distinctly different from all the letter Ms in
the ballot. (Protacio vs. De Leon, 118 Phil. 1310
[1963]; 9 SCRA 472 [1963], Paredes, J.).

 

§5. Under the following circumstances, the
ballots concerned were considered marked and invalid:  (1) the capital letter “N” opposite the
printed words for Senators;  (2) writing
the word “Sinador” in a place far and separate from the proper spaces for
candidates; (3) writing the words “Kid Morjon” or “Dracula, good for hanging
day” as impertinent, irrelevant and unnecessary expressions; (4) placing
fingerprint of voter without reason. (Conui-Omega vs.
Samson, 118 Phil. 1333 [1963]; 9 SCRA 493 [1963], Bautista Angelo J.).

 

§6. The following circumstances were
considered in declaring the ballots affected as marked and invalid.  The unexplained presence of the letters
“O.P.” after the name of one of those voted for councilors, quite prominent
letters written with a remarkably good hand; the word “Daldo” written on the
blank space opposite the word “councilors”, with no reasonable explanation for
its presence; an impertinent unnecessary and identifying expression below the
last line for councilors, namely: “My vote is heartily dedicated”; and, writing
a big figure “O”, not the initial of the candidate.  (Gadon vs. Gadon, 118 Phil. 1502 [1963]; 9
SCRA 652 [1963], Makalintal, J.).

§7. A ballot wherein the name “Montego” was
written on the space for mayor, with some illegible strokes underneath, and
wherein all other spaces were unfilled, except on the sixth line for councilor,
where “POEj” was written upside-down in bold letters, is a marked ballot. (Monteza vs. Court of Appeals, 20 SCRA 773 [1967], Reyes, J.B.L.,
J.).

 

§8. It cannot be said that these
writings were accidental.  As a general
rule, a voter must write on the ballot only the names of candidates voted for
the offices appearing thereon.  Certain
exceptions, however, were provided in Section 149 of the Revised Election
Code.  For example, prefixes such as
“Sr.,” “Mr.”, and the like and suffixes such as “hijo,” “Jr.,” etc. will not
invalidate the ballot (par. 5).  Initials
(paragraph 15), nicknames or appellation of affection and friendship will not
invalidate the ballot, if accompanied by the name or surname of the candidate,
and above all, if they were not used as a means to identify the voter.  Even under a liberal view, the words written
on the ballots under consideration (presence of an arrow with the words “and
party”) cannot be considered as falling within the exception to the rule.  Consequently, they are irrelevant expressions
that nullified the ballots  (Lloren v.
CA, et al., No. L-25907, January 25, 1967, 19 SCRA 110).  Hence, respondent court excluded Exhibits “Z”
and “Z-1”. (Bautista vs. Castro, 206 SCRA 305 [1992], Medialdea, J.).

 

 

3. Repetitions of Name (marked or not marked)

 

§1. The circumstance that the voter writes
the names of two different candidates, or that he repeats the name of the same
candidate in connection with an office for which only one can be elected does
not invalidate the ballot or justify its rejection as a marked ballot. (Aviado vs. Talens, 52 Phil. 665 [1929], Street, J.).

 

§2. Under Section 149, pars. 3 and 13, of the
Revised Election Code, “When the name of a candidate appears in two spaces of
the ballot, it  shall be counted in favor
of the candidate for the office with respect to which he is a candidate.  The vote for the office for which he is not a
candidate shall be counted as stray.” (Amurao vs.
Calangi, 104 Phil. 347 [1958], Bautista Angelo, J.).

 

§3. It is true that Rule 13, Section 149 of
the Revised Election Code contemplates a vote for a non-candidate which was
innocently placed by the voter in the belief that said person was a candidate,
but if the voter writes the name of a person who is not a candidate three times
on three spaces provided for different offices, such writing is deemed
intentional as it serves no other purpose than to identify or mark the
ballot.  (Delgado
vs. Tiu, et al., 105 Phil. 835 [1959], Bautista Angelo, J.).

§4. In
two ballots the vote for mayor is “J. Nietes Nietes” and the persons who
prepared these ballots appear to be well educated, judging from their good
penmanship.  They could have had no
possible reason to write “Nietes” twice, except to mark their respective
ballots. (Sarmiento vs. Quemado, 115 Phil. 434 [1962]; 5 SCRA 438 [1962],
Concepcion, J.).

§5. Ballot invalid as marked by the use of a
candidate name more than twice (Gutierrez vs. Aquino,G.R. No. L-14252,
February 28, 1959). (Arzaga vs. Bobis, Sr., 116 Phil.
702 [1962]; 6 SCRA 386 [1962], Reyes, J.B.L., J.).

§6. Ballots,
where there were repetitions of name, are void marked ballots, it appearing
that the voters who wrote them were intelligent and familiar with the
scriptural process, and the repetitions do not appear justified by mistakes or
by any necessity to clarify the names as originally written on the
ballots.  Furthermore, there is evidence aliunde
that a party inspector, during the canvassing of votes, was seen holding a
list, apparently of voters who sold their votes, and checking it every time a
ballot was read where names of candidates were twice written. (Monteza vs.
Court of Appeals, 20 SCRA 773 [1967], Reyes, J.B.L., J.).

§7. The rule is that in the absence of
evidence to show that the purpose was to identify the ballot, a single
repetition of the name of a candidate does not invalidate the ballot.  And what has been considered as a marked
ballot is one where a candidate’s name is written more than twice (at
least three times), in which case it is deemed intentional and as serving no
other purpose than to identify the ballot. 
This rule, however, refers to one or two ballots or several ballots in
different precincts.

Where, as in this case, thirteen ballots,
all cast in the same precinct, contain this common feature—the repetition of
one candidate’s surname – the same evidences a pattern designed to mark said
ballots in that precinct.  Furthermore,
the repetition in these thirteen ballots occur on the same line, and
thus cannot be deemed unintentional, innocent or due to oversight, unlike the
single repetition held as not showing markings, where the name of the candidate
was written on the first line and repeated on the last line for councilors. (Inguito vs. The Court of Appeals, 21 SCRA 1015 [1967], Bengzon,
J.P., J.).

§8. We
have no doubt on the well established rule that the mere repetition of the
names of candidates will not nullify the ballot on the ground that it is marked
(voter intended it as a means to identify himself) in the absence of evidence aliunde.
(Lontoc vs. Pineda, 64 SCRA 681 [1975], Esguerra, J.).

§9. Respondent court correctly
invalidated Exhibit “7.”  This ballot
cannot be considered as a vote for petitioner whose name was written seven (7)
times in the ballot.  The writing of a
name more than twice on the ballot is considered to be intentional and serves
no other purpose than to identify the ballot. (Bautista vs. Castro, 206 SCRA 305 [1992],
Medialdea, J.).

 

 

Rule 23: Ballot filled by two distinct persons

                       

§1. Any ballot which clearly appears
to have been filled by two distinct persons before it was deposited in the
ballot box during the voting is totally null and void.  (Section 211, Omnibus Election Code, par.
23).

 

§2. While in the case at hand some
ballots were cast disclosing a certain disparity in the formation of the
letters, this is not sufficient to warrant the conclusion that the said ballots
have been prepared by two persons, the character of the letters in each of them
being the same.  A slight variation in
the formation of the capital letter may be due to the writer’s caprice of the
moment, particularly if he writes well.  (Villavert
vs. Lim, 62 Phil. 178 [1935], Villa-Real).

 

1.) Ballots
Marked After They Are Cast

           

§1. On
a recount, marks on ballots do not invalidate them when such marks are placed
after they have been cast and counted by the election judges, without the
knowledge or consent of the voters who cast them, but maliciously for the
purpose of invalidating them on a recount. (Hontiveros vs. Altavas, 26 Phil.
213).

            §2. xxx,
[t]hat ballots which are marked before they are cast should not be counted,
that ballots marked after they are cast should be counted x x x. (Paulino
vs. Cailles, 37 Phil. 825 [1918], Johnson, J.).

§3. The
will of the majority of the qualified electors must be determined by a count of
the legal ballots found in the ballot box at the close of the election.  Subsequent changes in the ballots should not
be permitted to affect the result of the election in order to destroy the will
of the majority of the qualified electors. (Dayrit vs. San Agustin and
Valdez, 40 Phil. 782 [1920], Johnson, J.).

§4. It is a well settled rule in
election contest that 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  (Valenzuela v. Carlos and Lopez de
Jesus, 42 Phil. 428).  In other words, a
mark placed on the ballot by a person other than the voter himself does not
invalidate the ballot as marked. (Tajanlangit vs. Cazeñas, 115 Phil. 564
[1962]; 5 SCRA 567 [1962], Bautista Angelo, J.).

§5. The marks “?” and “x”, written by persons
other than the voters concerned, do not invalidate the ballot. (Juliano vs. Court of Appeals, 20 SCRA 808 [1967], Zaldivar, J.).

 

            2.) Ballot
Written by Two Persons (WBT)

 

§1. Where
a vote was written by two persons, one evidently not well schooled and the
other skilled in writing, the ballot should be rejected. (Illescas vs. Court
of Appeals, 94 Phil. 215 [1953], Paras, C.J.).

§2. A
ballot written by two different hands is invalid.  (Protacio vs. De Leon, 118 Phil. 1310 [1963];
9 SCRA 472 [1963], Paredes, J.).

§3. The allowance or rejection of a ballot
filled in by more than one person depends on its condition before it was cast
in the ballot box.  If at the time it was
cast it was filled by only one person, but thereafter it was tampered and
entries were made thereon by other persons, the ballot is valid.  If, on the other hand, it already bore the
fillings of two or more persons when cast, said ballot is deemed marked and is
thus void.  The rebuttable presumption is
that a ballot found to be in the handwriting of two or more persons suffered
this defect before it was placed in the ballot box.  Where the trial court found that certain
ballots were tampered with only after they had been placed in the ballot box
and that finding is supported by convincing evidence, it should be respected by
this Court. (Trajano vs. Inciso, 125 Phil. 746 [1967];
19 SCRA 340 [1967], Bengzon, J.P., J.).

 

            3.) Ballots Written By One Person (WBO)

 

§1. The
mere fact that each group of ballots appears to be written by one man is not,
in itself, sufficient to destroy the presumption of their legality, arising
from their being found in the valid-ballot box in which they were deposited in
the presence of the inspectors or watchers for the contending candidates. It
might be that the voters who cast their votes were incapacitated, and had been
assisted in the preparation of their ballots by two unauthorized persons in the
polling place, but this fact alone is not enough to invalidate the
aforementioned ballots, when it does not appear that such irregularity was part
of a scheme devised to adulterate suffrage (Valenzuela vs. Carlos and Lopez
de Jesus, 42 Phil., 428; Cailles vs. Gomez and Barbaza, 42 Phil.,
496). (Olano vs. Tibayan, 53 Phil. 168 [1929], Villa-Real, J.).

§2. Applying the rule of liberality
in the appreciation of ballots, it should be noted that general resemblance or
pictorial effect is not enough to warrant the conclusion that certain ballots
were prepared by one person. (Silverio vs. Castro, 125 Phil. 917 [1967]; 19
SCRA 520 [1967], Bengzon, J.P., J.).

 

§3. x x x , the failure or omission
of protestant to raise the question of identical handwriting or of impugning
the validity of the ballots on that ground, resulting in the invalidation of
466 ballots for petitioner, does not preclude respondent COMELEC from rejecting
them on that ground.

 

Unlike an ordinary suit, an election
protest is of utmost public concern.  The
rights of the contending parties in the position aspired for must yield to the
far greater interest of the citizens in the sanctity of the electoral
process.  This being the case, the choice
of the people to represent them may not be bargained away by the sheer
negligence of a party, nor defeated by technical rules of procedure.  Thus, COMELEC cannot just close its eyes to
the illegality of the ballots brought before it, where the ground for the
invalidation was omitted by the protestant. (Arao vs. Commission on Elections, 210 SCRA 290
[1992], Bellosillo, J.).

 

 

Rule 24: 
Vote cast in favor of a candidate who has

   
been disqualified by final judgment

 

Any vote cast in favor of a candidate who
has been disqualified by final judgment shall be considered as stray vote and
shall not be counted but it shall not invalidate the ballot. (Section 211,
Omnibus Election Code, par. 24).

 

 

Rule 25:  Ballots
wholly written in Arabic

 

§1. Ballot
wholly written in Arabic in localities where it is of general use are
valid.  To read them, the board of
election inspectors may employ an interpreter who shall take an oath that he
shall read the votes correctly. (Section 211, Omnibus Election Code,                par. 25).

§2. Where
the name of one candidate is written on the ballot in Arabic characters, while
those of the other candidates voted for are written in Roman characters, the
ballot should be rejected as marked. (Caraecle vs. Court of Appeals, 94
Phil. 308 [1954],               Padilla,
J.).

§3. The Court takes judicial notice
that in Cotabato a large segment of the population is composed of Muslims who
speak and write the Arabic language. 
With the spread of instruction in the English language through the
schools, it is to be expected that Muslim inhabitants have learned to speak and
write the English language.  It is not
surprising, therefore, that those Muslim voters, who knew how to write
Romanized script, would write their ideas either in the Arabic or Romanized
way, or mixed Arabic and Roman way.  In
the absence of evidence that the mixed writing of names in ballots of Muslims
voters was a device deliberately resorted to identify the ballots of the voters
who prepared them, the doubt must be resolved in favor of their validity. (Juliano
vs. Court of Appeals, 20 SCRA 808 [1967], Zaldivar, J.).

 

 

Rule 26:  Accidental
tearing or perforation of a ballot

 

§1. The accidental tearing or
perforation of a ballot does not annul it. (Section 211, Omnibus Election
Code, par. 26).

 

§2. The fact that a ballot is
accidentally torn does not annul it.  (Cailles
vs. Gomez and Barbaza, 42 Phil. 496 [1921], Villamor, J.).

 

 

Rule 27:  Failure to
remove the detachable coupon

 

§1. Failure to remove the
detachable coupon from a ballot does not annul such ballot. (Section 211,
Omnibus Election Code, par. 27).

 

§2. The circumstance that the coupon
bearing the number of a ballot is not detached at the time the ballot is voted
does not justify the court in rejecting the ballot.  The duty of detaching the coupon is placed by
law upon the election officials, and the voter must not be deprived of the
franchise by reason of their failure to perform this duty. (Lucero vs. De
Guzman, 45 Phil. 852 [1924], Street, J.).

           

§3. The language of Section 442, as
amended, of the Election Law is directory. 
As a general rule, the failure of the election board to follow these
provisions of law does not invalidate the votes. (De los Angeles vs.
Rodriguez, 46 Phil. 595 [1924], Malcolm, J.).

 

§4. And the fact that the lower court
adjudicated certain ballots, with detachable coupon numbers, to the protestant
or the protestee in an election contest, does not constitute an excess of
jurisdiction in the exercise of its powers and does not justify the issuance of
a writ of certiorari. (Ello vs. Judge of First Instance of Antique, and
Valdevin, 49 Phil. 152 [1926], Villamor, J.).

           

§5. It is the duty of the chairman of
the election inspectors to remove the coupon from the ballot, and, if through
an oversight, he fails to do so the ballot ought not to be invalidated for that
reason. (Balon vs. Moreno, 57 Phil. 60 [1932], Vickers, J.).

 

 

CHAPTER XVII
Election Returns and Certificates of Votes

 

1. Election
Returns

 

a.) Prima facie status of ER

 

§1. Frauds in the holding of an election
should be settled by the corresponding courts or Electoral Tribunals where
testimonial or documentary evidence is necessary; but where the fraud is so
palpable from the return itself, there is no reason to give it prima facie
value.

 

Where the returns were obviously false or
fabricated, the Commission on Elections has the power and duty to reject them.
(Lagumbay vs. Commission on Elections, 122 Phil. 1274 [1966]; 16 SCRA 175  [1966], Bengzon, C.J.).

 

§2. The decisive factor is that where
it has been duly determined by Comelec after investigation and examination of
the voting and registration records that actual voting and election by the
registered voters had taken place in the questioned precincts, the election
returns cannot be disregarded and excluded with the resulting
disenfranchisement of the voters but must be accorded prima facie status
as bona fide reports of the result of the voting for canvassing and
proclamation purposes. (Anni vs. Izquierdo, 57 SCRA 692 [1974], Teehankee,
J.).

 

§3. Election returns are accorded
prima facie status as bona fide reports of the result of the
count of the votes in a precinct on the underlying assumption that the election
inspectors have faithfully complied with their official duty.  The moment such assumption is destroyed by
unrebutted clear and convincing evidence before the COMELEC that not only did
the inspectors not comply with the duty required of them by law but that the
serious defects shown by the voting records amounting to falsification thereof
could not have happened without the active participation of the inspectors
themselves, the election returns thus prepared by them lose their prima
facie status as bona fide reports of the true count of the votes and
must be deemed falsified and spurious. (Bashier vs. Commission on Elections,
43 SCRA 238 [1972], Teehankee, J.).

 

§4. We start by noting
that the Comelec (both Second Division and the Commission En Banc)
correctly emphasized that, under the regime of the Omnibus Election Code,
pre-proclamation controversies are properly limited to challenges directed
against the Board of Canvassers and proceedings before such Board of
Canvassers, and not the Board of Election Inspectors nor proceedings before
such latter Board and that such challenges should relate to particular election
returns to which petitioner should have made specific verbal objection
subsequently confirmed in writing.  In a
pre-proclamation controversy, it is axiomatic that the Comelec is not to look
beyond or behind election returns which are on their face regular and authentic
returns.  A party seeking to raise issues
resolution of which would compel the Comelec to pierce the veil, so to speak,
of election returns prima facie regular, has his proper remedy in a
regular election protest. (Dipatuan
vs. Commission on Elections, 185 SCRA 86 [1990], Feliciano, J.).

 

§5. That the election returns
were obviously manufactured must be evident from the face of said
documents.  In the absence of a strong
evidence establishing spuriousness of the returns, the basic rule that the
election returns shall be accorded prima facie status as bona fide
reports of the results of the count of the votes for canvassing and
proclamation purposes must perforce prevail. 
The COMELEC en banc did not find any signs of alterations or
tampering on the election returns nor did the petitioner present any hard
evidence of such irregularity.  The only
thing which we surmise came too close to such a change was the written
superimposition made on the family names of the candidates in the election
returns of the clustered Precincts 93-A and 94-A.  This was certainly not an alteration or
tampering since the COMELEC en banc found that such superimposition was
necessarily done in order to make the names readable.  Nonetheless, petitioner failed to deduce
evidence to the contrary. (Ocampo vs. Commission on Elections, 325 SCRA 636
[2000],                 Kapunan, J.).

 

b.) Authentic copies of ER

 

§1. Where
the alleged discrepancies in the election returns of a precinct appear in a
certificate of votes given to a watcher of a candidate and in a certificate
executed by a Constabulary officer, it is held that said documents are not
those which can be considered authentic copies of the election returns, and
that, consequently, the ruling of the lower court that judicial recount was not
warranted is correct. (Matanog vs. Alejandro, 11 SCRA 499 [1964], Paredes,
J.).

 

§2. In applying Section 163 of the Revised
Election Code, the phrase “another copy or other authentic copy” therein used
shall not be construed to include any of the additional copies of the election
returns distributed to the two major political parties, pursuant to a
resolution of the Commission on Elections, for the simple reason that, in using
the aforementioned phrase, the framers of the Revised Election Code evidently
had in mind the four (4) copies mentioned in Section 150 thereof and
intended, one for the ballot box, another for the municipal treasurer, still
another for the provincial treasurer and the last for the Commission on
Elections.  In other words, the lawmakers
could not have referred to any other copies, for no such copies were prescribed
in the Code.

 

Section 163 of the Revised Election Code should be
construed restrictively (Parlade vs. Quicho, L-16259, December 29, 1959;
Samson vs. Estenzo, L-16268, January 30, 1960; Lawsin vs. Escalona,
L-22540, July 31, 1964), because of the special nature of the authority
conferred therein and because otherwise that authority could be so used as to
delay the proclamation of the winning candidate beyond the date set for the
beginning of the term of the office involved. 
The effect of said delay is, in the case of national offices, for which
there is no hold-over, to leave the office without any incumbent, and,
in the case of local offices, whose incumbents may hold over, to often permit
the defeated candidate to unduly extend his tenure, at the expense of the true
choice of the electorate.

 

The resolution of the Commission on Elections
requiring the preparation of additional copies of the election returns and the
distribution thereof among the two (2) major political parties, does not
contravene the law.  The existence of
said additional copies in the possession of the major political parties may
discourage or deter the tampering of the four (4) copies contemplated in Section
150, owing to the probability, if not certainty, of detecting the irregularity.
(Acuña vs. Golez, 122 Phil. 1129 [1966]; 16 SCRA 32
[1966], Concepcion, J.).

 

§3. The copy of the
Nacionalista Party of the election returns is not one of those contemplated by
law for purposes of judicial recount under Section 163 of the Revised Election
Code.  In using the phrase “another copy
or other authentic copies,” the framers of the Revised Election Code evidently
had in mind the four copies mentioned in Section 150 thereof and
intended, one for the ballot box, another for the municipal treasurer, still
another for the provincial treasurer and the last for the Commission on
Elections.  The lawmakers could not have
referred to any other copies, for no such “other” copies were prescribed in the
Code  (Acuña vs. Golez, L-25399,
January 27, 1966). (Palarca vs. Arrieta, 124 Phil. 1033 [1966]; 18 SCRA 441
[1966], Reyes, J.B.L., J.).

 

§4. Once the Commission on Elections
is convinced that the election returns in the hands of the board of canvassers
do not constitute the proper basis in ascertaining the true result of the
elections, it is duty bound to take the necessary steps in order that the
proper basis for the canvass is made available. 
It would be absurd to say the Commission has a legal duty to perform and
at the same time it is denied the necessary means to perform that duty.

Where the three copies of the election
returns outside the ballot box do not constitute a reliable basis for a canvass,
then the Commission on Elections, in the exercise of its power to administer
and enforce the laws relative to the conduct of elections, may order the
opening of the ballot boxes to ascertain whether the copy inside each ballot
box, corresponding to each precinct, is also tampered like the three copies
outside the ballot box.  The Commission
may do this on its own initiative, or upon petition by the proper party.  That order does not affect the right to vote
or the validity of the votes cast.

Once it is found that the copy of the
election return inside the ballot box is tampered, the Commission on Elections
would then have accomplished two things, namely: (1) secured a basis for the
prosecution for the violation of the laws relative to elections and (2)
afforded the party aggrieved by the alteration of the election returns outside
the ballot box a basis for a judicial recount of the votes. (Cauton vs. Commission on Elections, 126 Phil. 291 [1967]; 19 SCRA
911 [1967],  Zaldivar, J.).

§5. The Commission on Elections’
copies of election returns are authentic copies within the meaning of Section
163 of the Revised Election Code (Lawsin vs. Escalona, L-22540, July 31,
1964; Matanog vs. Alejandro, L-22502-03, June 30, 1964).

Where, as in the case at bar, there were
patent erasures and superimpositions in words and figures on the face of the
election returns submitted to the board of canvassers, it was imperative for
said board to stop the canvass so as to allow time for verification of
authentic copies and recourse to the courts (Javier vs. Commission on
Elections, L-22248, January 30, 1965). 
A canvass or proclamation made notwithstanding such patent defects,
without awaiting proper remedies, is null and void (Ibid).

Where a candidate was prevented from
securing the Commission on Elections’ copies of the returns to establish a
discrepancy between them and the Provincial Treasurer’s copies, the failure to
submit the said copies to the board should not prejudice his right to petition
for recount before the court.

Patent erasures and superimpositions in words and
figures of the votes stated in the election returns strike at the reliability
of said returns as basis for canvass and proclamation.  A comparison with the other copies, and, in
case of discrepancy, a recount, is the only way to remove grave doubts as to
the correctness of said returns as well as of ascertaining that they reflect
the will of the people. (Purisima vs. Salanga, 122
Phil. 1084 [1965]; 15 SCRA 704 [1965], Bengzon, J.P., J.).

§6. While the Comelec in its role as senatorial
canvasser has the power to reject returns before it which in its opinion were
illegal and not authentic, neither law nor precedent authorizes it to impose
the same criterion in advance upon the provincial boards of
canvassers.  The latter are entitled to
use their own judgment in determining whether the irregularities appearing on
the returns before them warrant their rejection.  It must not be forgotten that the copies of
the returns upon which the provincial canvassers act are different from
those in the possession of the Comelec, and the irregularities noted in the
latter may not necessarily exist in the former. 
Should there be any discrepancy between the official copies, the
petitioners can recourse to a judicial recount under Section 163 of the
Election Law.  But certainly, an a
priori rejection on the basis of previous Comelec action is not
justifiable.

 

The alleged excess of votes cast (detailed and
enumerated in the petition) does not necessarily support the conclusion that
the returns are obviously manufactured for reasons of statistical
improbability.  There is here no
uniformity of tallies in favor of candidates belonging to one party and the
systematic blanking of the opposing candidates that led this Court to reject
the returns in the Lagumbay case. 
In Sangki vs. Comelec, L-28359, Dec. 26, 1967, this Court warned
against the undue expansion of the Lagumbay doctrine without due regard
to the factual basis upon which it was based.

 

While in Lagumbay vs. Comelec, this Court has
taken official cognizance of the spread of the pernicious practice of
tolerating or abetting the tampering or manufacture of returns just to get the
proclamation and then let the victimized candidate file the protest and spend
his money to work for an empty victory, the Court has likewise adverted to the
equally pernicious effects of excessive delay of proclamations.  The Comelec and the Court should guard both
against proclamation-grabbing through tampered returns as well as against
attempts to paralyze canvassing and proclamation in order to prolong hold-overs
by officials whose terms are officially ended. (Alonto
vs. Commission on Elections, 22 SCRA 878 
[1968], Reyes, J.B.L., J.).

 

§7. Advanced copies of
election returns cannot be the basis of proclamation.  Proclamation should be based on the copies of
the returns for the municipal treasurer, or if unserviceable, on three other
authentic copies of the returns, namely: that for the Comelec, or for the
provincial treasurer, or that in the ballot box.  (Aguam vs. Commission on Elections, 23
SCRA 883 [1968], Sanchez, J.).

 

§8. Section 233 of B.P.
881 ought to be harmonized with Section 27, par. b(5) of R.A. 7166.  Section 27, par. b(5) of R.A. 7166
presupposes that other copies of the election returns are existent and may be
compared with the copies of the MTC.  It
does not preclude the use of such authentic copies in the canvass when the
copies submitted to the Board of Canvassers have been lost or destroyed.  The letter of Provincial Election Supervisor
Atty. Adolfo Ilagan dated May 15, 1992 and the minutes of the special meeting
of respondent COMELEC held on May 22, 1992 constitute sufficient authority for
the use of such returns in the canvass. (Sardea vs. Commission on Elections, 225 SCRA 374
[1993], Griño-Aquino, J.).

 

c.) When ER prevails over ballots

 

§1. It is a well settled rule
in election contests that when the protest alleges that the election officers
have improperly judged the ballots, the latter constitute the best proof and
the court must examine them in order to determine the claim of the protestant,
unless the same shall have been substituted after the election or altered in
any manner, for then they lose their probatory value and the election returns
must prevail. (Mandac vs. Samonte, 49 Phil. 284 [1926], Villamor, J.).

 

§2. Where the election returns
showed that 254 valid ballots were cast in the election for the candidates for
a particular office and that the spoiled ballots were 33 in number, and upon
opening the boxes only 253 ballots were found in the box of used ballots while
34 were found in the box for spoiled ballots, including an apparently good one
for one of the candidates to the contested office, the court sustained the
trial judge in holding that the apparently good ballot found in the box of
spoiled ballots might be claimed by the contestant, with the result that the
official returns with respect to the vote for the contested office were allowed
to stand. (Aviado vs. Talens, 52 Phil. 665 [1929], Street, J.).

 

§3. When it appears that a
ballot box has been unlawfully opened and its contents disturbed to the extent
that it is uncertain whether the ballots found therein were actually cast by
the voters, such ballots cannot be accepted for purposes of revision, and the
official returns, if not otherwise impeached, must be accepted as stating the
true number of votes cast.

 

The particular fraud accomplished in this
case consisted in the fact that, after the official count had been made, the
box of a certain precinct was opened and a large number of ballots removed,
bearing the name of the successful candidate for municipal president. In place
of these ballots an equal number of counterfeit ballots bearing the name of the
same candidate for municipal president were introduced into the box. Upon
contest instituted by the unsuccessful candidate, these ballots should not be
subtracted from the contestee’s vote and that the official returns must
prevail. (San Juan vs. Cornejo, 53 Phil. 230 [1929], Street, J.).

d.) Tampered or manufactured ER

 

§1. When the fraud or
intimidation is flagrant and its influence diffusive so that it becomes
impossible to separate the good votes from the bad and determine the true
result of all the good ballots cast, the returns should be avoided. (Gardiner
vs. Romulo, 26 Phil. 254 [1914], Trent, J.).

 

§2. Where the returns from a
certain precinct are impugned as fraudulent, and it is found upon opening the
boxes that they have been violated, the candidate in whose interest the act of
violation is alleged to have been committed may introduce as witnesses voters
who, waiving their privilege of secrecy, will swear that they voted for him.  Such evidence is admissible for the purpose
of rehabilitating the returns.

 

Where the correctness of the official
returns is thus established as to the vote of one of the candidates, said
returns should be adhered to as to both, it being manifest that the boxes were
not violated in the interest of either. 
Where the spoliation is the work of a stranger, neither candidate should
be penalized therefor.

 

Where the proof shows that the official
returns in a certain precinct with regard to particular office are false,
secondary evidence is admissible to show what the true vote was.  In this case the testimony of three witnesses
who had been present when the votes were counted and one of whom had kept
accurate tally upon the votes as called out is accepted as sufficient to show
the true result.

 

Where the evidence shows that the ballot
boxes have been violated and their contents changed, the original count must
prevail.  Before the ballots found in a
box can be used to set aside the returns the court must be sure that it has
before it the ballots deposited by the voters. (Valenzuela vs. Carlos and
Lopez de Jesus, 42 Phil. 428 [1921] Street, J.).

 

§3. Frauds in the holding of
an election should be settled by the corresponding courts or Electoral
Tribunals where testimonial or documentary evidence is necessary; but where the
fraud is so palpable from the return itself, there is no reason to give it prima
facie value. 

 

Where the returns were obviously false or
fabricated, the Commission on Elections has the power and duty to reject them. (Lagumbay
vs. Commission on Elections, 122 Phil. 1274 [1966];  16 SCRA 175 [1966], Bengzon, C.J.).

 

§4. Under Section 163 of
the Revised Election Code, canvassers are given quasi-judicial powers to
determine whether the return is genuine and to disregard one which is obviously
a forgery. (Espino vs.
Zaldivar, 21 SCRA 1204 [1967], Sanchez, J.). 

 

§5. It is true that in Espino
vs. Zaldivar, L-22325, December 11, 1967, citing Nacionalista
Party vs. Commission on Elections, 85 Phil. 149, 158, we declared
that the canvassing board will not be compelled to canvass returns which are
obviously manufactured.  This does mean
however that the board and Comelec, when faced with this situation, should
right away disregard the votes cast in precincts where returns are
doctored.  There are four copies of
official returns.  Allegedly both the
municipal treasurer’s and Comelec’s copies were tampered.  But it was the duty of the board to report
the matter to Comelec.  Comelec could
then hew to the line drawn in Cauton vs. Commission on Elections,
1967B Phil. 248, 255, where this Court declared that, in case the election
returns were tampered, “it is certainly within the power of the Commission on
Elections to issue such order as would ascertain the existence of the genuine,
authentic and untampered election returns.” 
Comelec could inquire into the copies of the returns for the provincial
treasurer.  And if these copies are not
authentic, Comelec should look into the copies of the returns in the ballot
boxes.  These should have been done.

 

Maniago vs. Commission on Elections,
L-28413 and Guevara vs. Commission on
Elections, L-28414 (Resolution), December 20, 1967, are not to be
read as dispensing with the canvass of votes of all precincts.

 

As is its practice, Comelec should summon
members of the board of inspectors, take evidence, and ascertain which are the
genuine returns.  And then it should
direct the board of canvassers to use these returns in the canvass of the
votes.  Our pronouncement in Minte vs.
Enage, L-1836, December 31, 1947, cited in Ramos vs. Commission on
Elections, 80 Phil. 722, 723-724; Abendante vs. Relato, 94 Phil. 8,
14-15; and in Javier vs. Commission on Elections, L-22248, January 30,
1967, which still holds true, is that the broad sweep of the Comelec’s duty to
administer and enforce the election law gives it ample authority to direct the
board of canvassers to include in the canvass returns from the said precincts. (Pacis
vs. Commission on Elections, 22 SCRA 539 [1968], Sanchez, J.).

 

§6. An election return
prepared at the point of a gun is no return at all.  It is no better than a falsified or spurious
return.  (Pacis vs. Commission on
Elections, 25 SCRA 377 [1968], Sanchez, J.).

 

§7. It
is the ministerial function of a board of canvassers to count the results as
they appear in the returns which on their face do not reveal any irregularities
or falsities  (Defamiles vs.
Commission on Elections, 21 SCRA 1462, 1468).  A contrario a canvass based on
tampered returns is illegal  (Abes vs.
Commission on Elections, 21 SCRA 1252, 1256). Alleged tampering must
therefore be ascertained, first by the canvassing board, then by Comelec  (Ong vs. Commission on Elections, 22
SCRA 241, 249-251). (Balindong vs. Commission on Elections, 27 SCRA 567
[1969], Sanchez, J.).

§8. All
the evidence and circumstances point to a systematic plan of allowing persons
who were not registered voters in Sagada to cast their ballots in all the
precincts of Sagada, and to count such spurious ballots and take them into
account in the returns.  There is thus no
alternative but to consider said returns as deliberately prepared with a view
to alter the real results of the voting, through either malice or
coercion.  In their case, the returns
must be deemed manufactured or falsified, without any title to be included in
the canvass of votes for delegates by the Provincial Board of Canvassers for
the Mountain Province. (Diaz, Sr. vs. Commission on Elections, 42 SCRA 426
[1971], Reyes, J.B.L., J.).

§9. In
Diaz vs. Comelec, L-33378, this Court sanctioned the Comelec’s
procedure, upon establishment of a strong prima facie case, of causing
the examination and analysis of the signatures and fingerprints of the precinct
books of voters and the CE 39’s and voting records, in order to determine
whether the reported elections were sham and tantamount to no election at all
and accordingly accord no prima facie value to the election returns and
reject them as manufactured and false returns. (Estaniel vs. Commission on
Elections, 42 SCRA 436 [1971], Teehankee, J.).  

§10. It
is well settled that the question, whether or not certain electoral returns are
falsified or tampered with, and should not be included in the canvass, must
first be raised before the Board of Canvassers, subject to appeal from its
decision to the Commission on Elections, and that if such question is not
raised before the Board, the same can not be raised for the first time before
the Commission on Elections in the latter’s exercise of its appellate
jurisdiction. (Filart vs. Commission on Elections, 53 SCRA 457 [1973],             Antonio, J.).

§11. Thus, in
principle, the issues raised by petitioner do constitute issues properly raised
in pre-proclamation controversies.  That
the assailed returns were “obviously manufactured” must, however, be evident
from the face of the election returns themselves.  In the case at bar, petitioner does not claim
that the election returns from Precincts Nos. 15 and 17 had not been made or
issued by the Board of Election Inspectors or that they had been manufactured
by some unknown third party or parties; petitioner does not, in other words,
claim that the returns themselves were not authentic.  What petitioner in effect contends is that
where election returns, though genuine or authentic in character, are
reflective of fraudulent acts done before or carried out by the Board of
Election Inspectors, the returns should be deemed as “obviously manufactured.”
(Dipatuan vs. Commission
on Elections, 185 SCRA 86 [1990], Feliciano, J.).

e.) Statistical improbability

 

§1. It must be noted that this is not
an instance wherein one return gives to one candidate all the
votes in the precinct, even as it gives exactly zero to the other.  This is not a case where some
senatorial candidates obtain zero exactly, while some others receive a
few scattered votes.  Here, all
the eight candidates of one party garnered all the votes, each
of them receiving exactly the same number, whereas all the eight
candidates of the other party got precisely nothing.

x x x. We hold such return to be
evidently fraudulent or false because of the inherent improbability of such a
result – against statistical probabilities – specially because at least
one vote should have been received by the Nacionalista candidates, i.e., the
vote of the Nacionalista inspector.  It
is, of course, “possible” that such inspector did not like his party’s
senatorial line-up; but it is not probable that he disliked all of such
candidates, and it is not likely that he favored all the eight
candidates of the Liberal Party. 
Therefore, most probably, he was made to sign an obviously false return,
or else he betrayed his party, in which case, the election therein – if any – was
no more than a barefaced fraud and a brazen contempt of the popular polls.  (Lagumbay vs.
Commission on Elections, 122 Phil. 1274 [1966]; 16 SCRA 175 [1966], Bengzon,
C.J.).

§2. In Lagumbay, the
declaration that the election returns therein questioned were “utterly
improbable and clearly incredible,” and thus should be rejected, emphasized
that the number of registered voters in about 50 precincts equal the number of
ballots reportedly cast and tallied for each and every candidate of one party —
the L.P.  Here, the number of
registered voters in the questioned precincts is not the same as the number of
ballots cast and tallied for the candidate of the L.P.           

In Lagumbay, too, all the L.P.
candidates were credited with exactly the same number of votes while all the
N.P. candidates received nothing.  Here,
only candidates A.S. and C.S. were shown to have received zero votes; other
candidates of the N.P. for other positions voted upon were not blanked in the
disputed returns.

In Lagumbay, there was uncertainty
as to what happened to the vote of the N.P. inspector in the disputed
precincts, because the absence of his vote was unexplained.  Here, it was explained, among others, that
some inspectors did not vote because they were not able to register as voters.

Also, in Lagumbay, the circumstantial
evidence that the election returns were “obviously manufactured,” was
overwhelming.  The same does not hold
true in the case at bar.

 

The duty of the board of canvassers to take the
returns as made from the different voting precincts, add them up, and declare
the result, is almost wholly ministerial. 
The canvassers are to be satisfied of the genuineness of the returns,
that is that the papers presented to them are not forged and spurious, that
they are returns, and are signed by the proper officers.  The simple purpose and duty of the canvassing
board is to ascertain and declare the apparent result of the voting.  Questions of illegal voting and fraudulent
practices are passed on by another tribunal. (Sangki
vs. Commission on Elections, 21 SCRA 1392 [1967], Sanchez, J.).

 

§3. Where there exists
uniformity of tallies in favor of candidates belonging to one party, and the
systematic blanking of the opposing candidates, the election returns may be
rejected under the Lagumbay doctrine (L-25444, Jan. 31, 1966). (Kibad
vs. Comelec, 23 SCRA 588 [1968], Fernando, J.).

                       

§4. The thrust of all subsequent cases after
the case of Lagumbay v. Climaco, L-25444, Jan. 31, 1966, is to restrict
the doctrine of the Lagumbay case to the unique uniformity of tally in
favor of candidates belonging to one party and the systematic blanking of the
opposing candidates in the same locality, such as to make the fraud “palpable
from the return itself x x x and there is no reason to accept it and give it prima
facie value,” and leading to no other reasonable conclusion than that the
returns were obviously manufactured because they were as “utterly improbable
and clearly incredible” as “to win the sweepstakes ten times.”  Here, the citing of certain instances where a
candidate obtained 100% of the votes cast or an overwhelming majority thereof
in his bailiwicks in Mindanao as against a much lesser number of votes cast for
his opponents is inadequate to justify the exclusion of the returns as
obviously manufactured for reasons of statistical improbability.

 

Canvass proceedings are administrative and summary
in nature, and a strong prima facie case backed up by a specific offer
of the evidence and indication of its nature and importance has to be made out
to warrant the reception of evidence aliunde and the presentation of
witnesses and the delays necessarily entailed thereby.  Otherwise, the paralyzation of canvassing and
proclamation proceedings leading to a vacuum in government offices could easily
be brought about.

 

The
general allegation of petitioner that his objections to the canvass include an
unspecified number of precinct returns involved in congressional districts with
pending cases due to terrorism and other similar charges is untenable.  Aside from being unsubstantiated, the
pendency of charges of returns having been obtained through force and violence
in congressional districts does not automatically mean their applicability to
the national office of senator. (Ilarde vs. Commission on Elections, 31 SCRA
72 [1970], Per Curiam).

§5. If
it is shown that in the election return there appears the unique uniformity of
tally of all the votes cast in favor of all the candidates belonging to one
party and the systematic blanking of all the candidates of the opposing party,
then the doctrine of statistical improbability enunciated in the Lagumbay
case must be applied.  The situation of
the 22 election returns, now in question, fully warrants the application of the
doctrine of the statistical improbability. 
In these 22 election returns, there is a clear case of the unique
uniformity of tallies of all the votes reported cast in favor of all the
candidates belonging to one party and the systematic blanking of all the
opposing candidates.

The returns involved in the Sangki v.
Comelec, 21 SCRA 1392 (1967) did not reflect a “unique uniformity” of tally
of all the votes cast in favor of all the candidates of one party and the
systematic blanking of all the candidates of the opposing party, for while it
appears in those returns that Sangki obtained zero the other candidates of his
party (Nacionalista) obtained scattered votes.

In the Lagumbay decision, it is
the entire election return, which necessarily includes the report of votes
obtained by candidates for all offices therein indicated, not just on office of
senator, that is not given prima facie value and should be
rejected.  In other words, where a return
is statistically improbable the doubt is cast not only on one office mentioned
in the return but on all the offices included therein.

The thrust of the decision in the Lagumbay
case is to consider an election return that is statistically improbable as of
no value and should be rejected, no votes in the precinct concerned be counted
in the canvass, and the recourse of the party affected by the rejection of the
return is to file an election protest before the proper court or tribunal.  This means that the rejected returns can not
be substituted by returns to be made anew by the boards of inspectors upon
order of the Comelec.

Canvassing boards are not compelled to
canvass returns that are obviously manufactured.  Neither is the Commission on Elections
required to strain efforts to order the production of other copies of election
returns or order the opening of the ballot boxes in order to retrieve the
ballot box copies, nor order the recount of the votes, if it approves the
action of the canvassing board in rejecting the election return as
manufactured. (Sinsuat vs. Pendatum, 33 SCRA 630
[1970], Zaldivar, J.).

§6. The doctrine of
statistical improbability does not apply where there was neither uniformity of
tallies nor systematic blanking of candidates of one party. (Doruelo vs.
Commission on Elections, 133 SCRA 376 
[1984], Escolin, J.).

 

§7. From the
foregoing tables, the substantial correctness of the data therein not having
been successfully contested by petitioners, it appears to the Court that there
is no need to pass upon and resolve the central issue raised by petitioners –
whether or not the doctrine of “statistical improbability” adopted in Lagumbay
v. Commission on Elections should be re-examined with a view to expanding
the scope thereof, i.e., with a view to characterizing election returns
differing, in varying degrees, from the specific fact situation dealt with by
the Court in Lagumbay as “statistically improbable” and hence excludable
from canvass as “obviously manufactured” without need of evidence aliunde.  In the specific circumstances of the cases at
bar, whatever conclusion the Court might have reached on this issue would,
strictly speaking, merely constitute dictum, considering that even if
the Court were to nullify all the returns objected to by petitioners on grounds
of “statistical improbability”, private respondents Candao and Loong would
still show a very substantial margin over the total votes of petitioners.  Such nullification will not, in other words,
materially affect the results of the election per the official certificates of
canvass.

Petitioners
ask the Court to re-examine its decision in Dianalan v. Commission on
Elections, so as to permit petitioners to subject to handwriting and
fingerprint examination the voter’s affidavits and voting lists and other
voting records in the contested precincts. 
We are not persuaded by petitioners’ arguments on this point.  It is important to bear in mind that the
nature, scope and ambit of a pre-proclamation controversy as set out in Dianalan
 and Dipatuan and other cases
there cited are determined by statutory provisions:  Sections 243 (entitled “Issues that may be
Raised in Pre-Proclamation Controversy”), 245 (“Contested Election Returns”)
and 246 (“Summary Proceedings before the Commission”) of the Omnibus Election
Code.  As pointed out above in Dipatuan,
these statutory provisions reflect a very definite view of what public policy
requires on the matter.  It may well be
true that that public policy may occasionally permit the occurrence of “grab
the proclamation and prolong the protest” situations; that public policy,
however, balances the possibility of such situations against the shortening of
the period during which no winners are proclaimed, a period commonly fraught
with tension and danger for the public at large.  For those who disagree with that public
policy, the appropriate recourse is not to ask this Court to abandon case law
which merely interprets faithfully existing statutory norms, to engage in
judicial legislation and in effect to rewrite portions of the Omnibus Election
Code.  The appropriate recourse is, of
course, to the Legislative Department of the Government and to ask that
Department to strike a new and different equilibrium in the balancing of the
public interests at stake.

On the
second and third issues raised by petitioners, the Comelec En Banc
Decision of 4 June 1990 said:  “The
second and third issues raised by petitioners are related to each other.  They refer to the procedure to be observed in
the registration of objections at the board of canvassers level and the
bringing of adverse rulings on appeal to the Commission.  We reiterate the mandatory requirement to
comply with procedure for pre-proclamation controversies in view of the public
policy to have a quick determination of the result of the election.  By [their] nature, pre-proclamation
controversies already delay proclamation. 
To allow the deviation from procedural requirements is to open cases of
this nature to protracted uncertainty because new grounds and new issues can be
raised at the different levels of jurisdiction.  Even ordinary cases not impressed with public
policy considerations are not allowed to be litigated this way.”  (Italics supplied) Once more, we agree with
the above ruling of the Comelec since that ruling simply flows from the
character and scope of a pre-proclamation controversy under the Omnibus
Election Code. (Dimaporo vs.
Commission on Elections, 186 SCRA 769 [1990], Feliciano, J.).

§8. The
other thing which petitioner considered the returns to be “obviously
manufactured” was the fact the petitioner garnered zero (0) votes in three (3)
precincts which was allegedly statistically improbable.  To this claim, the case of Sanki v.
COMELEC is worth reiterating: x x x Indeed, the bare fact that candidates
for public office had received zero votes is not enough to make the returns
statistically improbable.  In the Lagumbay
decision itself, Chief Justice Cesar Bengzon, who delivered the majority
opinion, did not say that when one candidate receives nothing in an election
return, such a circumstance alone will make said return statistically
improbable. (Ocampo vs. Commission on Elections, 325 SCRA 636 [2000],
Kapunan, J.).

§9. 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.”  In the
case of Una Kibad v. Comelec, we warned that the doctrine of 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 more
prudential approach prohibits its determination ex parte. (Velayo
vs. Commission on Elections, 327 SCRA 713 
[2000], Puno, J.).

f.) No power to look beyond face of
ER

§1. The
board of canvassers is a ministerial body enjoined by law to canvass all votes
on election returns submitted to it in due form, and its powers are
“limited generally to the mechanical or mathematical function of ascertaining
and declaring the apparent result of the election by adding or compiling the
votes cast for each candidate as shown on the face of the returns before them,
and then declaring or certifying the result so ascertained” (29 CJS., p.
656).  The Comelec is the constitutional
body charged with the duty to enforce all laws relative to elections, duty
bound to see to it that the board of canvassers perform its proper function
(Sec. 3, Revised Election Code; Cauton vs. Comelec, L-25467, April 27,
1967).  Neither Constitution nor statute
has granted Comelec or the board of canvassers the power, in the canvass of
election returns, to look beyond the face thereof, once satisfied of their
authenticity. (Abes vs. Commission on Elections, 21 SCRA 1252 [1967],              Sanchez, J.).

§2. We have
recently reiterated the Dianalan and Dimaporo rulings in the case
of Alfonso vs. Commission on Elections, promulgated in June 1994.  The prevailing doctrine in this jurisdiction,
therefore, is that as long as the returns appear to be authentic and duly
accomplished on their face, the Board of Canvassers cannot look beyond or behind
them to verify allegations of irregularities in the casting or the counting of
the votes.  Corollarily, technical
examination of voting paraphernalia involving analysis and comparison of
voters’ signatures and thumbprints thereon is prohibited in pre-proclamation
cases which are mandated by law to be expeditiously resolved without involving
evidence aliunde and examination of voluminous documents which take up
much time and cause delay in defeat of public policy underlying the summary
nature of pre-proclamation controversies.

While,
however, the COMELEC is restricted, in pre-proclamation cases, to an
examination of the election returns on their face and is without jurisdiction
to go beyond or behind them and investigate election irregularities, the
COMELEC is duty bound to investigate allegations of fraud, terrorism, violence
and other analogous causes in actions for annulment of election results or for
declaration of failure of elections, as the Omnibus Election Code denominates
the same.  Thus, the COMELEC, in the case
of actions for annulment of election results or declaration of failure of
elections, may conduct technical examination of election documents and compare
and analyze voters’ signatures and fingerprints in order to determine whether
or not the elections had indeed been free, honest and clean.  Needless to say, a pre-proclamation
controversy is not the same as an action for annulment of election results or
declaration of failure of elections. (Loong vs. Commission on Elections, 257 SCRA 1 [1996], Hermosisima,
Jr., J.).

§3. For as long as the election
returns which on their face appear regular and wanting of any physical signs of
tampering, alteration or other similar vice, such election returns cannot just
be unjustifiably excluded.  To look beyond
or behind these returns is not a proper issue in a pre-proclamation controversy
as in the case at bar.  (Ocampo vs. Commission on Elections, 325 SCRA 636 [2000], Kapunan,
J.).

g.) Use of evidence aliunde

 

§1. The broad power of
the Comelec, conferred upon it by the Constitution, to enforce and administer
“all laws relative to the conduct of elections” and to decide all
administrative questions affecting elections “for the purpose of insuring free,
orderly and honest elections,” has been the key in the resolution of many
pre-proclamation controversies involving the integrity and authenticity of
election returns.   Invoking the aforestated power of the Comelec,
we justified the action and upheld the authority of the Comelec to order the
exclusion of “obviously manufactured” returns 
(Lagumbay vs. Climaco and Comelec, 16 SCRA 175), or tampered
returns (Cauton vs. Comelec and Sanidad, 19 SCRA 911), or returns
prepared under threats and coercion or under circumstances affecting the
returns’ integrity and authenticity (Pacis vs. Comelec, 25 SCRA 391; Antonio,
Jr. vs. Comelec, et al., 32 SCRA 319), emphasizing the duty of the
Comelec to see to the use and inclusion in the canvass of only genuine and
regular election returns for determining the true result of the elections.

 

 Several circumstances, defying exact
description and dependent mainly on the factual milieu of the particular
controversy, have the effect of destroying the integrity and authenticity of
disputed election returns and of avoiding their prima facie value and
character.  If satisfactorily proven,
although in a summary proceeding, such circumstances as alleged by the affected
or interested parties, stamp the election returns with the indelible mark of
falsity and irregularity, and, consequently, of unreliability, and justify
their exclusion from the canvass. 

 

In the performance of its duty to guard
against the use and inclusion of returns prepared under circumstances showing
their falsity in the canvass of election results, the Comelec should not be
hampered in the choice of effective means and methods to fully ascertain the
genuineness and regularity of disputed election returns.  To establish the indubitable existence of any
of such circumstances — necessarily not evident from an examination of the
election returns themselves — demands recourse to proof independent of the
election returns or to evidence aliunde. (Usman vs. Commission
on Elections, 42 SCRA 667 [1971], Castro, J.).

           

h.) Inclusion/exclusion of ER

 

§1. The power of the Comelec
to set aside returns that are falsified or are not authentic and genuine and to
order the same excluded from a canvass is distinct and separate from the
authority inherent in the Electoral Tribunals of the House or the Senate, in
the course of an electoral protest, to set aside such returns whenever the
statements of votes cast contained therein do not tally with the valid votes
enclosed within the ballot boxes themselves. 
No conflict of jurisdiction can arise since the powers of the Comelec
and the Electoral Tribunals are exercised on different occasions and for
different purposes.  The Comelec is not
concerned with the veracity of the returns, but with their genuineness and
regularity; and it is self-evident that a return accomplished by the election
inspectors under threats and coercion by armed men is in law no return at all
that the canvassers may take into account. 
As a corollary, the Comelec can set aside an improper canvass, as well
as the resulting proclamation. (Antonio, Jr. vs. Commission on Elections, 32
SCRA 319 [1970], Reyes, J.B.L., J.).

 

§2. We hold that the Comelec did not commit any
grave abuse of discretion in requiring experts to examine the fingerprints and
signatures on the questioned voting records to determine whether substitute
voters or flying voters cast their votes in voting centers Nos. 3 and 5.  That proceeding would be a continuation of
the pre-proclamation controversy which started on election day when
Alapa asked that the voting in voting centers Nos. 3 and 5 be stopped because
three nieces of Omar and a certain Romero Nasser voted therein although they
were not registered voters in those precincts. 
And during the canvass, Alapa asked for the exclusion of the returns for
voting centers Nos. 3 and 5. (Omar vs. Commission on
Elections, 102 SCRA 611 [1981], Aquino, J.).

 

§3. With respect to
the alleged mistakes committed by the Board of Canvassers in the inclusion of
certain returns, petitioner failed to follow the procedure laid down in Section
245 of the Omnibus Election Code.  This
provision requires that the party contesting the inclusion or exclusion in the
canvass of any election returns should interpose his verbal objections to the
Chairman of the Board of Canvassers at the time the questioned return is
presented for inclusion or exclusion. (Navarro vs. Commission on Elections,
228 SCRA 596 [1993], Quiason, J.).

 

§4. First, it is clear to
us that the COMELEC, which has in its possession the so-called “Comelec Copy”
of the questioned election returns of Precinct No. 7 and heard the witnesses
who testified thereon, doubts the authenticity of the so-called “Comelec Copy”
of the election returns of Precinct No. 7; hence, it authorizes the PBC to
decide the issue of a recount “pursuant to Section 236 of the Omnibus Election
Code.” Since it doubts such authenticity, it could not, without arbitrariness
and abuse of discretion, order the inclusion of the “votes” of Ong and Lucero
found in the doubtful “Comelec Copy” of the election returns in the municipal
certificate of canvass.
(Lucero vs. Commission on Elections, 234 SCRA 280 [1994], Davide, Jr.).

 

§5. The Second Division of
the COMELEC largely relied on the affidavit executed by the members of the
Board of Inspectors who alleged therein that they prepared the returns after
the counting of the votes.  Proceeding therefrom,
the Second Division leaped to the conclusion that the questioned returns were
fictitious, manufactured or fraudulent and must, as such, be excluded from the
canvass.  This allegation, however,
barely makes out a valid pre-proclamation controversy on the ground of
fictitious or manufactured election returns, for ultimately, the grounds relied
upon by the Second Division in order to justify its order to exclude the
election returns from Precinct Nos. 10 and 10-A, necessitate evidence of sham
voting and such fraudulent schemes perpetrated by private respondent Alonzo,
but no such evidence was proffered and had there been so, the same is hardly
proper in a pre-proclamation controversy such as the instant case.  In other words, on the basis only of the election
returns which, on their face, appear regular and wanting of any physical signs
of tampering, alteration, or other similar vice, the Second Division could not
justifiably exclude said returns on the occasion of a pre-proclamation
controversy whose office is limited to incomplete, falsified or materially
defective returns which appear as such on their face.  If there had been sham voting or minimal
voting which was made to appear as normal through the falsification of the
election returns by private respondent Alonzo’s followers, such grounds are
properly cognizable in an election protest and not in a pre-proclamation
controversy.  Our ruling in the landmark
case of Gov. Tupay T. Loong, et al. v. COMELEC, et al. and its companion
cases, leaves no room for entertaining such grounds in a pre-proclamation
controversy.

 

“The prevailing doctrine in this
jurisdiction, therefore, is that as long as the returns appear to be authentic
and duly accomplished on their face, the Board of Canvassers cannot look beyond
or behind them to verify allegations of irregularities in the casting or the
counting of the votes.”  As the election
returns from Precinct Nos. 10 and 10-A, which were excluded by the Second
Division of the COMELEC, are undisputedly prima facie regular and
untampered on their face, the COMELEC en banc correctly reversed the
Second Division and ordered the inclusion of said returns in the canvass of the
votes cast in the mayoralty elections in the Municipality of Tandubas,
Tawi-Tawi.  As such, there is clearly no
basis to ascribe grave abuse of discretion to the COMELEC en banc. (Salih vs. Commission on Elections, 279
SCRA 19 [1997], Hermosisima, Jr., J.).

 

§6. Issuances of the
Municipal Board of Canvassers “setting aside” the election returns from a
precinct for “further investigation,” or “to go deeper into the contradicting
testimonies of the Chairman *** and the watchers,” or to “summon the two BEIs
who failed to affix their signatures and explain the alleged increase of votes
of a candidate and the use of unauthorized envelope without seal containing the
Election Returns and thereafter a ruling on the matter shall be rendered” are
not definitive rulings of exclusion by the MBC because they merely defer the
inclusion of the election returns pending “further investigation.”

 

Where there is no ruling on the
inclusion or exclusion of the disputed returns, there could be no complete and
valid canvass which is a prerequisite to a valid proclamation.

 

Another fatal infirmity that vitiated
petitioner’s proclamation was the violation of Section 245 of the Omnibus
Election Code which prohibits the proclamation by the Board of Canvassers of a
candidate as winner where returns are contested, unless authorized by the
COMELEC.  No authority had been given by
the COMELEC to the MBC for the proclamation of petitioner Jamil.

 

Said proclamation had clearly no basis in
fact and in law.  It is a settled rule
that an incomplete canvass of votes is illegal and cannot be the basis of a
valid proclamation.  All of the votes
cast in the election must be counted and all the returns presented to the board
must be considered as the disregard of the same would in effect disenfranchise
the voters affected.  A canvass cannot be
reflective as the true vote of the electorate unless all the returns are
considered. (Jamil vs. Commission on Elections, 283 SCRA 349 [1997],  Kapunan, J.).

           

i.) Amendment of ER

 

§1. The amendment to the
Election Law prohibits, after the proclamation of the result of the election,
any amendments or changes in the election returns, and only permits the
inspectors to make amendments by authority of a competent court. The consent of
the inspectors is necessary to make the correction in order that the court may
grant the authority requested. (Benitez vs. Paredes and Dizon, 52 Phil. 1
[1928], Villamor, J.).

 

§2. An amended return which
has received judicial approval and has been duly certified to the board has the
effect of abrogating the original return.

 

The duties of the provincial board of
canvassers in tabulating and summing up election returns are of a ministerial
nature; and the writ of mandamus is available to compel them, in canvassing the
votes for the office of provincial governor, to give effect to a return from a
particular precinct which is properly certified to them, with judicial
approval, as an amended return. (Dizon vs. Prov. Board of Canvassers of
Laguna, 52 Phil. 47 [1928], Street, J.).

 

§3. The power to order the
correction of election returns, vested by law in the courts, is discretionary;
it is an administrative and supervisory power intended to secure correctness in
the amendment of such returns. Rulings made in pursuance of this power,
granting or denying the petition to correct, are interlocutory in nature.

 

The
petition to correct election returns is a summary proceeding taken before the
proclamation of the results.  With the
ruling of the court, granting or denying it, the proceeding comes to an end,
giving way, as the case may be, to the proper election contest. (Aguilar and
Casapao vs. Navarro, 55 Phil. 898 [1931], Villamor, J.).

§4. Any
alteration or amendment in the statements of election, or any contradiction or
discrepancy appearing therein, whether due to clerical error or otherwise,
cannot be made without the intervention of a competent court, once the
announcement of the result of the election, or the proclamation of the winners
had been made. (De Leon vs. Imperial, 94 Phil. 680 [1954], Bautista Angelo,
J.).

§5. The
correction mentioned in Section 162 and that which may be required by the
result of the recount authorized in Section 163, can only take place after the
corresponding election return has been examined by the board of canvassers.

Section
154 of the Revised Election Code does not specify the party who may institute
the proceedings therein contemplated. Upon the other hand, it is well settled
that the alteration herein provided may not be sanctioned unless the members of
the corresponding board of elections inspectors are unanimous on the existence
of an error in the return and are willing to rectify the same (Benitez vs.
Paredes and Dizon, 52 Phil. 1; Board of Inspectors of Bongabon vs.
Sison, 55 Phil. 914).  So long,
therefore, as these conditions are present and the proceedings have been
instituted by a party who has a justiciable interest in the matter, the court
may authorize the aforementioned correction. 
A candidate affected by the alleged mistake has such justiciable
interest. (Gumpal vs. Arranz, 110 Phil. 287 [1960], Concepcion, J.).

§6. Correction of election returns
cannot be sanctioned by the court unless the members of the corresponding board
of election inspectors are unanimous on the existence of an error in the
returns and are willing to rectify the same.

The
Supreme Court has construed Section 154 of the Revised Election Code: (a) as
authorizing merely a summary proceeding, taken before the proclamation
of the results of the election; (b) as not allowing the exercise of the
judicial power therein provided for, except when there is unanimity among the
members of the corresponding board of inspectors; (c) as conferring judicial
discretion to exercise or not to exercise said power; and (d) as not permitting
an appeal from the action taken by said court. (Astilla vs. Asuncion, 119
Phil. 739 [1964]; 10 SCRA 456 [1964], Concepcion, J.).

§7. No
judicial recount where official copy of election returns was properly
corrected.  The clerical error in the
official copy of the election returns of a precinct in the possession of the
municipal treasurer having been properly shown in a hearing before a judge of a
court of first instance and all members of the board of inspectors and the poll
clerk of said precinct having asked for the correction, and said judge having
authorized the board of inspectors to make the correction, it is held
that the refusal of said trial court to require the recounting of the ballots
in said precinct was not improper.  (Tango
vs. Alejandro, 119 Phil. 960 [1964]; 10 SCRA 682 [1964], Bengzon, C.J.).

§8. Under Section 154 of the Revised
Election Code the election inspectors may not make any amendment in their
returns unless authorized by a competent court; and the court may not issue
such authority unless the members of the corresponding board of inspectors are
unanimous in acknowledging the error and are willing to rectify the same
(Benitez vs. Paredes and Dizon, 52 Phil. 1; Board of Inspectors vs.
Sison, 55 Phil. 914; Gumpal vs. Court of First Instance of Isabela,
L-16409, Nov. 29, 1960; Astilla vs. Court  of 
First  Instance of Leyte, L-22246,
Feb. 26, 1964).

The refusal of one of the members of the
Board of Inspectors to proceed with the petition for judicial correction of the
election returns which he and the other members of the Board have previously
filed, results in the lack of unanimity among the inspectors and bars the court
from authorizing a correction that would jeopardize the claims of either
candidate, without a proper review of the ballots themselves. (Javier vs. Court of First Instance of Antique, et al. 123 Phil. 180
[1966]; 16 SCRA 360 [1966], Reyes, J.B.L., J.).

§9. Where there is unanimity of all
the members of the board of inspectors that a mistake was committed, the court
may direct the correction of the election returns so as to reflect the correct
number of votes received by a candidate.

In the exercise of its discretion whether
to grant or deny the authority to correct mistakes, the court may satisfy
itself as to the truth of the inspectors’ petition and of the error.

Where
the court made no findings that in the recount made, the votes tallied for the
respondent candidate were increased from 60 to 64, the correction of the
returns can not be made especially where the board of inspectors after the
recount in the election case, unanimously asked for a correction of the returns
of the votes cast for the petitioner but failed to make a similar request as to
the alleged increased votes of respondent. 
To correct the returns on the basis only of the respondent’s statement
as to the votes he received is to pass the line which divides averment from
established fact. (Peña vs. Tengco, 21 SCRA 1398 [1967], Sanchez, J.).

§10. In a number of decisions, the Supreme
Court has held that there are two requisites that must concur in order to make out
a case for correction of an election return: (1) there must be an error
therein; and (2) the members of the board of election inspectors must be
unanimous in the fact that such an error exists and that they are willing to
rectify the same.  The reason for the
requirement of unanimity is that the proceeding for correction is a summary
one, is not supposed to raise controversial issues, and does not call for a
recount or revision of the ballots themselves, either of which contemplates a
different remedy.

 

A conclusion that an election return is obviously
manufactured or false and consequently should be disregarded in the canvass
must be approached with extreme caution, and only upon the most convincing
proof.  The decision in the Lagumbay
case speaks of “inherent improbability” in the data shown on the return. Any
plausible explanation, one which is acceptable to a reasonable man in the light
of experience and of the probabilities of the situation, should suffice to
avoid outright nullification, with the resulting disfranchisement of those who
exercised their right of suffrage. (Ejercito Estrada
vs. Navarro, 21 SCRA 1514 [1967], Makalintal, J.).

 

§11. Where the three election
inspectors admitted unanimously their error in the election return, the
election returns may be corrected or amended pursuant to Section 154 of the
Revised Election Code.

 

Where the three election inspectors
unanimously represented to the court that the election return should be
corrected and amended to conform to the facts, the court of first instance can
order the correction pursuant to Section 154 of the Revised Election Code.

 

Mistakes of all sorts are too common in
human experience to justify anyone denying the possibility of such errors that
the lawmakers provided for their correction with judicial approval.

 

Proclamation on incomplete returns is
null and void.

 

The remedy of mandamus for the purpose of
securing the correction of an election return must be brought within the
two-week period within which an election contest may be contested, otherwise
the right of the candidate proclaimed to the office is deemed vested. (Solidum
vs. Macalalag, 28 SCRA 200 [1969], Sanchez, J.).

 

§12. Where the correction of
an election return was made without the positive authority of the other members
of the board of election inspectors by the Chairman of said board and such
correction was not initialed by them, the original entry in such return may not
be considered altered.

Where the name of a candidate was omitted
in the election return, the COMELEC should order the board of election
inspectors to open, in the presence of all parties concerned, the ballot boxes
for the precinct concerned, count the votes therein of the candidates affected
and make new returns therefore with the proper corrections.

 

In correction proceedings, it is required
as a matter of due process, that notice of the correction proceedings be given
to all the candidates affected just as such notice is required under Section
163 of the Revised Election Code governing recount proceedings.  It is further required, in contested
correction proceedings that the court should satisfy itself that there exists a
prima facie case and that the integrity of the ballot box and of its
contents has been duly preserved, in which case, the court shall thereafter
open the ballot box and conduct a summary recount of the ballots themselves as
in judicial recount proceedings under Section 163 of the Revised Election
Code.  This procedure should be strictly
followed unless the correction sought is indubitable or unopposed and may
therefore be summarily ordered. (Tiglao vs. Commission on Elections, 43 SCRA
535 [1972], Teehankee, J.)

 

j.) Correction of manifest errors

 

§1. The Court is not
inclined to support petitioner’s contention that the action at bar is
imprescriptible, specially in view of the COMELEC Rules and Procedures which
now provide a five-day (5) prescriptive period for filing petitions relating to
correction of manifest errors in the tabulation or tallying of the results during
canvassing following the date of proclamation.

 

More, what is involved in the case at
bar is purely mathematical and/or mechanical error in the operation of the
adding machine committed by the board of canvassers which is admitted by all
the parties. It does not involve any opening of the ballot boxes, examination
and appreciation of ballots and/or election returns.  As said error was discovered sometime after
proclamation, all that is required is to convene the board of canvassers to
rectify the error it inadvertently committed in order that the true will of the
voters will be effected.  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 for which no prescriptive period has been
provided at the time of the filing of the petition. (Tatlonghari vs. Commission on Elections, 199 SCRA
849 [1991], Bidin, J.).

                       

§2. While the Commission
has exclusive jurisdiction over pre-proclamation controversies involving local
elective officials (Sec. 242, Omnibus Election Code), nevertheless,
pre-proclamation cases are not allowed in elections for President,
Vice-President, Senator and Member of the House of Representatives.

 

It is clear from the above-quoted
provision of the law that “pre-proclamation cases (are) not allowed in
elections for President, Vice-President, Senator and Member of the House of
Representatives.”  What is allowed is the
correction of “manifest errors in the certificate of canvass or election
returns.”  To be manifest, the errors
must appear on the face of the certificates of canvass or election returns
sought to be corrected and/or objections thereto must have been made before the
board of canvassers and specifically noted in the minutes of their respective
proceedings.

 

It is quite obvious that petitioner’s
prayer does not call for the correction of “manifest errors in the certificates
of canvass or election returns” before the Comelec but for the re-opening of
the ballot boxes and appreciation of the ballots contained therein.  Indeed, petitioner has not even pointed to
any “manifest error” in the certificates of canvass or election returns he
desires to be rectified.  There being
none, petitioner’s proper recourse is to file a regular election protest which,
under the Constitution and the Omnibus Election Code, exclusively pertains to
the Senate Electoral Tribunal. (Chaves
vs. Commission on Elections, 211 SCRA 315 
[1992], Bidin, J.).

 

§3. Assuming for the sake
of argument that the petition was filed out of time, this incident alone will
not thwart the proper determination and resolution of the instant case on
substantial grounds.  Adherence to a
technicality that would put a stamp of validity on a palpably void
proclamation, with the inevitable result of frustrating the people’s will
cannot be countenanced.

 

Undoubtedly therefore, the only issue
that remains unresolved is the allowance of the correction of what are purely
mathematical and/or mechanical errors in the addition of the votes received by
both candidates.  It does not involve the
opening of ballot boxes.  The correction
sought by private respondent and respondent MBCs of Tayug and San Manuel is correction
of manifest mistakes in mathematical addition. 
Certainly, this only calls for a mere clerical act of reflecting the
true and correct votes received by the candidates by the MBCs involved.  In this case, the manifest errors sought to
be corrected involve the proper and diligent addition of the votes in the
municipalities of Tayug and San Manuel, Pangasinan.

 

Consequently,
by margin of 72 votes, private respondent indisputably won the challenged seat
in the Sangguniang Panlalawigan of the sixth district of
Pangasinan.  Petitioner’s proclamation
and assumption into public office was therefore flawed from the beginning, the
same having been based on a faulty tabulation. 
Hence, respondent COMELEC did not commit grave abuse of discretion in
setting aside the illegal proclamation. (Bince, Jr. vs. Commission on Elections, 242 SCRA 273
[1995],                 Kapunan, J.).

§4. To be sure,
the COMELEC did not itself annul the proclamation of petitioner, but, by
“direct[ing] the Municipal Board of Canvassers of said municipality to
reconvene to annul the proclamation of Nicolas C. Castromayor,“ the COMELEC in
effect did so.  After all, the authority
of the COMELEC was sought because, without such authority, the MBC would not
have the power to annul the proclamation of petitioner.

The
proceedings before the MBC should be summary. 
Should any party be dissatisfied with the ruling of the MBC, the party
concerned shall have a right to appeal to the COMELEC en banc, in
accordance with Rule 27, Sec. 7 of the COMELEC Rules of Procedure.

Although
this provision applies to pre-proclamation controversies and here the
proclamation of petitioner has already been made, there is nothing to suggest
that it cannot be applied to cases like the one at bar, in which the validity
of the proclamation is precisely in question. 
On the contrary, in Duremdes v. COMELEC, this Court sustained the
power of the COMELEC en banc to order a correction of the Statement of
Votes to make it conform to the election returns in accordance with a procedure
similar to the procedure now embodied in Rule 27, Sec. 7. (Castromayor vs. Commission on Elections,
250 SCRA 298 [1995],  Mendoza, J.).                       

            §5. Although in Ong, Jr. v. COMELEC it was said that  “By now it is settled that election cases
which include pre-proclamation controversies must first be heard and decided by
a division of the Commission” – and a petition for correction of manifest error
in the Statement of Votes, like SPC No. 95-198 is a pre-proclamation
controversy – in none of the cases cited to support this proposition was the
issue on the correction of a manifest error in the Statement of Votes under
Sec. 231 of the Omnibus Election Code (B.P. Blg. 881) or Sec. 15 of R.A. No.
7166.  On the other hand, Rule 27, Sec. 5
of the 1993 Rules of the COMELEC expressly provides that pre-proclamation
controversies involving, inter alia, manifest errors in the tabulation
or tallying of the results may be filed directly with the COMELEC en banc.  Accordingly in Castromayor v. Commission
on Elections, and Mentang v. Commission on Elections, this Court approved
the assumption of jurisdiction by the COMELEC en banc over petitions for
correction of manifest error directly filed with it.  Our decision today in Torres v. COMELEC again
gives imprimatur to the exercise by the COMELEC en banc of the power to
decide petition for correction on manifest error. (Ramirez vs. Commission on Elections, 270 SCRA 590
[1997], Mendoza, J.).

§6. Contrary to what the COMELEC perceived, the
Supplemental Petition is a petition for correction of manifest errors, not a
petition for declaration of nullity.  It
squarely falls within the definition provided in the case of Mentang vs.
Commission on Elections, “(c)orrection of manifest errors has reference to
errors in the election returns, in the entries of the statement of votes by precinct/per
municipality, or in the certificate of canvass.”

Some of the definitions given for the word “manifest” are that it is
evident to the eye and understanding; visible to the eye; that which is open,
palpable, uncontrovertible; needing no evidence to make it more clear; not
obscure or hidden. (citations omitted) “A manifest clerical error is -” ‘. . .
one that is visible to the eye or obvious to the understanding, and is apparent
from the papers to the eye of the appraiser and collector, and does not include
an error which may, by evidence dehors the record be shown to have been
committed.’ “ (Trinidad vs. Commission on Elections, 320 SCRA 836 [1999],
Buena, J.).

§7. The authority to rule on petitions for correction of
manifest error is vested in the COMELEC en banc.  Section 7 of Rule 27 of the 1993 COMELEC
Rules of Procedure provides that if the error is discovered before
proclamation, the board of canvassers 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.  The aggrieved party may
appeal the decision of the board to the Commission and said appeal shall be
heard and decided by the Commission en banc.  Section 5, however, of the same rule states
that a petition for correction of manifest error may be filed directly with the
Commission en banc provided that such errors could not have been
discovered during the canvassing despite the exercise of due diligence and
proclamation of the winning candidate had already been made. (Sandoval vs.
Commission on Elections, 323 SCRA 403 [2000], Puno, J.).        

§8. This
case likewise involves manifest errors. 
Election Return No. 3700088 from Precinct Nos. 84-A/84-A-1 is claimed to
show 92 votes in favor of private respondent but indicate a total in words and
figures of only 82 votes.  On the other
hand, Election Return No. 3700023 allegedly shows 13 votes for petitioner but
indicates in words and figures 18 votes. 
These discrepancies can be easily resolved without opening the ballot
boxes and recounting the ballots. 
COMELEC Resolution No. 2962 provides that “in case there exist
discrepancies in the votes of any candidate in taras/tally as against the votes
obtained in words/figures in the same returns/certificates, the votes in
taras/tally shall prevail.” (Angelia vs. Commission on Elections, 332 SCRA
757 [2000], Mendoza, J.).

k.) Annulment of ER

 

§1. The COMELEC does not commit any grave of
abuse of discretion in relying upon the opinion of its handwriting experts
regarding the election returns and not affording the party adversely affected
the opportunity to refute said experts’ findings where the parties waived the
submission of evidence and relied merely on their memorandum for COMELEC’s
resolution.

 

Under Section 172 of the Election Code, it is not
the COMELEC but the board of canvassers that can order the return of the
election returns to the election committee to supply any data omitted therein,
like signatures of the members of the election committee.

 

Omission of signatures or initials of election
committee members raises doubts as to genuineness thereof.

 

Existence of flying voters and terrorism are grounds
by which COMELEC may properly annul an election return. (Garcia vs. Commission on Elections, 105 SCRA 250 [1981], Makasiar,
J.).

 

§2. ”Mere alphabetical
and chronological voting does not itself constitute sufficient evidence to
establish fraud that would justify the setting aside of election returns.  As counsel for appellant had occasion to
assert in Lucman vs. Dimaporo, SPC No. 87-190, October 15, 1987, ‘[I]t
is unfair to conclude that alphabetical voting is indicative of fraud.’ and ‘[I]n
some precincts of Lanao, alphabetical voting is imposed to promote an orderly
election.’  We do not make such factual
finding here.  But the evidence is
ambiguous and is susceptible of several interpretations.  For this reason, we are bound by the
presumption of regularity in the performance of official functions.” (Dipatuan
vs. Commission on Elections, 185 SCRA 86 [1990],         Feliciano, J.).

 

l.) Effect
of threat, coercion, intimidation

 

§1. If the Comelec in
the exercise of its duties under Section 3 of the Revised Election Code, can
require Boards of Canvassers to consider only genuine and authentic, not
falsified, returns, it can logically require such boards to exclude from the
canvass any returns that were actually the product of coercion, even if they be
clean in their face.  (Antonio, Jr.
vs. Comelec, 32 SCRA 319). 

 

§2. In
the Resolution of the public respondent dated July 21, 1988, the following
disquisition was made:  x x x While the
statement of the legal doctrine on the board of canvassers authority to exclude
from canvass election returns which are prepared under conditions of coercion
or threats is correct, the First Division failed to apply a crucial part of the
doctrine that the circumstances must affect the regularity or
the genuineness of the contested returns. 
In other words, the conditions of threat, intimidation, duress and
coercion must have resulted in the preparation of election returns that
falsifies the true results of the voting at the precinct level, as for example,
candidate A obtained five (5) votes in a precinct, and by reason of force or
intimidation the Board of Election Inspectors was compelled to make an entry of
fifty (50) votes for such candidate.  If
the election returns reflects the results of the voting at the precinct level,
any coercion and intimidation that may have been committed in the course of its
preparation may give rise to legal, including criminal liability but will not
justify the exclusion of the returns. x x x” 
It is thus clear that while partisans of petitioner used some
threatening and harassing language, this did not at all affect the correctness
of the counting of votes cast in Precinct No. 12 or the correct and exact
recording of the votes in said precinct in the election returns.  In fact the testimony of the principal
witness Mrs. Dagasdas is to the effect that when she signed and thumbmarked
each page of the election returns there was no interference whatsoever from any
source and the entries were all correct. 
There is therefore no basis for the exclusion of the returns from
Precinct No. 12.” We agree.  While it may
be true that duress, threats, intimidation or coercion attended the preparation
of the election returns for Precinct No. 12, there is no showing that the same
affected the regularity or the genuineness of the contested election
return.  There is no evidence presented
to public respondent that the election return in question was falsified in such
a way that the true results of the voting had been altered.  The court is bound by the finding of public
respondent as there is no showing that it committed a grave abuse of
discretion.

 

It appearing
that the questioned Resolution of public respondent had already been
implemented and the private respondent had been proclaimed as the elected mayor
of the Municipality of Leyte, Leyte by the inclusion of the election return for
Precinct No. 12 and that he has taken his oath of office and assumed the duties
of said Office, the remedy of the petitioner is not a pre-proclamation contest but
an electoral protest filed at the proper time before the competent court. (Salvacion
vs. Commission on Elections, 170 SCRA 513 [1989], Gancayco, J.).

           

m.) Effect
of annulment of voting list

 

§1. It is our considered
view, however, that given the factual setting, it can not justifiably be
contended that the Siasi returns, per se, were “obviously manufactured”
and, thereby, a legitimate issue in a pre-proclamation controversy.  It is true that in Lagumbay vs. COMELEC (L-2544,
31 January 1966, 16 SCRA 175), relied upon heavily by Petitioner Ututalum, this
Court ruled that the returns are obviously manufactured where they show a great
excess of votes over what could have been legally cast.  The Siasi returns, however, do not show prima
facie that on the basis of the old List of Voters, there is actually a
great excess of votes over what could have been legally cast considering that
only 36,000 persons actually voted out of the 39,801 voters.  Moreover, the Lagumbay case dealt with
the “manufacture” of returns by those charged with their preparation as shown prima
facie on the questioned returns themselves. 
Not so in this case which deals with the preparation of the registry
list of voters, a matter that is not reflected on the face of said returns.

 

In the case of Bashier vs. COMELEC (L-33692,
24 February 1972, 43 SCRA 238), this Court categorically ruled:  “The subsequent annulment of the voting list
in a separate proceeding initiated motu proprio by the Commission and in
which the protagonists here were not parties, cannot retroactively and without
due process result in nullifying accepted election returns in a previous
election simply because such returns came from municipalities where the
precinct books of voters were ordered annulled due to irregularities in their
preparation.”

Moreover, the preparation of a voter’s
list is not a proceeding before the Board of Canvassers.  A pre-proclamation controversy is limited to
challenges directed against the Board of Canvassers, not the Board of Election
Inspectors (Sanchez vs. COMELEC, ante), and such challenges
should relate to specified election returns against which petitioner should
have made specific verbal objections (Sec. 245, Omnibus Election Code; Pausing
vs. Yorac, et al., G.R. No. 82700, 4 August 1988, Endique vs.
COMELEC, G.R. Nos. 82020-21, 22 November 1988), but did not. (Ututalum vs. Commission on Elections,
181 SCRA 335 [1990], Melencio-Herrera, J.).

 

 

2. Tally
Board or Sheet

 

§1. At
the beginning of the counting, there shall be placed within the plain view of
the board of election inspectors, watchers and the public, a tally board where
the names of all the registered candidates or the issues or questions to be
voted upon shall be written, and the poll clerk shall record thereon the votes
received by each of them as the chairman of the board of election inspectors
reads the ballot.  (Section 161,
Omnibus Election Code).

§2. x
x x The poll clerk, and the third member, respectively, shall record on the
election returns and the tally board or sheet each vote as the names voted for
each office are read.

x x x Each vote shall be recorded
by a vertical line, except every fifth vote which shall be recorded by a
diagonal line crossing the previous four vertical lines. X x x. (Section
210, Omnibus Election Code).

§3. In like manner,
neither is the tally board sufficient evidence of the real results of the
election.  Moreover, in the instant case,
the fact that the tally board made its appearance only when Gata attached it to
his appeal makes it highly suspect and therefore unreliable.  x x x. 
Section 217 of B.P. Blg. 881 (The Omnibus Election Code) requires that
the tally board or sheet shall, together with other election documents, be placed
inside the ballot box. (Garay vs. Commission on Elections, 261 SCRA
222 [1996], Panganiban, J.).

 

 

3. Statement of Votes

 

§1. From the foregoing, it is
clear that the COMELEC has ample power to see to it that the elections are held
in a clean and orderly manner and it may decide all questions affecting the
elections and has original jurisdiction on all matters relating to election
returns, including the verification of the number of votes received by opposing
candidates in the election returns as compared to the statement of votes in
order to insure that the true will of the people is known.  Such a clerical error in the statement of
votes can be ordered corrected by the COMELEC. (Villaroya vs. Commission on
Elections, 155 SCRA 633 [1987], Gancayco, J.).

 

            §2. “Indeed, errors in the
Statement of Votes do not indubitably appear to be issues that may be raised in
a pre-proclamation controversy under Section 243 of the Omnibus Election
Code.  In this respect, the law is silent
as to when the same may be raised.  We
are, however, not unmindful of the fact that the statement of votes supports
the certificate of canvass and shall be the basis of proclamation (Sec. 231,
paragraph 2).  Consequently, any error in
the Statement of Votes would affect the proclamation made on the basis thereof.  The true will of the electorate may thus be
not fully and faithfully reflected by the proclamation”.

 

It is DUREMDES’ further submission that
his proclamation could not be declared null and void because a pre-proclamation
controversy is not proper after a proclamation has been made, the proper
recourse being an election protest. This is on the assumption, however, that there
has been a valid proclamation.  Where a
proclamation is null and void, the proclamation is no proclamation at all and
the proclaimed candidate’s assumption of office cannot deprive the COMELEC of
the power to declare such nullity and annul the proclamation. (Duremdes vs.
Commission on Elections, 178 SCRA 746 [1989], Melencio-Herrera, J.).

 

§3. In
Castromayor v. Comelec, we held that although the above provision
applies to pre-proclamation controversies, and even if the proclamation of a
winning candidate has already been made, there is nothing to prevent its
application to cases like the one at bar in which the validity of the
proclamation is precisely in question. 
In Duremdes v. Comelec, this Court sustained the power of the COMELEC
En Banc to order a correction of the Statement of Votes to make it conform
to the election returns in accordance with a procedure similar to the procedure
now embodied in Sec. 7, Rule 27, of the COMELEC Rules of Procedure.  Since the Statement of Votes forms the basis
of the Certificate of Canvass and of the proclamation, any error in the
statement ultimately affects the validity of the proclamation.

The Statement of Votes is merely a
tabulation per precinct of the votes obtained by the candidates as reflected in
the election returns.  What is involved
in the instant case is simple arithmetic. 
In making the correction in the computation, the Municipal Board of
Canvassers acted in an administrative capacity under the control and
supervision of the COMELEC.  Pursuant to
its constitutional function to decide questions affecting elections, the
COMELEC En Banc has authority to resolve any question pertaining
to the proceedings of the Municipal Board of Canvassers. (Torres vs. Commission on Elections, 270
SCRA 583 [1997], Bellosillo, J.).

 

 

4. Certificate
of Votes

 

§1. 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.  The certificate
shall contain the number of votes obtained by each candidate written in words
and figures, the number of the precinct, the name of the city or municipality
and province, the total number of voters who voted in the precinct, and the
date and time issued, and shall be signed and thumbmarked by each member of the
board.

The
provisions of Sections 235 and 236 of Batas Pambansa Blg. 881 notwithstanding,
the certificate of votes shall be admissible in evidence to prove tampering,
alteration, falsification or any anomaly committed in the election returns
concerned, when duly authenticated by testimonial or documentary evidence
presented to the board of canvassers by at least two members of the board of
election inspectors who issued the certificate: Provided, that failure to
present any certificate of votes shall not be a bar to the presentation of
other evidence to impugn the authenticity of the election returns. (Section
215, Omnibus Election Code, as amended by RA 6646).

§2. Within the
contemplation of Section 163 of the Revised Election Code, discrepancy between
the certificates of votes issued under Section 153 to the watchers, and the
statements or returns sent to the authorities indicated in the law, is a ground
for recounting of the votes in a precinct. 
(Board of Election
Inspectors, et al., vs. Piccio, 81 Phil. 577 [1948], Perfecto, J.).

 

§3. The Certificate of
Votes is evidence not only of tampering, alteration, falsification or any other
anomaly in the preparation of election returns but also of the votes obtained
by candidates (See Balindong v. COMELEC, 27 SCRA 567 [1969]).  (Patoray vs. Commission on Elections, 249 SCRA 440 [1995], Mendoza,
J.).

 

§4. According to Section
17, a certificate of votes can only be “evidence to prove tampering,
alteration, falsification or any other anomaly committed in the election
returns concerned, when duly authenticated x x x.”  A certificate of votes does not constitute
sufficient evidence of the true and genuine results of the election; only
election returns are, pursuant to Sections 231, 233-236, and 238 of B.P. Blg.
881. (Garay vs. Commission
on Elections, 261 SCRA 222 [1996], Panganiban, J.).

 

§5. To begin with, the
corrections should be made either by inserting corrections in the Statement of
Votes which was originally prepared and submitted by the MBC, or by preparing
an entirely new Statement of Votes incorporating therein the corrections.  The certification issued by the MBC is thus
not the proper way to correct manifest errors in the Statement of Votes.  More importantly, the corrections should be
based on the election returns but here the corrections appear to have been made
by the MBC on the bases of the Certificates of Votes issued.

 

Certificates of Votes are issued by
Boards of Election Inspectors (BEI) to watchers, pursuant to Section 215 of the
Omnibus Election Code (OEC).  While such
certificates are useful for showing tampering, alteration, falsification or any
other irregularity in the preparation of election returns, there is no reason
for their use in this case since the integrity of the election returns is not
in question.  On the other hand, in the
canvass of votes, the MBC is directed to use the election returns.  Accordingly, in revising the Statement of
Votes supporting the Certificate of Canvass, the MBC should have used the
election returns from the precincts in question although in fairness to the
MBC, it proposed the use of election returns but the COMELEC en banc
rejected the proposal.  The Statement of
Votes is a tabulation per precinct of votes garnered by the candidates as
reflected in the election returns.

           

The Statement of Votes is a vital
component of the electoral process.  It
supports the Certificate of Canvass and is the basis for proclamation.  But in this case, the Statement of Votes was
not even prepared until after the proclamation of the winning candidate.  This is contrary to the Omnibus Election
Code, Sec. 231 of which provides in part: . . . . The respective board of
canvassers shall prepare a certificate of canvass duly signed and affixed with
the imprint of the thumb of the right hand of each member, supported by a
statement of votes received by each candidate in each polling place and, on the
basis thereof, shall proclaim as elected the candidates who obtained the
highest number of votes cast in the province, city, municipality or barangay.

 

But what is clear is that the Statement of
Votes was not prepared with the care required by its importance.  Accordingly, as the Solicitor General states,
what the COMELEC should have ordered the MBC to do was not merely to recompute
the number of votes for the parties, but to revise the Statement of Votes,
using the election returns for this purpose. (Ramirez vs. Commission on
Elections, 270 SCRA 590 [1997], Mendoza, J.).

 

§6. In
Garay vs. Commission on Elections, we had occasion to rule that: “x x
x.  According to Section 17, a
certificate of votes can only be “evidence to prove tampering, alteration,
falsification or any other anomaly committed in the election returns concerned,
when duly authenticated x x x.”  A
certificate of votes does not constitute sufficient evidence of the true and
genuine results of the election; only election returns are, pursuant to
Sections 231, 233-236, and 238 of B.P. Blg. 881.”

 

The doctrine
that a mere technicality cannot be used to frustrate the people’s will finds no
application in the case at bar considering that the results of the election
have not been duly established. (Recabo, Jr., vs. Commission on Elections,
308 SCRA 793 [1999], Gonzaga-Reyes, J.). 

 

CHAPTER XVIII
Canvass and Proclamation

 

1. Board of Canvassers

 

a.) Composition

 

§1. A member of the municipal board of
canvassers who becomes a candidate in an election must be replaced by a person
who is a registered voter of the same party. 
For if the choice were made to fall on a person belonging to a different
party, it might upset the balance of power unnecessarily.

 

The choice by the Commission on Elections of a
replacement of a member of the municipal board of canvassers who becomes a
candidate in an election is not restricted to the person recommended by the
candidate or chairman of the party; all that the law requires is that the
replacement be a registered voter of such party.

 

The language of Section 167 of the Revised Election
Code should be made more explicit, so that it may be crystal clear and free
from doubt.  The task properly belongs to
the Legislature. (Ibuna vs. Commission on Elections, 21
SCRA 1457 [1967], Fernando, J.).

 

§2. The city board of canvassers is an entity
that is entirely different and distinct from the city board or city council of
a chartered city.  Similarly, a
provincial board of canvassers, or a municipal board of canvassers, is an
entity entirely different and distinct from the provincial board of a province,
or the municipal council of a municipality, as the case may be.  While members of a city board (or city
council), or a provincial board or of a municipal council, are members also of
a city board of canvassers, or provincial board of canvassers, or of a
municipal board of canvassers, as the case may be, they do not act in the board
of canvassers, in the capacity of city councilmen, or in the capacity of a
member of the provincial board, or in the capacity of a member of a municipal
council, but as election officials to perform functions specially
provided by law. (Aquino vs. Commission on Elections, 22
SCRA 288 [1968], Zaldivar, J.).

 

§3. Although Sec. 17 of
R.A. 7166 and Sec. 5, par. (a)(1) (not Sec. 4 as erroneously cited by
petitioner), of Rule 27 of the COMELEC Rules of Procedure also allow filing of
a petition directly with respondent COMELEC when the issue involves the illegal
composition of the Board, Sec. 5, par. (b), of the same Rules requires that it
must be filed immediately when the Board begins to act as such, or at the time
of the appointment of the member whose capacity to sit as such is objected to
if it comes after the canvassing of the Board, or immediately at the point
where the proceedings are or begin to be illegal.  In the present case, the petition was filed
five (5) days after respondent Longcop had been proclaimed by the Board.  At any rate, the real issue appears to be –
not what it appears to petitioner – whether he can still dispute the
composition of the Board after having actively participated in the proceedings
therein.  In this regard, we sustain
respondent COMELEC. (Laodenio
vs. Commission on Elections, 276 SCRA 705 [1997], Bellosillo, J.).

           

b.) Ministerial Duty

 

            §1. After the municipal board
of canvassers, in a municipal election, has completed its canvass of the votes
cast, the making of the certificate required by law becomes a purely
ministerial duty. If that certificate does not conform with the result of the
canvass of the votes cast, the writ of mandamus will issue to compel said board
to correct its certificate in accordance with the canvass.  If the certificate is not in accordance with
the facts as they appear from the “acta electoral [election returns],”
the writ of mandamus will issue for the purpose of compelling the board to
correct its certificate.  Mandamus is the
proper remedy to correct its certificate in accordance with its return or
canvass. (Cordero vs. Judge of First Instance of Rizal, 40 Phil. 246 [1919],
Johnson, J.).

 

§2. The canvass in question was held premature and
illegal, as the provincial board of canvassers had before it not defective returns
but papers or documents that were not returns at all. The requirement of
Section 160 that “the provincial board of canvassers shall meet as soon as
possible within fifteen days next following the day of election” and that “as
soon as all the statements are before it but not later than fifteen days next
following the date of the election, the provincial board of canvassers shall
proceed to make a canvass of all the votes cast in the province for national,
provincial and city candidates, etc.,” is directory (120 C.J. 199) and does not
legalize the making and completing of the canvass before all the returns are
in. (Torres vs. Ribo, 81 Phil. 44 [1948], Tuason, J.).

 

§3. Section 166 of the Revised
Election Code constitutes the Commission on Elections as a national board of
canvassers with respect to the election of senators.  Such a board is a ministerial body empowered
only to accept as correct returns transmitted to it which are in due form and
to ascertain and declare the result as it appears therefrom.  Questions of illegal voting and fraudulent
practices are passed on by another tribunal. 
However, it must satisfy itself of the genuineness of the returns.  Where the returns are obviously manufactured,
as where they show a great excess of votes over what could legally have been
cast, the board will not be compelled to canvass them. (Nacionalista Party
vs. Commission on Elections, 85 Phil. 149 [1949], Ozaeta, J.).

 

§4. Under Section 168 of the
Revised Election Code, it is the duty of the municipal board of canvassers to
meet immediately after the election and to count the votes cast for the
candidates of the different municipal offices from the statement of elections
that may be submitted to it by the municipal treasurer and thereafter to
proclaim as elected those who have pooled the largest number of votes for said
offices.  Said board is considered merely
as a ministerial body which is empowered only to accept as correct those
returns submitted to it which are in due form and to ascertain and declare the
result as it appears therefrom.  Its duty
is purely mechanical and extends only to the counting up of the votes and
awarding the certificate to those who may have received the highest number.

 

It being the imperative duty of the board
of canvassers to meet immediately after the election, the courts cannot
intervene to prevent that board from fulfilling such duty, except only in those
cases that are expressly provided for in Section 163 of the Revised Election
Code. (Miralles vs. Gariando, 111 Phil. 1001 [1961]; 2 SCRA 63 [1961],
Bautista Angelo, J.).

 

§5. The question of whether or
not there had been terrorism, vote-buying and other irregularities in the
elections should be ventilated in a regular election protest, pursuant to
Section 174 of the Election Code, and not in a petition to enjoin the city
board of canvassers from canvassing the election returns and proclaiming the
winning candidate for municipal offices.

 

The duty of the city board of canvassers
to canvass the election returns and proclaim the winning candidates for
municipal offices is more or less ministerial; it does not pass upon the
validity or invalidity of the ballots cast, and its action is necessarily
without prejudice to the determination of such question in a proper court
proceeding later. (City Board of Canvassers, Tacloban City vs. Moscoso, 118
Phil. 934 [1963]; 9 SCRA 91 [1963], Makalintal, J.).

 

§6. The board of canvassers is a ministerial
body enjoined by law to canvass all votes on election returns submitted to it in
due form, and its powers are “limited generally to the mechanical or
mathematical function of ascertaining and declaring the apparent result of the
election by adding or compiling the votes cast for each candidate as shown on
the face of the returns before them, and then declaring or certifying the
result so ascertained”  (29 CJS., p.
656).  The Comelec is the constitutional
body charged with the duty to enforce all laws relative to elections, duty
bound to see to it that the board of canvassers perform its proper function  (Sec. 3, Revised Election Code; Cauton vs.
Comelec, L-25467, April 27, 1967). 
Neither Constitution nor statute has granted Comelec or the board of
canvassers the power, in the canvass of election returns, to look beyond the
face thereof, once satisfied of their authenticity.

 

Where the petition does not indicate that the
election returns have been falsified after they had left the hands of
the election inspectors or that such returns are not genuine, the
Supreme Court cannot give its stamp of approval to suspend canvass and
proclamation, for, to stop both Comelec and the board of canvassers from their
legal duty, and worse, to suspend canvassing and proclamation at a late date,
may result in a vacuum in office of elective officials after the term of the
present incumbents shall have ended on December 31st.  Canvassing and proclamation must proceed,
otherwise, it “would result in a lack of incumbents in the offices concerned
after the termination of the current term and while the case remains pending in
court” (City Board of Canvassers vs. Moscoso, L-16365, Sept. 3, 1963). (Abes vs. Commission on Elections, 21 SCRA 1252 [1967], Sanchez, J.)

 

§7. It is the ministerial function of a board
of canvassers to count the results as they appear in the returns which on their
face do not reveal any irregularities or falsities.  The return in this case shows nothing on its
face from which the canvassers might conclude that it does not speak the truth.  It is only when it is compared with the
certificate of the election registrar that a discrepancy appears as to the
number of registered voters.  The return
therefore is by no means “obviously manufactured” so as to justify its
exclusion.

 

The question of whether or not more people than
registered voters were allowed to vote in Precinct 7 should be threshed out in
an election contest.

 

Section 28 of the Revised Election Code which
provides that any member of the provincial board who is a candidate for an
elective office shall be incompetent to act in said board, draws no distinction
between the provincial board acting as a provincial board of canvassers and the
same board acting as a municipal canvassing body for new municipalities.  Hence, reelectionist members of the
provincial board are disqualified under said section even when they sit as a
municipal board of canvassers.  Where two
of the four members of the board of canvassers were disqualified from sitting
in it because they were candidates for reelection, then the canvass and proclamation
made by said board should be annulled.

 

It is now settled doctrine that the COMELEC has the
power to annul an illegal proclamation as when they are based on incomplete
returns, and order a new canvass to be made by counting the returns wrongfully
excluded. (Demafiles vs. Commission on Elections, 21
SCRA 1462 [1967], Castro, J.).

 

§8. The duty of the municipal
board of canvassers to count the votes cast for candidates for municipal
offices as shown in all the election returns produced by the municipal
treasurer, can not be avoided.  The board
is to be guided by election returns transmitted to it which are in due
form.  Indeed, the board must be
satisfied of the genuineness of the returns. 
A canvass made on incomplete returns may be annulled. (Pedido vs.
Commission on Elections, 22 SCRA 1403 [1968], Sanchez, J.).

           

c.) Remedies

 

§1. A valid directive of a representative of
the Commission on Elections directing the suspension of the proclamation of a
mayoralty candidate serves to nullify the continuation of the canvass and
consequent proclamation of a candidate to the contested position.

 

The Commission on Elections can order the suspension
of a municipal board of canvassers and appoint substitutes to take their place
in a new canvass of the election returns of all the precincts even after the
old board had completed the canvass and proclamations were made in violation of
the lawful order of the Commission.

 

There is no res judicata in the dismissal by
the Court of First Instance of a petition for recount of votes based on the
fact that a winner for the contested position has been proclaimed, where said
proclamation was declared null and void for violation of lawful orders of the
Commission on Elections. (Javier vs. Commission on
Elections, 121 Phil. 168 [1965]; 13 SCRA 156 [1965], Barrera, J.).

 

§2. The
election law never intended that where, in a given precinct, some of the
returns are authentic and others are falsified, both the COMELEC and the Court
of First Instance will have concurrent jurisdiction — prior to
proclamation.  To avoid confusion under
such a situation, the remedies are drawn and delineated as follows:  (1) Where before or during canvassing or
before proclamation representations are made that returns are falsified, it
becomes the primary duty, first of the board of canvassers, and then of
the COMELEC to ascertain this fact.  (2)
If finally the COMELEC summarily finds that there was falsification of the
copies to be used for canvassing purposes, then canvassing must be made upon
the basis of authentic copies, because a falsified return or spurious return
amounts to no return at all.  (3) If, on
the other hand, the discrepancy in the returns was the result of honest
mistakes of the board of inspectors, two courses of action are open in the
court of first instance: first, a petition for correction of returns with the
consent of all the members of the board of inspectors under Section 154 of the
Revised Election Code; and second, a petition by the said board or any
candidate affected for summary judicial recount under Sections 163 and 168 of
the same Code.  A summary judicial recount
is merely for the purpose of counting the number of votes received by each
candidate as they appear on the face of the ballots”  (Cawa vs. Del Rosario, L-16837-40
May 30, 1960).  After all, ballot
appreciation is proper in an election contest after proclamation. 

The
remedies thus delineated are explicit. 
They serve as guidelines.  The
right course to pursue given the fact of discrepancy — by reason of mistake or
otherwise — is there.

            If
the board of canvassers for one reason or another makes a wrong decision, or
takes no immediate action whether to consider or shunt aside returns which
appear to have been falsified or to be spurious, the matter may be elevated
forthwith to the COMELEC.  And it is
within the realm of COMELEC’s concerns to direct that only genuine returns be
considered where dastardly attempts were made to subvert the people’s choice by
a resort to patently doctored returns. (Ong vs. Commission on Elections, 22
SCRA 241 [1968], Sanchez, J.).    

§3. A
municipal board of canvassers must therefore count all the votes cast in the
election and, for this purpose, must consider all returns presented to it by
the municipal treasurer.  If material
defects there are in the form of the returns, it must send them back to the
corresponding boards of inspectors for correction.  If certain precincts have not sent in their
returns, the board must send for them, and the fiscal should forthwith
institute criminal proceedings against those who may be criminally responsible
for the delay.  If there is a discrepancy
between two authentic copies of an election return and the difference affects
the result of the election, the board may ask the proper court of first
instance to order a recount of the ballots.

All these serve to underscore the need to
count all the votes cast in an election. 
Only when the returns are palpably irregular or obviously manufactured
may they be rejected but even then the board must exercise “extreme
caution.”  And where a return is
falsified, the board may apply to the Comelec for authority to use another copy
which is genuine and authentic. (Mutuc vs. Commission on Elections, 22 SCRA
662 [1968], Castro, J.).

 

§4. It is clear from this
provision that the board of canvassers is under the obligation to make a
written ruling on the formal objections made by any of the parties, who may
then appeal the same to the COMELEC.  It
is equally clear that the failure or refusal of the board of canvassers to
discharge this obligation should not in any way prejudice the objecting party’s
right to elevate the matter to the COMELEC for proper review.  Otherwise, all that a board of canvassers,
partial to one of the candidates, has to do to favor him would be to refuse to
make a written ruling on his opponent’s objections and thereby prevent their review
by the COMELEC.  In the case at bar,
however, there does not appear to be any such prejudice.  The issue is the refusal of the COMELEC to
consider objections to 24 election returns on which the board of canvassers had
not made a written ruling.  But it would
seem that, strictly speaking, no ruling was necessary, or even proper.  By the petitioners’ own contention “in all
those 24 returns, the Christian name, nickname or maternal surname of private
respondent’s husband was used with her Christian name or nickname which, as we
will show at length infra, did not constitute a valid vote for private
respondent.  If so, the total 1,912 votes
in these returns credited for private respondent should be discounted.”  This matter was obviously beyond the
competence of the board of canvassers to resolve.  Neither was it cognizable in a
pre-proclamation controversy before the COMELEC as defined in Section 243 of
the Omnibus Election Code.

 

The inclusion or exclusion in the
canvass of certain election returns where votes allegedly cast for Emeterio
Larrazabal were counted for his wife is an issue appropriate in an election
contest and not in a pre-proclamation controversy.  And it is also immaterial that, as also
contended, the inclusion of such votes would affect the over-all results of the
election and swing it in his favor.  The
accepted rule is that as long as the returns appear to be authentic and duly
accomplished, the board of canvassers cannot look beyond them to verify allegations
of irregularities in the casting or the counting of the votes.  These issues cannot be resolved by the board
of canvassers.  A long line of decisions
has established the doctrine that the board of canvassers has only the ministerial
task of tallying the votes as reported in the election returns and cannot
exercise the judicial power of deciding an election contest.

 

All pre-proclamation controversies shall
be heard summarily by the Commission after due notice and hearing, and its
decisions shall be executory after the lapse of five days from receipt by the
losing party of the decision of the Commission, unless restrained by the
Supreme Court.  And the reason for this
rule is obvious.  As we stressed in Alonto
v. COMELEC, “the policy of the election law is that pre-proclamation
controversies should be summarily decided, consistent with the law’s desire
that the canvass and proclamation be delayed as little as possible.” That is
why such questions as those involving the appreciation of the votes and the
conduct of the campaign and the balloting, which require more deliberate and
necessarily longer consideration, are left for examination in the corresponding
election protest.

The contention that the dismissal of the
pre-proclamation controversy would render the disqualification case moot and
academic is also untenable.  The two
cases are independent of each other and one may be resolved separately without
affecting the other.  The purpose of a
pre-proclamation controversy is to ascertain the winner or winners in the
elections on the basis of the election returns duly authenticated by the boards
of inspectors and admitted by the board of canvassers.  The purpose of a disqualification proceeding
is to prevent the candidate from running or, if elected, from serving, or to
prosecute him for violation of the election laws.  Obviously, the mere fact that a candidate has
been proclaimed elected does not signify that his disqualification is deemed
condoned and may no longer be the subject of a separate investigation. (Abella vs. Larrazabal, 180 SCRA 509  [1989], Cruz, J.).

 

§5. To be sure, the
COMELEC did not itself annul the proclamation of petitioner, but, by
“direct[ing] the Municipal Board of Canvassers of said municipality to
reconvene to annul the proclamation of Nicolas C. Castromayor,” the COMELEC in
effect did so.  After all, the authority
of the COMELEC was sought because, without such authority, the MBC would not
have the power to annul the proclamation of petitioner.

 

The proceedings before the MBC should be
summary.  Should any party be
dissatisfied with the ruling of the MBC, the party concerned shall have a right
to appeal to the COMELEC en banc, in accordance with Rule 27, Section 7
of the COMELEC Rules of Procedure.

 

Although this provision applies to
pre-proclamation controversies and here the proclamation of petitioner has
already been made, there is nothing to suggest that it cannot be applied to
cases like the one at bar, in which the validity of the proclamation is
precisely in question.  On the contrary,
in Duremdes v. COMELEC, this Court sustained the power of the COMELEC en
banc to order a correction of the Statement of Votes to make it conform to
the election returns in accordance with a procedure similar to the procedure
now embodied in Rule 27, Sec. 7. (Castromayor vs. Commission on Elections, 250 SCRA 298 [1995], Mendoza,
J.).

 

§6. Section 20 of R.A.
7166 provides for the procedure in the disposition of contested election
returns, thus: When a party contests the inclusion or exclusion of a return in
the canvass, on the grounds provided under Article XX or Sections 234-236,
Article XIX of the Omnibus Election Code, the board of canvassers shall
defer the canvass of the contested return, and within 24 hours receive the
evidence of the objecting party.  Within
24 hours, opposition to the objection may be made by the other party.  Upon receipt of the evidence, the board of
canvassers shall make a ruling thereon.

We find that the MBC did not err in
refusing to consider the objections raised by private respondent during the
canvass of the returns.  Section 20 of
R.A. 7166 applies only where the objection on the return being canvassed refers
to issues proper in a pre-proclamation controversy.  Under the Omnibus Election Code,
pre-proclamation controversies are limited to: (1) challenges directed against
the composition or proceedings of the board of canvassers (not the board of
election inspectors), or (2) challenges related to election
returns to which a party must have made specific objections.

 

In the case of Abella v. Larrazabal,
we ruled that the objection raised before the board of canvassers that certain votes
reflected in certain returns are not valid votes as they should not have
been counted at all is not a valid ground for a pre-proclamation
controversy. It is beyond the competence of the board of canvassers;
neither is it a pre-proclamation issue, and the refusal of the board canvassers
to consider such objection or rule on the same is not erroneous. (Patoray vs. Commission on Elections, 274
SCRA 470 [1997], Puno, J.).

 

§7. Section 20, paragraph
(i) of Rep. Act 7166 reads:  “SEC.
20.  Procedure in Disposition of
Contested Election Returns.¾x x x   x x x 
x x x (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.  x x
x  x x x 
x x x.”  The inapplicability of
the abovementioned provision to the present case is very much patent on its
face considering that the same refers only to a void proclamation in
relation to contested returns and NOT to contested qualifications of a
candidate.

 

Moreover, there is no reason why the
Manila City BOC should not have proclaimed Basco as the sixth winning City
Councilor.  Absent any determination of
irregularity in the election returns, as well as an order enjoining the
canvassing and proclamation of the winner, it is a mandatory and ministerial
duty of the Board of Canvassers concerned to count the votes based on such
returns and declare the result.  This has
been the rule as early as in the case of Dizon v. Provincial Board of
Canvassers of Laguna where we clarified the nature of the functions of the
Board of Canvassers, viz.:  “The
simple purpose and duty of the canvassing board is to ascertain and declare the
apparent result of the voting.  All other
questions are to be tried before the court or other tribunal for contesting
elections or in quo warranto proceedings” (9 R.C.L., p. 1110). (Grego vs. Commission on Elections, 274
SCRA 481 [1997], Romero, J.).

 

§8. In the present case,
although the COMELEC annulled the proclamation of petitioner, it merely
directed the Municipal Board of Canvassers to “RECONVENE within five (5) days
from receipt hereof and effect the corrections in the total number of votes
received by the candidates in Precinct Nos. 84-A/84-A-1 (clustered) and
Precinct No. 23-A and thereafter PROCLAIM the winning candidate/s for Municipal
Kagawad based on the corrected results.” 
It was the Municipal Board of Canvassers which the COMELEC ordered to actually
effect the necessary corrections, if any, in the said election returns and, on
the basis thereof, proclaim the winning candidate or candidates as member or
members of the Sangguniang Bayan.  In
accordance with our ruling in Castromayor, the expedient action to take
is to direct the Municipal Board of Canvassers to reconvene and, after notice
and hearing in accordance with Rule 27, Section 7 of the COMELEC Rules of
Procedure, to effect the necessary corrections, if any, in the election returns
and, on the basis thereof, proclaim the winning candidate or candidates as
member or members of the Sangguniang Bayan. (Angelia vs. Commission on
Elections, 332 SCRA 757 [2000], Mendoza, J.).

 

§9. It cannot be correctly
argued that the 3-day period set by law for the submission of an appeal from a
ruling contesting the composition or proceedings of Board of Canvassers had
expired where the Board of Canvassers never ruled on a party’s objections to
the board’s proceeding.

 

An incomplete canvass is illegal and cannot
be the basis of a valid proclamation. A proclamation made where the contested
returns set aside will affect the result of the election and the board of
canvassers proceeded to proclaim without the authority from the COMELEC is null
and void. (Sema vs. Commission on Elections, 347 SCRA 633 [2000], Kapunan,
J.).

 

d.) Functus officio

 

§1. When the duties of the
municipal board of canvassers are completed and it makes its certificate as
required by law, its work as such municipal board of canvassers is ended, and
there is no provision made in the law for its continuance as a board of
canvassers.  The court may order it to
reconvene as such board for the purpose of correcting its canvass in accordance
with the facts found by the Judge.  The
work of the municipal board of canvassers is completed when it has finished the
canvass of the votes in accordance with Section 477 of the Administrative Code,
and it ceases to exist as such board until an order of the Court of First
Instance is issued, directing it to reconvene and to correct its canvass. (Cordero
vs. Judge of First Instance of Rizal, 40 Phil. 246 [1919], Johnson, J.).

                       

§2. The duties of the
provincial board of canvassers in tabulating and summing up election returns
are of a ministerial nature; and the writ of mandamus is available to compel
them, in canvassing the votes for the office of provincial governor, to give
effect to a return from a particular precinct which is properly certified to
them, with judicial approval, as an amended return. (Dizon vs. Provincial
Board of Canvassers of Laguna, 52 Phil. 47 [1928], Street, J.).

                       

§3. When a board of canvassers
has fully performed its duty and proclaimed the result of the election
according to law and adjourned sine die, it may be deemed functus
oficio in the sense that the members of the board have no power voluntarily
to reassemble and recanvass the returns. (Bautista vs. Fugoso and Sison, 60
Phil. 383 [1934], Butte, J.).

 

§4. The duty of the board of canvassers to make
the proclamation in accordance with the election returns of all the precincts
of the municipality is ministerial; so that, where the board proclaimed only
four councilors, where six councilors should have been proclaimed — the
Commission may order it to reconvene and make a new proclamation by including
the other two councilors who received the highest number of votes. (Olano vs. Ronquillo, 118 Phil. 205 [1963]; 8 SCRA 204 [1963],
Bengzon, C.J.).

                       

§5. The specific function of a board of
canvassers is to canvass the results of the election as shown in the election
returns and to proclaim the winning candidates. 
Once this specific function had been performed, the existence of the
board of canvassers is ended and terminated (Cordero v. CFI of Rizal, 40 Phil.
246). (Aquino vs. Commission on Elections, 22 SCRA 288
[1968], Zaldivar, J.).

 

§6. The board of canvassers is
created for a specific purpose: canvass and proclamation, and no more.  Its term of office does not coincide with the
term of office of the officials concerned. 
It terminates as soon as its functions are finished. Only then does it
adjourn sine die and thus become functus officio  (Bautista v. Fugoso, 60 Phil. 383,
389).  As a corollary thereto, it
normally retains its authority as a board until it shall have completed its
functions and accomplished its purposes. 
They may be public officers in another capacity.  Yet they are never functus officio as
election officers until they have totally discharged their duties.  They cannot be disrobed until then.  Public policy and interest prop up this
position. For, they are agents of the State. 
They are purely and distinctly election officers. (Pelayo, Jr. vs.
Commission on Elections, 23 SCRA 1374 [1968],             Sanchez, J.).

 

 

2. Canvass and
Proclamation

 

§1. Where the election
inspectors of a particular precinct have obtained judicial approval to an
amendment of their returns with respect to a particular office, and such
amended return is duly certified to the provincial board of canvassers prior to
the making of official proclamation by the board, such amended return should be
adopted and incorporated into the result of the canvass.  An amended return which has received judicial
approval and has been duly certified to the board has the effect of abrogating
the original return.  Where power is
conceded to any person or body to modify a legal act, the document expressive
of such modification necessarily takes precedence over the thing modified. (Dizon
vs. Prov. Board of Canvassers, 52 Phil. 47 [1928], Street, J.).

           

§2. The purpose of an election
contest is to correct the canvass of which the proclamation is a public
manifestation, and the power granted by law to the courts must agree with and
be adequate to such an object. (Aquino vs. Calabia and Sahagun, 55 Phil. 984
[1931], Romualdez, J.).

 

§3. The duty of the Commission
on Elections to investigate and act on the propriety or legality of a canvass
of election made by the municipal board of canvassers, is discretionary, and
said commission may not therefore be compelled to perform such duty through
mandamus proceedings. (Ramos vs. Commission on Elections, et al., 80 Phil.
722 [1948], Paras, J.).

 

§4. The powers of the
Commission on Elections are defined in the Constitution and powers not
expressly or impliedly granted to it are deemed withheld. Any alteration or
amendment in the statements of election, or any contradiction or discrepancy
appearing therein, whether due to clerical error or otherwise, cannot be made
without the intervention of a competent court, once the announcement of the
result of the election, or the proclamation of the winners had been made. (De
Leon vs. Imperial, 94 Phil. 680 [1954], Bautista Angelo, J.).

 

§5. The proclamation of one of
the candidates for mayor by the board of canvassers after a canvass based on a
photastic copy of the duplicate of the returns received by the Commission on
Elections, and not on the original returns received by the Municipal Treasurer
as prescribed by law, although it had not been established that the latter was
not available, is null and void. (Santos vs. Commission on Elections, 106
Phil. 877 [1960], Reyes, J.B.L., J.).

 

§6. Under
Section 168 of the Revised Election Code, it is the duty of the municipal board
of canvassers to meet immediately after the election and
to count the votes cast for the candidates of the different municipal offices
from the statement of elections that may be submitted to it by the municipal
treasurer and thereafter to proclaim as elected those who have pooled the
largest number of votes for said offices. 
Said board is considered merely as a ministerial body which is empowered
only to accept as correct those returns submitted to it which are in due form
and to ascertain and declare the result as it appears therefrom.  Its duty is purely mechanical and extends
only to the counting up of the votes and awarding the certificate to those who
may have received the highest number.

It
being the imperative duty of the board of canvassers to meet immediately after
the election, the courts cannot intervene to prevent that board from fulfilling
such duty, except only in those cases that are expressly provided for in
Section 163 of the Revised Election Code. (Miralles vs. Gariando, 111 Phil.
1001 [1961]; 2 SCRA 63 [1961], Bautista Angelo, J.).

§7. The duty of the board of
canvassers to make proclamation in accordance with the election returns of all
the precincts of the municipality is ministerial; so that, where the board
proclaimed only four councilors, where six councilors should have been
proclaimed—the Commission may order it to reconvene and make a new proclamation
by including the other two councilors who received the highest number of votes.
(Olano vs. Ronquillo, 118 Phil. 205 [1963], 8 SCRA 204
[1963], Bengzon, C.J.).

§8. The question of whether or not
there had been terrorism, vote-buying and other irregularities in the elections
should be ventilated in a regular election protest, pursuant to Section 174 of
the Election Code, and not in a petition to enjoin the city board of canvassers
from canvassing the election returns and proclaiming the winning candidates for
municipal offices.

The duty of the city board of canvassers
to canvass the election returns and proclaim the winning candidates for
municipal offices is more or less ministerial; it does not pass upon the
validity or invalidity of the ballots cast, and its action is necessarily
without prejudice to the determination of such question in a proper court
proceeding later.

The city board of canvassers may not be
enjoined from assessing the returns, because it would result in a lack of
incumbents in the offices concerned after the termination of the current term
and while the case remains pending in court. 
This is not within the contemplation of the Election Code, which
provides for election contests only after proclamation of the winning
candidates.  Furthermore, an injunction
such as that issued by respondent court would prevent the city board of
canvassers from certifying the results of the election even with respect of
national offices. (City Board of Canvassers, Tacloban
City vs. Moscoso, 118 Phil. 934 [1963]; 9 SCRA 91 [1963], Makalintal, J.).

§9. The Commission on Elections has the power
to investigate and act on the propriety or legality of the canvass of election
returns made by the board of canvassers. The power of the Commission in this
respect is simply administrative and supervisory. It is intended to secure the
proclamation of the winning candidate based on the true count of the votes
cast.

 

The object of the canvass is to determine the result
of the elections based on the official election returns.  In order that the result of the canvass would
reflect the true expression of the people’s will, it must be based on genuine
and untampered election returns.  The
Commission exercises its jurisdiction, relative to the conduct of elections, in
order to attain that result. (Cauton vs. Commission on
Elections, 126 Phil. 291 [1967]; 19 SCRA 911 [1967], Zaldivar, J.).

 

§10. The board of canvassers is a ministerial
body enjoined by law to canvass all votes on election returns submitted to it in
due form, and its powers are “limited generally to the mechanical or
mathematical functions of ascertaining and declaring the apparent result of the
election by adding or compiling the votes cast for each candidate as shown on
the face of the returns before them, and then declaring or certifying the
result so ascertained”  (29 CJS., p. 656).  The Comelec is the constitutional body
charged with the duty to enforce all laws relative to elections, duty bound to
see to it that the board of canvassers perform its proper function  (Sec. 3, Revised Election Code; Cauton vs.
Comelec, L-25467, April 27, 1967). 
Neither Constitution nor statute has granted Comelec or the board of
canvassers the power, in the canvass of election returns, to look beyond the
face thereof, once satisfied of their authenticity.

 

Where the petition does not indicate that
the election returns have been falsified after they had left the hands
of the election inspectors or that such returns are not genuine, the
Supreme Court cannot give its stamp of approval to suspend canvass and
proclamation, for, to stop both Comelec and the board of canvassers from their
legal duty, and worse, to suspend canvassing and proclamation at a late date,
may result in a vacuum in office of elective officials after the term of the
present incumbents shall have ended on December 31st.  Canvassing and proclamation must proceed,
otherwise, it “would result in a lack of incumbents in the offices concerned
after the termination of the current term and while the case remains pending in
court” (City Board of Canvassers vs. Moscoso, L-16365, Sept. 3, 1963).  (Abes vs. Commission on Elections, 21 SCRA
1252 [1967], Sanchez, J.).

 

§11. The duty of the board of
canvassers to take the returns as made from the different voting precincts, add
them up, and declare the result, is almost wholly ministerial.  The canvassers are to be satisfied of the
genuineness of the returns, that is that the papers presented to them are not
forged and spurious, that they are returns, and are signed by the proper
officers.  The simple purpose and duty of
the canvassing board is to ascertain and declare the apparent result of the
voting.  Questions of illegal voting and
fraudulent practices are passed on by another tribunal. (Sangki vs. Commission on Elections, 21 SCRA 1392 [1967], Sanchez,
J.).

§12. It is the ministerial function
of a board of canvassers to count the results as they appear in the returns
which on their face do not reveal any irregularities or falsities.  The return in this case shows nothing on its
face from which the canvassers might conclude that it does not speak the truth.  It is only when it is compared with the
certificate of election registrar that a discrepancy appears as to the number
of registered voters.  The return
therefore is by no means “obviously manufactured” so as to justify its
exclusion.

The question of whether or not more
people than registered voters were allowed to vote in Precinct 7 should be
threshed out in an election contest. (Demafiles vs.
Commission on Elections, 21 SCRA 1462 [1967], Castro, J.).

§13. The
duty of the municipal board of canvassers to count the votes cast for
candidates for municipal offices as shown in all the election returns
produced by the municipal treasurer, can not be avoided. The board is to be
guided by election returns transmitted to it which are in due form.
Indeed, the board must be satisfied of the genuineness of the returns.  A canvass made on incomplete returns may be
annulled. (Pedido vs. Commission on Elections, 22 SCRA 1403 [1968], Sanchez,
J.).

§14. Where a member of the Board of
Canvassers designated by law is excluded from the canvass by reason of which he
did not take part therein, the canvass and the resulting proclamation are both
null and void.

The canvassing board will not be
compelled to canvass returns which are obviously manufactured.  But this does not mean that the board and
Comelec should right away disregard the votes cast in precincts where the
returns are doctored.  It is the duty of
the Board to report the matter to the Comelec.

Where the election returns are tampered, it is
within the power of the Comelec to issue such order as would ascertain the
existence of the genuine, authentic and untampered election returns.  It should inquire into the copies of the
returns for the provincial treasurer. 
And if these copies are not authentic it should look into the copies of
the returns in the ballot boxes.  Here,
every effort should be strained to ascertain the existence of serviceable
returns from Precincts 18, 19, 21 and resort to the copies of the returns in
the hands of the provincial treasurer and, if necessary, those in the ballot
boxes, is justified.  The returns from
these precincts not canvassed are vital to the political fortunes of the
contending candidates, and ascertainment of the results thereof should not so
easily be done away with.

The broad sweep of the Comelec’s duty to administer
and enforce the election law gives it ample authority to direct the board of
canvassers to include in the canvass returns from the questioned
precincts.  It should summon the members
of the board of inspectors, take evidence and ascertain which are the genuine
returns; then it should direct the board to use these returns in the canvass of
the votes.

 

It is true that respondent Negre filed in the CFI an
“election protest” after he had petitioned the Comelec to suspend or annul the
canvass of the votes and/or annul the election returns.  But said petition filed in Court sought to
impugn not necessarily the election of his opponent but “the election returns
and ballots cast” in the questioned precincts and the proclamation of Pacis; he
also sought to enjoin Pacis from assuming office.  These allegations are mere repetitions of his
petition before the Comelec where he also assailed the illegality of the
canvass and the proclamation of his opponent. 
His petition in court was to have a new board of canvassers, the
exclusion from the canvass of the alleged tampered returns and his own
proclamation as mayor-elect of Sanchez Mira. 
In this case there was no valid canvass and proclamation.

 

The Acain doctrine, L-16445, May 23, 1960,
where this Court ruled that the CFI of Agusan acquired exclusive jurisdiction
to inquire into and pass upon the title of Degamo and the validity of the
proclamation made by the Board of Canvassers, does not govern in this case.  First, in the Acain case, there was an
actual protest; here, what was desired in court was merely a valid proclamation
where the Board was made a party respondent. 
Second, unlike in Acain, where petitioners did not pursue their
remedy of recount, Negre here persisted in pursuing his petition to annul the
wrongful proclamation of his adversary. 
Third, in Acain, private respondents assumed office becoming at
least de facto officers, here, both candidates aver that they assumed
office so quo warranto cannot be the remedy of either.  Fourth, in Acain, the board of
canvassers was found to be lawfully constituted; here, the board was found to
have been unlawfully constituted.  Here,
both proclamations are declared null and void as if no proclamation was at all
made. (Pacis vs. Commission on Elections, 22 SCRA 539
[1968], Sanchez, J.).

 

 §15. It is now a settled doctrine that an incomplete canvass of
votes is illegal and cannot be the basis of a subsequent proclamation.  Indeed, it is the ministerial duty of a
municipal canvassing body to count the votes cast “in the same manner as
hereinbefore provided for the provincial board (of canvassers),” which means to
say to count all the votes cast. 
Thus, Section 160 of the Election Code enjoins provincial boards of canvassers
as follows:  “As soon as all the
statements are before it but not later than fifteen days next following the
date of election, the provincial board of canvassers shall proceed to make a
canvass of all the votes in the province for national, provincial, and city
candidates and upon the completion of the canvass, shall make, as the case may
be, separate statements of all the votes received by each
candidate x x x .”  A municipal board of
canvassers must therefore count all the votes cast in the election and, for
this purpose, must consider all returns presented to it by the municipal
treasurer.  If material defects there are
in the form of the returns, it must send them back to the corresponding boards
of inspectors for correction.  If certain
precincts have not sent in their returns, the board must send for them, and the
fiscal should forthwith institute criminal proceedings against those who may be
criminally responsible for the delay.  If
there is a discrepancy between two authentic copies of an election return and
the difference affects the result of the election, the board may ask the proper
court of first instance to order a recount of the ballots.

 

All these serve to underscore the need to count all
the votes cast in an election.  Only when
the returns are palpably irregular or obviously manufactured may they be
rejected but even then the board must exercise “extreme caution.”  And where a return is falsified, the board
may apply to the Comelec for authority to use another copy which is genuine and
authentic.  Why must all the votes be
counted when there is a need to finish the canvass on time so that proclamation
can be made before the beginning of the term of office?  Because to disregard returns is in effect to
disfranchise the voters.

 

Where it appears that election returns in the
municipality of Makati are incomplete in the sense that the election return in
Precinct No. 124 of the said municipality did not contain at all the entry of
votes cast for each candidate as mayor, hence the municipal board of canvassers
cannot proceed with the canvassing of votes, the Comelec is bereft of power to
order the board of canvassers of Makati to disregard the return from Precinct
124, even if it noted from its copy (which was likewise blank or incomplete) that
the number of votes cast in the precinct (263) was too small to be of any
significance to any candidate.  This,
because the Comelec has no power to decide questions involving the right to
vote, as to disregard a return is in effect to deny the voters their votes.

 

What the Comelec should have done is to take the
logically obvious and simple step of ordering the opening of the ballot box to
find if the copy of the return deposited therein was properly accomplished and,
if it was, to order that it be used in the canvassing of votes.  This it had the power to do in the
fulfillment of its constitutional duty of insuring “free, orderly, and honest
elections.” And this it was unimpeded and had ample time to do, considering
that from November 24 when it ordered the proclamation, there were still 37
days to go to the statutory date of assumption of office by the elected
candidates (January 1). This is the reason why in two other cases, we upheld
the power of the Comelec to direct canvassing boards to use returns other than
those specified by law if the latter are found to have been falsified.

Although respondents have been proclaimed and have
subsequently assumed office, and that as a matter of fact some the petitioners,
more specifically the petitioner Michael Joseph, have pending election protests
in the Court of First Instance of Rizal against some of the respondents, and
although it is also indeed true that after proclamation the usual remedy of any
party aggrieved in an election is to be found in an election protest, that is
so only when the assumption was made under a valid proclamation.  On the other hand, where as in the case at
bar the proclamation itself is illegal, the assumption of office cannot in any
way affect the jurisdiction of the Supreme Court to take cognizance of the
case.

 

The Comelec should direct the opening of the ballot
box corresponding to Precinct 124 for the purpose of retrieving the copy of the
election return deposited therein so that it may be used in canvassing anew the
votes cast for the local official of Makati, and, should it be found that the
ballot box copy is likewise blank or incomplete, the Commission should order a
count of the ballots, giving notice, for this purpose, to all the
candidates.  This is the procedure that
best recommends itself, what with the lack of specific procedure for dealing
with the situation such as this. 
Judicial recount of the ballots under Section 163 of the Code cannot be
the remedy because there is no discrepancy between one authentic copy and
another authentic copy of the same return. 
As we have earlier stated, the copies of the election return in this
case contain no entries as to the number of votes received by each
candidate.  So there really is no
discrepancy, but only a failure to accomplish the form of the return
properly.  Indeed what has been submitted
is no return at all.  The Commission on
Elections is hereby directed (1) to order the board of inspectors of Precinct
124 of Makati, after due notice to all the candidates, to open the ballot box
corresponding to the said precinct for the purpose of retrieving therefrom the
copy of the election return for use in the new canvass to be held by the
municipal board of canvassers, if said copy has been properly accomplished, or,
in the event that the said copy is blank or incomplete, to count all the votes
cast in the said precinct and then properly accomplish a return based on such
count; and (2) thereafter to order the municipal board of canvassers of Makati,
without delay and after due notice to all the candidates, to hold a new canvass
of all the votes cast in that municipality, and to proclaim the winning
candidates in accordance with the results thereof. (Mutuc
vs. Commission on Elections, 22 SCRA 662 [1968], Castro, J.).

 

§16. While the Comelec in its role as
senatorial canvasser has the power to reject returns before it which in its
opinion were illegal and not authentic, neither law nor precedent authorizes it
to impose the same criterion in advance upon the provincial boards of
canvassers.  The latter are entitled to
use their own judgment in determining whether the irregularities appearing on
the returns before them warrant their rejection.  It must not be forgotten that the copies of
the returns upon which the provincial canvassers act are different from
those in the possession of the Comelec, and the irregularities noted in the
latter may not necessarily exist in the former. 
Should there be any discrepancy between the official copies, the
petitioners can recourse to a judicial recount under Section 163 of the
Election Law.  But certainly, an a
priori rejection on the basis of previous Comelec action is not
justifiable.

 

The alleged excess of votes cast (detailed and
enumerated in the petition) do not necessarily support the conclusion that the
returns are obviously manufactured for reasons of statistical
improbability.  There is here no
uniformity of tallies in favor of candidates belonging to one party and the
systematic blanking of the opposing candidates that led this Court to reject
the returns in the Lagumbay case. 
In Sangki vs. Comelec, L-28359, Dec. 26, 1967, this Court warned
against the undue expansion of the Lagumbay doctrine without due regard
to the factual basis upon which it was based.

 

While in Lagumbay vs. Comelec, this Court has
taken official cognizance of the spread of the pernicious practice of
tolerating or abetting the tampering or manufacture of returns just to get the
proclamation and then let the victimized candidate file the protest and spend
his money to work for an empty victory, the Court has likewise adverted to the
equally pernicious effects of excessive delay of proclamations.  The Comelec and the Court should guard both
against proclamation-grabbing through tampered returns as well as against
attempts to paralyze canvassing and proclamation in order to prolong hold-overs
by officials whose terms are officially ended. (Alonto
vs. Commission on Elections, 22 SCRA 878 
[1968], Reyes, J.B.L., J.).

 

§17. Time and again, the
Supreme Court has given its imprimatur on the principle that Comelec is with
authority to annul any canvass and proclamation which was illegally made.  The fact that a candidate proclaimed has
assumed office is no bar to the exercise of such power.  Therefore, a petition before the Comelec which
is directed at the annulment of the canvass and proclamation is within the area
allocated by the Constitution and the law to the Comelec to inquire.

 

The election law does not provide for a
time limit within which a candidate may challenge the validity of a
proclamation before the Comelec.  But
inaction for an unreasonable period may block such remedy to challenge the
validity of the proclamation. 
Considering the steps taken by respondent in the case at bar, first, in
the Court of First Instance, and second, in the Comelec, the time gap between
the alleged illegal proclamation of November 20, 1967 and the petition before
the Comelec of January 6, 1968 does not authorize this Court to say that
respondent Alim Balindong is guilty of laches. (Aguam vs. Commission on
Elections, 23 SCRA 883 [1968], Sanchez, J.).

§18. Boards of Canvassers may suspend the canvass
only if it should clearly appear:  (1)
that another copy or other authentic copies of the statement of the election
return from an election precinct submitted to the board give to a candidate a
different number of votes and the difference affects the result of the
election; or (2) that there is a difference between the votes of the same
candidate written in words and those written in figures in the same election
return; or (3) that the entry of votes in the election return is on its face
clearly falsified; or (4) that it is not legible.  In this case, Precinct No. 5 does not come
under any of these situations.

 

The allegation that the canvass and
proclamation made by the board of canvassers is based on a falsified or altered
election returns is insufficient to characterize the returns as falsified or
altered or to authorize the ex parte annulment of said canvass and
proclamation when the allegation is predicated merely upon “a tabulation of the
election result as per election returns submitted x x x to the
Liberal Party President.”

 

Where a candidate files an election
protest assailing the proclamation of his opponent and prays that he (the
former) be declared elected, the question whether the election returns reflect
the true result of the elections should be elucidated and decided in said
election protest, not in another proceeding, either administrative or judicial
in character.

 

Under Section 154 of the Revised Election
Code, if one of the members of the board of inspectors object or does not
agree, the proceedings under said section being non-contentious in character, a
petition for correction of the election return would not prosper without notice
to the adverse party. (Felix vs. 
Commission on Elections, 23 SCRA 1288 [1968], Concepcion, C.J.).

 

§19. Proclamation is but a
formal act to confirm the canvass previously held.  It is just a ceremony which follows canvass
as a matter of course. (Pacis vs. Commission on Elections, 25 SCRA 377
[1968], Sanchez, J.).

                       

§20. It is well settled that
the question whether certain returns are falsified or have been tampered with
and should not be included in the canvass, must first be raised before the
board of canvassers, subject to appeal from its decision to the Comelec.  Where petitioner does not do so and instead
took it up directly with the Comelec, in violation of the explicit provision of
Section 163, R.A. No. 180, as amended, will cause the dismissal of the petition.  (Moore vs. Commission on Elections, 31
SCRA 60 [1970], Per Curiam).

 

§21. Canvass proceedings are
administrative and summary in nature, and a strong prima facie case
backed up by a specific offer of the evidence and indication of its nature and
importance has to be made out to warrant the reception of evidence aliunde and
the presentation of witnesses and the delays necessarily entailed thereby.  Otherwise, the paralyzation of canvassing and
proclamation proceedings leading to a vacuum in government offices could easily
be brought about. (Ilarde vs. Commission on Elections, 31 SCRA 72 [1970], Per
Curiam).

 

§22. The function of a canvassing board in the
canvass of the returns is purely ministerial in nature.  Equally ministerial, therefore, is the function
of the Commission on Elections, in the exercise of its supervisory power over
said Board, pursuant to our Constitution and laws.  So long as the election returns have been
accomplished in due form, the Board, and on appeal therefrom, the Commission on
Elections, must include said returns in the canvass.

 

In the exercise of its appellate jurisdiction the
Commission on Elections cannot take up any question not originally set up
before the Board of Canvassers. (Lucman vs. Dimaporo,
33 SCRA 387 [1970], Concepcion, C.J.).

 

§23. The COMELEC in a pre-proclamation
controversy does not commit a grave abuse of discretion in authorizing the
proclamation of two candidates for the provincial board where the results of
the pending examination of 164 questioned precincts cannot conceivably alter
the winner status of said proclaimed candidates.

 

 Petitioners’
contention that under the Comelec’s instructions to the canvassing board, the
duty to object to the election returns during the canvass and to appeal to the
Comelec from the adverse ruling of the canvassing board is imposed on the
“losing party” which could not apply to them as they were the prevailing party
in the canvassing ingeniously disregards the clear text and mandate of such
instructions that a party who challenges any return during the canvass must
duly interpose his objection and that the “adverse party” who is aggrieved by
the board’s ruling — not necessarily the “losing party” has the duty of
appealing the board’s ruling to Comelec.

 

The question whether certain returns are falsified
or have been tampered with and should not be included in the canvass, must
first be raised before the board of canvassers, subject to appeal from its
decision to the Comelec.  Any question
not originally set up before said board cannot legally be raised before the
Commission in the exercise of its appellate jurisdiction. (Anni vs. Rasul, 46 SCRA 758 
[1972], Teehankee, J.).

           

§24. Pendency of a
disqualification case before the COMELEC will not justify suspension of
proclamation of a candidate after winning the election. (Singco vs.
Commission on Elections, 101 SCRA 420 [1980], De Castro, J.).

§25. A petition which asks for
nullification of a Board of Canvassers’ proclamation cannot limit itself to the
nullification of the proclamation of one candidate only.

 

Partial or advance proclamation of any winning
candidate under Sec. 56 of B.P. 697 refers to absence of any proclamation by
the Board of Canvassers, not where all winning candidates had been proclaimed.

 

The time to object to an election return is when it
is still being examined by the Board of Canvassers, not after it has proclaimed
the winners.

 

Resort to general objections have long been
proscribed by this Court.  Such cannot
justify the exclusion of election returns from the canvass.  Otherwise, the paralyzation of canvassing and
proclamation proceedings leading to a vacuum in government offices could easily
be brought about (Ilarde vs. COMELEC, G.R. No. 31446, Jan. 23, 1970, 31
SCRA 72, 81). (Guiao vs. Commission on Elections, 137
SCRA 356  [1985], Alampay, J.).

 

§26. The letter having
clearly referred also to transfer of “the venue of the canvass,” petitioners
cannot justifiably claim that notice was lacking or that said notice was meant
only for the transfer of election returns. 
If petitioners’ representatives were absent during the canvassing it was
because they had opted to leave the proceedings for reasons of their own.  No grave abuse of discretion can be
attributed to the COMELEC, therefore, in upholding the validity of the
canvassing at its Main Office.

 

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 or 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 (Section 5[m], Rule 131).  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 or false and consequently should be
disregarded in the canvass must be approached with extreme caution, and only
upon the most convincing proof.

 

Nor can COMELEC be faulted for merely
requiring the parties to submit their respective Memoranda in support of their
respective positions.  The requirement
under Section 246 of the Omnibus Election Code is that the parties be notified
and heard.  Petitioners were so
notified.  They were also given an
opportunity to submit evidence in support of their allegations.  They were required to submit a Memorandum in
amplification of their position.  Such
procedure is fair, valid and acceptable and is consistent with the summary
character of proceedings in election cases. 
As held in Alonto vs. COMELEC (22 SCRA 878), the policy of
election laws is that pre-proclamation cases should be summarily decided,
consistent with the law’s desire that the canvass and proclamation be delayed
as little as possible.

 

Finally, it must be stressed that
private respondent Rosalino Riguera and the other winning candidates had
already been proclaimed and had assumed office. 
The Petitions below had ceased to be pre-proclamation
controversies.  As held in Padilla vs.
COMELEC (137 SCRA 424) and in a number of cases, a pre-proclamation
controversy is no longer viable at this point of time and should be dismissed,
the proper remedy being an electoral protest before the proper forum.  Instead of the submission of mere affidavits,
the parties would be able to present witnesses subject to the right of
confrontation.  Recourse to such a remedy
would settle the matters in controversy conclusively and once and for all. (Casimiro vs. Commission on Elections, 171 SCRA 468
[1989], Melencio-Herrera, J.).

 

§27. DUREMDES’ proclamation having
been based on an incomplete canvass, no grave abuse of discretion can be
ascribed to the COMELEC for directing the Provincial Board of Canvassers of
Iloilo “to immediately reconvene and to include in the canvass of votes for
Vice-Governor the questioned/contested returns.”  All the votes cast in an election must be
considered because to disregard returns is in effect to disenfranchise the
voters (Mutuc vs. COMELEC, L-28517, February 21, 1968, 22 SCRA
662).  A canvass can not be reflective of
the true vote of the electorate unless all returns are considered and none is
omitted. (Duremdes vs. Commission on Election, 178 SCRA 746 [1989],
Melencio-       Herrera, J.).

 

§28. The inclusion or
exclusion in the canvass of certain election returns where votes allegedly cast
for Emeterio Larrazabal were counted for his wife is an issue appropriate in an
election contest and not in a pre-proclamation controversy.  And it is also immaterial that, as also
contended, the inclusion of such votes would affect the over-all results of the
election and swing it in his favor.  The
accepted rule is that as long as the returns appear to be authentic and duly
accomplished, the board of canvassers cannot look beyond them to verify allegations
of irregularities in the casting or the counting of the votes.  These issues cannot be resolved by the board
of canvassers.  A long line of decisions
has established the doctrine that the board of canvassers has only the ministerial
task of tallying the votes as reported in the election returns and cannot
exercise the judicial power of deciding an election contest. (Abella vs. Larrazabal, 180 SCRA 509
[1989], Cruz, J.).

 

§29. Petitioner may not claim
ignorance of the aforesaid provisions as these are matters directly affecting
his political fortune.  Consequently,
with or without notice, it was the duty of the petitioner and all candidates
for that matter to assign their watchers or representatives in the counting of
votes and canvassing of election returns in order to insure the sanctity and
purity of the ballots (Sabeniano vs. Comelec, 101 SCRA 289, 301).  It is a matter of judicial notice that the
candidates, their representatives and watchers station or deploy themselves
among the various voting and canvassing centers to watch the proceedings from
the first hour of voting through the counting of votes in the voting centers
until the completion of the canvassing of election returns so that they can
make of record in the minutes of the election committee and canvassing board
their objections or remarks regarding the conduct of the proceedings. (Quilala
vs. Commission on Elections, 188 SCRA 502 [1990], Paras, J.).

 

§30. The argument is devoid of
merit.  For one thing, records indicate
that respondent’s assumption of office was effected by a clerical error or
simple mathematical mistake in the addition of votes and not through the
legitimate will of the electorate.  Thus,
respondent’s proclamation was flawed right from the very beginning.  Having been based on a faulty tabulation,
there can be no valid proclamation to speak of insofar as respondent Castillo
is concerned.  (Tatlonghari vs.
Commission on Elections, 199 SCRA 849 [1991], Bidin, J.).

 

§31. In the case at bar,
when the proclamation was made by the BOARD on 31 January 1988, there was no pending
appeal filed by petitioners before the COMELEC from the rulings made by the
BOARD on their objections to election returns rendered on 29, 30 and 31, 1988
(Annexes B to B-17, Petition).  The
“Appeal” and “Appeal Memorandum,” docketed as SPC Nos. 88-490 and 88-506,
respectively, which appealed to the COMELEC the rulings of the BOARD denying
petitioners’ objections to election returns were filed by them only on 1
February 1988, after the proclamation of private respondents had been made by
the BOARD on 31 January 1988.  What was
filed by petitioners on 30 January 1988, before the proclamation, was a
petition seeking merely to restrain the canvass and proclamation or suspend the
effects of any proclamation.  This
petition, however, is clearly not the appeal referred to in Section 245 that
will operate to bar the BOARD from making any proclamation of the winning
candidates without authority from the COMELEC after the latter has ruled on the
objections elevated to it on appeal. 
Consequently, there was no legal impediment to the proclamation of
private respondents by the BOARD on 31 January 1988.  In dismissing the Suspension of Proclamation
Case (SPC No. 88-453), the First Division also disposed of the other petition filed
in the same case by petitioners on 9 February 1988, praying that the
proclamation made by the BOARD be declared null and void ab initio. As
pointed out earlier, however, the proclamation was validly done by the BOARD
since this is not an instance calling for the application of Section 245.  Moreover, it is well settled that after the
proclamation of the winning candidates, a pre-proclamation controversy ceases
and is no longer viable at this point and should be dismissed, the proper
remedy of the aggrieved party being an election protest.

 

While the aforesaid grounds may, indeed,
involve a violation of the rules governing the preparation and delivery of
election returns for canvassing, they do not necessarily affect the
authenticity and genuineness of the subject election returns as to warrant
their exclusion from the canvassing.  The
grounds for objection to the election returns made by petitioners are clearly
defects in form insufficient to support a conclusion that the election returns
were tampered with or spurious.  “A
conclusion that an election return is obviously manufactured or false and
consequently should be disregarded in the canvass must be approached with
extreme caution and only upon the most convincing proof” (Estrada vs.
Navarro, L-28340, 29 December 1967, 21 SCRA 1514).  It is only when the election returns are
palpably irregular that they may be rejected (Mutuc vs. Commission on
Elections, L-28517, 21 February 1968, 22 SCRA 662).  On the basis of formal defects alone, such
palpable irregularity can not be said to have been established herein.

 

Petitioners also assail the dismissal of
their petitions by the COMELEC without hearing. 
Suffice it to cite the ruling in Ilarde vs. Commission on Elections
(L-31446, 23 January 1970, 31 SCRA 72) that “canvass proceedings are administrative
and summary in nature, and a strong prima facie case backed up by a
specific offer of the evidence and indication of its nature and importance has
to be made out to warrant the reception of evidence aliunde and the
presentation of witnesses and the delays necessarily entailed thereby.  Otherwise, the paralyzation of canvassing and
proclamation leading to a vacuum in an important office could easily be brought
about.”  In their case before us, the
petitions and appeals filed by petitioners in their pre-proclamation cases
before the COMELEC did not even point prima facie to a tampering of
election returns, nor to returns with patent erasures and superimpositions, but
merely raised objections based on defects that are, at best, formal in
nature.  The COMELEC, therefore, did not
gravely abuse its discretion in concluding that in the absence of genuine
pre-proclamation issues a full-blown hearing was rendered unnecessary. (Baterina vs. Commission on Elections,
205 SCRA 1 [1992], Melencio-Herrera, J.).

 

§32. It is settled that an
incomplete canvass of votes is illegal and cannot be the basis of a valid
proclamation.  All the votes cast in the
election must be counted and all the returns presented to the board must be
considered, as the disregard of some returns would in effect disenfranchise the
voters affected.  A canvass cannot be
reflective of the true vote of the electorate unless all the returns are
considered. (Samad vs.
Commission on Elections, 224 SCRA 631 [1993], Cruz, J.).

 

§33. Where, as in this case,
the proclamation is null and void, the same is no proclamation at all and the
proclaimed candidate’s assumption of office does not deprive the COMELEC of the
power to declare such nullity and annul the proclamation. (Benito vs. Commission
on Elections, 235 SCRA 436 [1994], Kapunan, J.).

                       

§34. To go by the explanation
as proposed by the petitioner would be tantamount to tolerating and licensing
boards of canvassers to “make an erroneous proclamation” and still be
exculpated by just putting up the inexcusable defense that the “foul-up
resulted from the erroneous arrangement of the names of candidates” in one
municipality or that “the basis of their proclamation was the erroneous ranking
made by the tabulation committee.”  That
would be a neat apology for allowing the board to be careless in their
important task by simply claiming that they cannot be held liable because they
did their “duty” of proclaiming the winning candidates on the basis of
the certificate of canvass¾even
“erroneous” certificates – which they made. 
(Agujetas vs. Court of Appeals, 261 SCRA 17 [1996], Torres, Jr., J.).

 

§35. The
two requisites for the application of the three-term rule are absent.  First, the petitioner cannot be considered as
having been duly elected to the post in the May 1995 elections, and second, the
petitioner did not fully serve the 1995-1998 mayoral term by reason of
involuntary relinquishment of office. 
After a re-appreciation and revision of the contested ballots, the
COMELEC itself declared by final judgment that petitioner Lonzanida lost in the
May 1995 mayoral elections and his previous proclamation as winner was declared
null and void.  His assumption of office
as mayor cannot be deemed to have been by reason of a valid election but by reason
of a void proclamation.  It has been
repeatedly held by this court that a proclamation subsequently declared void is
no proclamation at all and while a proclaimed candidate may assume office on
the strength of the proclamation of the Board of Canvassers he is only a
presumptive winner who assumes office subject to the final outcome of the
election protest.  Petitioner Lonzanida
did not serve a term as mayor of San Antonio, Zambales from May 1995 to March
1998 because he was not duly elected to the post; he merely assumed office as
presumptive winner, which presumption was later overturned by the COMELEC when
it decided with finality that Lonzanida lost in the May 1995 mayoral elections.
(Lonzanida vs. Commission on Elections, 311 SCRA 602 [1999], Gonzaga-Reyes,
J.).

 

§36. An
incomplete canvass of votes is illegal and cannot be the basis of a subsequent
proclamation.  A canvass cannot be
reflective of the true vote of the electorate unless all returns are considered
and none is omitted.  However, this is true
only where the election returns missing or not counted will affect the results
of the election.  It bears stressing that
in the case at bar, the COMELEC has categorically found that the election
returns which were not counted by respondent canvassers represented only 4,400
votes.  To be sure, this number will not
affect the result of the election considering that Lanot’s lead over petitioner
was already 17,971 votes. (Caruncho
III vs. Commission on Elections, 315 SCRA 693 [1999], Ynarez-Santiago, J.).

§37. 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, Section 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. (Perez vs. Commission on Elections, 317
SCRA 641 [1999], Mendoza, J.).

§38. The mere pendency of a disqualification case
against a candidate, and a winning candidate at that, does not justify the
suspension of his proclamation after winning in the election.  To hold otherwise would unduly encourage the
filing of baseless and malicious petitions for disqualification if only to
effect the suspension of the proclamation of the winning candidate, not only to
his damage and prejudice but also to the defeat of the sovereign will of the
electorate, and for the undue benefit of undeserving third parties.
(Bagatsing vs. Commission on Elections, 320 SCRA 220 [1999], Kapunan, J.).

§39. At the time the proclamation was made, the COMELEC
had not yet resolved the Petition for Canvassing of Votes and Petition for
Special Elections filed on May 22, 1998. 
Pursuant to Sections 245 and 238 of the Omnibus Election Code, the Board
of Canvassers should not have proclaimed any candidate absent the authorization
from the COMELEC.  Any proclamation made
under such circumstances is void ab initio.

An incomplete canvass of votes is illegal and cannot be the basis of
a subsequent proclamation.  A canvass
cannot be reflective of the true vote of the electorate unless all returns are
considered and none is omitted.  This is
true when the election returns missing or not counted will affect the results
of the election. (Immam vs. Commission on Elections, 322 SCRA 866 [2000],
Ynares-Santiago, J.).

 

3. Recount of votes

 

§1. A
protest under oath, alleging facts sufficient to establish that illegal votes
were cast and counted for the respondent, which is sufficient, if rejected, to
change the election, makes a prima facie case under the Election Law for
the opening of the ballot boxes and the recounting of the ballots.

Where
allegations are made by one of the respondents charging fraud and misconduct in
a particular precinct not mentioned in the protest and in which the ballots had
not been ordered recounted, and showing that illegal ballots had been voted and
counted for the protestant, and praying that the ballot boxes of that precinct
be opened and the ballots recounted, and the judge hears evidence presented by
the parties relative to said allegations and finds such evidence insufficient
to sustain the allegations and enters judgment denying the application to open
the ballot boxes and recount the ballots of said precinct, such judgment will
not be disturbed by this court unless it is shown to be against the fair
preponderance of the evidence. (Manalo vs. Sevilla, 24 Phil. 609 [1913],
More-land, J.).

§2. Upon
an issue properly presented by the motion of protest, it is the mandatory duty
of the Court of First Instance not only to permit but to order all of the
ballots used at the election to be examined, and to hear proof with reference
to the legality of the questioned ballots. (De la Merced vs. Revilla and
Camacho, 40 Phil. 190 [1919], Johnson, J.).

§3. Where
the conservation of the boxes is prima facie shown and their
contents are found intact upon being opened according to law, the ballots
themselves become the best evidence of the votes cast; and it is the duty of
the court to determine the contest, so far as dependent upon the count, by the
proof afforded by the ballots. (Lucero vs. De Guzman, 45 Phil. 852 [1924],
Street, J.).

§4. Where
in the motion of protest certain irregularities committed by the election
inspectors in the count of the votes are alleged, this constitutes sufficient
ground for the opening of the ballot boxes and the examination of the
questioned ballots.  (Cecilio vs.
Belmonte, 48 Phil. 243 [1925], Villamor, J.).

§5. It is a well settled rule in election contests that
when the protest alleges that the election officers have improperly judged the
ballots, the latter constitute the best proof and the court must examine them
in order to determine the claim of the protestant, unless the same shall have
been substituted after the election or altered in any manner, for then they lose
their probatory value and the election returns must prevail. (Mandac vs.
Samonte, 49 Phil. 284 [1926], Villamor, J.).

 

§6. The recount of the votes cast in a given precinct
when “another copy or other authentic copies of the statement from an election
precinct submitted to the board gives a candidate a different number of votes
and the difference affects the result of the election         * * *, “authorized under Section 168,
in relation to Section 163 of Republic Act No. 180, must be made by the Court
of First Instance itself, not by the Board of Canvassers, and is “for the sole
purpose of determining,” not who is the elected candidate, but “which is the
true statement or which is the true result of the count of the votes cast” in
the precinct in question.  The
aforementioned sections are inapplicable where the alleged conflicts exist
between the election returns, or statements of the count alluded to in Section
150 of said Act, on one hand, and the certificate mentioned in Section 153
thereof, on the other. (Samson vs. Estenzo, 106 Phil. 1140 [1960],
Concepcion, J.).

 

§7. The election return for Precinct 2-A in the instant
case which is in possession of the municipal treasurer which was submitted to
the municipal board of canvassers, appears not only to contain discrepancies on
its face but is in conflict with the entries appearing in the election returns
for the same precinct in possession of the provincial treasurer and of the Commission
on Elections.  A motion for correction,
or, in the alternative, for recount, was filed not only by the chairman and
poll clerk, but also by the candidate affected. 
Under Section 168 of the Revised Election Code, the court of first
instance should have granted the motion for recount.

 

The proceeding in a recounting of votes is summary in nature, and
merely consists in the mathematical counting of the votes received by each
candidate.  It does not involve any
appreciation of the ballots or determination of their validity as is required
in an election contest.  The only purpose
of the recount is to count the number of votes received by each candidate as
they appear on the face of the ballots. (Cawa vs. Del Rosario, 108 Phil. 520
[1960], Bautista Angelo, J.).

 

§8. The Provincial Board of
Canvassers is charged by law (Sec. 160, Republic Act No. 180) with the duty to
make a canvass, not of the “election returns” for each precinct, but “of all
the votes cast in the province for national, provincial and city candidates”,
and such duty is complied with until: (1) “upon completion of the canvass * * *
separate statements of all the votes received” by said candidates shall have
been made; and (2) the board shall have proclaimed, in accordance with said
statements, “who has been elected to the House of Representatives from each
legislative district and who has been elected to each provincial and city
office.

 

The correction mentioned in Section 162
and that which may be required by the result of the recount authorized in
Section 163, can only take place after the corresponding election return has
been examined by the board of canvassers. (Gumpal vs. Arranz, 110 Phil. 287
[1960], Concepcion, J.).

 

§9. Where there exists
discrepancy between the number written in words and the corresponding figures
in the statement of an election returns, the Court of First Instance is
empowered by law to recount the votes cast in the precincts concerned in order
to determine which number should be followed by the Board of Canvassers  (Parlade vs. Quicho, et al., G.R. No.
L-16259, December 29, 1959. (Lim vs. Maglanoc, 112 Phil. 1087 [1961]; 2 SCRA
1189 [1961], Paredes, J.).

 

§10. The authority given to a
Court of First Instance to allow the recount of votes under Section 163 of the
Revised Election Code is restrictive in nature. 
The law is explicit that the proceeding is summary in character and
merely consists in the mathematical counting of the votes received by each
candidate.  It does not involve any
appreciation of the ballots or determination of their validity as is required
in an election contest.  Its only purpose
is to count the number of votes as they appear in the face of the ballots. (Albano
vs. Provincial Board of Canvassers of Isabela, 115 Phil. 6 [1962]; 5 SCRA 13
[1962], Bautista Angelo, J.).

 

§11. The discrepancy in number
of votes mentioned in Section 163 of the Revised Election Code, which would
justify a recount, has reference to the number of votes appearing in different
copies of the election returns required by Section 150, and not to the
discrepancy between the election returns and any certificate given by the board
of inspectors to the watchers who may request them under Section 153 (Parlade,
et al., vs. Quicho, et al., G.R. No. L-16259, December 29, 1959). (Villacarlos
vs. Jimenez, 116 Phil. 1254 [1962]; 6 SCRA 966 [1962], Makalintal, J.).

 

§12. Where the proclamation of
an elected councilor is disputed, and there being a discrepancy between the
election return and the report of the precinct board of inspectors submitted to
the municipal treasurer, the controversy comes under the provisions of Section
168 in connection with Section 163 of the Revised Election Code and not under
the provisions of Section 174 of the same Code. (Nataño vs. Moya, 7 SCRA 529
[1963], Padilla, J.).

 

§13. When the motion of protest
contains sufficient allegations that frauds, errors and irregularities in the
count committed, and as long as they refer to the ballots involved in the
contested precincts, the trial court is justified in requiring the production
of said ballots even if the parties did not deem it necessary to present them
in evidence. (Conui-Omega vs. Samson, 9 SCRA 493
[1963], Bautista Angelo, J.).

§14. The clerical error in the
official copy of the election returns of a precinct in the possession of the
municipal treasurer having been properly shown in a hearing before a judge of a
court of first instance and all members of the board of inspectors and the poll
clerk of said precinct having asked for the correction, and said judge having
authorized the board of inspectors to make the correction, it is held
that the refusal of said trial court to require the recounting of the ballots
in said precinct was not improper. (Tango vs.
Alejandro, 119 Phil. 960 [1964]; 10 SCRA 682 [1964], Bengzon, C.J.).

§15. Where the alleged discrepancies
in the election returns of a precinct appear in a certificate of votes given to
a watcher of a candidate and in a certificate executed by a Constabulary
officer, it is held that said documents are not those which can be considered
authentic copies of the election returns, and that, consequently, the ruling of
the lower court that judicial recount was not warranted is correct. (Matanog vs. Alejandro, 11 SCRA 499 [1964], Paredes, J.).

§16. An alleged discrepancy between
the tally sheet or tally board and the election return does not constitute
sufficient ground for the Court of First Instance to order a recount for the
votes cast in the precinct affected, since said sheet is not a copy of the
return.

A petition for judicial recount should be
denied where the petitioner is guilty of splitting a single cause of action by
filing separate proceedings for the correction of the returns and for the
recount of votes based on the same operative facts.  (Lawsin vs. Escalona,
11 SCRA 643 [1964], Reyes, J.B.L., J.).

§17. A candidate affected can file a
petition for recount alone, without the concurrence of the provincial board of
canvassers  (Cawa vs. Del Rosario,
L-16837-40, May 30, 1960).  From the
fact, therefore, that the provincial board of canvassers has not petitioned for
a recount, it cannot be inferred that they were not convinced a discrepancy
existed.

The
Commission on Elections’ copies of election returns are authentic copies within
the meaning of Section 163 of the Revised Election Code (Lawsin vs. Escalona,
L-22540, July 31, 1964; Matanog vs. Alejandro, L-22502-03, June 30,
1964). 

Where, as in the case at bar, there were
patent erasures and superimpositions in words and figures on the face of the
election returns submitted to the board of canvassers, it was imperative for
said board to stop the canvass so as to allow time for verification of
authentic copies and recourse to the courts 
(Javier vs. Commission on Elections, L-22248, January 30,
1965).  A canvass or proclamation made
notwithstanding such patent defects, without awaiting proper remedies, is null
and void  (Ibid.).

 

Where a candidate was prevented from securing the
Commission on Elections’ copies of the returns to establish a discrepancy
between them and the Provincial Treasurer’s copies, the failure to submit the
said copies to the board should not prejudice his right to petition for recount
before the court.

 

Patent erasures and superimpositions in words and
figures of the votes stated in the election returns strike at the reliability
of said returns as basis for canvass and proclamation.  A comparison with the other copies, and, in
case of discrepancy, a recount, is the only way to remove grave doubts as to
the correctness of said returns as well as of ascertaining that they reflect
the will of the people. (Purisima vs. Salanga, 122
Phil. 1084 [1965]; 15 SCRA 704 [1965], Bengzon, J.P., J.).

 

§18. It is now settled
doctrine that the discrepancy which justifies a judicial recount is such only
as appears in the different copies of the election returns required to be
accomplished by Section 150.  Section 163
should be construed restrictively because of the special nature of the
authority conferred therein, and because otherwise that authority would be
utilized to delay the proclamation of the winning candidate to beyond the date
set for the beginning of the term of office in the position involved.
Therefore, the discrepancy between a copy of the election returns in the hands
of the provincial treasurer and another copy of the same returns given to one of
the major political parties is not a discrepancy which justifies a judicial
recount.

 

Additional copies of election returns in the hands
of the major political parties may have the general salutary effect of
discouraging attempts to tamper with the copies required by the Code owing to
the greater probability of detection of irregularities.  However, they cannot serve as a legal basis
for comparison with any of those prescribed by the Code for the purpose of a
judicial recount. (Calo vs. Enage, 21 SCRA 1416 [1967],
Castro, J.).

 

§19. While the Comelec in its
role as senatorial canvasser has the power to reject returns before it which in
its opinion were illegal and not authentic, neither law nor precedent
authorizes it to impose the same criterion in advance upon the
provincial boards of canvassers.  The
latter are entitled to use their own judgment in determining whether the
irregularities appearing on the returns before them warrant their rejection.  It must not be forgotten that the copies of
the returns upon which the provincial canvassers act are different from
those in the possession of the Comelec, and the irregularities noted in the
latter may not necessarily exist in the former. 
Should there be any discrepancy between the official copies, the petitioners
can recourse to a judicial recount under Section 163 of the Election Law.  But certainly, an a priori rejection
on the basis of previous Comelec action is not justifiable. (Alonto vs.
Commission on Elections, 22 SCRA 878 [1968], Reyes, J.B.L., J.).

 

§20. Where the discrepancy
between the different copies of the return consists of only one (1) vote which
would not materially affect the result of the election for the contested
office, the lower court correctly held that a judicial recount was not in order.  Under Section 163 of the Revised Election
Code, the difference must really be such as to affect the result of the
election in order to justify a judicial recount. (Dizon vs. Tizon, 22 SCRA
1311 [1968], Makalintal, J.).

                       

§21. Section 163 of the Revised
Election Code confers on a judge of First Instance a special authority to
recount votes.  A judge of First Instance
under Section 163 of the Election Code is called upon to perform a duty
specially conferred by law separate and apart from the general exercise of
jurisdiction set forth in the Judiciary Act of 1948, as amended, and only as a
step in the election process leading to canvass and proclamation.  The findings of the judge under said section
are not by any means conclusive in an election contest.  Recount does not in itself involve a decision
in a judicial controversy.  In fact,
there is no appeal from the findings and conclusions reached at a recount.  The special authority to recount is aimed at
delaying as little as possible proclamation of a winning candidate (Ong v.
Etcubañez, L-28415, Jan. 29, 1968, etc.). 
The special authority to recount is restrictively construed.  The judge’s duty is limited to the recount of
the votes as the statute prescribes — not the appreciation of ballots which “is
proper in an election contest after proclamation”  (Ong v. Etcubañez, supra).  He is not to exercise discretion as to the
validity of the ballots cast.  Ballot
appreciation and validity of ballots are matters proper in a full-dress
election protest, after proclamation of the winning candidate.  He must promptly perform his task,
particularly where the district affected is without any representation in
Congress. (Sanidad vs. Saquing, 23 SCRA 878 [1968], Per Curiam).

 

§22. The resolution of the
Commission on Elections ignoring the issue of tampering and authorizing the
recanvass runs counter to the rulings in Espino v. Zaldivar, L-22325,
Dec. 11, 1967, and Ong v. Commission on Elections, L-28415, January 29,
1968, that a resort to judicial recount may not be invoked where, as in the
present case, the returns have been tampered with after they have left the
hands of the election inspectors because a falsified return or spurious return
amounts to no return at all. (French vs. Commission on Elections, 24 SCRA 23
[1968], Reyes, J.B.L., J.).

 

§23. A judicial recount of
votes will only be directed by the courts in cases of contradictions or
discrepancies between the copies or “other authentic copies” of the statement
or return from an election precinct, or when the entry of votes in return on
its face is clearly falsified, such that the difference in the number of votes
will affect the result of the election (Parlade v. Quicho, et al.,
L-16259, Dec. 29, 1959, etc.).  The
existence of erasures or apparent superimpositions or alterations on one of the
four copies does not by itself alone justify judicial recount.  If they are susceptible of reasonable
explanation, and do not constitute contradictions or discrepancies with what
appear in the other copies, this remedy is not available.  If anything they may be evidence of fraud,
which must be ventilated in an election protest, not in the summary proceeding
envisioned in Section 163 of the Election Code. (Navarro vs. Tizon, 24 SCRA
374 [1968], Makalintal, J.).

 

§24. Where election returns
have been tampered with, the remedy is with the Comelec and not a judicial
recount with the court of first instance. (Pacis vs. Commission on
Elections, 25 SCRA 377 [1968], Sanchez, J.).

 

§25. A petition for judicial
correction of the returns is a privilege left to the members of the board of
inspectors themselves.  More than this,
“unanimous consent of all the members of the board” is required to effect
correction.  Courts may not coerce
inspectors to file petitions for correction. It is a distinct remedy, unrelated
to the investigatory procedure for tampered returns before the Comelec.

 

It would seem that the only reliable and
untampered documents reflecting the results of the election in Precinct 8 are
the certificates of votes of candidates issued to the watchers.  But said certificates certainly cannot serve
as returns for canvassing purposes. 
Judicial recount cannot legally be made either.  Under Sec. 168, in relation to Sec. 163, of
the Revised Election Code, such remedy is possible only “in case of
contradictions or discrepancies between the copies of the same statements.”
And, jurisprudence that has already taken root is that said discrepancies must
appear amongst the authentic returns, not tampered returns.

 

 Election returns should be maintained
inviolate.  Once the return is made and
the certificates of votes of candidates are issued, no one, not even the
inspectors themselves, may make any change without authority.  The fortunes of the candidates for a given
position should not be placed at the whim of the inspectors, or any person for
that matter.  Because, the candidates’
fate depends in a great measure upon the election return preserved and
unsullied, and unspoiled by hands of man. 
Tampering, falsification, spoliation of returns or making spurious
returns must have to be discouraged. (Balindong vs. Commission on Elections,
27 SCRA 567 [1969], Sanchez, J.).

 

§26. Where there was
discrepancy between the figures and words appearing in the election return
which conflict or discrepancy would materially affect the result of the
election, and there was no showing of alteration or falsification committed on
the said statement or return, the case clearly calls for a judicial recount
pursuant to Section 163, in relation to Section 168, of the Revised Election
Code (Ong vs. Comelec, L-28415, Jan. 29, 1968, 22 SCRA 241; also Espino
v. Zaldivar, L-22325, Dec. 11, 1967, 21 SCRA 1204). (Binging Ho vs. Mun.
Board of Canvassers of Bongao, Sulu, 28 SCRA 829 [1969], Reyes, J.B.L., J.).

 

§27. The authority of the
Court of First Instance under Section 163 of the Revised Election Code to order
a recount is preconditioned upon, first, the averment that a discrepancy
exists between two or more genuine returns; second, the alleged
discrepancy being brought to the attention of the board of canvassers; third,
the board of canvassers ruling that such a discrepancy in the authentic
copies of the returns exists; and fourth, the difference in the number
of votes which affects the result of the election. (Abrigo vs. Commission on
Elections, 31 SCRA 26 [1970], Sanchez, J.).

 

§28. On the contrary, in
providing under Sections 188 and 190 of the said law for the tallying on the
election return itself of the votes of the candidates in the manner therein
prescribed, it is obvious that the legislature intended to provide an
additional safeguard against the tampering of the results of an election by
means of altering the entry of the votes in words and in figures in the return.

 

In order that the tally in the return may
be used as a basis for judicial recount, it is imperative that the same must be
closed by the signatures of the inspectors as required by Section 190 of the
Election Law. (Respicio vs. Cusi, Jr., 44 SCRA 392 [1972], Barredo, J.).

 

§29. Absence of proof that
the questioned flying voters had actually cast their votes, a recount of the
ballots is proper to determine the true will of the electorate. (Aleman vs. Genato, 133 SCRA 797 [1984],
Melencio-Herrera, J.).

 

§30. Since there was no
counting of the votes of Precinct No. 7, no valid election returns could be
made and any copy of election returns purporting to come therefrom is a
fabrication. A recount thereof, which presupposes a prior count, would
obviously be unwarranted.
(Lucero vs. Commission on Elections, 234 SCRA 280 [1994], Davide, Jr.).

§31. We hold that respondent
COMELEC was correct in ordering the opening of the ballot box to recount the
votes cast for mayor in Precinct No. 22-A. x x x From the foregoing, it is
clear that a recount of votes is in order where a discrepancy exists between
the votes written in words or in figures. 
The recount merely consists in the mathematical counting of the votes
received by each candidate and it does not involve any appreciation of ballots
or the determination of their validity as is required in an election
contest.  The reason for this provision
is to offer a prompt relief to a simple controversy and to restore public
tranquility by dispelling all doubts as to the true and correct number of the
votes cast in a given polling place. 
That way, the chances whereby a candidate may grab a proclamation to
which he is not entitled to are minimized. (Olondriz, Jr., vs. Commission on
Elections, 313 SCRA 128 [1999], Kapunan, J.).

 
 

 

CHAPTER XIX
Pre-proclamation Controversy

  

 

§1. A
pre-proclamation controversy refers to “any question pertaining to or
affecting the proceedings of the board of canvassers which may be raised by
any candidate or by any registered political party or coalition of political
parties before the board or directly with the Commission, or any matter
raised under Sections 233, 234, 235 and 236 in relation to the preparation,
transmission, receipt, custody and appreciation of the election returns.” (Art.
XX, Omnibus Election Code).

           

2. Scope

 

§1. The
broad power of the Comelec, conferred upon it by the Constitution, to
enforce and administer “all laws relative to the conduct of elections” and to
decide all administrative questions affecting elections “for the purpose of
insuring free, orderly and honest elections,” has been the key in the
resolution of many pre-proclamation controversies involving the integrity and
authenticity of election returns. 
Invoking the aforestated power of the Comelec, we justified the action
and upheld the authority of the Comelec to order the exclusion of “obviously
manufactured” returns (Lagumbay vs. Climaco and Comelec, 16 SCRA 175),
or tampered returns (Cauton vs. Comelec and Sanidad, 19 SCRA 911), or
returns prepared under threats and coercion or under circumstances affecting
the returns’ integrity and authenticity (Pacis vs. Comelec, 25 SCRA 391;
Antonio, Jr. vs. Comelec, et al., 32 SCRA 319), emphasizing the
duty of the Comelec to see to the use and inclusion in the canvass of only
genuine and regular election returns for determining the true result of the
elections.  (Usman vs. Commission on
Elections, 42 SCRA 667 [1971], Castro, J.).

§2. Thus, it becomes clear
from the above rulings that respondent Commission on Elections has the power
and authority to inquire into the allegation of fake voters, with fake IDs,
fake identification slips in a pre-proclamation controversy in order to determine
the authenticity or integrity of the election returns or whether such election
returns faithfully record that only registered or genuine electors were allowed
to vote. 

 

While admittedly the Commission on
Elections has no jurisdiction over election contests involving municipal or
municipal offices (Sec. 190, 1978 Election Code), We must not lose sight of the
fact that the instant suit involved a pre-proclamation controversy filed by the
private respondent before the respondent Commission.  Indeed, it is immaterial if some of the
grounds adduced by the private respondent (petitioner therein) are grounds for
an election contest rather than grounds for a pre-proclamation controversy. (Olfato
vs. Commission on Elections, 103 SCRA 741 [1981], Makasiar, J.).

 

§3. The basic issue at
bar—which Sanchez himself avers in his petition as “a case of first
impression”—is whether his petition for recount and/or re-appreciation of
ballots filed with the Comelec may be considered a summary pre-proclamation
controversy falling within the Comelec’s exclusive jurisdiction (Sec. 242,
Omnibus Election Code) or properly pertains to the realm of election protest
falling within the exclusive jurisdiction of the Senate Electoral Tribunal as
“the sole judge of all contests relating to the election, returns and
qualification of the [Senate’s] members” (Art. VI, Sec. 17, Constitution).  Without prejudice to the issuance of an
extended opinion and after taking into consideration the applicable legal
provisions and the contentions of the contending candidates as well as the two
conflicting decisions of the Comelec, the Court rules that Sanchez’ petition
for recount and/or re-appreciation of the ballots cast in the senatorial
elections does not present a proper issue for a summary pre-proclamation
controversy.  Considerations of
definition, usage, doctrinal jurisprudence and public policy demand such a
ruling.

 

Sanchez anchors his petition for recount
and/or re-appreciation on Section 243, paragraph (b) of the Omnibus Election
Code in relation to Section 234 thereof with regard to material defects in
canvassed election returns.  He contends
that the canvassed returns discarding “Sanchez” votes as stray were
“incomplete” and therefore warrant a recount or re-appreciation of the ballots
under Section 234.  A simple reading of
the basic provisions of the cited section shows readily its
inapplicability.  By legal definition and
by the very instructions of the Comelec (Res. No. 1865, Sec. 6, promulgated on
March 11, 1987), an election return is incomplete if there is “omission
in the election returns of the name of any candidate and/or his corresponding
votes” (Sec. 234) or “in case the number of votes for a candidate has been
omitted”  (Sec. 6, Res. No. 1865).  Here, the election returns are complete
and indicate the name of Sanchez as well as the total number of votes
that were counted and appreciated as votes in his favor by the boards of
inspectors. The fact that some votes written solely as “Sanchez” were declared
stray votes because of the inspectors’ erroneous belief that Gil Sanchez had
not been disqualified as a candidate, involves an erroneous appreciation of the
ballots.  It is established by the law as
well as jurisprudence (the cited section being a substantial reproduction of
Section 172 of the 1978 Election Code and previous election laws) that errors
in the appreciation of ballots by the board of inspectors are proper subject
for election protest and not for recount or re-appreciation of the ballots.

 

The appreciation of the ballots cast in
the precincts is not a “proceeding of the board of canvassers” for purposes of
pre-proclamation proceedings under Section 241, Omnibus Election Code, but of
the boards of election inspectors who are called upon to count and appreciate
the votes in accordance with the rules of appreciation provided in Section 211,
Omnibus Election Code.  Otherwise stated,
the appreciation of ballots is not part of the proceedings of the board of
canvassers.  The function of ballots
appreciation is performed by the boards of election inspectors at the precinct
level.

 

The scope of pre-proclamation controversy
is limited to the issues enumerated under Sec. 243 of the Omnibus Election
Code.  The enumeration therein of the
issues that may be raised in pre-proclamation controversy, is restrictive and
exclusive.  In the absence of any clear
showing or proof that the election returns canvassed are incomplete or contain
material defects (Sec. 234), appear to have been tampered with, falsified or
prepared under duress (Sec. 235) and/or contain discrepancies in the votes
credited to any candidate, the difference of which affects the result of the
election (Sec. 236), which are the only instances where a pre-proclamation
recount may be resorted to, granted the preservation of the integrity of the
ballot box and its contents,  Sanchez’
petition must fail.  The complete
election returns whose authenticity is not in question, must be prima facie
considered valid for the purpose of canvassing the same and proclamation of the
winning candidates. 

 

To expand the issues beyond those
enumerated under Sec. 243 and allow a recount/reappreciation of votes in every
instance where a claim of misdeclaration of stray votes is made would open the
floodgates to such claims and paralyze canvass and proclamation proceedings,
given the propensity of the loser to demand a recount.  The law and public policy mandate that all
pre-proclamation controversies shall be heard summarily by the Commission after
due notice and hearing and just as summarily decided. (Sec. 246, Omnibus
Election Code).

 

The Court has always stressed as in Alonto
vs. Comelec (22 SCRA 878) that “the policy of the election law is that
pre-proclamation controversies should be summarily decided, consistent with the
law’s desire that the canvass and proclamation be delayed as little as
possible.  As declared in Abes, et al.
vs. Commission on Elections, L-28348, December 15, 1967, the powers of the
Comelec are essentially executive and administrative in nature, and the
question of whether or not there had been terrorism, vote buying and other
irregularities in the election should be ventilated in a regular election
protest, and the Commission on Elections is not the proper forum for deciding
such matters,” and that the Comelec and the courts should guard “both against
proclamation grabbing through tampered returns” and “the equally pernicious
effects of excessive delay of proclamations” and “attempts to paralyze
canvassing and proclamation.” To allow the recount here notwithstanding the
multifarious administrative and financial problems of conducting such a
recount, as enumerated by the Comelec in its two decisions—when now three
months after the elections the question of who is entitled to the 24th seat of
the Senate would remain unresolved for how long no one can tell—is unthinkable
and certainly contrary to public policy and the mandate of the law that the
results of the election be canvassed and reported immediately on the basis of
the authentic returns which must be accorded prima facie status as bona
fide reports of the votes cast for and obtained by the candidates. (Sanchez
vs. Commission on Elections, 153 SCRA 67 [1987], Per Curiam).

 

§4. “Indeed, errors in the
Statement of Votes do not indubitably appear to be issues that may be raised in
a pre-proclamation controversy under Section 243 of the Omnibus Election
Code.  In this respect, the law is silent
as to when the same may be raised.  We are,
however, not unmindful of the fact that the statement of votes supports the
certificate of canvass and shall be the basis of proclamation (Section 231,
paragraph 2).  Consequently, any error in
the Statement of Votes would affect the proclamation made on the basis
thereof.  The true will of the electorate
may thus be not fully and faithfully reflected by the proclamation.”

 

We find no grave abuse of discretion in
the foregoing COMELEC pronouncement.  The
Statement of Votes is a tabulation per precinct of the votes garnered by the
candidates as reflected in the election returns.  Its preparation is an administrative function
of the Board of Canvassers.  As pointed
out by the Solicitor General, “it is a purely mechanical act of the Board of
Canvassers in the performance of which the Commission has direct control and
supervision,” pursuant to Section 227 of the Omnibus Election Code.

 

By virtue of that power, added to its
over-all function to “decide all questions affecting elections” (Article IX [C]
Section 2[3], 1987 Constitution), a question pertaining to the proceedings of
said Board may be raised directly with the COMELEC as a pre-proclamation
controversy.

 

Cognizance may also be taken of the fact
that at the time PENAFLORIDA filed the Supplemental Petition on 20 June 1988,
there was no clear-cut rule on the matter. 
It was only in the COMELEC Rules of Procedure, which took effect on 15
November 1988, wherein it was provided under subparagraph  (2), paragraph (a), Section 4 of Rule 27,
that the matter of correction of the statement of votes may be the subject of a
pre-proclamation case which may be filed directly with the Commission.  Nonetheless, there should be no question,
considering the aforequoted Section 241 in relation to Section 227 of the Omnibus
Election Code, that the issue is one that can be raised directly with the
COMELEC.  It is a procedure that best
recommends itself specially considering that the Statement of Votes is a vital
component in the electoral process.  It
supports the Certificate of Canvass and is the basis for proclamation.

 

 DUREMDES also calls attention to Rule 13,
Section 1 (g) of the COMELEC Rules of Procedures, which does not allow the
filing of supplemental pleadings. As stated heretofore, however, these Rules
took effect only on 15 November 1988, or five months after the Supplemental
Petition was filed. Said rule, therefore, cannot be given retroactive effect
the legal truth being that laws of procedure may be retroactively applied
provided no substantial rights are impaired. (Duremdes vs. Commission on Elections, 178 SCRA 746
[1989], Melencio-Herrera, J.).

 

§5. We start by noting that
the Comelec (both Second Division and the Commission En Banc) correctly
emphasized that, under the regime of the Omnibus Election Code, pre-proclamation
controversies are properly limited to challenges directed against the Board of
Canvassers and proceedings before such Board of Canvassers, and not the Board
of Election Inspectors nor proceedings before such latter Board and that such
challenges should relate to particular election returns to which petitioner
should have made specific verbal objection subsequently confirmed in
writing.  In a pre-proclamation
controversy, it is axiomatic that the Comelec is not to look beyond or behind
election returns which are on their face regular and authentic returns.  A party seeking to raise issues resolution of
which would compel the Comelec to pierce the veil, so to speak, of election
returns prima facie regular, has his proper remedy in a regular election
protest.

 

By their nature, and given the obvious
public interest in the speedy determination of the results of elections, pre-proclamation
controversies are to be resolved in summary proceedings.  The delicate policy equilibrium here involved
was explained by the Court in the following terms in Alonto v. Commission on
Elections:  “[P]re-proclamation
controversies should be summarily decided, consistent with the law’s desire
that the canvass and proclamation be delayed as little as possible x x x [and
that the Comelec and the courts should guard both] against proclamation
grabbing through tampered returns as well as against attempts to paralyze
canvassing and proclamation in order to prolong hold-overs.”

 

Thus, in principle, the issues raised by
petitioner do constitute issues properly raised in pre-proclamation
controversies. That the assailed returns were “obviously manufactured” must,
however, be evident from the face of the election returns themselves.  In the case at bar, petitioner does not claim
that the election returns from Precincts Nos. 15 and 17 had not been made or
issued by the Board of Election Inspectors or that they had been manufactured
by some unknown third party or parties; petitioner does not, in other words,
claim that the returns themselves were not authentic.  What petitioner in effect contends is that
where election returns, though genuine or authentic in character, are
reflective of fraudulent acts done before or carried out by the Board of
Election Inspectors, the returns should be deemed as “obviously manufactured.”

 

That the padding of the List of Voters
may constitute fraud, or that the Board of Election Inspectors may have
fraudulently conspired in its preparation, would not be a valid basis for a
pre-proclamation controversy either. 
For, whenever irregularities, such as fraud, are asserted, the proper
course of action is an election protest. 
“Such irregularities as fraud, vote-buying and terrorism are proper
grounds in an election contest but may not as a rule be invoked to declare a
failure of election and to disenfranchise the greater number of the electorate
through the misdeeds, precisely, of only a relative few.  Otherwise, elections will never be carried
out with the resultant disenfranchisement of the innocent voters, for the
losers will always cry fraud and terrorism.”

 

Mere alphabetical and chronological voting
does not itself constitute sufficient evidence to establish fraud that would
justify the setting aside of election returns. 
As counsel for appellant had occasion to assert in Lucman v. Dimaporo,
SPC No. 87-190, October 15, 1987, ‘[I]t 
is unfair to conclude that alphabetical voting is indicative of fraud.’
And ‘[I]n some precincts of Lanao, alphabetical voting is imposed to promote
an orderly election.’  We do not make
such factual finding here.  But the
evidence is ambiguous and is susceptible of several interpretations.  For this reason, we are bound by the
presumption of regularity in the performance of official functions.”

 

Petitioner’s complaints about supposed
irregularities involving illiterate voters appear to assume that it is improper
or unlawful for a third person, e.g., the assistor who had helped the
illiterate to cast his vote, to write the name of the assisted illiterate in
the voting record.  As the Comelec
pointed out, however, the proper procedure for indicating that illiterate
voters have cast their votes has not been specifically set out in the Omnibus
Election Code. (Dipatuan vs.
Commission on Elections, 185 SCRA 86 [1990],                   Feliciano, J.).

 

§6. As We said earlier, SPA
No. 92-282 does not solely involve pre-proclamation controversies.  On its face, only the following appear
to be pre-proclamation issues: (a) suspension of proclamation, (b) correction
of the certificate of canvass of Las Navas, (c) recount of votes for
Representative in the 52 precincts enumerated therein because the votes for
“Lucero” were declared stray votes when they should have been credited to the
private respondent, since the other candidate, Alice D. Lucero, was
disqualified as a substitute for one Jesus C. Laodemio who had earlier
withdrawn his candidacy, and (d) the recount of votes in Precincts Nos. 7 and
16.  Over these pre-proclamation issues,
the COMELEC, sitting en banc, has no original jurisdiction.  Accordingly, we correctly voided its Order of
June 2, 1992.  However, as to the
Resolution of June 13, 1992, our ruling thereon may be modified insofar as the
matter of special election in Precinct No. 13 of Silvino Lobos is concerned
since the calling or holding thereof is within the original jurisdiction of the
COMELEC, sitting en banc. (Ong, Jr. vs. Commission on
Elections, 221 SCRA 475 [1993], Romero, J.).

 

§7. Invoking Section 234 of
the Omnibus Election Code, petitioner claims that a recount or reopening of the
ballot boxes is necessary, considering that in some election returns her name
was omitted and that of her father was not deleted.  She argues that it would be difficult to
determine which votes should be credited in her favor by a mere recanvass.  At the outset, petitioner’s prayer for a
reopening of the ballots is not a proper issue for a pre-proclamation
controversy.  The issues raised by
petitioner should be threshed out in election protest.  The case of Chavez v. Comelec, 211
SCRA 315 (1992), citing Sanchez v. Comelec, 153 SCRA 67 (1987) is quite
instructive on the matter.

 

We cannot over-emphasize the public policy
involved in the rule that pre-proclamation controversies shall be resolved in
summary proceedings.  The public interest
requires that: “xxx that the position for the filling of which the election was
held should be filled as promptly as possible, even if the proclamation of the
winning candidates be provisional in nature, in the sense that such would be
subject to the results of the election protest or protests that may be expected
to be filed.  The Court is bound by high
duty and responsibility to give effect to this public policy which is enshrined
in statutory norms (infra). 
Petitioners’ principal remedy is to file election protests before the
appropriate agency of government – i.e., the Comelec (Article IX[C] [2] [2],
1987 Constitution) –  and there to
litigate all the issues raised by them in as much detail as they might deem
necessary or appropriate x x x” (Dimaporo v. Comelec, 186 SCRA 769
[1990]). (Alfonso vs. Commission on Elections, 232 SCRA 777 [1994], Quiason,
J.).

 

§8. It is contended that if a
technical examination of the List of Voters and the Voters’ Affidavits had been
ordered, the COMELEC would have discovered massive substitute voting which
would convince it that indeed the election return from Precinct No. 4 is
“obviously manufactured” within the meaning of Section 243(c) of the OEC.  This contention is without merit.  As we recently ruled in Loong v. COMELEC,
“as long as the returns appear to be authentic and duly accomplished on their
face, the Board of Canvassers cannot look beyond or behind them to verify
allegations of irregularities in the casting or the counting of the votes.
Corollarily, technical examination of voting paraphernalia involving analysis
and comparison of voters’ signatures and thumbprints thereon is prohibited in
pre-proclamation cases which are mandated by law to be expeditiously resolved
without involving evidence aliunde and examination of voluminous
documents which take up much time and cause delay in defeat of the public
policy underlying the summary nature of pre-proclamation controversies.”

 

By contrast whether the election return in
this case is manufactured is not obvious, but would depend for its showing on
an examination of C.E. Forms No. 1 and 2. 
Sec. 243 (c), in relation to Sec. 242, in giving the COMELEC
jurisdiction over pre-proclamation controversies and allowing the suspension or
annulment of any proclamation, requires, if the basis of the controversy is
that election returns are manufactured, that this fact be obvious on the face
of the returns.  Such would be the case,
for example, if all votes therein reported are cast in favor of a candidate or
candidates belonging to the same party, or, if the results of the canvass are
statistically improbable.  In such a
case, the results of the election would be unascertainable, making it necessary
to conduct a technical examination of the Voters’ List and Voters’ Affidavits. (Balindong
vs. Commission on Elections, 260 SCRA 494 [1996], Mendoza, J.).

 

§9. The Omnibus Election
Code defines a pre-proclamation controversy as “any question pertaining to or
affecting the proceedings of the board of canvassers which may be raised by any
candidate or by any registered political party or coalition of political
parties before the board or directly with the Commission, or any matter raised
under Sections 233, 234, 235 and 236 in relation to the preparation,
transmission, receipt, custody and appreciation of the election returns.”

 

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

 

That the election returns were obviously
manufactured must be evident from the face of the said documents
themselves.  In a pre-proclamation
controversy, the Comelec, as a rule, is restricted to an examination of the
election returns and is without jurisdiction to go beyond or behind them and
investigate election irregularities. 
Indeed, in the recent case of Loong vs. Comelec, the Court,
through Mr. Justice Regino Hermosisima, Jr., declared that “the
prevailing doctrine in this jurisdiction x x x is that as long as the returns
appear to be authentic and duly accomplished on their face, the Board of
Canvassers cannot look beyond or behind them to verify allegations of irregularities
in the casting or the counting of votes.”

 

A party seeking to raise issues the
resolution of which would compel or necessitate the Comelec to pierce the veil
of election returns which appear prima facie regular on their face, has
his proper remedy in a regular election contest.

 

A technical examination of the
handwriting and fingerprints in the voter’s affidavits and voting lists is not
allowed in a pre-proclamation controversy. (Matalam vs. Commission on Elections, 271 SCRA 733
[1997], Panganiban, J.).

§10. The
petition resolved by COMELEC in the assailed resolution was lodged to declare
illegal the proceedings of the Municipal Board of Canvassers of Navotas due to
non-inclusion of votes which herein petitioner claims to be valid.  On this score, we agree with petitioner that
the matter falls under the category of special cases, particularly a
pre-proclamation controversy raising the issue of the illegality of the
proceedings of the board of canvassers (Sec. 3, Rule 27, Part V, Comelec Rules
of Procedure). (Bautista vs.
Commission on Elections, 298 SCRA 480 [1998], Melo, J.).

 

§11. With respect to
pre-proclamation controversy, it is well to note that the scope of
pre-proclamation controversy is only limited to the issues enumerated under
Section 243 of the Omnibus Election Code, and the enumeration therein is
restrictive and exclusive.  The reason
underlying the delimitation both on substantive ground and procedure is the
policy of the election law that pre-proclamation controversies should be summarily
decided, consistent with the law’s desire that the canvass and proclamation be
delayed as little as possible.  That is
why such questions which require more deliberate and necessarily longer
consideration, are left for examination in the corresponding election protest. (Sison
vs. Commission on Elections, 304 SCRA 170 [1999], Romero, J.).

 

§12. For as long as the
election returns which on their face appear regular and wanting of any physical
signs of tampering, alteration or other similar vice, such election returns
cannot just be unjustifiably excluded. 
To look beyond or behind these returns is not a proper issue in a pre-proclamation
controversy as in the case at bar. (Ocampo vs. Commission on Elections, 325
SCRA 636 [2000], Kapunan, J.).

 

§13. This petition stemmed
from a pre-proclamation controversy.  In
a long line of cases, we have consistently held that a pre-proclamation
controversy is limited to an examination of the election returns on their
face.  The COMELEC as a general rule need
not go beyond the face of the returns and investigate alleged election
irregularities.  We see no reason to
depart from this rule in this petition.

 

To require the COMELEC to examine the
circumstances surrounding the preparation of election returns would run counter
to the rule that a pre-proclamation controversy should be summarily decided.

 

Where the resolution of the issues raised
would require the COMELEC to “pierce the veil” of election returns that appear prima
facie regular, the remedy is a regular election protest, “. . . wherein the
parties may litigate all the legal and factual issues raised by them in as much
detail as they may deem necessary or appropriate.”

 

We are constrained to agree with the OSG’s
submission that on the basis of our holding in Salih v. COMELEC, 279
SCRA 19, respondent COMELEC herein “could not justifiably exclude said returns
on the occasion of a pre-proclamation controversy whose office is limited to
incomplete, falsified or materially defective returns which appear as such on
their face.” (Sebastian vs. Commission on Elections, 327 SCRA 406 [2000],
Quisumbing, J.).

 

           

3. Jurisdiction

 

§1. The COMELEC in a pre-proclamation
controversy does not commit a grave abuse of discretion in authorizing the
proclamation of two candidates for the provincial board where the results of
the pending examination of 164 questioned precincts cannot conceivably alter
the winner status of said proclaimed candidates.

 

Petitioners’ contention that under the Comelec’s
instructions to the canvassing board, the duty to object to the election
returns during the canvass and to appeal to the Comelec from the adverse ruling
of the canvassing board is imposed on the “losing party” which could not apply
to them as they were the prevailing party in the canvassing ingeniously
disregards the clear text and mandate of such instructions that a party who
challenges any return during the canvass must duly interpose his objection and
that the “adverse party” who is aggrieved by the board’s ruling — not
necessarily the “losing party” – has the duty of appealing the board’s ruling
to Comelec.

 

The question whether certain returns are falsified
or have been tampered with and should not be included in the canvass, must
first be raised before the board of canvassers, subject to appeal from its
decision to the Comelec.  Any question
not originally set up before said board cannot legally be raised before the
Commission in the exercise of its appellate jurisdiction. (Anni vs. Rasul, 46 SCRA 758 
[1972], Teehankee, J.).

 

§2. Correspondingly, the
Election Code of 1978, which is the first legislative construction of the
pertinent constitutional provisions, makes the Commission also the “sole judge
of all pre-proclamation controversies” and further provides that “any of its
decisions, orders or rulings (in such controversies) shall be final and
executory,” just as in election contests, “the decision of the Commission shall
be final, executory and inappealable” (Section 193). (Aratuc vs. Commission
on Elections, 88 SCRA 251 [1979], Barredo, J.).

 

§3. Under the 1935 Constitution, this Court
exercised appellate jurisdiction to review any decision, ruling or order of the
Comelec.  Under the present Constitution,
any decision, ruling or order of the Comelec can be assailed in this court only
by means of the special civil action of certiorari .  It should be stressed that the decisions,
orders or rulings of the Comelec in pre-proclamation controversies, of which it
is sole judge, are final and executory. (Sec. 175, 1978 Election Code). (Omar vs. Commission on Elections, 102 SCRA 611 [1981], Aquino, J.).

 

§4. While the Commission has
exclusive jurisdiction over pre-proclamation controversies involving local
elective officials (Sec. 242, Omnibus Election Code), nevertheless,
pre-proclamation cases are not allowed in elections for President,
Vice-President, Senator and Member of the House of Representatives.

 

It is clear from the above-quoted
provision of the law that “pre-proclamation cases (are) not allowed in
elections for President, Vice-President, Senator and Member of the House of
Representatives.”  What is allowed is the
correction of “manifest errors in the certificate of canvass or election
returns.”  To be manifest, the errors
must appear on the face of the certificates of canvass or election returns
sought to be corrected and/or objections thereto must have been made before the
board of canvassers and specifically noted in the minutes of their respective
proceedings.

 

It is quite obvious that petitioner’s
prayer does not call for the correction of “manifest errors in the certificates
of canvass or election returns” before the Comelec but for the re-opening of
the ballot boxes and appreciation of the ballots contained therein.  Indeed, petitioner has not even pointed to
any “manifest error” in the certificates of canvass or election returns he
desires to be rectified.  There being
none, petitioner’s proper recourse is to file a regular election protest which,
under the Constitution and the Omnibus Election Code, exclusively pertains to
the Senate Electoral Tribunal. (Chavez vs. Commission on Elections, 211 SCRA
315 [1992], Bidin, J.).

 

§5. It is clear from the
abovequoted provision of the 1987 Constitution that election cases include
pre-proclamation controversies, and all such cases must first be heard and
decided by a Division of the Commission. 
The Commission, sitting en banc, does not have the authority to
hear and decide the same at the first instance. 
In the COMELEC RULES OF PROCEDURE, pre-proclamation cases are classified
as Special Cases and, in compliance with the above provision of the
Constitution, the two (2) Divisions of the Commission are vested with the
authority to hear and decide these Special Cases.  Rule 27 thereof governs Special Cases;
specifically, Section 9 of the said Rule provides that appeals from rulings of
the Board of Canvassers are cognizable by any of the Divisions to which they
are assigned and not by the Commission en banc.

 

Indisputably then, the COMELEC en banc
acted without jurisdiction, or with grave abuse of discretion, when it resolved
the appeals of petitioners in the abovementioned Special Cases without first
referring them to any of its Divisions. 
Said resolutions are, therefore, null and void and must be set
aside.  Consequently, the appeals are
deemed pending before the Commission for proper referral to a Division.

 

A resolution directing the COMELEC to
assign said Special Cases to the Divisions pursuant to Section 8, Rule 3 of its
Rules on assignment of cases would, logically, be in order.  However, Section 16 of R.A. No. 7166 provides
that all pre-proclamation cases pending before it shall be deemed terminated at
the beginning of the term of the office involved.  The said section provides as follows: x x x
“All pre-proclamation cases pending before the Commission shall be deemed
terminated at the beginning of the term of the office involved and the rulings
of the boards of canvassers concerned shall be deemed affirmed, without
prejudice to the filing of a regular election protest by the aggrieved
party.  However, proceedings may continue
when on the basis of the evidence thus far presented, the Commission determines
that the petition appears meritorious and accordingly issues an order for the
proceeding to continue or when an appropriate order has been issued by the
Supreme Court in a petition for certiorari.” 
The terms of the offices involved in the Special Cases subject of these
petitions commenced at noon of 30 June 1992. 
These cases have thus been rendered moot and such a resolution would
only be an exercise in futility. (Sarmiento vs. Commission on Elections, 212
SCRA 307 [1992], Davide, Jr., J.).

§6. By now it is
well-settled that election cases which include pre-proclamation controversies
must first be heard and decided by a division of the Commission.  The Commission en banc does not have
the authority to hear and decide it in the first instance.

 

Consequently, since for purposes of
elections, no pre-proclamation case is allowed against, among others, a
candidate of the House of Representatives as stated in Section 15 of Republic
Act No. 7166, the COMELEC gravely abused its discretion when it issued its June
2, 1992 order suspending the proclamation of the winner of the congressional
seat of the second district of Northern Samar and in ordering a recount of
Precincts 7 and 16 through a resolution dated June 13, 1992. (Ong, Jr., vs. Commission on Elections,
216 SCRA 806 [1992], Romero, J.).

 

§7. Consequently, the phrase
“including pre-proclamation controversies” used in Sec. 3, Article IX-C of the
Constitution should be construed as referring only to “pre-proclamation
controversies” in election cases that fall within the exclusive original
jurisdiction of the COMELEC, i.e., election cases pertaining to the election of
regional, provincial and city officials. (Pangilinan vs. Commission on
Elections, 228 SCRA 36 [1993], Padilla, J.).

 

§8. While, however, the COMELEC is restricted,
in pre-proclamation cases, to an examination of the election returns on their
face and is without jurisdiction to go beyond or behind them and investigate
election irregularities, the COMELEC is duty bound to investigate allegations
of fraud, terrorism, violence and other analogous causes in actions for
annulment of election results or for declaration of failure of elections, as
the Omnibus Election Code denominates the same. (Loong
vs. Commission on Elections, 257 SCRA 1 [1996], Hermosisima, Jr., J.).

 

§9. On
the first issue, we uphold the jurisdiction of the COMELEC over the petitions
filed by private respondent.  As a
general rule, candidates and registered political parties involved in an
election are allowed to file pre-proclamation cases before the COMELEC.  Pre-proclamation cases refer to any question
pertaining to or affecting the proceedings of the board of canvassers which may
be raised by any candidate or by any registered political party or coalition of
political parties before the board or directly with the Commission, or any
matter raised under Sections 233, 234, 235 and 236 in relation to the
preparation, transmission, receipt, custody and appreciation of election
returns.  The COMELEC has exclusive
jurisdiction over all pre-proclamation controversies.  As an exception, however, to the general
rule, Section 15 of Republic Act 7166 prohibits candidates in the presidential,
vice-presidential, senatorial and congressional elections from filing
pre-proclamation cases.

The prohibition
aims to avoid delay in the proclamation of the winner in the election, which
delay might result in a vacuum in these sensitive posts. The law, nonetheless,
provides an exception to the exception. The second sentence of Section 15
allows the filing of petitions for correction of manifest errors in the
certificate of canvass or election returns even in elections for president,
vice-president and members of the House of Representatives for the simple
reason that the correction of manifest error will not prolong the process of
canvassing nor delay the proclamation of the winner in the election.  This rule is consistent with and complements
the authority of the COMELEC under the Constitution to “enforce and administer
all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall” and its power to “decide, except those
involving the right to vote, all questions affecting elections.”

 

Although the
COMELEC is clothed with jurisdiction over the subject matter and issue of SPC
No. 98-143 and SPC No. 98-206, we find the exercise of its jurisdiction tainted
with illegality.  We hold that its order
to set aside the proclamation of petitioner is invalid for having been rendered
without due process of law.  Procedural
due process demands prior notice and hearing. 
Then after the hearing, it is also necessary that the tribunal show
substantial evidence to support its ruling. 
In other words, due process requires that a party be given an
opportunity to adduce his evidence to support his side of the case and that the
evidence should be considered in the adjudication of the case.  The facts show that COMELEC set aside the
proclamation of petitioner without the benefit of prior notice and hearing and
it rendered the questioned order based solely on private respondent’s
allegations.

 

We likewise
reject private respondent’s assertion that the hearing held on June 9, 1998
substantially satisfies the due process requirement. The law requires that the
hearing be held before the COMELEC rules on the petition. Here, the public
respondent first issued an order annulling the proclamation of petitioner and
then set the date of the hearing.  We
explained in Farinas vs. COMELEC the pernicious effect of such
procedure:  “As aptly pointed out by the
Solicitor General, ‘to sanction the immediate annulment or even the suspension
of the effects of a proclamation before the petition seeking such annulment or
suspension of its effects shall have been heard would open the floodgates of
unsubstantiated petitions after the results are known, considering the
propensity of the losing candidates to put up all sorts of obstacles in an open
display of unwillingness to accept defeat, or would encourage the filing of
baseless petitions not only to the damage and prejudice of winning candidates
but also to the frustration of the sovereign will of the electorate.’ ”

 

Taking
cognizance of private respondent’s petitions for annulment of petitioner’s
proclamation, COMELEC was not merely performing an administrative
function.  The administrative powers of
the COMELEC include the power to determine the number and location of polling
places, appoint election officials and inspectors, conduct registration of
voters, deputize law enforcement agencies and government instrumentalities to
ensure free, orderly, honest, peaceful and credible elections, register
political parties, organizations or coalitions, accredit citizens’ arms of the
Commission, prosecute election offenses, and recommend to the President the
removal of or imposition of any other disciplinary action upon any officer or
employee it has deputized for violation or disregard of its directive, order or
decision. In addition, the Commission also has direct control and supervision
over all personnel involved in the conduct of election.  However, the resolution of adverse claims of
private respondent and petitioner as regards the existence of a manifest error
in the questioned certificate of canvass requires the COMELEC to act as an
arbiter.  It behooves the Commission to
hear both parties to determine the veracity of their allegations and to decide
whether the alleged error is a manifest error. 
Hence, the resolution of this issue calls for the exercise by the
COMELEC of its quasi-judicial power. (Sandoval vs. Commission on Elections,
323 SCRA 403 [2000], Puno, J.).

 

 

4. Summary
Procedure

 

§1. All pre-proclamation
controversies shall be heard summarily by the Commission after due notice and
hearing, and its decisions shall be executory after the lapse of five days from
receipt by the losing party of the decision of the Commission, unless
restrained by the Supreme Court.  And the
reason for this rule is obvious.  As we
stressed in Alonto v. COMELEC, “the policy of the election law is that
pre-proclamation controversies should be summarily decided, consistent with the
law’s desire that the canvass and proclamation be delayed as little as
possible.” That is why such questions as those involving the appreciation of
the votes and the conduct of the campaign and the balloting, which require more
deliberate and necessarily longer consideration, are left for examination in
the corresponding election protest. (Abella vs. Larrazabal, 180 SCRA 509 [1989], Cruz, J.).

 

§2. The Court does not
agree.  We find that the petitioner’s
real intention in filing the election protest ad cautelam was merely to
insure the preservation of all the ballot boxes used in the January 18, 1988
local elections in the province of Pangasinan. 
Under COMELEC Res. No. 2035 dated September 7, 1988, all such ballot
boxes would be made available for the then forthcoming barangay elections as
long as they were not involved in any pre-proclamation controversy, election
protest, or official investigation. As the above-mentioned cases involved only
nine precincts, it was only prudent for the petitioner to file his protest ad
cautelam in case the pre-proclamation controversy was ultimately dismissed
and it became necessary for him to activate his protest.  The protest would involve all the precincts
in the province.  If he had not taken
this precaution, all the other ballot boxes would have been emptied and their
contents would have been burned and forever lost.

 

Considering the summary nature of the
pre-proclamation controversy, we see no reason why the above-mentioned cases
cannot be speedily resolved on the basis of the evidence and the arguments
already submitted by the parties.  These
must have been thoroughly examined by now by the COMELEC.  And if more evidence is to be adduced, this
should not take too much more time; at least the COMELEC should see to it that
it does not.  The COMELEC must be especially
wary of dilatory tactics that may further postpone the final resolution of this
contest.  The Court cannot stress too
strongly the need for an early resolution of the pending cases to ultimately
determine the winner in the gubernatorial election or, if an election protest
is inevitable, to pave the way for it as soon as possible.

 

The petitioner has correctly pointed out
that the Order of the First Division of the COMELEC dismissing the
pre-proclamation controversy and the Resolution of the COMELEC en banc
denying the motion for reconsideration were both penned by Commissioner Abueg,
in violation of its rule that – x x x No member shall be the “ponente”
of an en banc decision, resolution or a motion to reconsider a
decision/resolution written by him in a Division.  This is still another reason why the
challenged acts must be reversed.  The
Commission on Elections should be the first to respect and obey its own rules,
if only to provide the proper example to those appearing before it and to avoid
all suspicion of bias or arbitrariness in its proceedings. (Agbayani vs.
Commission on Elections, 186 SCRA 484 [1990], Cruz, J.).

 

§3. From the foregoing tables,
the substantial correctness of the data therein not having been successfully
contested by petitioners, it appears to the Court that there is no need to pass
upon and resolve the central issue raised by petitioners – whether or not the
doctrine of “statistical improbability” adopted in Lagumbay v. Commission on
Elections should be re-examined with a view to expanding the scope
thereof, i.e., with a view to characterizing election returns differing, in
varying degrees, from the specific fact situation dealt with by the Court in Lagumbay
as “statistically improbable” and hence excludable from canvass as
“obviously manufactured” without need of evidence aliunde.  In the specific circumstances of the cases at
bar, whatever conclusion the Court might have reached on this issue would,
strictly speaking, merely constitute dictum, considering that even if
the Court were to nullify all the returns objected to by petitioners on grounds
of “statistical improbability”, private respondents Candao and Loong would
still show a very substantial margin over the total votes of petitioners.  Such nullification will not, in other words,
materially affect the results of the election per the official certificates of
canvass.

In resolving upon this course of action,
the Court has also taken particular account of the need for speedy resolution
of these cases, considering the length of time which has gone by since the
election was held last 17 February 1990 without the winning candidates for
Regional Governor and Regional Vice-Governor being proclaimed. The public
policy involved in the rule that pre-proclamation controversies shall be resolved
in summary proceedings, is very real and insistent. The public interest
requires that the positions for the filling of which the election was held
should be filled as promptly as possible, even if the proclamation of the
winning candidates be provisional in nature, in the sense that such
would be subject to the results of the election protest or protests that may be
expected to be filed.  The Court is bound
by high duty and responsibility to give effect to this public policy which is
enshrined in statutory norms (infra). 
Petitioners’ principal remedy is to file election protests before the
appropriate agency of government – i.e., the Comelec (Article IX [C] [2] [2],
1987 Constitution) – and there to litigate all the issues raised by them in as
much detail as they might deem necessary or appropriate.  Another remedy open to petitioners is the
filing of criminal charges for election offenses against those who, petitioners
believe, are responsible for the frauds and assorted trickery alleged to have
been committed.

 

Petitioners ask the Court to re-examine
its decision in Dianalan v. Commission on Elections (G.R No. 79712, 12
November 1987), so as to permit petitioners to subject to handwriting and
fingerprint examination the voter’s affidavits and voting lists and other
voting records in the contested precincts. 
We are not persuaded by petitioners’ arguments on this point.  It is important to bear in mind that the
nature, scope and ambit of a pre-proclamation controversy as set out in Dianalan
and Dipatuan and the other cases there cited are determined by
statutory provisions: Sections 243 (entitled “Issues that may be Raised in
Pre-Proclamation Controversy”), 245 (“Contested Election Returns”) and 246
(“Summary Proceedings before the Commission”) of the Omnibus Election
Code.  As pointed out above in Dipatuan,
these statutory provisions reflect a very definite view of what public policy
requires on the matter.  It may well be
true that that public policy may occasionally permit the occurrence of “grab
the proclamation and prolong the protest” situations; that public policy,
however, balances the possibility of such situations against the shortening of
the period during which no winners are proclaimed, a period commonly fraught
with tension and danger for the public at large.  For those who disagree with that public
policy, the appropriate recourse is not to ask this Court to abandon case law
which merely interprets faithfully existing statutory norms, to engage in
judicial legislation and in effect to rewrite portions of the Omnibus Election
Code.  The appropriate recourse is, of
course, to the Legislative Department of the Government and to ask that
Department to strike a new and different equilibrium in the balancing of the
public interests at stake.

 

On the second and third issues raised by
petitioners, the Comelec En Banc Decision of 4 June 1990 said:  “[The second and third issues raised by
petitioners] are related to each other. 
They refer to the procedure to be observed in the registration of
objections at the board of canvassers level and the bringing of adverse rulings
on appeal to the Commission.  We
reiterate the mandatory requirement to comply with procedure for
pre-proclamation controversies in view of the public policy to have a quick
determination of the result of the election. 
By [their] nature, pre-proclamation controversies already delay
proclamation.  To allow the deviation
from procedural requirements is to open cases of this nature to protracted
uncertainty because new grounds and new issues can be raised at the different
levels of jurisdiction.  Even
ordinary cases not impressed with public policy considerations are not allowed
to be litigated this way.”  (Italics
supplied) Once more, we agree with the above ruling of the Comelec since that ruling
simply flows from the character and scope of a pre-proclamation controversy
under the Omnibus Election Code. (Dimaporo vs. Commission on Elections, 186
SCRA 769 [1990], Feliciano, J.).

 

§4. The instant case is
different from a pre-proclamation controversy which the law expressly mandates
to be resolved in a summary proceeding (B.P. Blg. 881, Art. XX, Sec. 246;
COMELEC Rules of Procedure, Part V, Rule 27, Sec. 2; Dipatuan v. Commission
on Elections, 185 SCRA 86 [1990]). 
Pre-proclamation controversies should be summarily decided, consistent
with the legislators’ desire that the canvass of the votes and the proclamation
of the winning candidate be done with dispatch and without unnecessary
delay.  Questions as those involving the
appreciation of the votes and the conduct of the balloting, which require more
deliberate and necessarily longer consideration, are left for examination in
the corresponding election protest. (Aruelo, Jr. vs. Court of Appeals, 227
SCRA 311 [1993], Quiason, J.).

 

§5. Section 2 of the
above-stated Rule provides that all pre-proclamation controversies shall be
heard summarily after due notice.  Hence,
the COMELEC only has to give notice to the parties by issuing summons and by
serving a copy of the petition.  The
proceedings being summary, the COMELEC may rely on whatever pleading that may
have been filed by the parties.  A
hearing wherein the parties engage in oral argument is not required. (Bautista
vs. Commission on Elections, 298 SCRA 480 [1998], Melo, J.).

 

§6. The non-inclusion of a
proclaimed winner in a pre-proclamation controversy 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.

 

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.  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.

 

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. (Velayo vs. Commission on
Elections, 327 SCRA 713 [2000], Puno, J.).

 

           

5. Not
Viable After Proclamation

 

§1. In the first place, the
report of Regional Election Director Mamasapunod Aguam that there was a failure
of election in Sultan Gumander was not presented in evidence.  In the second place, even if it had been
presented the COMELEC had no duty to act on it considering that under the
circumstances, the alleged failure of election was not a proper issue in a
pre-proclamation case.  It should be
recalled that the COMELEC dismissed the pre-proclamation petition for annulment
of the election (PP Case No. 426), without prejudice to the filing of an
election protest or quo warranto, whichever is proper, in the
appropriate forum for ventilation.  The
COMELEC’s action is logical because settled is the doctrine that once a
proclamation has been made, as in this case, a pre-proclamation controversy is
no longer viable. (Mangca vs. Commission on Elections, 112 SCRA 273 [1982],
Abad Santos, J.).

 

§2. After the proclamation of
the winning candidate, a pre-proclamation controversy is no longer viable.

           

Where a mayoralty candidate filed an
election protest with the COMELEC instead of the CFI (now RTC) 22 days after
the proclamation of his opponent as candidate-elect, he is deemed to have
abandoned the remedy of filing an election protest in court. (Robes vs.
Commission on Elections, 123 SCRA 193 [1983], Makasiar, J.).

§3. Since there has already
been an election and a proclamation of petitioner, this case to borrow the
phrase of the Chief Justice in Potencion v. COMELEC (99 SCRA 595),
cannot with precision be considered as a pre-proclamation controversy.  As in the cases of Potencion, Singco
and Gonzales v. COMELEC (101 SCRA 752), it is more fitting to return
this case to the COMELEC to avoid the long delay in the disposition of this
case. (Goboy vs. COMELEC, 126 SCRA 441 
[1983], De Castro, J.).

 

§4. In several cases arising
from pre-proclamation controversies, this Court has spelled out the governing
rule: A pre-proclamation controversy is no longer viable after the elections. (Batino,
Jr. vs. Commission on Elections, 137 SCRA 698 [1985], Dela Fuente, J.).

 

§5. It
appearing that the questioned resolution of public respondent had already been
implemented and the private respondent had been proclaimed as the elected mayor
of the Municipality of Leyte, Leyte by the inclusion of the election return for
Precinct No. 12 and that he has taken his oath of office and assumed the duties
of said Office, the remedy of the petitioner is not a pre-proclamation contest
but an electoral protest filed at the proper time before the competent court. (Salvacion
vs. Commission on Elections, 170 SCRA 513 [1989], Gancayco, J.).

 

§6. The reglementary
period for filing an election protest was suspended during the pendency of the
pre-proclamation case. Rimando was proclaimed by the Municipal Board of
Canvassers as the duly elected municipal mayor of Naguilian on January 19,
1988.  Two (2) days later, or on January
21, 1988, Gallardo filed in the COMELEC a pre-proclamation petition to annul
the proclamation. Hence, only eight (8) days of the reglementary period for
filing an election protest remained.  This
period was suspended during the pendency of the pre-proclamation case, i.e.,
while it was pending in the COMELEC and in the Supreme Court, until Gallardo
received on June 23, 1989 the Supreme Court’s final resolution dismissing his
petition for review of the COMELEC’s decision in said case.

 

In the light of Section 248, the lower
court’s statement that “the running of the ten-day period to file an election
protest is not stopped by protestant’s elevation to the Supreme Court of the
COMELEC’s decision” in the pre-proclamation case, is not correct.  The appeal by certiorari to the
Supreme Court, which is a right secured to the defeated party under Section 7,
Title A, Article IX of the 1987 Constitution, is part of the annulment
proceeding.  The case is not over until
the Supreme Court has given its verdict, hence, the computation of the ten-day
period for filing an election contest does not begin until that verdict has
been handed down by the Supreme Court.

The right of the prevailing party in a
pre-proclamation case to the execution of the COMELEC’s decision (i.e., to be
proclaimed and to assume office) after the lapse of five (5) days from receipt
of said decision by the losing party, unless restrained by the Supreme Court,
does not bar the losing party from filing an election contest within the
ten-day period fixed in Section 251.  The
absence of a restraining order from the Supreme Court simply allows the
prevailing party to be proclaimed and assume office.

 

In 
“Gallardo vs. COMELEC,” G.R. No. 85974, May 30, 1989, the
appellant did not ask this Court to restrain the execution of the COMELEC
decision for the simple reason that his opponent, Rimando, had already been
proclaimed even before the pre-proclamation case was filed by him (Gallardo) in
the COMELEC.  That circumstance was
precisely the reason why the COMELEC dismissed the pre-proclamation case, for
the rule is that after the winning candidate has been proclaimed and assumed
office, a pre-proclamation petition does not lie against him.

 

But, although already proclaimed and
installed in office, he may still be unseated: 
(1) when his opponent is adjudged the true winner of the election by a
final judgment of the courts in the election contest (Sec. 251, Omnibus Election
Code); (2) when the prevailing party is declared ineligible or disqualified by
final judgment in a quo warranto case (Sec. 253, Omnibus Election Code);
and (3) when the incumbent is removed from office for cause.  (Gallardo vs. Rimando, 187 SCRA 463 [1990],
Griño-Aquino, J.).

 

§7. It appearing that no
restraining order was issued in these cases and the winning candidates have
already been proclaimed, these pre-proclamation issues have thereby been
rendered moot and academic when the proclaimed elected officials commenced
their terms in the afternoon of June 30, 1992, pursuant to Section 16 of R.A.
7166, which provides:  “All
pre-proclamation cases pending before the Commission shall be deemed terminated
at the beginning of the term of the office involved and the rulings of the
boards of canvassers concerned shall be deemed affirmed, without prejudice to
the filing of a regular election protest by the aggrieved party.  However, proceedings may continue when on the
basis of the evidence thus far presented, the Commission determines that the petition
appears meritorious and accordingly issues an order for the proceeding to
continue or when an appropriate order has been issued by the Supreme Court in a
petition for certiorari”. (Verceles vs. Commission on Elections, 214
SCRA 159 [1992], Bellosillo, J.).

 

§8. We have already ruled
in Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170
SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468, that pre-proclamation
controversies may no longer be entertained by the COMELEC after the winning
candidates have been proclaimed and assumed office.  The proper remedy of the aggrieved party is
an election contest in the Regional Trial Court as provided in Sec. 250 of B.P.
881 and Sec. 2(2), Art. IX-C of the Constitution.

 

Section 17, R.A. 7166 deals with the commencement
of pre-proclamation controversies while Sec. 19 provides that “parties
adversely affected by a ruling of the Board of Canvassers on questions
affecting the composition or proceedings of the board may appeal the matter to
the Commission within three (3) days from a ruling thereon.” (Sardea vs. Commission on Elections, 225
SCRA 374 [1993], Griño-Aquino, J.).

 

§9. All pre-proclamation cases
pending before the COMELEC in the 11 May 1998 elections were deemed terminated
at noon of 30 June 1998, the beginning of the term of office involved; and the
rulings of the board of canvassers concerned were deemed affirmed, without
prejudice to the filing of a regular election protest by the aggrieved party. (Barroso
vs. Ampig, Jr., 328 SCRA 530 [2000], Puno, J.).

 

 

6. Rules on the presentation of
evidence

 

§1. In
pre-proclamation controversies, the rules on presenting evidence and appealing
the rulings of the board of canvassers are mandatory.  The plain and simple procedure prescribed is
outlined in detail in Section 20 of Republic Act No. 7166.

 

Clearly, not only
must the objecting party reduce his objections to writing in the form
prescribed by the Comelec; he must also present within 24 hours evidence in
support thereof.  Under subsection h,
non-compliance with the mandatory procedure shall result in the summary
dismissal of the appeal, as in this case. 
In the petitioner lies the burden of proving that he has a prima
facie case and of presenting, at the same time, evidence that the exclusion
he seeks will change the results of the election.  A party’s mere allegation that an election
return is spurious, altered or manufactured does not automatically operate to
exclude it from the canvassing.

 

The summary
nature of a pre-proclamation controversy allows it to be resolved on the basis
of the arguments as well as the evidence submitted by the parties within the
period allowed by law. Thus, the importance of appending the evidence that will
substantiate one’s objections.  Absent
any clear and convincing evidence, the election returns and the canvassing
proceedings must be upheld.  Mere
affidavits cannot be relied on.  Two
years ago, this Court had occasion to rule that election controversies based on
flimsy averments could not be allowed to prosper; otherwise, the whole election
process will deteriorate into an endless stream of crabs pulling at each other,
racing to disembark from the water. (Cordero vs. Commission on Elections,
310 SCRA 118 [1999], Panganiban, J.).

 

§2. It is improper for the
COMELEC to annul the proclamation of a winning candidate on the basis of new
and additional evidence which were not presented before the Board of Canvassers
and which were not furnished to said candidate.

 

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.: “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 x x x.  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. x x x 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.” (Velayo vs. Commission on
Elections, 327 SCRA 713 [2000], Puno, J.).

 

 

CHAPTER XX
Election Contest

 1. Rules of interpretation

 

§1. Statutes providing
for election contests are to be liberally construed, to the end that the will
of the people in the choice of public official may not be defeated by merely
technical objections.  To that end,
immaterial defects in pleadings should be disregarded and necessary and proper
amendments should be allowed as promptly as possible. (Galang vs. Miranda and De Leon, 35 Phil. 269
[1916], Johnson, J.).

§2. Statutes
providing for election contest are to be liberally construed, to the end that
the will of the people in the choice of public officers may not be defeated by
mere technical objections. (Ali vs. Court of First Instance of Lanao, 80
Phil. 506 [1948], Tuason, J.).

§3. In
the trial of election cases, the guiding fundamental principle is that
technicalities or procedural barriers should not be allowed to stand if the
same would tend to defeat rather than promote the interest of justice.  In other words, the Election Laws should be
liberally construed to the end that the will of the people may not be defeated.
(Ibasco vs. Ilao, 110 Phil. 553 [1960], Bautista Angelo, J.).

§4. Election
contests involve public interest. Technicalities should not be allowed to stand
if they constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials.  Laws governing electoral contests must be
liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections.  It is the court’s imperative duty to ascertain
by all means within its command who is the real candidate elected by the
electorate.  (Juliano vs. Court of
Appeals, 20 SCRA 808 [1967], Zaldivar, J.).

§5. It is the settled ruling
of this Court that laws governing election cases must be liberally construed,
and that technical and procedural barriers should not be allowed to stand if
they constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials. (Ginete vs. Arcangel,
21 SCRA 1178 [1967], Zaldivar, J.).

 

§6. It has been frequently
decided, and it may be stated as a general rule recognized by all courts, that
statutes providing for election contests are to be liberally construed to the
end that the will of the people in the choice of public officers may not be
defeated by mere technical objections. 
To that end, immaterial defects in pleadings should be disregarded and
necessary and proper amendments should be allowed as promptly as possible.  (Unda vs. Commission on Elections, 190 SCRA
827 [1990], Regalado, J.).

 

§7. An election protest does
not merely concern the personal interests of rival candidates for an
office.  Over and above the desire of the
candidates to win, is the deep public interest to determine the true choice of
the people.  For this reason, it is
well-established principle that laws governing election protests must be
liberally construed to the end that the popular will, expressed in the election
of public officers, will not, by purely technical reasons, be defeated.
(Aruelo, Jr. vs. Court of Appeals, 227 SCRA 311 [1993], Quiason, J.).

 

§8. It represents a legal
wisdom postulated on the basis of the fundamental principle that technicalities
or procedural barriers should not be allowed to stand if the same would tend to
defeat rather than promote the interest of justice.  In Tatlonghari v. COMELEC, this Court
has again reminded all and sundry that the law governing electoral contest must
be liberally construed to the end that the will of the people may not be
defeated. This primordial policy to ascertain the will of the people is evident
in the constitutional mandate that “Sovereignty resides in the people and all
government authority emanates from them.” (Loyola vs. House of Representatives Electoral
Tribunal, 229 SCRA 90 [1994], Nocon, J.). 

 

§9. Well-settled is the
doctrine that election contests involve public interest, and technicalities and
procedural barriers should not be allowed to stand if they constitute an
obstacle to the determination of the true will of the electorate in the choice
of elective officials.  And also settled
is the rule that laws governing election contests must be liberally construed
to the end that the will of the people in the choice of public officials may
not be defeated by mere technical objections. 
In an election case the court has an imperative duty to ascertain by all
means within its command who is the real candidate elected by the
electorate.  (Benito vs. Commission on Elections, 235 SCRA 436
[1994], Kapunan, J.).

 

§10. Assuming for the sake of
argument that the petition was filed out of time, this incident alone will not
thwart the proper determination and resolution of the instant case on
substantial grounds.  Adherence to a
technicality that would put a stamp of validity on a palpably void
proclamation, with the inevitable result of frustrating the people’s will cannot
be countenanced.  In Benito v.
COMELEC, we categorically declared that: x x x Adjudication of cases on
substantive merits and not on technicalities has been consistently observed by
this Court.  In the case of Juliano v.
Courts of Appeals (20 SCRA 808) cited in Duremdes vs. Commission on
Elections (178 SCRA 746), this Court had the occasion to declare that:
Well-settled is the doctrine that election contests involve public interest,
and technicalities and procedural barriers should not be allowed to stand if
they constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials.  And also settled is the rule that laws
governing election contests must be liberally construed to the end that the
will of the people in the choice of public officials may not be defeated by
mere technical objections (Gardiner v. Romulo, 26 Phil. 521; Galang
v. Miranda, 35 Phil. 269; Jalandoni v. Sarcon, G.R. No. L-6496,
January 27, 1962; Macasundig v. Macalangan, G.R. No. L-22779, March 31,
1965; Cauton vs. Commission on Elections, G.R. No. L-25467, April 27,
1967).  In an election case the court
has an imperative duty to ascertain by all means within its command who is the
real candidate elected by the electorate.  (Bince, Jr. vs. Commission on
Elections, 242 SCRA 273 [1995], Kapunan, J.).  

 

§11. It is doctrinal that
election cases involve public interest; thus, laws governing election contests
must be liberally construed to the end that the will of the people in the
choice of public officials may not be defeated by mere technical
objections.  The possible delay and
potential threat to the sanctity of the ballot which the grant of the motion to
photocopy the ballots might engender are indeed valid concerns, but as earlier
explained, such concerns of the trial judge are unfounded because sufficient
safeguards may be put in place to ensure that the proceedings shall be
expeditious and the handling of the ballots adequately guarded and supervised.

 

There is no gainsaying the fact that trial
courts and other bodies hearing election cases are mandated by law to resolve
such cases expeditiously and promptly. 
In San Juan vs. Abordo, this Court has had occasion to rule that
“election contests should be rapidly and economically decided, avoiding
unnecessary delays.   In this way, the
uncertainty as to the result of the election is done away with, the ardor of
party contests is quenched, and political repose which is so necessary to the
progress of the country, is restored in the community.”  However, at the same time, courts should not
lose sight of the contending parties’ right to avail of every reasonable
opportunity to support their claim to the office in question.  It should be stressed that the prompt
resolution of election cases must not be accomplished at the expense of
determining the true choice of the electorate. 
Thus, the courts and other electoral bodies are enjoined, not only to
maintain their sense of urgency in resolving election cases, but also to
explore every reasonable and feasible means of ascertaining which candidate was
duly elected because, in the final analysis, it is the will of the people that
is the ultimate concern. (Alberto vs. Commission on Elections, 311 SCRA 215
[1999], Romero, J.).

 

2. Scope

 

§1. An election contest under
Section 27 of Act No. 1582 is exclusive of all other proceedings to determine
the same question upon the same facts; and, while such proceeding is pending,
an action of quo warranto based on the same facts to determine the title
to the same office cannot be maintained. (Luna vs. Rodriguez, 36 Phil. 401
[1917], Moreland, J.).

 

§2. Section 175 of the Revised
Election Code refers to the right of any party in an election to file the
corresponding petition of protest.  The
provisions that the court may “motu proprio, if the interest of justice
so requires,” immediately order that documents be produced and ballots examined
and votes recounted evidently refers to a case where an election contest has
already been presented and the court desires to make further examination in the
interest of justice. (Matas vs. Romero, 114 Phil. 253 [1962]; 4 SCRA 313
[1962], Labrador, J.).

 

§3. A motion of protest
filed in due time against a protestee which contains all the jurisdictional
facts and statements of a cause of action to warrant the hearing of the case on
its merits should not be dismissed simply because another motion of protest
against the same protestee had previously been filed in the same court.

 

Where two independent motions of protest
have been filed against the same protestee, the court should not dismiss the
latter protest but should hear the two cases together and decide them in one
decision. (Macasundig vs. Macalangan, 121 Phil. 554 [1965]; 13 SCRA 577
[1965], Zaldivar, J.).

 

§4. An election contest is a
proceeding imbued with public interest which elevates it to a plane above
ordinary civil actions.  It is the duty
of the courts to ascertain in an expeditious manner without being fettered by technicalities
and procedural barriers, the real candidate elected to the end that the will of
the people may not be frustrated. (Vda. De Mesa vs. Mencias, 124 Phil. 1187
[1966]; 18 SCRA 533 [1966], Castro, J.).

 

§5. 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.  What is sought in an election protest is the
correction of the canvass of the votes, which is the basis of the proclamation
of the winning candidate.  An election
contest involves a public office in which the public has an interest.  Certainly, the act of a losing candidate of
recognizing the one who is proclaimed the winner should not bar the losing
candidate from questioning the validity of the election of the winner in the
manner provided by law.

When an election protest alleges frauds
and irregularities such that the legality of the election of the protestee is
placed in serious doubt, the courts should proceed to ascertain the truth of
the allegations of frauds and irregularities, not necessarily to declare the
protestant elected but to determine whether the protestee was legally elected,
because once it is shown that frauds and irregularities had characterized the
election, the court may annul the election and declare that no candidate had
been elected. (De Castro vs. Ginete, 27 SCRA 623 [1969], Zaldivar, J.).

 

§6. Where the grievance relied
upon is the commission of irregularities and violation of the Election Law as
appears to be the case here, the proper remedy is the protest.  In the language of Justice Sanchez, “The
boundaries of the forbidden area into which Comelec may not tread are also
marked by jurisprudence.  That Comelec is
not the proper forum to seek annulment of an election based on terrorism,
frauds and other illegal practices, is a principle emphasized in decisions of
this Court”. (Anni vs. Izquierdo, 57 SCRA 692  [1974], Teehankee, J.).

 

§7. The proper remedy for
impugning the qualification of a winning candidate on grounds of election
irregularities like vote-buying is an election protest. (Villegas vs.
Commission on Elections, 99 SCRA 582 [1980], Fernando, C.J.).

 

§8. The petition must be
dismissed.  It is very apparent from the
petition-letter that the grounds relied upon by petitioners in seeking relief
from the COMELEC are proper grounds for election protest. Petitioner premised
his petition, to quote from Resolution No. 9802 of the COMELEC, on seizure of
ballot boxes at gunpoint; intimidation of voters and forced opening and
examination of ballots; substitution of ballots; and tampering of election
returns.  These are the same grounds
alleged in the election protest filed in the Court of First Instance of
Pampanga.  The cases of Villegas vs.
COMELEC and Laguda vs. COMELEC find application in the disposition
of this case.  In the early case of Villegas
v. COMELEC, where massive fraud and violations of certain provisions of the
Election Code allegedly committed during the elections were denounced in this
Court, the Court through Mr. Chief Justice Enrique M. Fernando dismissed the
petition, it appearing therein that the grounds set forth in the complaint
before the COMELEC are proper for election protest.  The Court pointed out, that at any rate
petitioner would not be left without remedy “for the opportunity for him to
prove such a wholesale allegation of massive fraud and violations of Election
Code is still there.”  Indeed, herein
petitioner could still avail himself of the election protest where he could
ventilate his grievance and be provided the full opportunity to present all
relevant evidence in a full dress hearing in accordance with due process,
unlike in the COMELEC where the proceedings are summary in nature.  As was aptly said in Laguda v. COMELEC,
“to pass on such a complex matter in a summary proceedings would be to run the
risk that the decision arrived at would not reflect the realities of this
situation.” (Pasion vs. Commission on Elections, 109 SCRA 238  [1981], De Castro, J.).

 

§9. The matter elevated to
this Court was a pre-proclamation controversy. 
The decision of the respondent Commission was promulgated on August 7,
1984.  The instant petition was filed
with this Court on August 20, 1984, or three months after the May 14, 1984
election.  Private respondent was
proclaimed on June 2, 1984, as the duly-elected Assemblyman for Nueva
Vizcaya.  He took his oath of office in
due time, discharging thereafter his duties and functions as Assemblyman.  Such pre-proclamation controversy is no
longer viable at this point of time and should be dismissed as held by this
Court in Venezuela and other cases. 
Pre-proclamation proceedings are summary in nature.  There was no full-dress hearing essential to
the task of adjudication with respect to the serious charges of
“irregularities”, etc. made by petitioner. 
An election contest would be the most appropriate remedy.  Instead of the submission of mere affidavits,
the parties would be able to present witnesses subject to the right of
confrontation, etc.  Recourse to such
remedy would settle the matters in controversy “conclusively and once and for
all.”  (Padilla vs. Commission on
Elections, 137 SCRA 424 [1985], De La Fuente, J.).

 

§10. The word  “contests” should not be given a restrictive
meaning; on the contrary, it should receive the widest possible scope
conformably to the rule that the words used in the Constitution should be
interpreted liberally. As employed in the 1973 Constitution, the term should be
understood as referring to any matter involving the title or claim of title to
an elective office, made before or after proclamation of the winner, whether or
not the contestant is claiming the office in dispute. Needless to stress, the
term should be given a consistent meaning and understood in the same sense
under both Section 2(2) and Section 3 of Article XII-C of the Constitution.

 

The phrase “election, returns and
qualifications” should be interpreted in its totality as referring to all
matters affecting the validity of the contestee’s title.  But if it is necessary to specify, we can say
that “election” referred to the conduct of the polls, including the listing of
voters, the holding of the electoral campaign, and the casting and counting of
the votes; “returns” to the canvass of the returns and the proclamation of the
winners, including questions concerning the composition of the board of
canvassers and the authenticity of the election returns; and “qualifications”
to matters that could be raised in a quo warranto proceeding against the
proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of
his certificate of candidacy. (Javier vs. Commission on Elections, 144 SCRA
194 [1986], Cruz, J.).

 

§11. The petition is impressed
with merit because petitioner has been proclaimed winner of the Congressional
elections in this first district of Pampanga, has taken his oath of office as
such, and assumed his duties as Congressman. 
For this Court to take cognizance of the electoral protest against him
would be to usurp the functions of the House Electoral Tribunal. (Lazatin
vs. Commission on Elections, 157 SCRA 337 
[1988], Paras, J.).

 

§12. “Election contests” would
refer to adversary proceedings by which matters involving the title or claim of
title to an elective office, made before or after proclamation of the winner,
is settled whether or not the contestant is claiming the office in dispute and
in the case of elections of barangay officials, it is restricted to proceedings
after the proclamation of the winners as no pre-proclamation controversies are
allowed. (Taule vs. Santos, 200 SCRA 512 [1991], Gancayco, J.).

 

§13. An election protest is a
contest between the defeated and winning candidates on the ground of frauds or
irregularities in the casting and counting of the ballots, or in the
preparation of the returns.  It raises
the question of who actually obtained the plurality of the legal votes and
therefore is entitled to hold the office. (Samad vs. Commission on
Elections, 224 SCRA 631 [1993], Cruz, J.).

 

§14. Questions as those
involving the appreciation of the votes and the conduct of the balloting which
require more deliberate and necessarily longer consideration are left for
examination in the corresponding election protest. (Aruelo, Jr. vs. Court of
Appeals, 227 SCRA 311 [1993], Quiason, J.)

 

§15. Zaldivar vs. Estenzo,
23 SCRA 533, decided by this Court on 3 May 1968, had squarely resolved the
issue above posed.  Speaking through then
Associate Justice Enrique Fernando (who later became Chief Justice), this Court
explicitly ruled that considering that the Commission on Elections is vested by
the Constitution with exclusive charge of the enforcement and administration of
all laws relative to the conduct of elections, the assumption of jurisdiction
by the trial court over a case involving the enforcement of the Election Code
“is at war with the plain constitutional command, the implementing statutory
provisions, and the hospitable scope afforded such grant of authority so clear
and unmistakable in recent decisions.”

 

Under the COMELEC Rules of Procedure,
initiation of complaints for election offenses may be done motu proprio
by the Commission on Elections or upon written complaint by any citizen,
candidate or registered political party or organization under the party-list
system or any of the accredited citizens arms of the Commission.  However, such written complaints should be
filed with the “Law Department of the Commission; or with the offices of the
Election Registrars, Provincial Election Supervisors or Regional Election
Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal.” (Gallardo
vs. Tabamo, 218 SCRA 253 [1993], Davide, Jr., J.).

 

 

3. Jurisdiction

 

§1. The jurisdiction of Courts
of First Instance under Section 27 of the Election Law to try contested
election cases, being special is strictly confined within the provisions of the
statute.  Such courts can take no
additional power from their general jurisdiction in other matters.

 

Section 27, providing, as it does, for
proceedings summary in the highest degree, must be strictly construed and must
be exactly followed by those who act under or in pursuance of the powers
therein conferred.

 

The subject matter of the jurisdiction
conferred by Section 27 is confined to those matters which may be decided by an
inspection of the registry list and of the ballots, and their RES
GESTAE.  (Castro vs.
Wislizenus, 12 Phil. Rep., 468). (Topacio vs. Paredes, 23 Phil. 121 [1912],
Trent, J.).

 

§2. Where not all of the candidates
who received votes at an election for the office concerning which a protest is
presented have been notified of the protest, as required by law, the court
acquires no jurisdiction of the proceeding, and a judgment entered therein is
void. (Navarro vs. Jimenez, 23 Phil. 557 [1912], Moreland, J.).

 

§3. In an election protest one
of the essential facts to be alleged and proved is the election of the
protestee. Where it appears that not all of the candidates who, at such
election, received votes for the office concerning which the protest is filed
were notified of the protest as required by law, the court acquires no
jurisdiction of the proceeding. Service of the notice of protest upon all of
such candidates, as required by law, is one of the steps necessary to give the
court jurisdiction to proceed. (Navarro vs. Veloso, 23 Phil. 625 [1912],
Moreland, J.).

 

§4. In an election protest
verified under oath the necessary jurisdictional facts were alleged x x x.  That the verified allegations in the protest
established a prima facie case, sufficient to enable the court to take
jurisdiction, and no evidence to the contrary having been introduced by the
protestee the court never lost that jurisdiction. (Noble vs. Tuason and
Penoso, 48 Phil. 387 [1915], Ostrand, J.). 

§5. Section
576 of the Administrative Code confers plenary jurisdiction on Courts of First
Instance with respect to election contests; and, as a necessary consequence,
they have full power to decide every question within the issues which may arise
during the progress of the contest. (Alvendia vs. Moir and Dinio, 35 Phil.
356 [1916], Moreland, J.).

§6. Where
the jurisdiction of a court over the person or the subject matter depends upon
the resolution of a question of fact and the court upon evidence presented
determines the question of fact and decides in favor of its jurisdiction, such
finding is conclusive on the Supreme Court in a petition for a writ of
certiorari based upon the ground that the court had no jurisdiction of the
subject matter or of the person. (Campos vs. Wislizenus and Aldanese, 35
Phil. 373 [1916], Moreland, J.).

§7. In
election cases what confers jurisdiction upon the court is not the appearance
of the protestee or other candidates voted for in an election, but the filing
of the protest in the court of the proper district within two weeks after the
proclamation of the result of the election, the notification of said protest to
all candidates voted for within the period of twenty days from the filing of
the protest and the filing of the corresponding bond within the period fixed by
the court. (Ocampo vs. Mina and Arejola, 41 Phil. 308 [1920], Villamor, J.).

§8. Courts
of First Instance have jurisdiction to consider an election contest under
Section 479, Act. No. 3387, and also to entertain a complaint in the nature of quo
warranto under Section 408 of the same law; but the two procedures are very
different and are governed by different legal provisions, and the court’s
jurisdiction cannot be exercised jointly and in the same proceeding.

The
protestant herein could have pursued either proceeding, that of an election
contest or that of a complaint of quo warranto; but once he has chosen
the procedure of election contest, he cannot, after the period of fifteen days
from the proclamation of the protestee, change his theory and maintain that the
motion of protest was also a complaint of quo warranto.  “Having chosen between inconsistent theories,
a party must adhere to such choice all through the case, and take the logical
consequences upon every issue.”  (De
la Rosa vs. Yonson, 52 Phil. 446 [1928], Villamor, J.).

§9. Since the motion of
protest alleged all the essential facts for conferring jurisdiction on the
court and included the names of the parties, protestant and protestee, which
latter was summoned, and of the other registered candidates voted for, who
appeared of their own free will, the respondent Court of First Instance
acquired jurisdiction to try and decide the case. (Torres vs. Court of First
Instance of Capiz and Molo, 52 Phil. 478 [1928], Villa-Real, J.).

§10. The
election law provides that in order that the court may acquire jurisdiction,
the contestant must allege that he is a candidate voted for at such election,
and that he has duly filed his certificate of candidacy. (Anis vs.
Contreras, 55 Phil. 923 [1931], Villamor, J.).

§11. Once
an election contest is properly filed, the court has jurisdiction to try and
pass upon all questions involved in the contest; under the new election law it
has jurisdiction to proclaim the winning candidate without the need of another
canvass by the board of canvassers, it being guided only by the outcome of its
findings. (Corpus vs. Ibay, 84 Phil. 184 [1949], Ozaeta, J.).

§12. Where
an election protest filed by a candidate for Congress is already in the hands
of the House Electoral Tribunal, further court intervention in the matter would
only lead to conflict of authority and create confusion. This the courts should
not sanction. (Pajao vs. Provincial Board of Canvassers of Leyte, 88 Phil.
588 [1951], Reyes, J.).

§13. Where
the motion of protest in an election case did not allege that the frauds,
irregularities and violations complained of would in any way alter the result
of the protestee’s election, particularly because, in the revision of the
ballots, the protestant contested only a number of ballots which, even if all
counted in his favor, would still leave a plurality in favor of the protestee,
– the motion of protest was properly dismissed. (De Leon vs. Cruz, 92 Phil.
403 [1952], Paras, C.J.).

§14. The
question of whether or not there had been terrorism, vote-buying and other
irregularities in the elections should be ventilated in a regular election
protest, pursuant to Section 174 of the Election Code, and not in a petition to
enjoin the city board of canvassers from canvassing the election returns and
proclaiming the winning candidates for municipal offices.

The
city board of canvassers may not be enjoined from assessing the returns,
because it would result in a lack of incumbents in the offices concerned after
the termination of the current term and while the case remains pending in
court.  This is not within the
contemplation of the Election Code, which provides for election contests only
after proclamation of the winning candidates. 
Furthermore, an injunction such as that issued by respondent court would
prevent the city board of canvassers from certifying the results of the
election even with respect of national offices. (City Board of Canvassers,
Tacloban City vs. Moscoso, 118 Phil. 935 [1963]; 9 SCRA 91 [1963], Makalintal,
J.).

§15. The allegation in the
election protest that fraud and irregularities were committed in the counting
of votes in two precincts referred to therein and that if they were recounted
the protestant would appear to have received more votes than the protestee, is
sufficient for jurisdictional purposes. (Gadon vs. Gadon, 118 Phil. 1502
[1963]; 9 SCRA 652 [1963], Makalintal, J.).

 

§16. The question of whether
or not more people than registered voters were allowed to vote in precinct 7
should be threshed out in an election contest. (Demafiles vs. Commission on
Elections, 21 SCRA 1462 [1967], Castro, J.).

 

§17. The power to decide
election contests which is vested exclusively in the courts and in the
electoral tribunals of the Senate and the House of Representatives necessarily
includes the power to determine the validity or nullity of the votes questioned
by contestants.  If that power is vested
in the courts and in the electoral tribunals alone, then the incidental power
to determine the validity or nullity of the votes must perforce be deemed
impliedly withheld from any other body or tribunal such as the Comelec. (Nacionalista
Party vs. Commission on Elections, 85 Phil. 1949). (Tagoranao vs.
Commission on Elections, 22 SCRA 978 [1968), Castro, J.).

 

§18. The
general rule is, of course, that once a Court of First Instance has acquired
jurisdiction by virtue of the filing of an election protest all questions
relative thereto must be decided in the case itself and not in a separate
proceeding before a different forum  (Reyes
v. Reyes, L-28476, Jan. 31. 1968; Acain v. Board of Canvassers,
L-16445, May 23, 1960).  (Tuburan vs.
Ballener, 24 SCRA 941 [1968], Makalintal, J.).

 

§19. The question of whether
or not there had been terrorism, vote-buying and other irregularities should be
ventilated in a regular election protest, pursuant to Section 174 of the
Election Code, and not in a petition to enjoin the city board of canvassers from
canvassing the election returns and proclaiming the winning candidates for
municipal offices.  The duty of the board
in this regard is more or less ministerial; it does not pass upon the validity
or invalidity of the ballots cast, and its action is necessarily without
prejudice to the determination of such question in a proper court proceeding
later.  This proceeding, under Section
174, should be filed within two weeks after the proclamation of the result of
the election and hence necessarily implies a previous canvass of the votes by
the board of canvassers.  (Nacionalista
Party v. Commission on Elections, 85 Phil. 149).  In other words, existing laws do not permit a
direct action to annul an election.  Said
remedy may be granted only as an incident to an election contest. (Borromeo
vs. Commission on Elections, 28 SCRA 775 
[1969], Concepcion, C.J.).

 

§20. Petitioner’s allegations
of fraud, terrorism and vote-buying in the elections are normally proper
grounds for an election protest and not for an action to annul election
returns.  (Ligot vs. Commission on
Election, 31 SCRA 45 [1970], Per Curiam).

§21. Where the grievance
relied upon is the commission of irregularities and violation of the Election
Law as appears to be the case here, the proper remedy is the protest.  (Anni vs. Izquierdo, 57 SCRA 692 [1974],
Teehankee, J.).

 

§22. Where a petition for
disqualification was filed after the proclamation of the winning candidate, it
cannot be characterized as a pre-proclamation controversy.  What should be done is for petitioner to file
an election protest or quo warranto. (Venezuela vs. Commission on
Elections, 98 SCRA 790 [1980], Fernando, C.J.).

 

§23. The proper remedy for
impugning the qualification of a winning candidate on grounds of election
irregularities like vote-buying is an election protest. (Villegas vs.
Commission on Elections, 99 SCRA 582 [1980], Fernando, C.J.).

 

§24. The petition must be
dismissed.  It is very apparent from the
petition-letter that the grounds relied upon by petitioners in seeking relief
from the COMELEC are proper grounds for election protest.  Petitioner premised his petition, to quote
from Resolution No. 9802 of the COMELEC, on seizure of ballot boxes at
gunpoint; intimidation of voters and forced opening and examination of ballots;
substitution of ballots; and tampering of election returns.  These are the same grounds alleged in the
election protest filed in the Court of First Instance of Pampanga.  The cases of Villegas vs. COMELEC and Laguda
vs. COMELEC find application in the disposition of this case.  In the early case of Villegas v. COMELEC,
where massive fraud and violations of certain provisions of the Election Code
allegedly committed during the elections were denounced in this Court, the
Court through Mr. Chief Justice Enrique M. Fernando dismissed the petition, it
appearing therein that the grounds set forth in the complaint before the
COMELEC are proper for election protest. 
The Court pointed out, that at any rate petitioner would not be left
without remedy “for the opportunity for him to prove such a wholesale
allegation of massive fraud and violations of Election Code is still
there.”  Indeed, herein petitioner could
still avail himself of the election protest where he could ventilate his
grievance and be provided the full opportunity to present all relevant evidence
in a full dress hearing in accordance with due process, unlike in the COMELEC
where the proceedings are summary in nature. 
As was aptly said in Laguda v. COMELEC, “to pass on such a
complex matter in a summary proceedings would be to run the risk that the
decision arrived at would not reflect the realities of this situation”.  (Pasion vs. Commission on Elections, 109
SCRA 238 [1981], De Castro, J.).

 

§25. Paragraph
7 of petitioner’s petition of protest claims that the same “was presented
within the period fixed by law”. 
Generally, such averment is not sufficient assurance that the petition
was indeed filed on time, absent a showing of the date to reckon the timeliness
of the filing of the petition. x x x Where, however, even without a statement
of the date of the proclamation, the timeliness of the filing of the petition
of protest could be determined in some way, the court must not close its eyes
to the facts and dismiss the case by mere technicality.  Thus, even in the Yumul case, the
court said that the protestant’s compliance with the mandatory provision of law
requiring that an election protest must be filed within two (2) weeks following
the date of the elected candidate’s proclamation must appear either expressly
or by implication.  In other words, where
the court, on the basis of the records of the case, can infer that the case was
filed on time, the court is with jurisdiction to try and decide the case. (Miro
vs. Commission on Elections, 121 SCRA 466 
[1983], De Castro, J.).

§26. The
COMELEC not the CFI has jurisdiction under its enlarged powers to act on a
petition contesting the qualification of a mayoral-candidate elect on the
ground of changing party-affiliation. (Gabatan vs. Commission on
Elections, 122 SCRA 1  [1983], Fernando,
C.J.).

§27. 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 x x x docketed as G.R. No. 106270 assailing
the validity of the proclamation of the herein protestee x x x x.”  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. (Mitmug vs. Commission on Elections, 230 SCRA 54 [1994],
Bellosillo, J.).

§28. Petitioner
conveniently confuses the distinction between an unproclaimed candidate to the
House of Representatives and a member of the same.  Obtaining the highest number of votes in an
election does not automatically vest the position in the winning candidate.

Under
Section 17 of Article VI of the 1987 Constitution, the electoral tribunal
clearly assumes jurisdiction over all contests relative to the election,
returns and qualifications of candidates for either the Senate or the House
only when the latter become members of either the Senate or the House of
Representatives.  A candidate who has not
been proclaimed and who has not taken his oath of office cannot be said to be a
member of the House of Representatives subject to Section 17 of Article VI of
the Constitution.

While
the proclamation of a winning candidate in an election is ministerial, B.P. 881
in conjunction with Sec. 6 of R.A. 6646 allows suspension of proclamation under
circumstances mentioned therein.  Thus,
petitioner’s contention that “after the conduct of the election and
(petitioner) has been established the winner of the electoral exercise from the
moment of election, the COMELEC is automatically divested of authority to pass
upon the question of qualification” finds no basis in law, because even after
the elections the COMELEC is empowered by Section 6 (in relation to Section 7)
of R.A. 6646 to continue to hear and decide questions relating to
qualifications of candidates. (Aquino vs. Commission on Elections, 248 SCRA
400 [1995], Kapunan, J.).

§29. As can be gleaned
unerringly from the antecedent facts and proceedings aforestated, the appeal
interposed by the private respondent to the Commission on Elections from the decision
of the Trial Court of origin in subject election case, was not referred to a
division of the Commission but was, instead, submitted to the Commission En
Banc, which decided against the petitioner in the Resolution of April 24,
1997.  Such recourse by the private
respondent transgressed Section 3, Subdivision C of Article IX of the
Constitution which expressly provides: Sec. 3. The Commission on Elections may
sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including
pre-proclamation controversies.  All such
election cases shall be heard and decided in division, provided that motions
for reconsideration of decisions shall be decided by the Commission en banc.
(Zarate vs. Commission on Elections, 318 SCRA 608 [1999], Purisima, J.).

 

§30. Further, Section 6, Rule
20 of the COMELEC Rules of Procedure reads: 
“When the allegations in a protest or counter-protest so warrant, or
whenever in the opinion of the Commission or Division, the interest of justice
so demands, it shall immediately order the ballot boxes containing the ballots
and their keys, list of voters with voting records, book of voters, and other
documents used in the election to be brought before the Commission, and shall
order the revision of the ballots.” 
While the abovementioned rule pertains to election protests falling
within the exclusive original jurisdiction of the Commission, the same
procedure is prescribed for election contests which are within the exclusive
original jurisdiction of courts of general jurisdiction as well as election
contests within the exclusive original jurisdiction of courts of limited
jurisdiction. (Miguel vs. Commission on Elections, 335 SCRA 172 [2000],
Buena, J.).

 

§31. An election protest is an
ordinary action while a petition to declare a failure of elections is a special
action under the 1993 COMELEC Rules of Procedure as amended.  An election protest is governed by Rule 20 on
ordinary actions, while a petition to declare failure of elections is covered
by Rule 26 under special actions.  In
this case, petitioner filed his petition as a special action and paid the
corresponding fee therefor.  Thus, the
petition was docketed as SPA-98-383. 
This conforms to petitioner’s categorization of his petition as one to
declare a failure of elections or annul election results.  In contrast, an election protest is assigned
a docket number starting with “EPC” meaning election protest case. (Banaga,
Jr., vs. Commission on Elections, 336 SCRA 701 [2000], Quisumbing, J.).

 

 

4. Sufficiency of
an election protest

 

§1. It
is a well-established rule of pleading and practice, that in all pleadings
filed in courts of special jurisdiction, the special jurisdictional facts must
be alleged.  Unless the special
jurisdictional facts are alleged, the complaint is demurrable. (Gumiran vs.
Gumiran, 21 Phil. 174 [1912], Johnson, J.).

§2. In
an election protest one of the essential facts to be alleged and proved is the
election of the protestee. Where it appears that not all of the candidates who,
at such election, received votes for the office concerning which the protest is
filed were notified of the protest as required by law, the court acquires no
jurisdiction of the proceeding. Service of the notice of protest upon all of
such candidates, as required by law, is one of the steps necessary to give the
court jurisdiction to proceed. (Navarro vs. Veloso, 23 Phil. 625 [1912],
Moreland, J.).

§3. A
protest under oath, alleging facts sufficient to establish that illegal votes
were cast and counted for the respondent, which is sufficient, if rejected, to
change the election, makes a prima facie case under the Election Law for
the opening of the ballot boxes and the recounting of the ballots.

While
the statute seems to require all ballots to be brought before the court,
the practice should be, in the first instance, to bring before the court for
examination only such ballots as are questioned by the protest.

Under
the Election Law, an illiterate voter, or other voter who through physical
disability is unable to cast his ballot without assistance, should be required
prior to voting to take oath as to his illiteracy or disability; and in case no
such oath is taken he should not be permitted to vote.  The oath is a condition precedent to his
right to vote. (Manalo vs. Sevilla, 24 Phil. 609 [1913], Moreland, J.).

§4. The motion which
institutes an election contest should be sufficiently comprehensive to apprise
the contestee of the frauds and irregularities relied upon to obtain a revision
of the official returns.  Only when the
contestee has been misled or surprised by the contents of the motion can he
object to the proof of facts not alleged in such motion. (Gardiner vs.
Romulo, 26 Phil. 254 [1914], Trent, J.).

 

§5. A
motion which states in a legal, logical form the grounds of a contest and then
alleges that the contestee was duly proclaimed elected by the board of
inspectors instead of alleging that the contestee was duly declared elected by
the municipal council, acting as municipal board of canvassers, is sufficient,
in a municipality where there is only one precinct, to confer jurisdiction upon
the court over the subject-matter of the proceedings. (Galang vs. Miranda
and De Leon, 35 Phil. 269 [1916], Johnson, J.).

§6. Sections
44 and 45 of Act No. 3030, amending Sections 479 and 481 of the Election Law,
and referring to contested elections for any office in general and the
procedure for such cases in court, show the essential facts that confer
jurisdiction upon the court to hear and determine such kinds of causes, to wit:
(a) That the protestant has duly registered his candidacy and received
votes in the election (Tengco vs. Jocson, 43 Phil., 715); (b)
that the protestee has been proclaimed elected in said election (Manalo vs.
Sevilla, 24 Phil., 609); (c) that the motion of protest be filed
within two weeks after such proclamation (Navarro vs. Veloso, 23 Phil.,
625; Manalo vs. Sevilla, supra; Hontiveros vs. Altavas, 39 Phil., 226);
(d) that all the candidates registered and voted in the election were
properly notified of the protest within twenty days following its filing; (e)
that the notice be served by the sheriff or his deputy in the manner prescribed
by the law, failing which, that the notice be published in a paper of general
circulation in the locality or by notices posted in conspicuous places of the
town as may have been ordered by the court.

As
regards the protestant, an election protest is sufficient if the facts
enumerated in clauses (a), (b) and (c) of the preceding
paragraph are alleged.

[I]t is
the sheriff or his deputy, and not the protestant, who is bound to serve the
notice and summons to the protestee and the other registered and voted
candidates.  (Palisoc vs.
Tamondong and Medina Cue, 43 Phil. 789). (Ferrer vs. Gutierrez David and
Lucot, 43 Phil. 795 [1922], Villamor, J.).

§7. The
fact that in the protest the number of votes which would result in favor of the
protestant after the judicial counting is not specified, does not affect the
right of the protestant, for it being known that said omission is a defect of
the protest, the same may be cured by a specification of the votes mentioned in
the protest, without thereby adding new grounds to those already alleged by the
protestant.  Hence when a demurrer to the
motion of protest is sustained on account of this defect, the case must not be
dismissed, but the court must allow the contestant to make the specification
necessary to make clear the facts alleged in the protest. (Gallares vs.
Caseñas, 48 Phil. 362 [1925], Villamor, J.).

§8. Where in an election
contest in which the petition was defective and the only pleading of the
protestee was an answer and a cross-complaint, in which he asked the court to
have a recount of the votes in certain specified precincts, and invoked the
jurisdiction of the court to have his election confirmed, and by consent of the
parties, commissioners were appointed to count the ballots, and a portion of
the evidence was taken upon such issues, and the case was about ready for trial
before the court, the protestee is thereafter estopped to, then and for the
first time, raise and question the jurisdiction of the court to try and decide
the case on the merits. (Morales vs. De Leon, 48 Phil. 515 [1925], Johnson,
J.).

 

§9. In order to confer
jurisdiction on the Court of First Instance over an election protest, it is
sufficient to file a motion to that effect, alleging the following facts:  (a) That the protestant has duly registered
his candidacy and received votes in the election (Tengco vs. Jocson, 43
Phil., 715); (b) that the protestee has been proclaimed elected in said
election (Manalo vs. Sevilla, 24 Phil., 609); and (c) that the motion of
protest was filed within two weeks after such proclamation (Navarro vs.
Veloso, 23 Phil., 625; Manalo vs. Sevilla, supra; Hontiveros vs.
Altavas, 39 Phil., 226), and it is not necessary to allege that copies of
the motion were furnished the sheriff to notify and summon the protestees,
inasmuch as the purpose of the summons is to give the court jurisdiction over
the persons of said protestees and not over the subject matter in
controversy.  (Ferrer vs. Gutierrez
David and Lucot, 43 Phil., 795).  (Pobre
vs. Quevedo, 52 Phil. 359 [1928], Villa-Real, J.).

 

§10. The sufficiency or the
insufficiency of the facts alleged in the motion of protest to constitute a
cause of action is not a jurisdictional fact and, consequently, does not affect
the acquisition of jurisdiction by the court, but affects only its exercise
once acquired, in the sense of permitting or forbidding the continuance of its
exercise for the purpose intended. If the facts alleged in the motion of
protest do not constitute a cause of action, the court cannot continue
exercising its jurisdiction, inasmuch as it possesses that power when it appears
that a right has been violated and an injury caused, requiring judicial
intervention in order to protect the one and repair the other. (Santiago vs.
Ignacio, 52 Phil. 367 [1928], Villa-Real, J.).

 

§11. In view of the repeated
decisions of this court it is held that since the proclamation of an elected
candidate is an essential fact of a jurisdictional character the same must
appear in the motion of protest, otherwise the court in which the motion is
filed does not acquire jurisdiction to try the case and such defect cannot be
cured by a motion of amendment filed after the lapse of the period fixed by law
for the filing of an election protest.

 

Inasmuch as the facts which confer special
jurisdiction are not presumed, but must clearly appear in the motion, the trial
court could not have acquired jurisdiction. (Tengco vs. Jocson, 43
Phil., 715; Viola vs. Court of First Instance of Camarines Sur and Adolfo,
47 Phil., 849). (Saldaña vs. Consunji, 52 Phil. 433 [1928], Villa-Real, J.).

 

§12. Since the motion of protest
alleged all the essential facts for conferring jurisdiction on the court and
included the names of the parties, protestant and protestee, which latter was
summoned, and of the other registered candidates voted for, who appeared of
their own free will, the respondent Court of First Instance acquired
jurisdiction to try and decide the case. (Torres vs. Court of First Instance
of Capiz and Molo, 52 Phil. 478 [1928], Villa-Real, J.).

 

§13. Where the jurisdictional
averments of a motion filed for the purpose of contesting an election are in
other respects sufficient, it is not necessary that it should also be alleged
therein that the contestant is eligible to fill the office which he is
contesting. (Caesar vs. Garrido, 53 Phil. 97 [1929], Street, J.).

 

§14. The election law provides
that in order that the court may acquire jurisdiction, the contestant must
allege that he is a candidate voted for at such election, and that he has duly
filed his certificate of candidacy. (Sec. 479 of the Election Law). (Anis vs.
Contreras, 55 Phil. 923 [1931], Villamor, J.).

 

§15. “Every protest must be
based upon those grounds which, according to law, would quash an election,
invalidate it, or change its result. The first class refers to ineligibility of
the winning candidate; the second, to the non-compliance of the mandatory
provisions of the law, that is, the violation of the proceedings essential to
election; and the last, to frauds committed at the polls or anomalies in the
count of votes, which affect the election results.” (Villamor, Tratado de
Elecciones, sec. 733, page 453). Aquino vs. Calabia and Sahagun, 55
Phil. 984 [1931], Romualdez, J.).

 

§16. While the election law
does not say so directly, it is clearly inferred from its relevant provisions
that where the grounds of contest are that legal votes were rejected and
illegal votes received, the motion of protest should state in what precincts
such irregularities occurred.  The specification
in the motion of protest of the election precinct or precincts where the
alleged irregularities occurred, is required in order to apprise the contestee
of the issues which he has to meet. (Fernando vs. Endencia, 66 Phil. 148
[1938], Abad Santos, J.).

 

§17. The motion or protest
recited that the protestant “was a candidate voted for in the general election
held on November 11, 1947, with a valid certificate of candidacy for the Office
of Mayor of the Municipality of Capoocan, Province of Leyte, Philippines,
within the jurisdiction of this Court.” This allegation unequivocally signifies
that the protestant “presented a certificate of candidacy.”  Couched in different forms, the two
expressions convey the same idea. (Pamanian vs. Pilapil, 81 Phil. 212
[1948], Tuason, J.).

 

§18. Once an election contest
is properly filed, the court has jurisdiction to try and pass upon all
questions involved in the contest; under the new election law it has
jurisdiction to proclaim the winning candidate without the need of another
canvass by the board of canvassers, it being guided only by the outcome of its
findings. (Corpuz vs. Ibay, 84 Phil. 184 [1949], Ozaeta, J.).

 

§19. Where a motion of protest
contains allegations that the protestant is a qualified elector and one of the
registered candidates voted for in the general election held on November 13,
1951, these allegations substantially comply with the law and are sufficient to
confer upon courts of first instance the requisite jurisdiction. (Jalandoni
vs. Sarcon, 94 Phil. 266 [1954], Bautista Angelo, J.).

 

§20. While the petition for
recount originally suffered from a defect which would have rendered respondent
judge without jurisdiction to entertain the same because of the failure to
include therein candidate Ginete as party respondent, the fact is that candidate
Ginete appeared at the hearing of the petition, through counsel who asked for
the dismissal of the petition and even cross-examined the witnesses. That
procedural or jurisdictional defect had therefore been cured by the voluntary
appearance of herein petitioner Ginete before the court. (Ginete vs.
Arcangel, 21 SCRA 1178 [1967], Zaldivar, J.).

 

§21. Anent the second issue,
petitioner argues that because private respondent failed to allege in his
original petition that he “duly filed a certificate of candidacy,” respondent
COMELEC did not acquire jurisdiction over the election protest.  Petitioner’s argument is untenable.  As correctly held by the COMELEC in the
assailed Decision:  “The Commission,
First Division, notes that the above-mentioned legal provision does not require
that a protest must state that it is being filed “by a candidate who has duly
filed his certificate of candidacy.” 
Sec. 250 of the Omnibus Election Code only provides that a protest must
be filed by a candidate who “has duly filed his certificate of candidacy and
has been voted for the same office”, without requiring in said section that
this matter must be specifically alleged in the protest. (Macias, II vs.
Commission on Elections, 182 SCRA 137 [1990], Paras, J.).

 

§22. Petitioner again failed
to implead Lanot in the instant petition for certiorari.  In this connection, Section 2, Rule 3 of the
Rules of Civil Procedure provides that every action must be prosecuted or
defended in the name of the real party in interest.  By real interest is meant a present
substantial interest, as distinguished from a mere expectancy or a future,
contingent, subordinate, or consequential interest.  As the winning candidate whose proclamation
is sought to be nullified, Henry P. Lanot is a real party in interest in these
proceedings.  The COMELEC and the Board
of Canvassers of Pasig City are mere nominal parties whose decision should be
defended by the real party in interest. (Caruncho III vs. Commission on
Elections, 315 SCRA 693 [1999], Ynares-Santiago, J.).

 

 

5. Quo
warranto

 

§1. When, in an action of quo
warranto based upon the nullity of a judgment in an election protest by
reason of the failure to give notice to all of the candidates receiving votes
at such election for the office concerning which the protest is filed, it
appears that the question as to whether or not such notice had been given was
raised before the Court of First Instance, which, after hearing the evidence
relative to the service of such notice the argument of counsel in connection
therewith, finds that such notice was a matter of fact duly given and such
decision has become final, a collateral attack in the form of quo warranto
or otherwise against the judgment rendered in such proceedings will not be
permitted. (Navarro vs. Jimenez, 23 Phil. 557 [1912], Moreland, J.).           

           

§2. In an action of quo
warranto to determine the title to a public office the complaint, to be
sufficient, must show that the plaintiff is entitled to the office and that the
defendant is illegally in possession thereof.

 

An election contest under Section 27 of
Act No. 1582 is exclusive of all other proceedings to determine the same
question upon the same facts; and, while such a proceeding is pending, an
action of quo warranto based on the facts to determine the title to the
same office cannot be maintained. (Luna vs. Rodriquez, 36 Phil. 401 [1917],
Moreland, J.). 

 

§3. Quo warranto is a
proper proceeding to determine disputed questions of title to public office
where such questions relate exclusively to matters disassociated with those
settled at the polls by the people. (Remata vs. Javier, 36 Phil. 483 [1917],
Trent, J.).

 

§4. Courts of First Instance
have jurisdiction to consider an election contest under Section 479, Act No.
3387, and also to entertain a complaint in the nature of quo warranto
under Section 408 of the same law; but the two procedures are very different
and are governed by different legal provisions, and the court’s jurisdiction
cannot be exercised jointly and in the same proceeding.

 

The protestant herein could have pursued
either proceeding, that of an election contest or that of a complaint of quo
warranto; but once he has chosen the procedure of election contest, he
cannot, after the period of fifteen days from the proclamation of the protestee,
change his theory and maintain that the motion of protest was also a complaint
of quo warranto. “Having chosen between inconsistent theories, a party
must adhere to such choice all through the case, and take the logical
consequences upon every issue.” (20 C.J., 38, 39.) (De la Rosa vs.
Yonson, 52 Phil. 446 [1928], Villamor, J.).

 

§5. The judgment rendered in
the case on the petition to cancel the respondent-appellee’s name in the
election list is not conclusive and does not constitute res judicata in
the present quo warranto proceeding, as in the two cases, there is no
identity either of parties, or of the thing or matter litigated, or of issues
or causes of action. (Nuval vs. Guray, 52 Phil. 645 [1928], Villa-Real, J.).

 

§6. The ineligibility of the
mover of an election contest is not available as a defense in the contest
proceeding. The contest raises merely a question as to the number of votes
received by the different certified candidates; while the eligibility of the
candidate depends upon different considerations.  The issue of eligibility of a candidate is
incongruous with the issue involved in the election contest.

 

A proceeding in the nature of quo
warranto, to try the question of eligibility of a candidate for office, can
only be instituted against one who has been proclaimed to the disputed office.
(Caesar vs. Garrido, 53 Phil. 97 [1929], Street, J.).

 

§7. An action of quo
warranto for the purpose of procuring a successful candidate to be declared
ineligible to the office of provincial governor was begun in the Supreme Court
within the two weeks required x x x. Held, that the proceeding in the
Court of First Instance was a mere continuation of the action which had been
properly begun in the Supreme Court, and the trial court committed no error in
entertaining the proceeding. (Tanseco vs. Arteche, 57 Phil. 227 [1932],
Street, J.).

 

§8. One should not confuse an
action of quo warranto with the complaint for violation of the Election
Code even if the same may have the effect of disqualifying a candidate to hold
the office to which he is elected.  One
partakes of the nature of a civil case wherein the petitioner is the defeated
candidate, while the other is a criminal action which is prosecuted in the name
of the People.  Both proceedings have
different objectives and are predicated on different grounds.  The purpose of quo warranto is merely
to prevent an elected official from assuming office on the ground of
ineligibility.  On the other hand, the
principal purpose of the criminal action is the imprisonment of the offender,
be he a candidate or not, and the grounds of the action vary depending upon the
acts committed.  Lastly, while an action
of quo warranto should be filed within one week from proclamation, an
election offense prescribes after two years from the date of its commission,
and if the discovery is made on the occasion of an election contest, the period
shall commence on the date the judgment becomes final (Section 188, Revised
Election Code). (Gorospe vs. Peñaflorida, 101 Phil. 886 [1957], Bautista
Angelo, J.).

 

§9. A protest to disqualify a
protestee on the ground of ineligibility is different from that of a protest
based on frauds and irregularities where it may be shown that protestant was
the one really elected for having obtained a plurality of the legal votes.  In the first case, while the protestee may be
ousted the protestant will not be seated; in the second case, the protestant
may assume office after protestee is unseated. 
The first case is brought to court by a petition of quo warranto,
while the second by instituting an election protest.

 

A candidate who files a protest against
one who has been proclaimed as having received the highest number of votes
basing his protest merely on the ground of his ineligibility to hold office,
cannot disguise his action so as to make his protest a justification to be
seated in office.  In other words, he
cannot convert an action for quo warranto into an election protest.  This is because these two cases are
fundamentally different in nature and in purpose. (Luison vs. Garcia, 103
Phil. 453 [1958], Bautista Angelo, J.).

 

§10. Under the Revised
Election Code, where a defeated candidate for the office of Mayor has filed quo
warranto proceedings against the opposing candidate who had been declared
elected and has assumed office, for the purpose of having him ousted from said
office on the ground that he was not eligible or qualified because he was not a
Filipino citizen, and said quo warranto case has been finally decided by
the Court of Appeals, it is unnecessary for the Government, through the
Solicitor General, and at the request or instance of the party who instituted
the quo warranto to test the right of the same party respondent to
occupy the office in the first quo warranto case. The reason is that a
final decision in the first either by the Court of Appeals where it was pending
appeal, or by the Supreme Court, should said case ever reach it would
definitely and finally determine the same issue involved in the second case,
and constitute res judicata. (Republic vs. Corpin, 104 Phil. 49
[1958], Montemayor, J.).

 

§11. x x x. In the case at
bar, certain municipal officials assumed office upon the authority of the
proclamation made by the board of canvassers, backed up by the Commission on
Elections, hence, they have a color of title to their office. Accordingly, they
enjoy, at least, the rights of a de facto officer, among which is that
their title to said offices may not be contested except directly, by writ of quo
warranto and/or by election protest, not indirectly by questioning the
regularity of their proclamation  (Tayko vs.
Capistrano, 53 Phil., 866, 873; Government vs. Binañgonan, 28 Phil. 116;
Mechem, Public Officers,               
sec. 344).

 

The court of first instance with which a
petition for a writ of quo warranto and election protest were filed,
acquires exclusive authority to inquire into and pass upon the title to public
office of the person concerned and the validity of proclamation made by the
municipal board.  The Supreme Court
cannot, upon the authority of the petition for prohibition, mandamus and
certiorari subsequently filed with it, determine said questions without encroaching
upon the jurisdiction of the said court. 
(Acain and Malimit vs. Board of Canvassers of Carmen, Agusan, 108
Phil. 165 [1960], Concepcion, J.).

 

§12. The right to an
elective municipal office can be contested only after proclamation, and since
there is no authorized proceedings upon which an eligible candidate could be
barred from running for office, the mere failure to question respondent’s
candidacy before election does not place petitioner in estoppel.

 

The fact that the petitioner is not
entitled to office is no bar to the filing of a quo warranto petition
under Section 173 of the Revised Election Code.

 

Where the previous petition filed with the
Commission on Elections was general in character and referred to all
candidates, and for reasons other than that of ineligibility by reason of
nonage, the decision therein is no bar to the subsequent petition for quo
warranto. (Sanchez vs. Del Rosario, 111 Phil. 733 [1961]; 1 SCRA 1102
[1961], Reyes,            J.B.L., J.).

 

§13. In an ordinary quo
warranto case filed under Rule 68 of the Rules of Court, where the office
in question is an elective one, the complaint 
must show that the plaintiff was duly elected thereto. (Luna vs.
Rodriguez, 38 Phil. 401; Acosta vs. Flor, 5 Phil. 18). (Campos
vs. Degamo, 116 Phil. 541 [1962], Paredes, J.).

 

§14. While it is true that the
original petition for quo warranto contesting the right to office of
proclaimed candidates was mailed, addressed to the clerk of the court of first
instance, within the one week period after the proclamation provided therefor
by law (Section 173, Revised Election Code), it is likewise a fact that the
required docket fees were paid only after the expiration of said period,
consequently, it is held that the date of such payment must be deemed to be the
real date of filing of the aforesaid petition and not the date when it was
mailed. (Malimit vs. Degamo, 12 SCRA 450 [1964], Dizon, J.).

§15. The election of a
non-eligible person to a municipal office may be contested by any registered
candidate for the same office.  It
matters not that said candidate has no claim or right to the office in the
event respondent be ousted.  The law —
Section 173 of the Revised Election Code — does not require that the contestant
could, if his quo warranto case prospers, himself occupy the office.

 

A distinction should be drawn between quo
warranto referring to an office filled by election and quo warranto involving
an office held by appointment.  In the
first case, what is to be determined is the eligibility of the candidate-elect,
while in the second case, what is determined is the legality of the
appointment.  In quo warranto
proceedings referring to offices filled by election, when the person elected is
ineligible, the court cannot declare that the candidate occupying the second
place has been elected, even if he were eligible, since the law only authorizes
a declaration of election in favor of the person who has obtained a plurality
of votes, and has presented his certificate of candidacy.  In quo warranto proceedings referring
to office filled by appointment, the court determines who has been legally
appointed and can and ought to declare who is entitled to occupy the
office.  (Ruling on the Motion for
Reconsideration in Nuval vs. Guray, 52 Phil. 645, 654). (Gaerlan, Jr.
vs. Catubig, 123 Phil. 1229 [1966]; 17 SCRA 376 [1966], Sanchez, J.).

 

§16. Upon
the filing of a protestant’s petition for a writ of quo warranto and
election protest in the proper Court of First Instance against a proclaimed
candidate (protestee) who had already assumed office, said court had acquired
exclusive authority to inquire into and pass upon the validity of the latter’s
title, as well as the validity of his proclamation.  Consequently, the Comelec may refrain from
exercising its authority to annul the proclamation of a candidate and leave the
disposition of all questions involved in the election of said candidate with
the Court of First Instance, in line with the decision in Acain v. Board of
Canvassers, L-16445, May 23, 1960. 
It would be conducive to confusion and conflict in authority if under
the circumstances the Comelec would still be considered as having the residual
power to interfere with a pending election protest. (Reyes vs. Reyes, 22
SCRA 485 [1968], Fernando, J.).

 

§17. Remedy of losing
candidate after the recount and recanvass of election returns and termination
of pre-proclamation controversy is an election protest or quo warranto. (Jagunap
vs. Commission on Elections, 104 SCRA 204 [1981], Concepcion, Jr., J.).

 

§18. After the election, a
pre-proclamation controversy is no longer viable and resort should be had by
the NP candidate to the remedy of an election protest or quo warranto,
whichever is proper. (Disini vs. Commission on Elections, 119 SCRA 511  [1982], Fernando, C.J.).

§19. The law is equally
clear.  The Election Code grants the
right to a voter “contesting the election of any officer on the ground of
ineligibility or of disloyalty to the Republic of the Philippines [to] file a
petition for quo warranto with the Commission within ten days after the
proclamation of his election.”  There is
no getting away from the explicit mandate of the law.  A ten-day period is set forth.  It must be obeyed.  This Court has reiterated time and time again
the principle that when the statute speaks clearly and unequivocally, there is
no room for interpretation.  It must be
applied as worded.  It is to be noted
that there is a distinction between an election protest and quo warranto
suit on ground of ineligibility.  This
Court has even gone as far as holding that an action for quo warranto
cannot be converted into an election protest. 
It may not be amiss to state that under the former Election Code, the
period granted is limited to one week or seven days, not ten days as now
provided.  Then as well as now, however,
whatever period is prescribed must be followed to the letter.  It is as simple as that. (Asuncion, Jr.,
vs. Segundo, 124 SCRA 729 [1983], Fernando, C.J.).

 

§20. We hold that the municipal
trial court or the municipal circuit trial court has jurisdiction, and not
the Comelec nor the Regional  Trial
Court, over the said quo warranto case regarding the barangay captain’s
ineligibility.  Jurisdiction over such
cases is vested in the appropriate city or municipal or metropolitan trial
court pursuant to the 1982 Barangay Election Law, Batas Pambansa Blg. 222.  (Regatcho vs. Cleto, 126 SCRA 342  [1983], Aquino, J.).

                                   

§21. The argument that the
petition filed with the Commission on Elections should be dismissed for
tardiness is not well-taken.  The herein
private respondents are seeking to prevent Frivaldo from continuing to
discharge his office of governor because he is disqualified from doing so as a
foreigner.  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.  If, say, a female legislator were to marry a
foreigner during her term and by her act or omission acquires his nationality,
would she have a right to remain in office simply because the challenge to her
title may no longer be made within ten days from her proclamation?  It has been established, and not even denied,
that the evidence of Frivaldo’s naturalization was discovered only eight months
after his proclamation and his title was challenged shortly thereafter.

 

This Court will not permit the anomaly of
a person sitting as provincial governor in this country while owing exclusive
allegiance to another country.  That fact
that he was elected by the people of Sorsogon does not excuse this patent
violation of the salutary rule limiting public office and employment only to
the citizens of this country.  The
qualifications prescribed for elective office cannot be erased by the
electorate alone.  The will of the people
as expressed through the ballot cannot 
cure the vice of ineligibility, especially if they mistakenly believed,
as in this case, that the candidate was qualified.  Obviously, this rule requires strict application
when the deficiency is lack of citizenship. 
If a person seeks to serve in the Republic of the Philippines, he must
owe his total loyalty to this country only, abjuring and renouncing all fealty
and fidelity to any other state. (Frivaldo vs. Commission on Elections, 174
SCRA 245 [1989], Cruz, J.).

 

§22. The Court has considered
the arguments of the parties and holds that the petition for quo warranto
was filed on time.  We agree with the
respondents that the fee was paid during the ten-day period as extended by the
pendency of the petition when it was treated by the COMELEC as a
pre-proclamation proceeding which did not require the payment of a filing
fee.  At that, we reach this conclusion
only on the assumption that the requirement for the payment of the fees in quo
warranto proceedings was already effective. x x x  In any event, what is important is that the
filing fee was paid, and whatever delay there may have been is not imputable to
the private respondent’s fault or neglect. 
It is true that in the Manchester Case, we required the timely
payment of the filing fee as a precondition for the timeliness of the filing of
the case itself.  In Sun Insurance
Office, Ltd. v. Asuncion, however, this Court, taking into account the
special circumstances of that case, declared: This Court reiterates the rule
that the trial court acquires jurisdiction over a case only upon the payment of
the prescribed filing fee.  However, the
court may allow the payment of said fee within a reasonable time.  In the event of non-compliance therewith, the
case shall be dismissed. (Labo, Jr. vs. Commission on Elections, 176 SCRA 1
[1989], Cruz, J.).

           

§23. 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 for quo 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.

Moreover, quo warranto was not the
proper remedy because both the petitioner and the private respondent claimed to
have assumed the office of the mayor of Kabuntalan.  In a quo warranto proceeding, the
petitioner is not occupying the position in dispute.  Moreover, under the Omnibus Election Code, quo
warranto is proper only for the purpose of questioning the election of a
candidate on the ground of disloyalty or ineligibility.

 

A petition for quo warranto under
the Omnibus Election Code raises in issue the disloyalty or ineligibility of
the winning candidate.  It is a
proceeding to unseat the respondent from office but not necessarily to install
the petitioner in his place.

 

An election protest is a contest between
the defeated and winning candidates on the ground of frauds or irregularities
in the casting and counting of the ballots, or in the preparation of the
returns.  It raises the question of who
actually obtained the plurality of the legal votes and therefore is entitled to
hold the office.

 

It is settled that an incomplete canvass
of votes is illegal and cannot be the basis of a valid proclamation.  All the votes cast in the election must be
counted and all the returns presented to the board must be considered as the
disregard of some returns would in effect disenfranchise the voters
affected.  A canvass cannot be reflective
of the true vote of the electorate unless all the returns are considered. (Samad
vs. Commission on Elections, 224 SCRA 631 [1993], Cruz, J.).

 

§24. The COMELEC dismissed the
petition on the grounds that it was filed outside the three-day period for
questioning the proceedings and composition of the Provincial Board of
Canvassers under Section 19 of R.A. No. 7166. 
The COMELEC failed to resolve the more serious issue¾the disqualification of private respondent
to be proclaimed Governor on grounds of lack of Filipino citizenship.  In this aspect, the petition is one for quo
warranto.  In Frivaldo v.
Commission on Elections, 174 SCRA 245 (1989), we held that a petition for quo
warranto, questioning the respondent’s title and seeking to prevent him
from holding office as Governor for alienage, is not covered by the ten-day
period for appeal prescribed in Section 253 of the Omnibus Election Code.
Furthermore, we explained that “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 qualification is lost, his title may be seasonably
challenged.”

 

Petitioner’s argument, that to unseat him
will frustrate the will of the electorate, is untenable.  Both the Local Government Code and the
Constitution require that only Filipino citizens can run and be elected to
public office.  We can only surmise that
the electorate, at the time they voted for private respondent, was of the
mistaken belief that he had legally reacquired Filipino citizenship.

 

Petitioner in G.R. No. 105715, prays that
the votes cast in favor of private respondent be considered stray and that he,
being the candidate obtaining the second highest number of votes, be declared
winner.  In Labo, Jr. vs. COMELEC, 176
SCRA 1 (1989), we ruled that where the candidate who obtained the highest
number of votes is later declared to be disqualified to hold the office to
which he was elected, the candidate who garnered the second highest number of
votes is not entitled to be declared winner (See also Geronimo v. Ramos,
136 SCRA 435 [1985]; Topacio v. Paredes, 23 Phil. 238 [1912]). (Republic vs.
Dela Rosa, 232 SCRA 785 [1994], Quiason, J.).

 

§25. Considering that
Concepcion continuously occupies the disputed position and exercises the
corresponding functions therefore, the proper remedy should have been quo
warranto and not mandamus.  Quo
warranto tests the title to one’s office claimed by another and has as its
object the ouster of the holder from its enjoyment, while mandamus avails to
enforce clear legal duties and not to try disputed titles.

 

This provision is inapplicable as there
was no case or matter filed before the COMELEC. On the contrary, it was the
COMELEC’s resolution that triggered this controversy.  The “case” or “matter” referred to by the
Constitution must be something within the jurisdiction of the COMELEC, i.e., it
must pertain to an election dispute.  The
settled rule is that “decision, rulings, order” of the COMELEC that may be
brought to the Supreme Court on certiorari under Sec. 7, Art. IX-A are those
that relate to the COMELEC’s exercise of its adjudicatory or
quasi-judicial powers involving “elective regional, provincial, and city
officials.” In this case, what is being assailed is the COMELEC’s choice of an
appointee to occupy the Gutalac Post which is an administrative duty done for
the operational set-up of an agency. (Garces vs. Court of Appeals, 259 SCRA
99 [1996], Francisco, J.).

 

§26. Under the Rules of Court,
a quo warranto may be brought only by (1) the solicitor general or (2) a
public prosecutor or (3) a person claiming to be entitled to the public office
or position usurped or unlawfully held or exercised by another.  A reading of the Rules shows that
petitioners, none of whom qualify under any of the above three categories, are
without legal standing to bring this suit.

 

The present Petition finds its root in two
separate cases filed before the Comelec: (1) SPC 98-298 for disqualification
and (2) EPC 98-62 for quo warranto. 
Under our election laws and the Comelec Rules of Procedure, any voter
may file a petition to disqualify a candidate on grounds provided by law,
or to contest the election of a city officer on the ground of ineligibility or
disloyalty to the Republic.  The
petitioners herein, being “duly-registered voters” of Cagayan de Oro City,
therefore satisfy the requirement of said laws and rules.  (Torayno, Sr., vs. Commission on
Elections, 337 SCRA 574 [2000], Panganiban, J.).

           

 

6. Injunction

 

§1. An injunction may be
availed of only to restrain an act that is about to be done, but which has not
materialized as yet, not to undo what has already been consummated (Municipal
Council of Santa Rosa vs. Provincial Board of Laguna, 3 Phil., 206;
Matilde vs. Cajucom, 19 Phil., 563; Reyes vs. Harty, 21 Phil.,
422).  In the case at bar, certain
municipal officials assumed office upon the authority of the proclamation made
by the board of canvassers, backed up by the Commission on Elections, hence,
they have a color of title to their offices. 
Accordingly, they enjoy, at least, the rights of a de facto officer,
among which is that their title to said offices may not be contested except
directly, by writ of quo warranto and/or by election protest, not
indirectly by questioning the regularity of their proclamation  (Tayko vs. Capistrano, 53 Phil., 866,
873; Government vs. Binañgonan, 28 Phil. 116; Mechem, Public Officers,
sec. 344). (Acain and Malimit vs. Board of Canvassers of Carmen, Agusan, 108
Phil. 165 [1960], Concepcion, J.).

 

§2. The city board of
canvassers may not be enjoined from assessing the returns, because it would
result in a lack of incumbents in the offices concerned after the termination
of the current term and while the case remains pending in court.  This is not within the contemplation of the
Election Code, which provides for election contests only after proclamation of
the winning candidates.  Furthermore, an
injunction such as that issued by respondent court would prevent the city board
of canvassers from certifying the results of the election even with respect of
national offices. (City Board of Canvassers, Tacloban City, vs. Moscoso, 118
Phil. 935 [1963]; 9 SCRA 91 [1963], Makalintal, J.).

 

 

7. Mandamus

 

§1. After the municipal board
of canvassers, in a municipal election, has completed its canvass of the votes
cast, the making of the certificate required by law becomes a purely
ministerial duty. If that certificate does not conform with the result of the
canvass of the votes cast, the writ of mandamus will issue to compel said board
to correct its certificate in accordance with the canvass.  If the certificate is not in accordance with
the facts as they appear from the “acta electoral [election returns], ”
the writ of mandamus will issue for the purpose of compelling the board to
correct its certificate. Mandamus is the proper remedy to require a municipal
board of canvassers to correct its certificate in accordance with its own
return or canvass. (Municipal Council of Las Pinas vs. Judge of Court of
First Instance of Rizal, 40 Phil. 279 [1919], Johnson, J.).

 

§2. There being no law
enjoining a municipal treasurer to furnish a certified copy of the election
results to any inhabitant or candidate in that municipality, petitioner is not,
as a matter of right entitled to a copy thereof, and mandamus will not lie to
compel the municipal treasurer to issue said election results. 

 

In order that mandamus will lie, the
duties sought to be enforced must be such as are clearly and peremptorily
enjoined by law or by reason of official station  (Tabique vs. Duvall, 16 Phil. 324).  (Alido vs. Alar, 3 SCRA 561 [1961],
Paredes, J.).

 

§3. Pending appeal from an
order of the Court of First Instance dismissing a petition for mandamus or
recounting of votes filed against the provincial and municipal boards of
canvassers, there being no writ of preliminary injunction issued, the canvass
of election returns proceeded and eventually the elected candidates were
proclaimed.  Held: The remedy left
to petitioners is only to contest said elections, the appeal having become moot
and academic. (Castillo vs. Provincial Board of Canvassers of Surigao del
Sur, 121 Phil. 175 [1965]; 13 SCRA 162 [1965], Barrera, J.).

 

§4. It is not the ministerial
duty of the trial judge to allow the inspection of the registry list of voters,
voting records and other election documents. 
(Abaya vs. Concepcion, 111 SCRA 590 [1982], Abad Santos, J.).

 

§5. It is thus clear that no
question arises as to the supervisory authority of this Court extending to an
inquiry into an alleged failure of respondent Commission to act.  If such indeed be the case, then mandamus may
issue for the Commission on Elections to decide the issue raised.  That is the body called upon to act, not this
Court, except in those rare instances where the imminence of the elections
calls for a prompt determination lest the exercise of the constitutional right
of suffrage is rendered futile.  This is
not one of such cases.  The election of
May 14, 1984 was duly held.  Petitioners
apparently were satisfied with the manner respondent Commission discharged its functions
as they were not heard from thereafter. 
(Lazatin vs. Commission on Elections, 134 SCRA 1 [1985], Fernando,
C.J.).

 

8. Certiorari

 

§1. Certiorari is not a
proceeding to correct errors, but was created for the purpose of relieving
persons from the arbitrary acts of courts and judges, that is, acts which they
have no authority or power in law to perform. 
Errors may be corrected by appeal in cases where an appeal lies. In
other cases the errors must be submitted to and borne because the legislative so
decrees.  (Bustos vs. Moir and
Fajardo, 35 Phil. 415 [1916], Moreland, J.).

 

§2. The remedy of certiorari lies when the
lower court has exceeded its jurisdiction or the exercise of its powers, but
not when it has committed an error. And the fact that the lower court
adjudicated certain ballots, with detachable coupon numbers, to the protestant
or the protestee in an election contest, does not constitute an excess of
jurisdiction in the exercise of its powers and does not justify the issuance of
a writ of certiorari. (Ello vs. Judge of First Instance
of Antique and Valdevin, 49 Phil. 152 [1926], Villamor, J.).

 

§3. It is contrary to the legal nature of a
writ of certiorari to use it for correcting errors committed by the court in
the exercise of its functions within its jurisdiction. (Santos
vs. Court of First Instance of Cavite, 49 Phil. 398 [1926], Villamor, J.).

 

§4. An appeal by certiorari from a decision of
the Court of Appeals to the Supreme Court in an election case does not have the
effect of authorizing the review and revision of all the ballots contained in
the contested precincts without specific allegations of the supposed errors
committed by the Court of Appeals.  The
Supreme Court is limited to examining those supposed errors in the decision of
the Court of Appeals that are expressly and specifically pointed out.  (Roldan vs. Monsanto, 118
Phil. 1328 [1963]; 9 SCRA 489 [1963], Labrador, J.).

 

§5. Decisions, orders and rulings of the
Commission on Elections on administrative questions affecting elections are
reviewable only by the Supreme Court. 
Since the power of the Commission are limited to matters connected with
the conduct of elections, necessarily its adjudicatory or quasi-judicial powers
are likewise limited to controversies connected with the conduct of
elections.  This phrase covers all the
administrative process of preparing and operating the election machinery so
that the people could exercise their right to vote at the given time.  All questions and controversies that may
arise therefrom are to be resolved exclusively by the Commission, subject to
review only by the Supreme Court. (Monroy vs. Court of
Appeals, 20 SCRA 620 [1967], Bengzon, J.P., J.).

 

§6. A
special civil action of certiorari does not lie where a plain and speedy remedy
lies in the ordinary course of law.  In
filing the protest subsequent to the filing of this suit, petitioner has
resorted to an ordinary remedy in the course of law.  Since a litigant cannot avail of both a
special civil action and an ordinary remedy, the present action (certiorari)
cannot prosper.  (Lidasan vs.
Commission on Elections, 22 SCRA 975 [1968], Bengzon, J.P., J.).

 

§7. While under the Constitution of 1935, “the
decisions, orders and rulings of the Commission shall be subject to review by
the Supreme Court” (Sec. 2, first paragraph, Article X) and pursuant to the
Rules of Court, the petition for “certiorari or review” shall be on the ground
that the Commission “has decided a question of substance not theretofore
determined by the Supreme Court, or has decided it in a way not in accord with
law or the applicable decisions of the Supreme Court” (Sec. 3, Rule 43), and
such provisions refer not only to election contests but even to
pre-proclamation proceedings, the 1973 Constitution provides somewhat
differently thus: “Any decision, order or ruling of the Commission may be
brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from his receipt of a copy thereof” (Section 11, Article XII
c), even as it ordains that the Commission shall “be the sole judge of all
contests relating to the elections, returns and qualifications of all members
of the National Assembly and elective provincial and city officials” (Section 2
(2) ). (Aratuc vs. Commission on Elections, 88 SCRA 251
[1979], Barredo, J.).

 

§8. The principal relief sought by petitioner
is predicated on the certiorari jurisdiction of this Court as provided in
Section 11, Article XII-C, 1973 Constitution. 
It is, as explained in Aratuc vs. Commission on Elections, “not
as broad as it used to be” under the old Constitution and it “should be
confined to instances of grave abuse of discretion amounting to patent and
substantial denial of due process.” 
Moreover, the legislative construction of the constitutional provision
has narrowed down “the scope and extent of the inquiry the Court
is supposed to undertake to what is strictly the office of certiorari
as distinguished from review.” 
And in Lucman vs. Dimaporo, a case decided under the Constitution
of 1935, this Court, speaking through then Chief Justice Concepcion, ruled that
“this Court can not x x x review rulings or findings of fact of
the Commission on Elections,”  as there
is “no reason to believe that the framers of our Constitution intended to place
the [said] Commission—created and explicitly made ‘independent’ by the
Constitution itself—on a lower level” than statutory administrative organs
(whose factual findings are not “disturbed  by courts of justice, except  when there is absolutely no evidence or
no substantial evidence in support of such findings”).  Factual matters were deemed not proper for
consideration in proceedings brought either “as an original action for
certiorari or as an appeal by certiorari. . . 
[for] the main issue in . . . certiorari is one of jurisdiction—lack of
jurisdiction or grave abuse of discretion amounting to excess of jurisdiction”
while “petitions for review on certiorari are limited to the consideration of
questions of law.”

The matter elevated to this Court was a
pre-proclamation controversy.  The
decision of the respondent Commission was promulgated on August 7, 1984.  The instant petition was filed with this
Court on August 20, 1984, or three months after the May 14, 1984 election.  Private respondent was proclaimed on June 2,
1984, as the duly-elected Assemblyman for Nueva Vizcaya.  He took his oath of office in due time,
discharging thereafter his duties and functions as Assemblyman.  Such pre-proclamation controversy is no
longer viable at this point of time and should be dismissed as held by this
Court in Venezuela and other cases. 
Pre-proclamation proceedings are summary in nature.  There was no full-dress hearing essential to
the task of adjudication with respect to the serious charges of
“irregularities”, etc. made by petitioner. 
An election contest would be the most appropriate remedy.  Instead of the submission of mere affidavits,
the parties would be able to present witnesses subject to the right of
confrontation, etc.  Recourse to such
remedy would settle the matters in controversy “conclusively and once and for
all”.  (Padilla
vs. Commission on Elections, 137 SCRA 424 [1985], De La Fuente, J.).

 

§9. The COMELEC, x x x, is
bereft of authority to deprive Regional Trial Courts of the competence to order
execution pending appeal.  For one, it is
essentially a judicial prerogative.  For
another, it is a pronouncement of the COMELEC alone in its procedural rules,
without benefit of the statute, unlike in the past where it was specifically
provided for in Section 177 of the Revised Election Code (Rep. Act No. 180, as
amended) and Section 224 of the Election Code of 1971 (Rep. Act No. 6388) from
whence the rule was lifted verbatim. 
Significantly, however, when the Election Code of 1971 (Rep. Act No.
6388) was superseded by the 1978 Election Code (Pres. Decree No. 1296), said
clause was deleted therefrom.  It is
likewise absent in the Electoral Reforms Law of 1987 (Rep. Act No. 6646) and in
the Omnibus Election Code (B.P. Blg. 881), which were the election laws in
effect during the 18 January 1988 local elections.  There is no express provision of law,
therefore, disauthorizing executions pending appeal, and the COMELEC, in its
procedural rules alone, should not be allowed to divest Regional Trial Courts
of that authority.  It deprives the
prevailing party of a substantive right to move for such relief contrary to the
constitutional mandate that those Rules can not diminish nor modify substantive
rights (Section 6, Article IX-A, 1987 Constitution).  (Garcia vs. De Jesus, 206 SCRA 779 [1992], Melencio-Herrera, J.).

 

§10. The Constitution did not
intend to place the COMELEC—explicitly made independent by the Constitution
itself—on a lower level than that of statutory administrative agencies, whose
factual findings are generally not disturbed by the courts except when there is
no substantial evidence to support such findings.  Factual matters are not proper for
consideration in proceedings brought either as an original action for
certiorari or as an appeal by certiorari. 
The main issue in the former case is one of jurisdiction, lack of
jurisdiction or grave abuse of discretion amounting to excess of jurisdiction;
while in the latter case, the issues are limited to the consideration of
question of law. (Navarro vs. Commission on Elections, 228 SCRA 596 [1993],
Quiason, J.).

 

§11. We
hold that certiorari is the proper remedy of the petitioner.  Section 7, Article IX(A) of the 1987
Constitution states that “unless 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
provision to mean final orders, rulings and decisions of the COMELEC rendered
in the exercise of its adjudicatory or quasi-judicial powers. Contrariwise,
administrative orders of the COMELEC are not, as a general rule, fit subjects
of a petition for certiorari.  The main
issue in the case at bar is whether the COMELEC gravely abused its discretion
when it ordered a manual count of the 1998 Sulu local elections.  A resolution of the issue will involve an
interpretation of R.A. No. 8436 on automated election in relation to the broad
power of the COMELEC under Section 2(1), Article IX(C) of the Constitution “to
enforce and administer all laws and regulations relative to the conduct of an
election          x x x.”  The issue is not only legal but one of first
impression and undoubtedly suffused with significance to the entire
nation.  It is adjudicatory of the right
of the petitioner, the private respondent and the intervenor to the position of
governor of Sulu. These are enough considerations to call for an exercise of
the certiorari jurisdiction of this Court. 
(Loong vs. Commission on Elections, 305 SCRA 832 [1999], Puno, J.).

 

§12. We
take note that when petitioners filed the instant petition on June 25, 1999,
they had before the COMELEC en banc a pending motion for reconsideration
of the June 4, 1998 resolution of the First Division.  The Court does not look with favor the
practice of seeking remedy from this Court without waiting for the resolution
of the pending action before the tribunal below, absent extraordinary
circumstances warranting appropriate action by this Court.  This makes a short shrift of established
rules of procedure intended for orderly administration of justice. (Bagatsing
vs. Commission on Elections, 320 SCRA 817 [1999], Kapunan, J.).

 

§13. Petitioner’s remedy was
to seek its annulment by way of a special civil action of certiorari under Rule
65 of the Rules of Court.  Rule 64, Sec.
2 provides: “SEC. 2 Mode of Review.¾A judgment or final order or resolution of
the Commission on Elections and the Commission on Audit may be brought by the
aggrieved party to the Supreme Court on certiorari under Rule 65, except as
hereinafter provided.”  Sec. 3 of said
Rule provides that such petition shall be filed within 30 days from notice of
the resolution sought to be reviewed.  No
such petition was ever filed.  The
present petition to set aside the orders of the trial court denying its motion
to quash and motion for reconsideration was filed only on November 12, 1999,
more than a year after Resolution No. 98-2194 was promulgated on October 29,
1998.  Consequently, the resolution is
now final and binding upon the parties.

 

There is no question that what is involved
is a resolution of the COMELEC en banc in an election offense.  Hence, a motion for reconsideration of such
resolution is allowed under the Rules of Procedure of the COMELEC. (Faelnar
vs. People of the Philippines, 331 SCRA 429 [2000], Mendoza, J.).

 

§14. A
special civil action for certiorari may be availed of when the tribunal, board,
or officer exercising judicial or quasi-judicial functions has acted without or
in excess of jurisdiction and there is no appeal or any plain, speedy, and
adequate remedy in the ordinary course of law for the purpose of annulling the
proceeding.  It is the proper remedy to
question any final order, ruling and decision of the COMELEC rendered in the
exercise of its adjudicatory or quasi-judicial powers.  But for an action for certiorari to prosper,
there must be a showing that the COMELEC acted with grave abuse of
discretion.  This means such capricious
and whimsical exercise of judgment as is equivalent to lack of jurisdiction or
excess thereof, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or personal hostility, and it must be so patent as
to amount to an evasion of positive duty or a virtual refusal to perform the
duty enjoined by law. (Guerrero vs. Commission on Elections, 336 SCRA 458
[2000], Quisumbing, J.).

 

§15. An en banc decision of the COMELEC
in an ordinary action becomes final and executory after thirty (30) days from
its promulgation, while an en banc decision in a special action becomes
final and executory after five (5) days from promulgation, unless restrained by
the Supreme Court.  For that reason, a
petition cannot be treated as both an election protest and a petition to
declare failure of elections. (Banaga, Jr., vs.
Commission on Elections, 336 SCRA 701 [2000], Quisumbing, J.).

 

§16. As can be gleaned from
the proceedings aforestated, petitioner’s petition with the COMELEC was not
referred to a division of that Commission but was, instead, submitted directly
to the Commission en banc.  The
petition for certiorari assails the trial court’s order denying the motion to
dismiss private respondent’s election protest. The questioned order of the trial
court is interlocutory because it does not end the trial court’s task of
adjudicating the parties’ contentions and determining their rights and
liabilities as regards each other. In our view, the authority to resolve
petition for certiorari involving incidental issues of election protest, like
the questioned order of the trial court, falls within the division of the
COMELEC and not on the COMELEC en banc. 
Note that the order denying the motion to dismiss is but an incident
of the election protest.  If the
principal case, once decided on the merits, is cognizable on appeal by a
division of the COMELEC, then, there is no reason why petitions for certiorari
relating to incidents of election protest should not be referred first to a
division of the COMELEC for resolution. Clearly, the COMELEC en banc
acted without jurisdiction in taking cognizance of petitioner’s petition in the
first instance. (Soller vs.
Commission on Elections, 339 SCRA 685 [2000], Quisumbing, J.).

 

 

9. Right
to assume office

           

§1. This provision of the law
clearly states that the duly elected local officials shall assume office on
February 2, 1988.  Petitioner was
proclaimed as the duly elected mayor of Vinzons, Camarines Norte on January 20,
1988 and took his oath of office on January 22, 1988 before the filing of the
election protest on January 25, 1988 by private respondent Ramon B. Asis.  As he appears to be the duly elected mayor of
the aforesaid town, the law mandates that he assume office on February 2,
1988.  The respondent judge committed a
grave abuse of discretion, and acted in excess of his jurisdiction in ordering
petitioner to desist and refrain from assuming office on the said date against
the clear provisions of Section 5 of Rep. Act No. 6636.

The pendency of the election protest
filed by respondent Asis is not sufficient basis to enjoin petitioner from
assuming office as required of him by law. 
The efficiency of public administration should not be impaired.  Until and unless the election protest is
decided against the petitioner, he has a lawful right to assume and perform the
duties of Mayor of Vinzons, Camarines Norte. (Cereno vs. Dictado, 160 SCRA 759  [1988],          Gancayco, J.).

 

 

10. Filing of
election protest before proclamation

 

§1. The two
weeks within which, under the Election Law, the protest in a protested election
case must be filed should be counted from the issuance of the proclamation of
the provincial board of canvassers and not from the election day.

A protest
filed prior to the proclamation of the provincial board of canvassers is
premature and must be dismissed if an objection thereto is made opportunely.

The
fundamental basis of an election protest is the election of one of the
adversaries of the protestant.  There is
no such election, however, until the proclamation of the provincial board of
canvassers, as, prior to that time, it is impossible, legally speaking, to know
or to prove who is elected. (Manalo
vs. Sevilla, 24 Phil. 609 [1913], Moreland, J.).  

§2. The right to an elective
or municipal office can be contested, under existing legislation, only after
proclamation. There is no authorized proceeding by which an ineligible
candidate could be estopped from running for office. (Sec. 173, Revised
Election Code; Caeser vs. Garrido, 53 Phil., 97). (Castañeda vs. Yap,
91 Phil. 819 [1952], Tuason, J.).

 

§3. The right to an elective
municipal office can be contested only after proclamation, and since there is
no authorized proceedings upon which an eligible candidate could be barred from
running for office, the mere failure to question respondent’s candidacy before
election does not place petitioner in estoppel. 
(Sanchez vs. Del Rosario, 111 Phil. 733 [1961]; 1 SCRA 1102 [1961],
Reyes, J.B.L., J.).

 

§4. Petitioner
conveniently confuses the distinction between an unproclaimed candidate to the
House of Representatives and a member of the same.  Obtaining the highest number of votes in an
election does not automatically vest the position in the winning candidate.

 

Under Section 17 of Article VI of the 1987
Constitution, the electoral tribunal clearly assumes jurisdiction over all
contests relative to the election, returns and qualifications of candidates for
either the Senate or the House only when the latter become members of either
the Senate or the House of Representatives. 
A candidate who has not been proclaimed and who has not taken his oath
of office cannot be said to be a member of the House of Representatives subject
to Section 17 of Article VI of the Constitution.

 

While the proclamation of a winning
candidate in an election is ministerial, B.P. 881 in conjunction with Sec. 6 of
R.A. 6646 allows suspension of proclamation under circumstances mentioned
therein.  Thus, petitioner’s
contention that “after the conduct of the election and (petitioner) has been
established the winner of the electoral exercise from the moment of election,
the COMELEC is automatically divested of authority to pass upon the question of
qualification” finds no basis in law, because even after the elections the
COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to
continue to hear and decide questions relating to qualifications of candidates.
(Aquino vs. Commission on
Elections, 248 SCRA 400 [1995], Kapunan, J.).

 

 

11. Effect
of petition to annul or suspend proclamation

 

§1. This argument must
fall.  While Section 251 provides that
all election contests involving municipal offices prescribe 10 days after
proclamation of the results is made, under Section 248 of the same Code, the
filing with COMELEC of a petition to annul or to suspend the proclamation of
any candidate suspends the running of the 10-day period within which to file an
election protest.

 

Clearly, the grounds thus invoked
require the opening of ballot boxes to effect the careful perusal, examination
and/or recounting of ballots in order to resolve the election contest.  Such recourse is explicitly provided in
Section 255 of the Omnibus Election Code: SEC. 255. Judicial counting of
votes in election contest.¾ 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 the votes recounted.  The above-quoted provision does not require
that there be further proof than the allegations of the protest before the
court may allow the examination of the ballots and the recounting of
votes.  The rationale for the doctrine
was elucidated in Astorga v. Fernandez, to wit: x x x.  Obviously the simplest, the most expeditious
and the best means to determine the truth or falsity of this allegation is to
open the ballot box and examine its contents. 
To require parol or other evidence on said alleged irregularity before
opening said box, would have merely given the protestee ample opportunity to
delay the settlement of the controversy, through lengthy cross-examination of
the witnesses for the protestant and the presentation of testimonial evidence
for the protestee to the contrary.  As
held in Cecilio vs. Belmonte (supra), this “would be to sanction
an easy way to defeat a protest.”

 

In Crispino v. Panganiban, penned
by Justice Hilario G. Davide, Jr., citing Pareja v. Narvasa, this Court
categorically declared that:  Time and
again, this Supreme Court has declared in numerous cases that, when there is an
allegation in an election protest that would require the perusal, examination,
or counting of ballots as evidence, it is the ministerial duty of the trial
court to order the opening of the ballot boxes and the examination and counting
of the ballots deposited therein. (Manahan vs. Bernardo, 283 SCRA 505 [1997], Kapunan, J.).

 

§2. Section 248 of the
same Election Code is clear and provides thusly: Sec. 248.  Effect of filing petition to annul or to
suspend the proclamation.¾The filing with the
Commission of a petition to annul or to suspend the proclamation of any
candidate shall suspend the running of the period within which to file an
election protest or quo warranto proceedings.  Applying the above provision to the instant
case, the ten (10) day reglementary period was suspended during the pendency of
the pre-proclamation case in the COMELEC and in this Court, until private
respondent Villano received a copy of this Court’s Resolution dated April 16,
1996 denying his motion for reconsideration on May 7, 1996.  Verily, on May 7, 1996, the five-day
remainder of the reglementary period to file an election protest resumed to run
again and expired on May 12, 1996. 
Private respondent Villano therefore belatedly filed his election
protest on May 17, 1996, five (5) days after the deadline for filing the same.

 

The rule prescribing the ten-day period
is mandatory and jurisdictional, and the filing of an election protest beyond
the period deprives the court of jurisdiction over the protest.  Violation of this rule should not be taken
lightly nor should it be brushed aside as a mere procedural lapse that can be
overlooked.  The rule is not a mere
technicality but an essential requirement, the non-compliance of which would
oust the court of jurisdiction over the case.

 

The running of the reglementary period
to file an election protest is tolled by a party’s elevation to the Supreme
Court of a COMELEC decision or resolution of a pre-proclamation case.  The appeal by certiorari to this Court is
part of an entire proceeding.  The case
is not terminated until this Court has rendered judgment.   Consequently, the computation of the ten-day
period, or the remainder of said period for filing an election contest, as in
this case, does not commence to run until this Court hands down its verdict. (Roquero vs. Commission on Elections, 289
SCRA 150 [ 1998], Kapunan, J.).

 

 

12. Effect
of the filing of a pre-proclamation controversy

 

§1. Upon the filing of a protestant’s petition
for a writ of quo warranto and election protest in the proper Court of
First Instance against a proclaimed candidate (protestee) who had already
assumed office, said court had acquired exclusive authority to inquire into and
pass upon the validity of the latter’s title, as well as the validity of his
proclamation.  Consequently, the Comelec
may refrain from exercising its authority to annul the proclamation of a
candidate and leave the disposition of all questions involved in the election
of said candidate with the Court of First Instance, in line with the decision
in Acain v. Board of Canvassers, L-16445, May 23, 1960.  It would be conducive to confusion and
conflict in authority if under the circumstance the Comelec would still be
considered as having the residual power to interfere with a pending election
protest. (Reyes vs. Reyes, 22 SCRA 485 [1968],
Fernando, J.).

 

§2. Where the election returns are tampered, it
is within the power of the Comelec to issue such order as would ascertain the
existence of the genuine, authentic and untampered election returns.  It should inquire into the copies of the
returns for the provincial treasurer. 
And if these copies are not authentic it should look into the copies of
the returns in the ballot boxes.  Here
every effort should be strained to ascertain the existence of serviceable
returns from Precincts 18, 19, 21 and resort to the copies of the returns in
the hands of the provincial treasurer and, if necessary, those in the ballot
boxes, is justified.  The returns from
these precincts not canvassed are vital to the political fortunes of the
contending candidates, and ascertainment of the results thereof should not be
so easily be done away with.

 

The broad sweep of the Comelec’s duty to administer
and enforce the election law gives it ample authority to direct the board of
canvassers to include in the canvass returns from the questioned
precincts.  It should summon the members
of the board of inspectors, take evidence and ascertain which are the genuine
returns; then it should direct the board to use these returns in the canvass of
the votes.

 

It is true that respondent Negre filed in the CFI an
“election protest” after he had petitioned the Comelec to suspend or annul the
canvass of the votes and/or annul the election returns.  But said petition filed in Court sought to
impugn not necessarily the election of his opponent but “the election returns
and ballots cast” in the questioned precincts and the proclamation of Pacis; he
also sought to enjoin Pacis from assuming office.  These allegations are mere repetitions of his
petition before the Comelec where he also assailed the illegality of the
canvass and the proclamation of his opponent. 
His petition in court was to have a new board of canvassers, the exclusion
from the canvass of the alleged tampered returns and his own proclamation as
mayor-elect of Sanchez Mira.  In this
case there was no valid canvass and proclamation.

 

The Acain doctrine, L-16445, May 23, 1960,
where this Court ruled that the CFI of Agusan acquired exclusive jurisdiction
to inquire into and pass upon the title of Degamo and the validity of the
proclamation made by the Board of Canvassers, does not govern in this
case.  First, in the Acain case,
there was an actual protest; here, what was desired in court was merely a valid
proclamation where the Board was made a party respondent.  Second, unlike in Acain, where
petitioners did not pursue their remedy of recount, Negre here persisted in
pursuing his petition to annul the wrongful proclamation of his adversary.  Third, in Acain, private respondents
assumed office becoming at least de facto officers, here, both
candidates aver that they assumed office so quo warranto cannot be the
remedy of either.  Fourth, in Acain, the
board of canvassers was found to be lawfully constituted; here, the board was
found to have been unlawfully constituted. 
Here, both proclamations are declared null and void as if no
proclamation was at all made. (Pacis vs. Commission on
Elections, 22 SCRA 539 [1968], Sanchez, J.).

 

§3. It
is now a settled doctrine that an incomplete canvass of votes is illegal and
cannot be the basis of a subsequent proclamation.  Indeed, it is the ministerial duty of a
municipal canvassing body to count the votes cast “in the same manner as hereinbefore
provided for the provincial board (of canvassers),” which means to say to count
all the votes cast.  Thus, Section
160 of the Election Code enjoins provincial boards of canvassers as
follows:  “As soon as all the
statements are before it but not later than fifteen days next following the
date of election, the provincial board of canvassers shall proceed to make a
canvass of all the votes in the province for national, provincial, and city
candidates and upon the completion of the canvass, shall make, as the case may
be, separate statements of all the votes received by each
candidate x x x.”  A municipal board of
canvassers must therefore count all the votes cast in the election and, for
this purpose, must consider all returns presented to it by the municipal
treasurer.  If material defects there are
in the form of the returns, it must send them back to the corresponding boards
of inspectors for correction.  If certain
precincts have not sent in their returns, the board must send for them, and the
fiscal should forthwith institute criminal proceedings against those who may be
criminally responsible for the delay.  If
there is a discrepancy between two authentic copies of an election return and
the difference affects the result of the election, the board may ask the proper
court of first instance to order a recount of the ballots.

Where it appears that election returns in
the municipality of Makati are incomplete in the sense that the election return
in precinct No. 124 of the said municipality did not contain at all the entry
of votes cast for each candidate as mayor, hence the municipal board of
canvassers cannot proceed with the canvassing of votes, the Comelec is bereft
of power to order the board of canvassers of Makati to disregard the return
from precinct 124, even if it noted from its copy (which was likewise blank or
incomplete) that the number of votes cast in the precinct (263) was too small
to be of any significance to any candidate. 
This, because the Comelec has no power to decide questions involving the
right to vote, as to disregard a return is in effect to deny the voters their
votes.

What the Comelec should have done is to take the
logically obvious and simple step of ordering the opening of the ballot box to
find if the copy of the return deposited therein was properly accomplished and,
if it was, to order that it be used in the canvassing of votes.  This it had the power to do in the
fulfillment of its constitutional duty of insuring “free, orderly, and honest
elections.”  And this it was unimpeded
and had ample time to do, considering that from November 24 when it ordered the
proclamation, there were still 37 days to go to the statutory date of
assumption of office by the elected candidates (January 1).  This is the reason why in two other cases, we
upheld the power of the Comelec to direct canvassing boards to use returns
other than those specified by law if the latter are found to have been
falsified.

 

The Comelec should direct the opening of the ballot
box corresponding to precinct 124 for the purpose of retrieving the copy of the
election return deposited therein so that it may be used in canvassing anew the
votes cast for the local official of Makati, and, should it be found that the
ballot box copy is likewise blank or incomplete, the Commission should order a
count of the ballots, giving notice, for this purpose, to all the
candidates.  This is the procedure that
best recommends itself, what with the lack of specific procedure for dealing
with the situation such as this. 
Judicial recount of the ballots under Section 163 of the Code cannot be
the remedy because there is no discrepancy between one authentic copy and
another authentic copy of the same return. 
As we have earlier stated, the copies of the election return in this
case contain no entries as to the number of votes received by each
candidate.  So there really is no
discrepancy, but only a failure to accomplish the form of the return
properly.  Indeed what has been submitted
is no return at all. (Mutuc vs. Commission on
Elections, 22 SCRA 662 [1968], Castro, J.).

 

§4. Time and again, the
Supreme Court has given its imprimatur on the principle that Comelec is with
authority to annul any canvass and proclamation which was illegally made.  The fact that a candidate proclaimed has assumed
office is no bar to the exercise of such power. 
Therefore, a petition before the Comelec which is directed at the
annulment of the canvass and proclamation is within the area allocated by the
Constitution and the law to the Comelec to inquire.

 

The
election law does not provide for a time limit within which a candidate may
challenge the validity of a proclamation before the Comelec.  But inaction for an unreasonable period may
block such remedy to challenge the validity of the proclamation.  Considering the steps taken by respondent in the
case at bar, first, in the Court of First Instance, and second, in the Comelec,
the time gap between the alleged illegal proclamation of November 20, 1967 and
the petition before the Comelec of January 6, 1968 does not authorize this
Court to say that respondent Alim Balindong is guilty of laches. (Aguam vs.
Commission on Elections, 23 SCRA 883 [1968], Sanchez, J.).  

§5. The general rule is, of course,
that once a Court of First Instance has acquired jurisdiction by virtue of the
filing of an election protest all questions relative thereto must be decided in
the case itself and not in a separate proceeding before a different forum
(Reyes v. Reyes, L-28476, Jan. 31, 1968; Acain vs.
Board of Canvassers, L-16445, May 23, 1960).

An
election protest may be lodged only against a proclaimed candidate and within
fourteen days thereafter  (Sec. 174,
Election Code). (Tuburan vs. Bellener, 24 SCRA 941 [1968], Makalintal, J.).

§6. Petitioner
went to the Comelec for the annulment of the respondent’s proclamation.  He also filed an election protest in the
Court of First Instance.  Comelec
rejected him. He asked Comelec to reconsider. 
That reconsideration was pending when, meanwhile, the court protest came
up for hearing.  Petitioner, instead of
awaiting the results of his motion for reconsideration in Comelec, insisted
upon the hearing in court of his election protest.  He opposed the petition of respondent, his
opponent, to hold in abeyance the hearing of said election protest pending the
result of his (petitioner’s) motion for reconsideration before  Comelec. 
To lend support to his opposition to the postponement of the hearing of
the election case, he told the court that he was “withdrawing” his “motion for
reconsideration in COMELEC” and sued for time “to get the withdrawal” of that
motion for reconsideration.  The election
protest was concluded in the Court of First Instance.  But, petitioner lost. (Ondona vs.
Commission on Elections, 27 SCRA 554 
[1969], Sanchez, J.).

§7. It may also be added that having
availed of an election protest before the Court of First Instance of Masbate,
instead of properly raising a pre-proclamation controversy before the
Commission on Elections, private respondent Bisnar is deemed estopped from
filing a petition with the Commission on Elections.  His actuation is not only a recognition of
petitioner’s proclamation as the duly elected municipal mayor but also that the
case is not proper as a pre-proclamation controversy.

Moreover, private respondent’s petition
was filed only on February 11, 1980 with the Commission on Elections, after the
January 30, 1980 local elections and after the proclamation of petitioner
Mogueis on January 31, 1980 and after respondent Bisnar filed an electoral
protest on February 7, 1970.  Under such
circumstances, We must adhere to the doctrine that “after an election duly held
and a proclamation thereafter made, a pre-proclamation controversy should no
longer be viable.”

It is, to Our mind, the appropriate
remedy.  For, “it would save the time and
energy of the litigants as well as respondent Commission, and eventually this
Court in view of its appellate jurisdiction, if the matter were passed upon in
an election protest or quo warranto petition in the lower court, the
office involved being that of municipal mayor”. (Mogueis,
Jr., vs. Commission on Elections, 104 SCRA 576 [1981], Makasiar, J.).

§8. All pre-proclamation
controversies shall be heard summarily by the Commission after due notice and
hearing, and its decisions shall be executory after the lapse of five days from
receipt by the losing party of the decision of the Commission, unless
restrained by the Supreme Court.  And the
reason for this rule is obvious.  As we
stressed in Alonto v. COMELEC, “the policy of the election law is that
pre-proclamation controversies should be summarily decided, consistent with the
law’s desire that the canvass and proclamation be delayed as little as
possible.”  That is why such questions as
those involving the appreciation of the votes and the conduct of the campaign
and the balloting, which require more deliberate and necessarily longer
consideration, are left for examination in the corresponding election protest.

 

The contention that the dismissal of the
pre-proclamation controversy would render the disqualification case moot and
academic is also untenable.  The two
cases are independent of each other and one may be resolved separately without
affecting the other.  The purpose of a
pre-proclamation controversy is to ascertain the winner or winners in the
elections on the basis of the election returns duly authenticated by the boards
of inspectors and admitted by the board of canvassers.  The purpose of a disqualification proceeding
is to prevent the candidate from running or, if elected, from serving, or to
prosecute him for violation of the election laws.  Obviously, the mere fact that a candidate has
been proclaimed elected does not signify that his disqualification is deemed
condoned and may no longer be the subject of a separate investigation. (Abella vs. Larrazabal, 180 SCRA 509
[1989], Cruz, J.).

 

§9. Assuming however that
the date of proclamation was January 24, 1988, the filing of the protest on
February 4, 1988 was still within the period since private respondent filed a
“Pre-Proclamation Protest Appeal” on January 24, 1988 effectively suspending
the running of the period for filing an election protest as provided for in
Section 248, Article XX of BP 881: “Sec. 248. Effect of filing petition to
annul or to suspend the proclamation.¾The filing with
the Commission of a petition to annul or to suspend the proclamation of any
candidate shall suspend the running of the period within which to file an
election protest or quo warranto proceedings.” (Macias II vs. Commission on Elections, 182 SCRA 137
[1990], Paras, J.).

 

§10. The Court does not
agree.  We find that the petitioner’s
real intention in filing the election protest ad cautelam was merely to
insure the preservation of all the ballot boxes used in the January 18, 1988
local elections in the province of Pangasinan. 
Under COMELEC Res. No. 2035 dated September 7, 1988, all such ballot
boxes would be made available for the then forthcoming barangay elections as
long as they were not involved in any pre-proclamation controversy, election
protest, or official investigation. As the above-mentioned cases involved only
nine precincts, it was only prudent for the petitioner to file his protest ad
cautelam in case the pre-proclamation controversy was ultimately dismissed
and it became necessary for him to activate his protest.  The protest would involve all the precincts
in the province.  If he had not taken
this precaution, all the other ballot boxes would have been emptied and their
contents would have been burned and forever lost.

 

Considering the summary nature of the
pre-proclamation controversy, we see no reason why the above-mentioned cases
cannot be speedily resolved on the basis of the evidence and the arguments
already submitted by the parties.  These
must have been thoroughly examined by now by the COMELEC.  And if more evidence is to be adduced, this
should not take too much more time; at least the COMELEC should see to it that
it does not.  The COMELEC must be
especially wary of dilatory tactics that may further postpone the final
resolution of this contest.  The Court
cannot stress too strongly the need for an early resolution of the pending
cases to ultimately determine the winner in the gubernatorial election or, if
an election protest is inevitable, to pave the way for it as soon as possible.

 

The petitioner has correctly pointed out
that the Order of the First Division of the COMELEC dismissing the
pre-proclamation controversy and the Resolution of the COMELEC en banc
denying the motion for reconsideration were both penned by Commissioner Abueg,
in violation of its rule that¾x x x No member shall be
the “ponente” of an en banc decision, resolution or a motion to
reconsider a decision/resolution written by him in a Division.  This is still another reason why the
challenged acts must be reversed.  The
Commission on Elections should be the first to respect and obey its own rules,
if only to provide the proper example to those appearing before it and to avoid
all suspicion of bias or arbitrariness in its proceedings. (Agbayani vs. Commission on Elections,
186 SCRA 484 [1990], Cruz, J.).

 

§11. Under the above-cited section,
Aruelo had ten days from May 13, 1992 to file an election protest.  Instead of filing an election protest, Aruelo
filed with the COMELEC a pre-proclamation case against Gatchalian on May 22,
1992, or nine days after May 13, 1992. 
The filing of the pre-proclamation case suspended the running of the
period within which to file an election protest or quo warranto
proceedings (B.P. Blg. 881, Sec. 248). 
Aruelo received the COMELEC resolution denying his pre-proclamation
petition on June 22, 1992.  Hence, Aruelo
had only one day left after June 22, 1992 within which to file an election
protest.  However, it will be noted that
Aruelo filed on June 2, 1992 with the trial court an election protest ex
abundante cautela.
(Gatchalian vs. Court of Appeals, 245 SCRA 208 [1995], Quiason, J.).

 

§12. Petitioner argues next that the
election protest was filed ad cautelam or as a precautionary measure to
preserve his rights which did not thereby oust respondent COMELEC of
jurisdiction.  He invokes Samad v.
COMELEC where it was held 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, otherwise, there will be confusion and
conflict of authority.  Conformably
therewith, we have ruled in a number of cases that after a proclamation has
been made a pre-proclamation case before the COMELEC is, logically, no longer
viable.  The rule admits of exceptions,
however, as where:  (a) the board of
canvassers was improperly constituted; (b) quo warranto was not the
proper remedy; (c) what was filed was not really a petition for quo warranto
or an election protest but a petition to annul a proclamation; (d) 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, (e) the proclamation was null and void. (Laodenio vs. Commission on Elections, 276
SCRA 705 [1997], Bellosillo, J.).

 

§13. So too must fall
petitioner’s procedural objection that private respondent should be faulted for
forum-shopping vis-à-vis this Court’s pronouncement in Samad v.
COMELEC which states in no uncertain terms that¾As 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 for quo 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. (Maruhom
vs. Commission on Elections, 331 SCRA 473 [2000], Ynares-Santiago, J.).

 

§14. Petitioner likewise
claims that private respondent engaged in forum-shopping because, after filing
a petition for quo warranto with the Regional Trial Court, Abuyog,
Leyte, private respondent filed the present petition for annulment of
proclamation with the COMELEC.  This
contention is bereft of merit.  First,
private respondent withdrew the quo warranto case before filing the
petition for annulment of proclamation. 
Second, while the filing of a petition for quo warranto precludes
the subsequent filing of a pre-proclamation controversy, this principle admits
of several exceptions, such as when such petition is not the proper
remedy.  Under Sec. 253 of the Omnibus
Election Code, the grounds for a petition for quo warranto are
ineligibility or disloyalty to the Republic of the Philippines of the
respondent.  Since in the present case,
private respondent alleged the existence of manifest errors in the preparation
of election returns, clearly, the proper remedy is not a petition for quo
warranto but a petition for annulment of proclamation. (Angelia vs.
Commission on Elections, 332 SCRA 757 [2000], Mendoza, J.).

 

 

13. Real Party in Interest

 

§1. By virtue of Section
7 of the Local Autonomy Act, Republic Act 2264, the vice-mayor stands next in
line of succession to the mayor in case of permanent vacancy in the latter’s
position.  Thus, upon the death of the protestee-mayor,
Loresca as then incumbent vice-mayor succeeded by operation of law to the
vacated office for the unexpired term thereof. 
His status as real party in interest in the continuation of the
proceedings cannot be questioned. (Vda. De Mesa vs.
Mencias, 124 Phil. 1187 [1966]; 18 SCRA 533 [1966], Castro, J.).

§2. The asseveration of
petitioner that private respondent is not a real party in interest entitled to
be substituted in the election protest in place of the late Jamilla, is utterly
without legal basis.  Categorical was our
ruling in Vda. de De Mesa and Lomugdang that:  “x x x the Vice Mayor elect has the status of
a real party in interest in the continuation of the proceedings and is entitled
to intervene therein.  For if the protest
succeeds and the protestee is unseated, the Vice-Mayor succeeds to the office
of Mayor that becomes vacant if the one duly elected can not assume the post.” (De Castro vs. Commission on Elections,
267 SCRA 806 [1997], Hermosisima, Jr., J.).

 

 

14. Effect of the death of a party

 

§1. The
determination of what candidate has been in fact elected is a matter clothed
with public interest; wherefore, public policy demands that an election
contest, duly commenced, be not abated by the death of the contestant.  The ineligibility of the protestant is not a
defense and the protestee’s cessation in office is not a ground for the
dismissal of the contest, neither does it detract the Court’s jurisdiction to
decide the case. (Lomugdang vs. Javier, 21 SCRA 402 [1967], Reyes, J.B.L.,
J.).

§2. It is true that a
public office is personal to the public officer and is not a property
transmissible to his heirs upon death. 
Thus, applying the doctrine of actio personalis moritur cum persona,
upon the death of the incumbent, no heir of his may be allowed to continue
holding his office in his place.

But 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.

 

The death of the protestant, as in this
case, neither constitutes a ground for the dismissal of the contest nor ousts
the trial court of its jurisdiction to decide the election contest.  Apropos is the following pronouncement of this
court in the case of Lomugdang vs. Javier:  “Determination of what candidate has been in
fact elected is a matter clothed with public interest, wherefore, public policy
demands that an election contest, duly commenced, be not abated by the death of
the contestant.  We have squarely so
ruled in Sibulo Vda. de De Mesa vs. Judge Mencias, G.R. No. L-24583,
October 29, 1966, in the same spirit that led this Court to hold that the
ineligibility of the protestant is not a defense (Caesar vs. Garrido, 53
Phil. 97), and that the protestee’s cessation in office is not a ground for the
dismissal of the contest nor detract the Court’s jurisdiction to decide the
case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez,
62 Phil. 584).” (De Castro
vs. Commission on Elections, 267 SCRA 806 [1997], Hermosisima, Jr., J.).

 

 

15. Right to intervene in an election protest

 

§1. Every candidate served
with the notice of protest as required by law immediately becomes a party to
the proceeding.  An application on the
part of a candidate so served to be allowed to intervene is unnecessary. (Manalo
vs. Sevilla, 24 Phil. 609 [1913], More-land, J.).

 

§2. The court must decide an
election protest presented to it, in which the other candidates voted for in
the contested election are parties, in view of the votes obtained by the
parties, according to the canvass of the court, and the fact that a candidate,
the petitioner herein, did not file an intervention nor take an active part in
the trial of the protest, is no ground for not doing so, because as he was an
interested party, being candidate who had received votes in that election and
who was notified of the filing of the protest, there was no necessity for
filing a separate protest. (Ibid.).

 

According to law, when the candidates
voted for in an election are interested parties in an election protest, he who,
according to the judicial adjudication, has received the highest number of
votes, must be proclaimed by the board of canvassers, acting in pursuance to
the order of the court, elected to said office. 
(Santos vs. Court of First Instance of Cavite, 49 Phil. 398 [1926],
Villamor, J.).

            §3. Where the protestee, who
had been proclaimed as mayor, died during the pendency of the protest and the
vice-mayor succeeded to the office of mayor and the trial court found that the
protestant was the winner in the election for mayor, the vice-mayor may appeal
from the judgment of the trial court. (Silverio vs. Castro, 125 Phil. 917
[1967]; 19 SCRA 520 [1967], Bengzon, J.P., J.).

 

            §4. The
vice-mayor-elect has the status of a real party in interest in the continuation
of the proceedings and is entitled to intervene therein.  For if the protest succeeds and the protestee
is unseated, the vice-mayor succeeds to the office of mayor that becomes vacant
if the one duly elected cannot assume the post. 
(Lomugdang vs. Javier, 21 SCRA 402 [1967], Reyes, J.B.L., J.).

 

            §5. An interest common with the
community in general is manifestly inadequate to entitle petitioner to seek
annulment of an election.  Any other view
would justify the institution of proceedings for the annulment of an election
by any member of our population or citizenry, and hence, by any member of the
losing political party.  It is obvious
that this is not sanctioned by our laws. 
One of the tests to determine whether or not a cause of action exists is
whether the petition shows that the petitioner has suffered an injury. (Borromeo vs. Commission on Elections, 28 SCRA 775 [1969],
Concepcion, C.J.).

 

§6. The late Genoveva Mesina’s
claim to the contested office was not in any sense a transmissible right that
devolved upon her surviving spouse and her children (herein private
respondents) after her death. “Public office is personal to the incumbent and
is not a property which passes to his heirs” (Santos vs. Secretary of
Labor, 22 SCRA 848).  Private
respondents’ only interest in the outcome of the case is limited to no more
than their interest in defending her against the protestant’s claim for damages
and costs (which the protestant, herein petitioner, has already waived).  They may no longer prosecute her own
counter-claim for damages against the protestant for that was extinguished when
death terminated her right to occupy the contested office of mayor of Albuera,
Leyte.

 

Thus did this Court hold in Lomugdang
vs. Javier, 21 SCRA 403:  “The
vice-mayor elect has the status of a real party-in-interest in the continuation
of the proceedings and is entitled to intervene therein.  For if the protest succeeds and the protestee
is unseated, the vice-mayor succeeds to the office of mayor that becomes vacant
if the one duly elected cannot assume the post. (De la Victoria vs. Commission on Elections, 199
SCRA 561 [1991], Griño-Aquino, J.).

 

§7. Private respondent argues that petitioner has
neither legal interest in the matter in litigation nor an interest to protect
because he is “a defeated candidate for the vice-mayoralty post of Makati City
[who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private
respondent be ultimately disqualified by final and executory judgment.”  The flaw in this argument is it assumes that,
at the time petitioner sought to intervene in the proceedings before the
COMELEC, there had already been a proclamation of the results of the election
for the vice mayoralty contest for Makati City, on the basis of which
petitioner came out only second to private respondent.  The fact, however, is that there had been no
proclamation at that time.  Certainly,
petitioner had, and still has, an interest in ousting private respondent from
the race at the time he sought to intervene. 
The rule in Labo v. COMELEC, reiterated in several cases,
only applies to cases in which the election of the respondent is contested, and
the question is whether one who placed second to the disqualified candidate may
be declared the winner.  In the present
case, at the time petitioner filed a “Motion for Leave to File Intervention” on
May 20, 1998, there had been no proclamation of the winner, and petitioner’s
purpose was precisely to have private respondent disqualified “from running for
[an] elective local position” under Sec. 40(d) of R.A. No. 7160.  If Ernesto Mamaril (who originally instituted
the disqualification proceedings), a registered voter of Makati City, was
competent to bring the action, so was petitioner since the latter was a rival
candidate for vice mayor of Makati City.

Nor is petitioner’s interest in the matter in litigation any less
because he filed a motion for intervention only on May 20, 1998, after private
respondent had been shown to have garnered the highest number of votes among
the candidates for vice mayor.  That
petitioner had a right to intervene at that stage of the proceedings for the
disqualification against private respondent is clear from Sec. 6 of R.A. No. 6646,
otherwise known as the Electoral Reforms Law of 1987.

Intervention may be allowed in proceedings for disqualification even
after election if there has yet been no final judgment rendered.

The failure of
the COMELEC en banc to resolve petitioner’s motion for intervention was
tantamount to a denial of the motion, justifying petitioner in filing the
instant petition for certiorari.  As the
COMELEC en banc instead decided the merits of the case, the
present petition properly deals not only with the denial of petitioner’s motion
for intervention but also with the substantive issues respecting private
respondent’s alleged disqualification on the ground of dual citizenship. (Mercado
vs. Manzano, 307 SCRA 630 [1999],          
Mendoza J.).

 

16. Protest
rendered moot and academic

 

§1. Where the disputed position is
no longer vacant because of the assumption of office of the duly elected Mayor
of Barotac Nuevo, Iloilo on January 1, 1964, the question as to who should
succeed the then Municipal Mayor, after he had filed his certificate of
candidacy to another office, has become moot and academic. (Paranpan vs. Querubin, 18 SCRA 787 [1966], Zaldivar, J.).

§2. Where, as in the case at bar,
the respondent-protestant is already dead and the term of the contested office
has already expired, the present appeal is ordered dismissed despite
petitioner-protestee’s pleading, the election protest involving them having
become moot. (Lofranco vs. Jimenez, Sr., 22 SCRA 330
[1968], Dizon, J.).

§3. It is significant to note
that the term of office of the local officials elected in the May 1992
elections expired on June 30, 1995.  This
petition, thus, has become moot and academic insofar as it concerns
petitioner’s right to the mayoralty seat in his municipality because expiration
of the term of office contested in the election protest has the effect of
rendering the same moot and academic. 
When the appeal from a decision in an election case has already become
moot, the case being an election protest involving the office of mayor the term
of which had expired, the appeal is dismissible on that ground, unless the
rendering of a decision on the merits would be of practical value. (Malaluan
vs. Commission on Elections, 254 SCRA 397 [1996], Hermosisima, Jr., J.).

 

 

17. Abandonment
of protest

 

§1. Indeed, it would be
entirely different where the protestant pursued the new position through a
popular election, as in the case of Protestant Santiago who filed a certificate
of candidacy for Senator in the 8 May 1995 election, campaigned for such
office, and submitted herself to be voted upon. 
She knew that the term of office of the Senators who would then be
elected would be six years, to commence at noon on the thirtieth day of June
next following their election and to end at noon of 30 June 2001.  Knowing her high sense of integrity and
candor, it is most unlikely that during her campaign, she promised to serve the
electorate as Senator, subject to the outcome of this protest.  In short, she filed her certificate of
candidacy for the Senate without any qualification, condition, or
reservation.  In so doing, she entered
into a political contract with the electorate that if elected, she would assume
the office of Senator, discharge its functions and serve her
constituency as such for the term for which she was elected.  These are givens which are in full accord
with the principle enshrined in the Constitution that public office is a public
trust, and public officers and employees must at all times be accountable to
the people and serve them with utmost responsibility, integrity, loyalty and
efficiency.

 

The term of
office of the Senators elected in the 8 May 1995 election is six years, the
first three of which coincides with the last three years of the term of the
President elected in the 11 May 1992 synchronized elections.  The latter would be Protestant Santiago’s
term if she would succeed in proving in the instant protest that she was the
true winner in the 1992 elections.  In
assuming the office of Senator then, the Protestant has effectively abandoned
or withdrawn this protest, or at the very least, in the language of Moraleja,
abandoned her “determination to protect and pursue the public interest involved
in the matter of who is the real choice of the electorate.”  Such abandonment or withdrawal operates to
render moot the instant protest. 
Moreover, the dismissal of this protest would serve public interest as
it would dissipate the aura of uncertainty as to the results of the 1992
presidential election, thereby enhancing the all¾too crucial political stability of the nation during this period of
national recovery.

The
dispositive portion of this resolution leaves no room for any doubt or
miscomprehension that the dismissal is based on the ground that the protest
“has been rendered moot and academic by its abandonment or withdrawal by the
Protestant as a consequence of her election and assumption of office as Senator
and her discharge of the duties and functions thereof.”  There is, therefore, ONLY ONE reason or
ground why the protest has been rendered moot and academic, i.e., it has been
abandoned or withdrawn.  This was the
very issue upon which the parties were required, in the resolution of 26
September 1995, to submit their respective memoranda. (Defensor-Santiago vs.
Ramos, 253 SCRA 559 [1996], Resolution).

§2. Where the position in
controversy is that of a municipal councilor, the decision of the Court of
First Instance, under the Revised Election Code, is final and unappealable
except on questions of law.

In an election contest, a candidate’s
eligibility must be judged as of the date of the election.  Hence, the argument that if the protestant,
who run for the position of municipal councilor, after the election accepted an
appointment as technical assistant of the Vice-Governor should be deemed
disqualified from office under the provisions of Section 2175 of the Revised
Administrative Code, is unavailing.  In
any event, this Court held more than a decade ago that ineligibility of the
protestant is not a defense in an election contest not only because it is
incongruous with the only issue therein, which is who obtained the higher
number of votes, but is also premature, inasmuch as such issue may be raised
only after the candidate has been proclaimed and the protestant is not
proclaimed until after he has been declared winner by the court, apart from the
fact that if a protest is dismissed only because the protestant is ineligible,
the result would be that protestee would be in office though in fact he
received fewer votes than the former.

Neither will the acceptance of such appointment,
which is more or less temporary in nature, constitute an abandonment of an
election protest.  Once the court has
acquired jurisdiction over an election protest, the public interest involved
demands that the true winner be known without regard to the wishes or acts of
the parties, so much so that there can be no default, compromise nor
stipulation of facts in this kind of cases. 
The case of a protestant who accepts a permanent appointment to a
regular office could, however, be different. (Moraleja
vs. Relova, 42 SCRA 10 [1971], Barredo, J.).

 

§3. Right of elected official
to indefinite term of office under the New Constitution is also based on his
having been properly elected in the previous election. (Nuñez vs. Averia, 57
SCRA 726 [1974], Teehankee, J.).

 

§4. As is quite obvious from the Answer, an
inquiry on the grounds relied upon to enjoining the canvassing of election
returns would necessarily entail the presentation of conflicting
testimony.  To pass on such a complex
matter in a summary proceeding would be to run the risk that the decision
arrived at would not reflect the realities of the situation. It could even be
susceptible to the charge that the whole truth did not come to light. Under the
circumstances, an election protest clearly is the more appropriate remedy. (Laguda vs. Commission on Elections, 102 SCRA 857 [1981], Fernando,
C.J.).

 

§5. The petition must be
dismissed.  It is very apparent from the
petition-letter that the grounds relied upon by petitioners in seeking relief
from the COMELEC are proper grounds for election protest.  Petitioner premised his petition, to quote
from Resolution No. 9802 of the COMELEC, on seizure of ballot boxes at
gunpoint; intimidation of voters and forced opening and examination of ballots;
substitution of ballots; and tampering of election returns.  These are the same grounds alleged in the
election protest filed in the Court of First Instance of Pampanga.  The case of Villegas vs. COMELEC and Laguda
vs. COMELEC find application in the disposition of this case.  In the early case of Villegas v. COMELEC,
where massive fraud and violations of certain provisions of the Election Code
allegedly committed during the elections were denounced in this Court, the
Court through Mr. Chief Justice Enrique M. Fernando dismissed the petition, it
appearing therein that the grounds set forth in the complaint before the
COMELEC are proper for election protest. 
The Court pointed out, that at any rate petitioner would not be left
without remedy “for the opportunity for him to prove such a wholesale
allegation of massive fraud and violations of Election Code is still
there.”  Indeed, herein petitioner could
still avail himself of the election protest where he could ventilate his grievance
and be provided the full opportunity to present all relevant evidence in a full
dress hearing in accordance with due process, unlike in the COMELEC where the
proceedings are summary in nature.  As
was aptly said in Laguda v. COMELEC, “to pass on such a complex matter
in a summary proceedings would be to run the risk that the decision arrived at
would not reflect the realities of this situation”.

Moreover, such course of action would be in keeping
with the ruling first enunciated in Valenzeula v. COMELEC (G.R. No.
53532, July 21, 1980) and lately in Arcenas v. COMELEC (G.R. No. 54039,
Nov. 28, 1980; see also Potencion vs. COMELEC, G.R. No. 52527, September
4, 1980). (Pasion vs. Commission on Elections, 109 SCRA
238 [1981], De Castro, J.).

 

 

18. Pleadings and Procedure

 

§1. The
trial of an election case by legislative fiat shall be conducted in a summary
manner without the cumbersome procedure prescribed for ordinary litigations in
order that its result may be determined in the shortest time possible. The
reason is obvious: an election case, unlike an ordinary action, involves public
interest, time element being of the essence in its disposition so that the
uncertainty as to who is the real choice of the people may at once be
dispelled.

In
enunciating that the trial in an election case should be devoid of
technicalities of procedure or conducted in a summary manner we do not mean
that there should not be any reception of evidence as required in an ordinary
trial. Cases there are when this may be needed as when it may be necessary to
present evidence aliunde, or such evidence other than those documents
which the law requires to be introduced in court for its examination.  (Reforma vs. De Luna, 104 Phil. 278
[1958], Bautista Angelo, J.).

 §2. Petitioner
filed the election protest (Civil Case No. 343-M-92) with the Regional Trial
Court, whose proceedings are governed by the Revised Rules of Court.  Section 1, Rule 13, Part III of the COMELEC
Rules of Procedure is not applicable to proceedings before the regular
courts.  As expressly mandated by Section
2, Rule 1, Part I of the COMELEC Rules of Procedure, the filing of motions to
dismiss and bill of particulars, shall apply only to proceedings brought before
the COMELEC. (Aruelo, Jr. vs. Court of Appeals, 227 SCRA 311 [1993], Quiason,
J.)

§3. Considering that this
petition involves an election protest heard by a regional trial court, the
Comelec Rules of Procedure are controlling. 
In view of the fact that the subject election contest was filed on May
26, 1992, Section 2, Rule 17 and Section 11, Rule 35 of the aforementioned
Comelec rules are applicable.  Rule 17
treats of Hearings whereas Rule 35 treats of Election Contests Before Courts of
General Jurisdiction.

 

The record shows that the revision of
ballots in the 22 protested precincts was completed sometime in September
1992.  Judge Lopez issued a ruling on the
said revision almost a year later, or on August 18, 1993.  In the interim, private respondent failed to
commence the revision of the ballots in the counter-protested precincts,
stubbornly maintaining the position that said precincts should be revised only
if it is shown after the revision that petitioner leads private respondent by
at least one (1) vote.  No law or rule
authorizes such a procedure. 
Consequently, private respondent must be deemed to have waived or
abandoned his counter-protest.  The
applicable Comelec rules provide for the presentation of evidence by the
parties in succession in the order or the sequence provided under Sec. 2, Rule
17 (Comelec Rules) which must be submitted within a reasonable time, if not
immediately after the revision of the precincts covered by the protest
proper.  By insisting that the
counter-protested precincts should be revised only if it is shown after the
revision of the protested precincts that petitioner, his opponent, leads by at
least one (1) vote, private respondent is adopting a self-serving rule without
legal sanction calculated to unduly prolong the litigation.

 

There is likewise merit to petitioner’s
claim that private respondent is guilty of laches, which, in a general sense,
is a failure or neglect, for an unreasonable and unexplained length of time, to
do that which, by exercising due diligence could or should have done earlier;
it is negligence or omission to assert a right within a reasonable length of
time, warranting a presumption that a party entitled to assert it either has
abandoned it or declined to assert it (Republic v. Caballero, 79 SCRA
177 [1977]). In the case at bar, private respondent unreasonably failed to
cause the revision of the counter-protested precincts despite being afforded
ample time to do so and must be deemed to have abandoned it.

 

Under the circumstances and for reasons
discussed above, the order of Judge Lopez dated August 18, 1993 which resolved
the party litigants’ objections to the revised ballots may very well be the
subject of a valid decision to resolve the instant electoral protest based on
the revised ballots of the 22 protested precincts.  In the event petitioner is declared the
winning candidate, she should, upon proper motion, be allowed to immediately
assume the contested office.  We say this
because in their pleadings, petitioner and private respondent have amply
discussed their respective arguments in the applicability of Garcia v. De
Jesus and the accompanying case of Tobon Uy v. Comelec (206 SCRA 779
[1992]) and the possibility is not remote that private respondent may once
again resort to dilatory tactics. 
Section 2, Rule 39 of the Rules of Court allows execution pending appeal
in election cases upon good reasons (Garcia v. De Jesus, supra; in
relation to Rule 43, Sec. 1, COMELEC Rules of Procedure) which we find
obtaining in the case before us. (Abeja vs. Tañada, 236 SCRA 60 [1994],
Bidin, J.).

 

§4. The
Solicitor General, in behalf of the COMELEC, raises a fundamental
question.  He contends that the filing of
the present petition, without petitioner first filing a motion for
reconsideration before the COMELEC en banc, violates Art. IX, A, Section
7 of the Constitution because under this provision only decisions of the
COMELEC en banc may be brought to the Supreme Court on certiorari.  This is correct. It is now settled that in
providing that the decisions, orders and rulings of COMELEC “may be brought to
the Supreme Court on certiorari” the Constitution in its Art. IX, A, Sec. 7
means the special civil action of certiorari under Rule 65, Sec. 1.

Since a
basic condition for bringing such action is that the petitioner first files a
motion for reconsideration, it follows that petitioner’s failure to file a
motion for reconsideration of the decision of the First Division of the COMELEC
is fatal to his present action. 
Petitioner argues that this requirement may be dispensed with because
the only question raised in his petition is a question of law.  This is not correct.  The questions raised by petitioner involve
the interpretation of constitutional and statutory provisions in light of the
facts of this case.  The questions
tendered are, therefore, not pure questions of law.

Conformably
to these provisions of the Constitution all election cases, including
pre-proclamation controversies, must be decided by the COMELEC in
division.  Should a party be dissatisfied
with the decision he may file a motion for reconsideration before the COMELEC en
banc.  It is, therefore, the
decision, order or ruling of the COMELEC en banc that, in accordance
with Art. IX, A, Sec. 7, “may be brought to the Supreme Court on certiorari.” (Reyes
vs. Regional Trial Court of Oriental Mindoro, Branch XXIX, 244 SCRA 41 [1995],
Mendoza, J.).

§5. The
procedure for perfecting an appeal from the decision of the Municipal Trial
Court in a barangay election protest case is set forth in the COMELEC Rules of
Procedure.

The mere
filing of the notice of appeal was not enough. 
It should be accompanied by the payment of the correct amount of appeal
fee. (Rodillas vs.
Commission on Elections, 245 SCRA 702 [1995], Quiason, J.).

§6. In Sarmiento v. Commission on Elections, we
ruled that the COMELEC, sitting en banc, does not have the requisite
authority to hear and decide election cases in the first instance.  This power pertains to the divisions of the
Commission.  Any decision by the
Commission en banc as regards election cases decided by it in the first
instance is null and void. (Abad, Jr., vs. Commission on Elections, 320 SCRA
507 [1999], Quisumbing, J.).

§7. We
uphold the foregoing factual findings, as well as the conclusions reached by
the COMELEC.  Factual findings of the
COMELEC based on its own assessments and duly supported by gathered evidence,
are conclusive upon the court, more so, in the absence of a substantiated
attack on the validity of the same, as is the case in the instant petition. (Diangka
vs. Commission on Elections, 323 SCRA 887 [2000], Gonzaga-Reyes, J.).

§8. Clearly,
the COMELEC, motu proprio, reconsidered its earlier Minute Resolution
No. 98-1959, as it was within its power to do, before it became final and
executory.  As argued by the COMELEC, it
has the inherent power to amend and control its process and order. Within the
thirty-day period from its promulgation, therefore, the questioned Minute
Resolution No. 98-1959 was still under the control of the COMELEC and may thus
be recalled or set aside.  Necessarily,
the subsequent passage by the COMELEC of Minute Resolution No. 98-2145 on July
14, 1998, wherein it corrected its earlier Minute Resolution No. 98-1959,
rendered the instant petition moot and academic. (Sahali vs. Commission on
Elections, 324 SCRA 510 [2000], Ynares-Santiago, J.).

§9. 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,
petitioner only filed his motion to dismiss “when the results of the trial
appear[ed] to be adverse to him” 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. (Maruhom
vs. Commission on Elections, 331 SCRA 473 [2000], Ynares-Santiago, J.).

           

 

19. Suppletory
application of the Rules of Court

 

§1. The Rules of Court apply
to election cases in a suppletory character whenever practicable and
convenient.  As there is no provision in
the Election Law regarding the manner in which parties should be notified of
the proceedings, pleadings or decisions in election cases, Section 2, Rule 27
of the Rules of Court, under which service of decisions should be made to the
lawyers on record, and not to parties, should be applied. (Cabili vs.
Badelles, 116 Phil. 493 [1962]; 6 SCRA 190 [1962], Labrador, J.).

 

§2. Nevertheless, the hiatus in the
special law posed no impediment to the course of the proceedings because,
precisely by express mandate of Rule 143 of the New Rules of Court, said rules,
though not generally applicable to election cases, may however be applied “by
analogy or in a suppletory character and whenever practicable and
convenient.”  Thus, Section 17, Rule 3 of
the Rules of Court applies to election cases to the same extent and with the
same force and effect as it does in ordinary civil actions.  And we declare that unless and until the
procedure therein detailed is strictly adhered to (and in this case this
procedure was totally ignored) proceedings taken by a court in the absence of a
legal representative of the deceased protestee must be stricken down as null
and void.  (Vda.
De Mesa vs. Mencias, 124 Phil. 1187 [1966]; 18 SCRA 533 [1966], Castro, J.).

§3. As already
noted, petitioner received summons and copies of the election protest on June
2, 1995.  In accordance with Art. XXI,
Sec. 254 (b) of the Omnibus Election Code and Rule 35, Sec. 7 (a) of the
COMELEC Rules of Procedure, his answer should have been filed within five (5)
days, i.e., on or before June 7, 1995. 
But petitioner did not file his answer on or before that date.  On June 15, 1995, eight (8) days after the
expiration of the period for filing his answer, his counsel filed a motion for
an extension of fifteen (15) days within which to file an answer or any
responsive pleading to the election protest. 
His motion was thus filed late. 
In Maliwanag v. Herrera, the Court held that the provisions of
the Rules of Court are suppletory to the provisions of the Election Law.  Hence a motion for extension of time to file
answer to the election protest should be filed before the expiration of the
five-day reglementary period to answer, otherwise a general denial shall be
deemed to have been entered against the protestee. Petitioner’s answer with
counterprotest, which was filed on November 13, 1995, was therefore filed more
than five months late. (Lim
vs. Commission on Elections, 282 SCRA 53 [1997], Mendoza, J.).

§4. The Rules of Civil
Procedure generally do not apply to election cases. They apply only by analogy
or in suppletory character and whenever practicable and convenient. Election
contests are subject to the Comelec Rules of Procedure.  Rule 35 thereof governs election contests
involving elective municipal officials before the Regional Trial Courts. Rule
35 does not require that the petition contesting the election of any municipal
official be accompanied by a certification or any statement against forum
shopping. (Barroso vs.
Ampig, Jr., 328 SCRA 530 [2000], Puno, J.).

 

 

20. Verification
and certification of non-forum shopping

 

§1. Since the petitioner’s
election protest in the Court of First Instance of Isabela did not bear the
character of an ex abundanti cautela, there would be no cogent reason to
depart from the well-settled rule that once a court of first instance has
acquired jurisdiction by virtue of the filing of an election protest, all
questions relative thereto will be decided in the case itself and not in
another proceeding before a different forum. (Filart vs. Commission on
Elections, 53 SCRA 457 [1973], Antonio, J.).

§2. We do not agree with
the MCTC that Administrative Circular No. 04-94 is not applicable to election
cases because it is merely amendatory of the Rules of Court and the latter,
pursuant to Rule 143 thereof, is not applicable to election cases.  There is nothing in the Circular that
indicates that it does not apply to election cases.  On the contrary, it expressly provides that
the requirements therein, which are in addition to those in pertinent
provisions of the Rules of Court and existing circulars, “shall be strictly complied
with in the filing of complaints, petitions, applications or other initiatory
pleadings in all courts and agencies other than the Supreme Court and the Court
of Appeals.”  Ubi lex non distinguit,
nec nos distinguere debemus. (Loyola vs. Court of Appeals, 245 SCRA 477 [1995],
Davide, Jr., J.).

 

§3. We do not agree with
petitioners.  In Loyola vs. Court of
Appeals, which involves substantially a similar set of facts and issue,
this Court held¾We do not agree x x x that Administrative
Circular No. 04-94 is not applicable to election cases x x x x There is nothing
in the Circular that indicates that it does not apply to election cases.  On the contrary, it expressly provides that
the requirements therein, which are in addition to those in pertinent provisions
of the Rules of Court and existing circulars, “shall be strictly complied with
in the filing of complaints, petitions, applications or other initiatory
pleadings in all courts and agencies other than Supreme Court and the Court of
Appeals.”  Ubi lex non distinguit nec
nos distinguere debemus.

 

It should be emphasized that the mere
submission of a certification under Administrative Circular No. 04-94 after the
filing of a motion to dismiss on the ground of non-compliance thereof does not
necessarily operate as a substantial compliance; otherwise, the Circular would
lose its value or efficacy. (Tomarong
vs. Lubguban, 269 SCRA 624 [1997], Bellosillo, J.).

 

§4. Where the petitioner
failed to state in his verification that the contents of the election protest
are true and correct of his own personal knowledge, said petition lacks proper
verification and should be treated as an unsigned pleading and must be
dismissed.

 

The requirement to file a certificate of
non-forum shopping is mandatory, and failure to comply with this requirement
cannot be excused by the fact that a party is not guilty of forum shopping.
(Soller vs. Commission on Elections, 339 SCRA 685 [2000], Quisumbing, J.).

                       

            §5. Forum-shopping
exists when the petitioner files multiple petitions or complaints involving the
same issues in two or more tribunals or agencies.  The issues in the two cases are
different.  The complaint for election
offense is a criminal case which involves the ascertainment of the guilt or
innocence of the accused candidate and, like any other criminal case, requires
a conviction on proof beyond reasonable doubt. 
A petition for disqualification, meanwhile, requires merely the
determination of whether the respondent committed acts as to merit his
disqualification from office, and is done through an administrative proceeding
which is summary in character and requires only a clear preponderance of
evidence. (Domingo, Jr. vs.
Commission on Elections, 313 SCRA 311 [1999), Gonzaga-Reyes, J.).

 

§6. The strict application
of the non-forum shopping rule in the case at bar would not work to the best
interest of the parties and the electorate. An election contest, unlike an
ordinary civil action, is clothed with a public interest.  The purpose of 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.  An election contest therefore involves not
only the adjudication of private and pecuniary interests of rival candidates
but paramount to their claims is the deep public concern involved and the need
of dispelling the uncertainty over the real choice of the electorate.  And the court has the corresponding duty to
ascertain by all means within its command who is the real candidate elected by
the people.

 

Similarly, the Rules of Civil Procedure
on forum shopping should be applied with liberality.  In the instant case, the revision of ballots
has already started in ten (10) precincts.   
The right of the people of Tampakan to freely express their choice of
representative through a free and honest election should not be smothered by a
strict adherence to technical rules of procedure. (Barroso vs. Ampig, Jr., 328 SCRA 530 [2000], Puno,
J.).

 

§7. There is another
reason to dismiss private respondent’s election protest.  We note that the verification of aforesaid
protest is defective. In the verification, private respondent merely stated
that he caused the preparation of his petition and he has read and understood
all the allegations therein. Certainly, this is insufficient as private
respondent failed to state that the contents of his election protest are true
and correct of his personal knowledge. 
Since the petition lacks proper verification, it should be treated as an
unsigned pleading and must be dismissed.

 

Private respondent’s belief that he no
longer had a pending case before the COMELEC because he deemed it abandoned
upon filing of his protest is not a valid reason for non-disclosure of the
pendency of said pre-proclamation case. 
Note that the COMELEC dismissed private respondent’s pre-proclamation
case only on July 3, 1998.  Before the
dismissal, said case was legally still pending resolution.  Similarly, the fact that private respondent’s
protest was not based on the same cause of action as his pre-proclamation case
is not a valid excuse for not complying with the required disclosure in
the certification against forum shopping. 
The requirement to file a certificate of non-forum shopping is
mandatory.  Failure to comply with this
requirement cannot be excused by the fact that a party is not guilty of forum
shopping.  The rule applies to any
complaint, petition, application or other initiatory pleading, regardless of
whether the party filing it has actually committed forum shopping.  Every party filing any initiatory pleading is
required to swear under oath that he has not and will not commit forum
shopping.  Otherwise we would have an
absurd situation, as in this case, where the parties themselves would be the
judge of whether their actions constitute a violation of the rule, and
compliance therewith would depend on their belief that they might or might not
have violated the requirement.  Such
interpretation of the requirement would defeat the very purpose of the rule. (Soller vs. Commission on Elections, 339
SCRA 685 [2000], Quisumbing, J.).

 

 

21. Mandatory and jurisdictional period to file protest/quo
warranto

 

§1. The two weeks within
which, under the Election Law, the protest in a protested election case must be
filed should be counted from the issuance of the proclamation of the provincial
board of canvassers and not from the election day.

 

A protest filed prior to the proclamation
of the provincial board of canvassers is premature and must be dismissed if an
objection thereto is made opportunely.

 

Where, however, a protest is filed prior
to such proclamation and no objection is made thereto on that ground and the protest
is continued and heard after the proclamation of said provincial board of
canvassers, the protest will be deemed to have been filed after such
proclamation and therefore to have been presented at the proper time.

 

The fundamental basis of an election
protest is the election of one of the adversaries of the protestant.  There is no such election, however, until the
proclamation of the provincial board of canvassers, as, prior to that time, it
is impossible, legally speaking, to know or to prove who is elected.

 

In contemplation of law there is no
election until such election can be proved in the manner required by law.  Under the law, an election is proved by the
action of the provincial board of canvassers. 
Until that evidence can be presented no election can be proved as the
basis of a protest.

 

An election is not an election and the
popular will is not deemed to have been expressed until the last act necessary
to complete the election under the law has been performed.  Under the law of the Philippine Islands the
act which completes the election is the proclamation of the provincial board of
canvassers.  (Manalo vs. Sevilla, 24
Phil. 609 [1913], Moreland, J.).

 

§2. The intent of the
Legislature was to fix a certain and definite time within which petitions and
protests against the result of an election should be filed and to provide
summary proceedings for the settlement of such contests. (Municipal Council
of Masantol vs. Guevara, etc., 44 Phil. 580 [1923], Johnson, J.).

 

§3. Where there had been two proclamations made
by the city board of canvassers, the first, made on December 29, 1959, being
merely partial leaving aside that which refers to the eighth councilor whose
election was contested and was the subject of a recount; and the second, made
on June 2, 1960, after a new canvass resulting in the proclamation of
protestee-appellant as the eighth duly elected councilor upon the authority of
the Commission on Elections, it is held that the two weeks period to
file election protest should be counted not from the first but from the second
proclamation; otherwise it would make the protest illusory, for the
protestant-appellee could not have filed any protest before the proclamation of
her opponent, which took place on June 2, 1960. (Conui-Omega
vs. Samson, 118 Phil. 1333 [1963]; 9 SCRA 493 [1963], Bautista Angelo J.).

 

§4. The filing of an election protest not in
strict compliance with paragraph (g) of Section 176 of the Revised Election
Code is a circumstance not sufficient to dismiss said protest, provided it has
been filed in due time.

 

An
election protest involves public interest, and technicalities should not be
sanctioned when it will be an obstacle in the determination of the true will of
the electorate in the choice of its public officials.  It is a recognized principle that laws
governing election protests must be liberally interpreted to the end that the
popular will expressed in the election of public officers will not, by reason
of purely technical objections, be defeated. (Macasundig vs. Macalangan, 121
Phil. 554 [1965]; 13 SCRA 577 [1965], Zaldivar, J.).

§5. The argument overlooks the
events which supervened after his proclamation on March 27, 1980.  As heretofore stated, Esquivel filed his
petition in G.R. No. 53475 on March 28, 1980, i.e., the day following Cucio’s
proclamation.  On the very same day, this
Court issued an order restraining the latter from taking his oath of office
and/or assuming the position of mayor. 
Thus, from March 27 until October 14, 1980, when said restraining order
was lifted, Esquivel had assumed and discharged the office of mayor of Palayan
City.  Under this factual setting, it
would have been illogical and absurd for Esquivel to have filed an election
protest over an office which he himself was occupying at the time.  Indeed, he had neither cause nor reason to
have sought such recourse.

We therefore sustain Esquivel’s
submission that the 10-day period under Section 189 of the Election Code should
be considered as having been suspended during the pendency of G.R. No. 53475,
and that said statutory period be computed from October 15, 1980, the day
Esquivel received notice of the dismissal of his petition in G.R. No. 53475.

            In fine, to deny Esquivel recourse to an
election protest because of an evident oversight in Our resolution of October
14, 1980 in G.R. No. 53475 to specifically grant him a period of 10 days within
which to file such protest, would be to effectively deprive him of the
fundamental right of due process. (Esquivel vs.
Commission on Elections, 121 SCRA 786 
[1983], Escolin, J.).

§6. At this point, it bears reiterating
the pronouncement  We have already made
in several cases that “after an election duly held and a proclamation
thereafter made of the winning candidate, a pre-proclamation controversy should
no longer be viable”  (Pasion vs.
Comelec, 109 SCRA 238, 244; Mogueis, Jr. vs. Comelec, 104 SCRA 578; Arcenas
vs. Comelec, 101 SCRA 437;  Villegas
vs. Comelec, 99 SCRA 582;  Venezuela
vs. Comelec, 98 SCRA 790).

            But unlike in Pasion vs. Comelec,
supra, Mogueis Jr. vs. Comelec, supra, and Villegas vs.
Comelec, supra, where the petitioners therein were not left without
a remedy for the opportunity for them to prove such a wholesale allegation of
massive fraud and violations of the Election Code—through the filing or
continuation of their respective election protest before the appropriate body
or tribunal—herein private respondent’s recourse to an electoral protest in the
proper court is deemed foreclosed or extinguished when they chose instead to
file before the COMELEC the questioned petition (PP Case No. 499) twenty-two
[22] days after the proclamation of herein petitioners.

 

On the other hand, the present case
cannot with precision be called a pre-proclamation controversy.  As earlier shown, the petition against the
petitioners herein was filed with COMELEC after the lapse of 22 days after
they had been proclaimed duly elected municipal officials of San Jose del
Monte and after they had assumed office. 
This case is more of a post-proclamation dispute. (Robes vs. Commission on Elections, 123 SCRA 193 [1983], Makasiar,
J.).

§7. The law is equally clear.  The Election Code grants the right to a voter
“contesting the election of any officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines [to] file a petition for quo
warranto with the Commission within ten days after the proclamation of his
election.”  There is no getting away from
the explicit mandate of the law.  A
ten-day period is set forth.  It must be
obeyed.  This Court has reiterated time
and time again the principle that when the statute speaks clearly and
unequivocally, there is no room for interpretation.  It must be applied as worded.  It is to be noted that there is a distinction
between an election protest and quo warranto suit on ground of
ineligibility.  This Court has even gone
as far as holding that an action for quo warranto cannot be converted
into an election protest.  It may not be
amiss to state that under the former Election Code, the period granted is
limited to one week or seven days, not ten days as now provided.  Then as well as now, however, whatever period
is prescribed must be followed to the letter. 
It is as simple as that. (Asuncion, Jr. vs.
Segundo, 124 SCRA 729 [1983], Fernando, C.J.).

§8. The reglementary period for
filing an election protest was suspended during the pendency of the
pre-proclamation case.

In the
light of Section 248, the lower court’s statement that “the running of the
ten-day period to file an election protest is not stopped by protestant’s
elevation to the Supreme Court of the COMELEC’s decision” in the
pre-proclamation case, is not correct. 
The appeal by certiorari to the Supreme Court, which is a right secured
to the defeated party under Section 7, Title A, Article IX of the 1987
Constitution, is part of the annulment proceeding.  The case is not over until the Supreme Court
has given its verdict, hence, the computation of the ten-day-period for filing
an election contest does not begin until that verdict has been handed down by
the Supreme Court.

The
right of the prevailing party in a pre-proclamation case to the execution of
the COMELEC’s decision (i.e., to be proclaimed and to assume office) after the
lapse of five (5) days from receipt of said decision by the losing party,
unless restrained by the Supreme Court, does not bar the losing party from
filing an election contest within the ten-day period fixed in Section 251. The
absence of a restraining order from the Supreme Court simply allows the
prevailing party to be proclaimed and assume office.

In Gallardo
vs. COMELEC, G.R. No. 85974, May 30, 1989, the appellant did not ask this
Court to restrain the execution of the COMELEC decision for the simple reason
that his opponent, Rimando, had already been proclaimed even before the
pre-proclamation case was filed by him (Gallardo) in the COMELEC.  That circumstance, was precisely the reason
why the COMELEC dismissed the pre-proclamation case, for the rule is that after
the winning candidate has been proclaimed and assumed office, a
pre-proclamation petition does not lie against him.

But,
although already proclaimed and installed in office, he may still be
unseated:  (1) when his opponent is
adjudged the true winner of the election by a final judgment of the courts in
the election contest (Sec. 251, Omnibus Election Code); (2) when the prevailing
party is declared ineligible or disqualified by final judgment in a quo
warranto case (Sec. 253, Omnibus Election Code); and (3) when the incumbent
is removed from office for cause. (Gallardo vs. Rimando, 187 SCRA 463
[1990], Griño-Aquino, J.).

§9. It will thus
be seen that Rule 35 of the COMELEC Rules of Procedure merely reproduced the
provisions of Art. XXI, Sec. 254 of the Omnibus Election Code.  There is no basis for petitioner’s contention
that the COMELEC has no power to prescribe the procedure for election contests
filed in the Regional Trial Courts and those filed in the Municipal Trial
Courts.  The timeliness of petitioner’s
protest must therefore be determined in accordance with the rules of the
COMELEC. (Lim vs. Commission
on Elections, 282 SCRA 53 [1997], Mendoza, J.).

§10. At
the outset, we notice that petitioner exhibits an ambivalent stand as to what
exactly is the nature of the remedy he availed of at the time he initiated
proceedings before the COMELEC in SPC No. 98-134.  At the start, he anchors his initiatory
petition under Section 6 of the Omnibus Election Code regarding failure of
elections but he later builds his case as a pre-proclamation controversy which
is covered by Sections 241-248 of the Omnibus Election Code, as amended by R.A.
No. 7166.  In this respect, the rule is,
what conjointly determine the nature of a pleading are the allegations therein
made in good faith, the stage of the proceeding at which it is filed, and the
primary objective of the party filing the same. 
In any case, petitioner nonetheless cannot succeed in either of the
remedies he opted to pursue.   Recently,
in Matalam v. Commission on Elections, we have already declared
that a pre-proclamation controversy is not the same as an action for annulment
of election results or declaration of failure of elections, founded as they are
on different grounds. (Sison vs. Commission on Elections, 304 SCRA
170 [1999],                    Romero,
J.).

§11. The
reason for this is that unless the proclamation of a winning candidate is
suspended or, if it has been held, set aside, the policy behind the allowance
of pre-proclamation controversies, i.e., to prevent losing candidates
from grabbing the proclamation and delaying the resolution of the electoral
contest, will be defeated.  Thus, in Esquivel
v. Commission on Elections, it was held that the 10-day period for filing
an election protest under Section 289 of the former Election Code was suspended
by the filing of a petition for annulment of proclamation.

 

The filing of
pre-proclamation controversies under Sec. 248 of the Omnibus Election Code,
however, is not the only ground for the suspension of proclamation.  Two other instances are provided in R.A. No.
6646, known as the “The Electoral Reforms Law of 1987,” viz: (1) Under
Sec. 6 of the statute, the COMELEC may, upon motion of the complainant in an
action for disqualification, suspend the proclamation of the winning candidate
if the evidence of his guilt is strong, and (2) under Sec. 7 thereof, the
COMELEC may likewise suspend the proclamation of the winning candidate if there
is ground for denying or canceling his certificate of candidacy. x x x These
actions are in the nature of pre-proclamation controversies and, therefore,
like pre-proclamation contests, their filing is a ground for the suspension of
proclamation and, consequently, of the period for filing either an election
protest or a petition for quo warranto.

 

Petitioner is
correct that SPA No. 98-356 is not a pre-proclamation controversy.  Much less is it a petition for
disqualification or for the denial or cancellation of a certificate of
candidacy.  Indeed, private respondent
does not claim that her petition raises pre-proclamation issues.  She frankly admits that SPA No. 98-356 is a
petition filed under Sec. 6 of the Omnibus Election Code for a declaration of
failure of election.  In fact, her
petition clearly states its nature, as it is denominated PETITION TO DECLARE A
FAILURE OF ELECTION AND/OR TO ANNUL THE ELECTION RESULTS IN THE MUNICIPALITY OF
KABUNTALAN, FIRST DISTRICT OF MAGUINDANAO.

 

Private
respondent, on the other hand, contends that as long as there is a prayer for
the annulment of a proclamation, the filing of such petition effectively
suspends the running of the period for filing an election protest.  This contention has no merit.  Not all actions seeking the annulment of
proclamation suspend the running of the period for filing an election protest
or a petition for quo warranto. 
For it is not the relief prayed for which distinguishes actions under
Sec. 248 from an election protest or quo warranto proceedings, but the
grounds on which they are based.

 

As this Court
pointed out in Dimaporo v. Commission on Elections: It may well be true
that public policy may occasionally permit the occurrence of “grab the
proclamation and prolong the protest” situations; that public policy, however,
balances the possibility of such situations against the shortening of the
period during which no winners are proclaimed, a period commonly fraught with
tension and danger for the public at large. (Dagloc vs. Commission on
Elections, 321 SCRA 273 [1999], Mendoza, J.).

 

 

22. Payment of the required filing fees/cash deposit

 

§1. While the law prohibits
the court from entertaining a motion of protest in election cases, until the
protestant gives a bond in an amount to be fixed by it, the bond need not be
given within the time fixed for filing the motion of protest.  The bond may be given within a reasonable
time after the amount is fixed by the court.

 

After the court has acquired jurisdiction
of an election protest by the presentation of the motion of protest within time
and proper notice is given and the bond has been filed, it deprives the
protestant of his right to be heard upon the merits of his cause by dismissing
the protest and mandamus will issue to compel a reinstatement of the same and a
hearing upon the merits. (Ancheta and Aguilar vs. Judge, Court of First
Instance of La Union, 40 Phil. 73 [1919], Per Curiam).

 

§2. While it is true that the original petition
for quo warranto contesting the right to office of proclaimed candidates
was mailed, addressed to the clerk of the court of first instance, within the
one week period after the proclamation provided therefor by law (Section 173,
Revised Election Code), it is likewise a fact that the required docket fees
were paid only after the expiration of said period, consequently, it is held
that the date of such payment must be deemed to be the real date of filing of
the aforesaid petition and not the date when it was mailed. (Malimit vs. Degamo, 12 SCRA 450 [1964], Dizon, J.).

 

§3. Court acquired jurisdiction by the
seasonable filing of an original protest and prompt payment of the required
fees then prevailing and protestants should not be deprived of their right to
be heard on the merits of their case.

 

It is true that under Section 7 of Resolution No.
1451, failure to make the cash deposits within the prescribed time limit shall
result in the automatic dismissal of the protest.  That provision, however, finds no application
herein.  Petitioners were not remiss in
complying with the rules nor with the Order of respondent Court dated February
28, 1980.  This is so because they had
seasonably filed their motions for extension of time within which to comply,
based on meritorious grounds, the last of which was unacted upon by the
Court  x x x. There should be no question
but that the filing of an election protest and with it the payment of the
docket fees should be done within the statutory period, and that no extensions
of said period are legally permissible. 
The factual environment in the instant case, as above explained,
however, removes this case from the rigid application of that mandatory rule.
(De Leon vs. Guadiz, Jr., 104 SCRA 591 [1981],
Melencio-Herrera, J.).

 

§4. We now proceed to resolve the issue anent
the dismissal of petitioner’s election protest by the Regional Trial Court for
non-payment, or more accurately the incomplete payment, of docket
fees.  Ordinarily, with the reversal of
the respondent Commission’s questioned order, this case should be remanded to
said court for adjudication on the merits. 
Considering, however, the exigencies of time appurtenant to the
disposition of election cases, and considering further that the issue has at
any rate been squarely raised in this petition, it is now incumbent upon this
Court to act on the propriety of the trial court’s order dismissing the
election protest for failure of petitioner to pay the correct amount of docket
fees.  In dismissing petitioner’s action,
the trial court relied on the rulings enunciated in the cases of Malimit v.
Degamo (an action for quo warranto), Magaspi, et al. vs.
Ramolete, et al. (a suit for recovery of possession and ownership of land),
Lee vs. Republic (a petition for declaration of intention to become a
Filipino citizen), Manchester Development Corporation vs. Court of Appeals,
et al. (an action for a sum of money and damages), Sun Insurance Office,
Ltd. (SIOL) et al. vs. Asuncion. (a suit for a sum of money and damages),
and Tacay, et al. vs. Regional Trial Court of Tagum, Davao del Norte, etc.
et al. (an action for damages).  It
bears emphasis that the foregoing cases, except for Malimit v. Degamo,
are ordinary civil actions.  This fact
alone would have sufficed for a declaration that there was no basis for the
dismissal of petitioner’s protest for the simple reason that an election
contest is not an ordinary civil action. 
Consequently the rules governing ordinary civil actions are not
necessarily binding on special actions like an election contest wherein public
interest will be adversely affected.

 

Furthermore,
there are strong and compelling reasons to rule that the doctrine we have
established in Manchester and cases subsequent hereto cannot be made to
apply to election cases.  As we have
earlier stated, the cases cited are ordinary civil actions whereas election
cases are not.  The rules which apply to
ordinary civil actions may not necessarily serve the purpose of election cases,
especially if we consider the fact that election laws are to be accorded utmost
liberality in their interpretation and application, bearing in mind always that
the will of the people must be upheld. 
Ordinary civil actions would generally involve private interests while
all election cases are, at all times, invested with public interest which
cannot be defeated by mere procedural or technical infirmities.

In the case
now before us, and in election cases in general, it is not the amount of
damages, if any, that is sought to be recovered which vests in the courts the
jurisdiction to try the same.  Rather, it
is the nature of the action which is determinative of jurisdiction.  Thus, regardless of the amount of damages
claimed, the action will still have to be filed with the Regional Trial Court.  In such a case, the evil sought to be avoided
in Manchester and like cases will never arise.  Peremptorily, there will be no occasion to
apply the rulings in the cases mentioned. 
In addition, the filing fee to be paid in an election case is a fixed
amount of P300.00.  There will
consequently be no opportunity for a situation to arise wherein an election
contest will have to be dismissed for failure to state the exact amount of
damages and thus evince an intent to deprive the Government of the docket fees
due.

To
summarize, the evil sought to be avoided in Manchester and similar cases
can never obtain in election cases since (1) the filing fee in an election case
is fixed and not dependent on the amount of damages sought to be recovered, if
any; and (2) a claim for damages in an election case is merely ancillary to the
main cause of action and is not even determinative of the court’s jurisdiction
which is governed by the nature of the action filed. (Pahilan vs. Tabalba, 230 SCRA 205 [1994], Regalado,
J.).

§5. Section
10, Rule 35 of the Comelec Rules and Procedure is clear that cash deposit
should be made by the counter-protestant which shall be applied to the payment
of all expenses incidental to the counter-protest.  Under Section 7 (b), Rule 35 of the Comelec
Rules of Procedure, a counter-protest is that filed by the protestee who
desires to impugn the votes received by the protestant in other precincts. (Roa,
Sr. vs. Imbing, 231 SCRA 57 [1994], Nocon, J.).

 

§6. Even on the merits, we
think the First Division of the COMELEC properly dismissed petitioner’s appeal
from the decision of the trial court because of his failure to pay the appeal
fee within the time for perfecting an appeal. 
In accordance with Section 2 (b) of COMELEC Resolution No. 2108-A, the
appeal fee must be paid within the period to perfect the appeal.  This resolution, which was promulgated on
July 14, 1989, superseded COMELEC Resolution No. 1456 on which petitioner
relies for his contention that the fee is to be paid only upon the filing of
the appeal brief. (Reyes vs.
Regional Trial Court Oriental Mindoro, Branch XXXIX, 244 SCRA 41 [1995],
Mendoza, J.).

 

§7. It is the payment of
the filing fee that vests jurisdiction of the court over the election protest,
not the payment of the docket fees for the claim of damages and attorney’s fees.  For failure to pay the filing fee prescribed
under Section 9, Rule 35 of the COMELEC Rules of Procedure, the election
protest must be dismissed.  Under Section
9, Rule 35 of the COMELEC Rules of Procedure, “[n]o protest x x x shall be
given due course without the payment of a filing fee in the amount of three
hundred pesos (P300.00) for each interest.” (Gatchalian vs. Court of Appeals, 245 SCRA 208
[1995], Quiason, J.).

 

§8. The payment of the
full amount of the docket fee is an indispensable step for the perfection of an
appeal (Dorego vs. Perez, 22 SCRA 8 [1968]; Bello vs. Fernandez, 4 SCRA 135
[1962]).  In both original and appellate
cases, the court acquires jurisdiction over the case only upon the payment of
the prescribed docket fees as held in Acda vs. Minister of Labor, 119
SCRA 306 (1982).  The requirement of an
appeal fee is by no means a mere technicality of law or procedure.  It is an essential requirement without which
the decisions appealed from would become final and executory as if no appeal
was filed at all.  The right to appeal is
merely a statutory privilege and may be exercised only in the manner prescribed
by, and in accordance with the provision of law.  (Rodillas
vs. Commission on Elections, 245 SCRA 702 [1995], Quiason, J.).

 

§9. In support
of his arguments petitioner cites the case of Roleto Pahilan v. Rudy
Tabalba, wherein the Court proceeded to rule on the election protest
brought to it which was dismissed in the trial court due to incomplete payment
of docket fees. The Court stated that the trial court had “no basis for the
dismissal of petitioner’s protest for the simple reason that an election
contest is not an ordinary civil action. Consequently, the rules governing
ordinary civil actions are not necessarily binding on special actions like an
election contest wherein public interest will be adversely affected.  x x x. 
The rules which apply to ordinary civil actions may not necessarily
serve the purpose of election cases, especially if we consider the fact that
election laws are to be accorded utmost liberality in their interpretation and
application bearing in mind always that the will of the people must be
upheld.  Ordinary civil actions would
generally involve private interests while all election cases are, at all times,
invested with public interest which cannot be defeated by mere procedural and
technical infirmities.”  The Court,
however, in Rodillas v. COMELEC categorically made a pronouncement that
“the requirement of an appeal fee is by no means a mere technicality of law
or procedure.  It is an essential
requirement without which the decision to be appealed from would become final
and executory as if no appeal was filed at all. 
The right to appeal is a mere statutory privilege and may be exercised
only in the manner prescribed by, and in accordance with, the provision of the
law”. (Calucag vs.
Commission on Elections, 274 SCRA 405 [1997], Romero, J.).

§10. Thus, there
was an incomplete payment of the filing fees by private respondents in the
amount of P32.00.  We note that a
number of cases involving payment of the incorrect filing fees have been
brought before this Court.  In fact, the
case at bar is similar to the recent case of Loyola v. COMELEC where the
Clerk of Court likewise assessed the incorrect filing fee of P32.00 and the
trial court remedied the situation by requiring the parties to pay the balance
of P268.00.  In said case, we traced
the confusion as to the assessment of the correct fees, thus:  “The key issue is whether the RTC acquired
jurisdiction over private respondent’s election protest despite the payment,
upon the filing thereof, of only a part of the filing fee fixed in Section 9
of Rule 35 of the COMELEC Rules of Procedure which fixes the filing fee at
P300.  Yet, the Clerk of Court assessed
and collected only the sum of P32. 
Evidently, the Clerk of Court had in mind the former Section 5(a)(11),
Rule 141 of the Rules of Court on filing fees. 
The error of the Clerk of Court could be due to ignorance of Section
9 of Rule 35 of the COMELEC Rules of Procedure and this Court’s 4 September
1990 resolution amending Rule 141 of the Rules of Court on filing fees.  Or it could be due to sheer confusion as to
which rule would apply in assessing the filing fee considering that the
election protest falls within the exclusive original jurisdiction of the
Regional Trial Court, in which case the Rules of Court may govern, and that the
COMELEC Rules of Procedure was primarily intended to govern election cases
before the COMELEC.  This ignorance or
confusion, however, was not fatal to private respondent’s cause.  The application by the Clerk of Court of
Section 5 of Rule 141 of the Rules of Court substantially vested the RTC with
jurisdiction over the election protest.  Although
this Court had given its imprimatur to said Section 9 of Rule 35 of the COMELEC
Rules of Procedure, the failure of the Clerk of Court to take said section
into account is a technicality which cannot be allowed to defeat the viability
of the election protest.”  (Emphasis
supplied.)  Thus, in the case at bar, it
was the amount of P32.00 which was incorrectly assessed by the clerk of court
as filing fee.  This constitutes an incomplete
payment of the P300.00 filing fee required under the COMELEC Rules and
correctible by payment of the deficiency in the amount of P268.00.

Nonetheless, we reiterate the caveat in
Loyola v. COMELEC that in view of said case and those of Pahilan and
Gatchalian, the Court would no longer tolerate any mistake in the payment
of the full amount of filing fees for election cases filed after the
promulgation of the Loyola decision on March 25, 1997. (Miranda vs. Castillo, 274 SCRA 503
[1997], Puno, J.).

 

§11. It may be argued that
unlike in the case of election protests, no period is provided for to make the
cash deposit in the case of petitions for quo warranto. However, the
cash deposit required in quo warranto cases is fixed, i.e.,
P5,000.00.  It does not vary nor can it
be varied; it is required to be paid together with the filing fee at the time
the petition is filed.  It is different
from a protest and/or counter-protest where the amount of the required cash
deposit is yet to be determined since it has to be based on the number of
ballot boxes and other election documents and paraphernalia to be collected and
brought to the Tribunal.  Therefore,
depending on the amount that may be required for the collection of the ballot
boxes and other election documents and paraphernalia, the parties are given
specified periods within which to pay. Thus, when the required amount of cash
deposits does not exceed P75,000.00, the party concerned must make the deposit
within ten (10) days after the filing of the protest or counter-protest;
otherwise, when it exceeds P75,000.00 he is required to make a partial deposit
of at least P75,000.00 likewise within ten (10) days and the balance payable in
installments as may be determined by the Tribunal.

 

Petitioners herein, Perla Garcia, Paz
Cruz and Geraldine Padernal, filed their petition for quo warranto on
May 29, 1998.  However, the required cash
deposit of P5,000.00 was paid only on June 26, 1998, which was after the
dismissal of the petition and only after an unreasonable delay of twenty-eight
(28) days.  Indeed, in dismissing the
petition the HRET acted judiciously, correctly and certainly within its
jurisdiction.  It was a judgment call of
the HRET which is clearly authorized under its Rules.   As long as the exercise of discretion is
based on well-founded factual and legal basis, as in this case, no abuse of
discretion can be imputed to the Tribunal. (Garcia vs. House of Representatives Electoral
Tribunal, 312 SCRA 353 [1999], Ynarez-Santiago, J.).

 

§12. This
ruling of the trial court directly contravenes this Court’s explicit
pronouncement in Gatchalian v. Court of Appeals declaring in no uncertain
terms that¾It is the payment of
the filing fee that vests jurisdiction of the court over the election protest, not the payment of the docket fees for the claim of damages and
attorney’s fees.  For failure to pay the
filing fee prescribed under Section 9, Rule 35 of the COMELEC Rules of
Procedure, “[n]o protest x x x shall be given due course without the payment of
a filing fee in the amount of Three Hundred Pesos (P300.00) for each interest.”

 

The subsequent
payment of the filing fee on June 6, 1997 will not extricate petitioner from
his predicament considering that before the payment of the filing fee, a case
is not deemed duly registered and docketed. 
In other words, the date of the payment of the filing fee is deemed the actual
date of the filing of the election protest and, viewed vis-á-vis Section
3, Rule 35 of the COMELEC Rules of Procedure which provides that¾“SEC. 3. Period to file petition.¾The petition shall be filed within ten
(10) days following the date of proclamation of the results of the election.”  The subsequent payment of the filing fee on
June 6, 1997 did not cure the jurisdictional defect because the said date which
is deemed the actual date of filing the election protest is twenty-five (25)
days after the proclamation of the results of the election on May 12, 1997 and,
needless to state, way beyond the ten-day reglementary period to file the same.
(Melendres, Jr. vs. Commission on Elections, 319 SCRA 262 [1999],
Ynares-Santiago, J.).

 

§13. Petitioner did not comply with the
requirements for filing an election protest. 
He failed to pay the required filing fee and cash deposits for an
election protest.  Failure to pay filing
fees will not vest the election tribunal jurisdiction over the case.  Such procedural lapse on the part of a
petitioner would clearly warrant the outright dismissal of his action. (Banaga, Jr., vs. Commission on Elections, 336 SCRA 701 [2000],
Quisumbing, J.).

 

§14. Close scrutiny of the
receipts will show that private respondent failed to pay the filing fee of
P300.00 for his protest as prescribed by the COMELEC rules.  The amount of P368.00 for which OR 7023752
was issued was for the Judiciary Development Fund as shown by the entries in
the cash book of the clerk of court. 
Thus, only P32.00 with OR 7022478 credited to the general fund could be
considered as filing fee paid by private respondent for his protest. A court
acquires jurisdiction over any case only upon the payment of the prescribed
docket fee.  Patently, the trial court
did not acquire jurisdiction over private respondent’s election protest.  Therefore, COMELEC gravely erred in not
ordering the dismissal of private respondent’s protest case.

 

Errors in the payment of filing fees in
election cases is no longer excusable. 
And the dismissal of the present case for that reason is, in our view,
called for. (Soller vs. Commission on Elections, 339 SCRA 685 [2000],
Quisumbing, J.).

 

 

23. Mistake committed by a receiving clerk of
court            

 

§1. Where in an election contest, due to a
mistake by the Clerk of Court, the ordinary form of summons used in civil cases
giving 15 days within which to answer was served upon the protestee, it is held
that such error cannot prevail over a specific provision of the election law
requiring answer within five days. (Conui-Omega vs.
Samson, 118 Phil. 1333 [1963]; 9 SCRA 493 [1963], Bautista Angelo J.).

 

§2. Prescinding from the fact
that the verified petitions each carried in paragraph 5 thereof the equivalent
of proof of notice and therefore the separate individual affidavits of service
of notice required by respondent clerk of court might be deemed a surplusage,
respondent clerk could not likewise officiously arrogate unto himself the
prerogative of passing upon the sufficiency and validity of the proof of notice
incorporated in the petition. His was the ministerial function, particularly in
election cases, of receiving the petitions and docketing the same, instead of
raising the alleged defects in form or substance which delayed and prevented
the docketing during office hours of the petitions, to the prejudice of the
public interest involved. (Batioco vs. Bautista, 42 SCRA 192 [1971],
Teehankee, J.).

 

§3. The key issue is
whether the RTC acquired jurisdiction over private respondent’s election
protest despite the payment, upon the filing thereof, of only a part of the
filing fee fixed in Section 9 of Rule 35 of the COMELEC Rules of Procedure
which fixes the filing fee of P300.  Yet,
the Clerk of Court assessed and collected only the sum of P32.  Evidently, the Clerk of Court had in mind the
former Section 5(a)(11), Rule 141 of the Rules of Court on filing fees.  The error of the Clerk of Court could be due
to ignorance of Section 9 of Rule 35 of the COMELEC Rules of Procedure and this
Court’s 4 September 1990 resolution amending Rule 141 of the Rules of Court on
legal fees.  Or it could be due to sheer
confusion as to which rule would apply in assessing the filing fee considering
that the election protest falls within the exclusive original jurisdiction of
the Regional Trial Court, in which case the Rules of Court may govern, and that
the COMELEC Rules of Procedure was primarily intended to govern election cases
before the COMELEC.  This ignorance or
confusion, however, was not fatal to private respondent’s cause.  The application by the Clerk of Court of
Section 5 of Rule 141 of the Rules of Court substantially vested the RTC with
jurisdiction over the election protest. 
Although this Court had given its imprimatur to said Section 9 of Rule
35 of the COMELEC Rules of Procedure, the failure of the Clerk of Court to take
said section into account is a technicality which cannot be allowed to defeat
the viability of the election protest.

 

Indisputably, there was only incomplete
payment of the filing fee under Section 9 of Rule 35 of the COMELEC Rules
of Procedure, which was not at all attributable to private respondent, who
forthwith paid the deficiency upon a subsequent order by the RTC.  In short, there was substantial compliance
with the filing fee requirement in election cases. (Loyola vs. Commission on Elections, 270 SCRA 404
[1997], Davide, Jr., J.).

 

 

24. Amendments to the Protest

 

§1. In accordance with said
section, when a court dismisses a complaint, when the petitioner stands ready
to amend the same, upon a mere technicality and thereby deprives the parties of
their day in court, mandamus will issue for the purpose of acquiring a
reinstatement of said cause, for the purpose of giving the party a hearing, and
if necessary, to permit him to amend his pleadings.  (Galang vs. Miranda and De Leon, 35 Phil. 269
[1916], Johnson, J.).

 

§2. In election contests, the
motion of protest can only be amended within a reasonable time before the
commencement of the trial, unless special reasons exist for permitting it after
such period  (Arnedo vs. Llorente
and Liongson, 18 Phil., 257; Valenzuela vs. Carlos and Lopez de Jesus,
42 Phil., 428). (Cailles vs. Gomez and Barbaza, 42 Phil. 496 [1921].
Villamor, J.).

 

§3. Amendments to a “motion of
protest” in election contest cases, to enable the proceedings to be considered,
may be made, provided such amendments do not essentially change the grounds of
the contest, or set forth grounds where none were originally stated; but where
the amendments are so radical as to virtually initiate a contest where really
no grounds at all had been alleged in the original motion of protest, they will
not be permitted after the time allowed by law for the presentation of the
original motion of protest.  A dissatisfied
candidate must be diligent.  A motion of
protest in election contest which fails to allege protestant’s qualifications
to maintain the proceedings, cannot be amended to supply the omission after the
lapse of the time which the statute allows for the commencement of the
proceedings.  The requirements of Section
44 of Act No. 3030 are jurisdictional.  (Tengco
vs. Jocson, 43 Phil. 715 [1922], Johnson, J.).

 

§4. When a revision of the
ballots is thus undertaken it becomes unimportant whether the litigants have
been correct in formulating their charges in motion or counter-motion; and it
is not necessary that as the count proceeds they should make amendments in
motion or counter-motion to conform exactly with the facts revealed upon the
inspection of the ballots. (Lucero vs. De Guzman, 45 Phil. 852 [1924],
Street, J.).

 

§5. The rule established by
the jurisprudence of this court as to amendments to motion of protest is that
amendments may be allowed when they do not essentially change the grounds of the
protest, and may be made within a reasonable period before the commencement of
the trial, unless there are special reasons for allowing the amendments after
said period.  But when the amendments are
of such a nature as virtually to introduce new grounds not alleged in the
original protest, said amendments must be filed within the period fixed by the
law for filing protests  (Valenzuela
vs. Carlos and Lopez de Jesus, 42 Phil., 428; Cailles vs. Gomez and
Barbaza, 42 Phil., 496; Tengco vs. Jocson, 43 Phil., 715). (Orencia
vs. Araneta Diaz, 47 Phil. 830 [1925], Villamor, J.).

 

§6. Amendments to the protest
are allowed, which, if they do not change the cause of action, may be presented
within a reasonable time before the commencement of the trial, and even afterwards
if there are special reasons therefor; and if they do change the grounds of the
protest, they must be made within the period fixed by the law for the filing of
protests  (Orencia vs. Araneta Diaz,
47 Phil. 830; Valenzuela vs. Revilla and Carlos, 41 Phil. 4; Cailles
vs. Gomez and Barbaza, 42 Phil. 496; Tengco vs. Jocson, 43 Phil.
715). (Gallares vs. Caseñas, 48 Phil. 362 [1925], Villamor, J.).

 

§7. The proposed amendments to
the motions being not merely an elaboration of the grounds alleged in the
original protest, but introducing additional grounds not previously alleged
which essentially change the grounds of the protest, the trial court committed no
error in denying said motions for having been presented out of time, that is,
beyond the time provided by law for the presentation of protests,
notwithstanding the fact that the alleged irregularities were not discovered
until after the ballot boxes had been opened, because they are not mere defects
of form or unessential omissions.  (Orencia
vs. Araneta Diaz, 47 Phil., 830; Tengco vs. Jocson, 43 Phil., 715; Cailles
vs. Gomez and Barbaza, 42 Phil. 496; Valenzuela vs. Carlos and Lopez de
Jesus, 42 Phil. 428; 20 C.J., 234-235). (Demeterio vs. Lopez, 50 Phil.
45 [1927], Villa-Real, J.).

 

§8. Section 481 of the
Election Law, as subsequently amended by Act No. 3387, provides that the
contestant shall reply to the allegations of the counter contest within ten
days after notification.  It is true that
appellee’s reply, in the form of an amendment to the contest, was filed after
the expiration of ten days, but as the trial was still pending and as the same
precincts have been counter-contested, we rule that the court did not exceed
its discretion in accepting the reply in the form of an amendment to the
contest.  We have held in several cases
that election contests submitted to the courts affect the public interest, and
that when the ballot boxes are opened by order of the court taking cognizance
thereof, it is the latter’s duty to examine all their contents and to
adjudicate the valid votes found therein to either one of the candidates.  And the reason for this rule is, that in such
cases the primary aim must be to carry out the will of the electorate as
expressed in the ballots.  (Lucero vs.
De Guzman, 45 Phil., 552; Yalung vs. Atienza, 52 Phil., 781; Quesada
vs. Bagabaldo, G.R. No. 30262, February 13, 1929, not reported; Olano
vs. Tibayan, 53 Phil., 168).

 

That
the counter-protest relative to said precincts had been later withdrawn by the
appellant does not alter the legal aspect of the case, nor did it warrant the
striking out of the reply, especially in view of the fact that the ballot boxes
were already opened and the ballots had been examined. (Cecilio vs.
Tomacruz, 62 Phil. 689 [1935], Imperial, J.).

§9. To
allow an amendment to the motion of protest by inserting new precincts after
the time prescribed by the statute for filing the original motion, would be
productive of surprise to the contestee and of disadvantage to him, unless the
trial be postponed to enable him to meet the issues thus newly raised. (Fernando
vs. Endencia, 66 Phil. 148 [1938], Abad Santos, J.).

§10. The
protestant may not be allowed to amend his motion of protest so as to introduce
new matters or new precincts beyond the period fixed for the filing of the
election protest. (Velez vs. Varela, 93 Phil. 282 [1953], Reyes, J.).

§11. Amendments
to petitions of election protests may be allowed when they do not essentially
change the grounds of the protest, and may be made within a reasonable period
before the commencement of the trial, unless there are special reasons for
allowing amendments after said period. 
But when the amendments are of such nature that virtually introduce new
grounds not alleged in the original protest, said amendments must be filed
within the period fixed by the law for filing protest.

The
specification in the motion of protest of the election precinct or precincts
where the irregularities occurred, is required in order to apprise the
contestee of the issues which he has to meet. To allow an amendment to the
motion of protest by inserting new precincts after the time prescribed by the
statute for filing the original motion, would be productive of surprise to the
contestee and of disadvantage to him, unless the trial be postponed to enable
him to meet the issues thus newly raised. (Almeda vs. Silvosa, 100 Phil. 844
[1957], Felix, J.).

§12. A
substantial amendment, introducing new grounds of protest (new matter or new
precincts), is only allowed within the time granted by law for the filing of a
protest or counter-protest (Orencia vs. Araneta, 47 Phil. 830; Fernando
vs. Endencia, 66 Phil. 148; Velez vs. Varela, 93 Phil., 283; Almeda
vs. Silvosa, supra, p. 844.) The rule not only aims at
protecting the other party from unfair surprise, but primarily tends to
implement the speedy determination of election contests, in consonance with the
legislative policy that such contests be decided within one year. (Robles
vs. Del Rosario, et al., 100 Phil. 886 [1957], Reyes, J.B.L., J.).

§13. The
rule in an election protest is that the protestant or counter protestant must
stand or fall upon the issues he had raised in his original or amended pleading
filed prior to the expiration of the statutory period for the filing of protest
or counter protest.

Where
the Protest filed clearly impugned or assailed the election held in all the
precincts of the city or municipality, as not free, orderly or honest, and
characterized by gross and rampant frauds, terrorism, coercion, corrupt
practices, and other election irregularities, resulting in the electors having
been prevented from expressing their free choice, and the protestee joined
issue with the adverse party alleging in their answer that the election in
question was held in the cleanest, most peaceful and honest manner, its result
reflecting the true and clear will of the electorate; that the election in all
of the precincts was free and orderly; and was not farcical, the regularity
of the election held in all the precincts of that city or municipality
was squarely in issue, and the mere addition of several precincts to those
enumerated in the original Protest did not constitute a substantial amendment
or change the ground of protest alleged by the protestants in their original
pleading.  The opposing parties were not
thereby forced to face new issues, such addition being merely in the nature of
a bill of particulars in relation to the issue properly raised in the original
Protest. (Ticao vs. Nañawa, 5 SCRA 946 [1962], Dizon, J.).

§14. The admission by the trial
court of the amended petition of protest after the statutory period for filing
a protest had expired, although the amendment consisted of the inclusion of a
precinct not included in the original petition, is held not to be
incorrect where the said precinct was then already within the jurisdiction and
cognizance of the court, being one of those made by the protestee the subject
of his counter-protest.

The allegation in the election protest
that fraud and irregularities were committed in the counting of votes in two
precincts referred to therein and that if they were recounted the protestant
would appear to have received more votes than the protestee, is sufficient for
jurisdictional purposes. (Gadon vs. Gadon, 118 Phil.
1502 [1963]; 9 SCRA 652 [1963], Makalintal, J.).

§15. On the
procedural aspect, it is established that amendments to pleadings may be
permitted by this Court even for the first time on appeal in order to
substitute the name of the real party in interest provided that such an
amendment would not involve a change in the cause of action or result in undue
prejudice to the adverse party.  For, as
long as there is justice done upon the merits, all the imperfections of form
and technicalities of procedure ought to be brushed aside as wholly trivial and
indecisive. 

It follows, therefore, that the election
protest filed by private respondent can and ought to be amended by striking out
the name of Hadji Minandang Guiling, as the protestee, and substituting, in his
place, petitioner Baquit S. Unda. 
Besides, we do not find that such a course of procedure will be
productive of any undue substantial prejudice to herein private respondent.  For that matter, said procedure should have
been inceptively adopted by the trial court under the circumstances of the
election case before it. (Unda
vs. Commission on Elections, 190 SCRA 827 [1990], Regalado, J.).

 

§16. Granting that private
respondent’s change in theory (being a substantial amendment) is merely
disallowed and not a valid ground for the outright dismissal of his election
protest, nonetheless it has been consistently held that substantial amendments
to the protest maybe allowed only within the same period for the filing of the
election protest which, under Rule 16 of the HRET Rules, is ten (10) days after
the proclamation of the winner.  Private
respondent’s “precinct-level document-based anomalies/evidence” theory having
been introduced only at the homestretch of the proceedings, he is bound by the
issue which he essentially raised in his election protest and that is, a
revision of the ballots will confirm his victory and the
irregularities/anomalies and massive fraud foisted upon him during the 1992
synchronized elections.

 

For the rule in an election protest is
that the protestant or counterprotestant must stand or fall upon the issues
he had raised in his original or amended pleading filed prior to the lapse of
the statutory period for the filing of protest or counter protest (italics
supplied) Private respondent is therefore bound by the final results of the
revision confirming petitioner’s victory over him by a plurality of 13,092
votes.  Petitioner’s inevitable victory
in the revision was even conceded to by private respondent himself when he
stated in his memorandum cum addendum that: “x x x in disputing the sham
victory of protestee, the anticipated/expected results of the regular,
traditional and normal process of REVISION of ballots, would, by itself, be
unavailing and insufficient to overturn protestee’s supposed victory” (quoted
on p. 6 of this decision).  This
statement is clearly an admission against private respondent’s own interest
equally binding and conclusive upon him, there being no showing that he made it
through palpable mistake. (Section 4, Rule 129, Rules of Court). (Arroyo vs. House of Representatives
Electoral Tribunal, 246 SCRA 384 [1995],           Francisco, J.).

 

§17. An amendment which
merely supplements and amplifies facts originally alleged in the complaint
relates back to the date of the commencement of the action and is not barred by
the statute of limitations which expired after the service of the original
complaint.

 

The fact that Trinidad was already proclaimed
and had assumed the position of mayor did not divest the COMELEC of authority
and jurisdiction to continue the hearing and eventually decide the
disqualification case. (Sunga
vs. Commission on Elections, 288 SCRA 76 [1998], Bellosillo, J.).

           

25. Motion
to dismiss

 

§1. A motion to dismiss a
municipal election protest on the ground that the facts stated therein do not
constitute a cause of action is really a demurrer; if it is sustained, the
petitioner can amend his complaint or motion of protest, otherwise the decision
of the court is final and not appealable, nor can it be reviewed on application
for a writ of mandamus. (Ad. C., sec. 479). (De la Cruz vs. Revilla and Bustos, 40 Phil. 234
[1919]).  

§2. In an
election contest proceeding, if the protestee presents a motion to dismiss or a
demurrer to the evidence introduced by the protestant after the latter has rested,
he thereby impliedly waives his right to present his own evidence; and if the
ruling on his motion or demurrer is adverse, he shall not be permitted to
present such evidence as he may have, and the trial court shall finally decide
the contest. (Demeterio vs.
Lopez, 50 Phil. 45 [1927], Villa-Real, J.).

§3. The motion
for dismissal filed by the contestee, which originated the judgment appealed
from does not constitute an implied admission of the alleged facts in the
protest.  The purpose of such a motion
was merely to raise before the court the question of jurisdiction over the
subject matter, in view of the contestee’s opinion that the protest did not
allege a good jurisdictional cause of action. (Aquino vs. Calabia and Sahagun, 55 Phil. 984
[1931],  Romualdez, J.).

§4. The constitutional right of due
process requires that the adverse party, should be notified of such a motion to
dismiss and be given the opportunity to 
file an objection to the same and be heard thereon. No matter how
baseless an action may appear to be to the judge, his impression on the matter
of its merit cannot justify a denial of the right of the adverse party to be
notified and to be heard thereon. (Valencia, Jr., vs.
Mabilangan, 105 Phil. 162 [1959], Labrador, J.).

§5. In election protests, therefore,
the protestee should not be permitted to present a motion for dismissal or a
demurrer to the evidence of the protestant, unless he waives the introduction
of his own evidence in case the ruling on his motion or demurrer is adverse to
him, in which case the court that tries the case must definitely decide it.

Neither is there merit in petitioner’s
contention that since he has already been proclaimed, the present complaint is
no longer viable.  The case filed by
private respondent is not in reality a pre-proclamation case but one for
annulment of election.  Petitioner’s
having been proclaimed, his having taken his oath of office, and his having
assumed the duties thereof, present no impediment to the prosecution of this
case to its conclusion. (Jardiel vs. Commission on
Elections, 124 SCRA 650 [1983], Melencio-Herrera, J.).

§6. In an election protest proceeding, however,
which is a summary one, and in which the periods are short and fatal, and
trials rapid and preferential as the peremptory nature of the litigation so
requires, the motion for dismissal at that stage of the proceeding must be
considered as a demurrer to the evidence presented by the protestant, with
implied waiver by the protestee to present his evidence, whatever may be the
ruling, whether adverse or favorable, either in the first instance or on
appeal, the court of origin or appellate court having the power to definitely
decide the protest.  If, in the
prosecution of election protests the ordinary practice were to be followed in
regard to the presentation of motions for dismissal or of demurrers to the
evidence, in the majority of cases, if not always, the law would be frustrated
and the will of the electorate defeated, to the great detriment of the
underlying principles of representative government, because, in case of
revocation of a ruling sustaining the motion of dismissal or the demurrer on
appeal, the case would have to be remanded to the court below for the
continuation of the trial and the introduction of evidence by the protestee,
thus causing the proceeding to continue during the term of the office in
question, with the possible result that the defeated, and not the elected,
candidate would be discharging the office (Calabig vs.
Villanueva, 135 SCRA 300 [1985], Cuevas, J.).

 

§7. 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 the regular courts.

 

Constitutionally speaking, the COMELEC can
not adopt a rule prohibiting the filing of certain pleadings in the regular
courts. The power to promulgate rules concerning pleadings, practice and
procedure in all courts is vested on the Supreme Court.  (Aruelo, Jr. vs. Court of Appeals, 227
SCRA 311 [1993], Quiason, J.)

 

§8. 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:  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: 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. (Maruhom vs.
Commission on Elections, 331 SCRA 473 [2000], Ynares-Santiago, J.).

 

  

26. Answer

 

§1. In the Comment of the Solicitor General,
reference was made to Arcenas v. Commission on Elections, specifically
this excerpt:  “It is now the prevailing
doctrine that after an election duly held and a proclamation thereafter made, a
pre-proclamation controversy should no longer be viable.  As was pointed out in the Venezuela
opinion:  ‘It would save the time and
energy of the litigants as well as respondent Commission, and eventually this
Court in review of its appellate jurisdiction, if the matter were passed upon
in an election protest or quo warranto petition in the proper court or
agency, the office involved being that of municipal mayor.’” The Arcenas
decision was promulgated on November 28, 1980. 
An earlier case, Villegas v. Commission on Elections, is apropos.  For in that case as in this petition, the
grounds alleged are more appropriate for an election protest.  An election contest is therefore the
appropriate remedy.  A pre-proclamation
controversy is no longer viable. 
Considering the time that has elapsed, the possibility that after the
pre-proclamation controversy an election protest may still be filed, and the
imminence of the coming elections for local government officials, it is more in
keeping with the letter and spirit of the constitutional provision on suffrage,
the intent of which is to ascertain the true expression of the people’s will—a
voter being a particle of a popular sovereignty—that this petition be
dismissed. (Perez vs. Commission on Elections, 134 SCRA
533  [1985], Fernando, C.J.).

 

§2. The petition is devoid of merit.  Consequently, its dismissal is in order.  It cannot be denied and petitioner does not
controvert, that nothing new is sought to be introduced in his Amended Answer.  He admits that the amendments incorporated
consist merely of allegations of ultimate facts in amplification or
elaboration of the ground already previously alleged in his original Answer, not
new grounds; that some of the amendments merely consist of a change in
phraseology; and insofar as the counter-protest is concerned, the amendment
consists merely in the introduction of a new statement of facts which do not
change essentially the grounds of the protest but merely an elaboration of
those already alleged.

 

Considering the subject, scope and text of the
amendment in dispute, We perceive no harm nor any prejudice petitioner may sustain
by the denial of his motion to amend, either procedurally or from the
evidentiary point of view.  On the basis
of the allegations of the original and the amended answer, there is nothing
that petitioner could accomplish by way of proof under his amended Answer which
he is precluded from so doing under his original Answer.  And this is because no new material matters
which may come within the purview of substantial amendment appeared alleged in
petitioner’s amended answer.  We
therefore fully subscribe to the observation aptly made by the Honorable
respondent Judge that to allow and entertain petitioner’s amended answer will
only delay disposition of the pending election protest filed by petitioner
against private respondent and vice versa it appearing that the issue of
private respondent’s disqualification and those allegations in relation to
petitioner’s counter-protest are essentially mere elaboration of the previous
grounds already set forth in the original Answer.

 

The only limitations to this liberal policy of
allowing amendments are: that the cause of action, defense or theory of the
case is substantially changed although this is not an inflexible rule; that the
amendment will result in the alteration of a final judgment on a substantial
matter;  that the amendment is for the
purpose of making the complaint confer jurisdiction upon the court when none
existed before;  that the amendment is
for the purpose of curing a premature or non-existing cause of action; and finally,
that the amendment is for purposes of delay. (Calabig
vs. Villanueva, 135 SCRA 300  [1985],
Cuevas, J.).

 

§3. Private respondent
received a copy of the order of the Regional Trial Court denying his motion for
bill of particulars on August 6, 1992. 
Under Section 1 (b), Rule 12 of the Revised Rules of Court, a party has
at least five days to file his answer after receipt of the order denying his
motion for a bill of particulars. 
Private respondent, therefore, had until August 11, 1992 within which to
file his answer.  The Answer with
Counter-Protest and Counterclaim filed by him on August 11, 1992 was filed
timely.  (Aruelo, Jr. vs. Court of
Appeals, 227 SCRA 311 [1993], Quiason, J.)

 

§4. Moreover, the fact
that the HRET did not summarily dismiss the Petition Ad Cautelam, and
instead, required the private respondent Abueg to file an Answer, the HRET has
thus made a prior determination that the petition is sufficient in form and
substance.  We do not agree.   In the first place, in requiring the private
respondent to answer the petition, the HRET was not ruling on the formal and
substantive sufficiency of the petition. 
The order to require an answer is but a matter of course, as under the
Revised Rules of Procedure of the HRET, it is provided that:  “Rule 22. 
Summons.¾Upon the filing of the petition, the Clerk of
the Tribunal shall forthwith issue the corresponding summons to the protestee
or respondent together with a copy of the petition, requiring him within ten
(10) days from receipt thereof to file his answer.”

 

A perusal of the Petition Ad
Cautelam, reveals that Petitioner makes no specific mention of the
precincts where widespread election, fraud and irregularities occurred.  This is a fatal omission, as it goes into the
very substance of the protest.  Under
Section 21 of the Revised Rules of Procedure of HRET, insufficiency in form and
substance of the petition constitutes a ground for the immediate dismissal of
the Petition.  The prescription that the
petition must be sufficient in form and substance means that the petition must
be more than merely rhetorical.  If the
allegations contained therein are unsupported by even the faintest whisper of
authority in fact and law, then there is no other course than to dismiss the
petition, otherwise, the assumption of an elected public official may, and will
always be held up by petitions of this sort by the losing candidate. (Peña vs. House of Representatives
Electoral Tribunal, 270 SCRA 340 [1997], Torres, Jr., J.).

 

 

27. General
denial

                       

            §1. No rule is better settled
in pleading and practice than that neither party can prove facts which he has
not alleged, if objection is properly made. 
Under a general denial, the defendant is permitted to present any
evidence which disproves or tends to disprove any of the allegations in the
complaint.  The reason why “prescription”
cannot be interposed under a demurrer, or a general denial, is the fact that
the defendant thereby admits the allegations in the complaint, but seeks to
avoid their effect by other proof. 
Evidence which amounts to a confession or an avoidance is not generally
admissible under a general denial.

 

It frequently happens that defects in
pleadings are cured by evidence admitted without objection. If the defective
pleadings are cured by proof adduced during the trial of the cause, the court
is justified in rendering his decision upon a preponderance of the proof, even
though some of the important facts would not have been admitted had proper
objection been made. (Karagdag vs. Barado, 33 Phil. 529 [1916], Johnson,
J.).

 

§2. A general denial puts in
issue the material allegations of the complaint, and, consequently, under such
denial the protestee may present evidence which may disprove said allegations.
But he cannot present evidence to any affirmative defense (Francisco, How To
Try Election Cases, p. 136). It is in this sense that the terms “general
denial” should be understood in election cases, for, to give it a different
meaning would render the provisions of Section 176 (e) nugatory and
meaningless, and that phrase would be purposeless if we were to hold that by
“general denial” protestee would be deemed to have admitted all the material
allegations of the protest. (Ibasco vs. Ilao, 110 Phil. 553 [1960], Bautista
Angelo, J.).

 

§3. In an election contest,
where summons was duly served upon protestee and yet he failed to file an
answer within the period of five days but instead he filed a motion to dismiss
on the 8th day, it is held that the court a quo was correct in declaring
that protestee shall be deemed to have entered a general denial. (Conui-Omega
vs. Samson, 118 Phil. 1333 [1963]; 9 SCRA 493 [1963], Bautista Angelo, J.).

§4. The
interpretation of a general denial as entered against private respondent by
public respondent HRET for failure of the former to file an answer on time as
required by the Revised Rules of HRET is well-settled.  A general denial is one which puts in issue
all the material averments of the complaint or petition, and permits the
defendant to prove any and all facts which tend to negative those averments or
some one or all of them.  As early as the
case of Karagdag v. Barado, this Court held that under a general denial,
the defendant is permitted to present any evidence which disproves, or tends to
disprove, any of the allegations in the complaint.  He cannot, however, present evidence to prove
any affirmative defense as no rule is better settled in pleading and practice
than that neither party can prove facts which he has not alleged, if objection
is properly made.

 

No doubt, the cited rules reveal a
prevailing intent to ensure that election cases be expeditiously settled. But
nothing in the said rules shows the legislative intent to decide cases without
hearing and on the basis merely of pleadings. 
Election cases, though summary in nature, must follow the prescribed
Rules of the Tribunal. The rules clearly provide that general denial shall be
deemed to have been entered. Were it the intent of the framers of the said
Rules to do away with a hearing when protestee fails to file an answer within
the time prescribed, it should have stated so in clear and unequivocal terms.

 

Petitioner cites noted author and former
Senator Jovito R. Salonga in his book, Philippine Law of Evidence, 1958 Ed.,
page 127 that: “As a general proposition, therefore, where a material averment
is not specifically denied, it is admitted to be true for purposes of the
action and the plaintiff need not prove the truth of such allegations.”
Petitioner forgets that the Rules of Court do not recognize the general
denial.  Section 10, Rule 8 requires
specific denial, i.e., defendant must specify each material allegation of fact
the truth of which he does not admit and, whenever practicable, shall set forth
the substance of the matters which he will rely upon to support his
denial.  Since specific denial is
required, there is no question that any material averment not specifically
denied is admitted to be true and need not be proved.

 

However, the issue at hand is the
interpretation of the HRET Revised Rules where general denial is undoubtedly
recognized and allowed.  As a rule,
except where specific denials are required, a general denial is sufficient, and
denies all the material allegations of the pleading to which it is
addressed.  In other words, a general
denial traverses all material averments of the pleading.  It gives to the defendant the same right to require
the plaintiff to establish by proof all the material facts necessary to his
cause of action.  It does not amount to
an admission of the material allegations in the protest.  Consequently, trial must follow. (Loyola vs. House of Representatives
Electoral Tribunal, 229 SCRA 90 [1994], Nocon, J.).

 

 

28. Counter
Protest

 

§1. While the Election Law
provides when and how an election protest shall be commenced and the method by
which the court obtains jurisdiction, it is silent upon the question when the
protestees must appear and answer as well as upon the question of what defenses
the protestees may present.

 

While the law does not specify what
defenses the protestees may make, it is certainly contemplated by the law that
any defense which they have which denies, or tends to deny, or has the effect
of defeating, the purpose of the contest, is open to them.  They may demur or answer. If they answer by
special defense it may be by any fact or facts which defeat or tend to defeat
the purpose of the contest.

 

A counter-protest is tantamount to a
counter-claim in a civil action.  The protestee
may, by a counter-protest, show that by reason of fraud and irregularities the
protestant cannot be declared elected, and that notwithstanding the frauds and
irregularities alleged by the protestant, the protestee is still entitled to be
proclaimed elected to the particular office. 

 

While it is clear that the law
contemplates the presentation of counter-protests on the part of the
protestees, the law is silent upon the question when such counter-protests
should be presented.  The counter-protest
being a part of the answer, it is clear that it need not be presented until the
answer is presented. To require the counter-protest to be filed within the time
the protest itself is filed would perchance defeat a counter-protest at all.
There is no occasion for the presentation of the counter-protest until after
the protest is presented. The counter-protest may be presented as a part of the
answer and within the time the protestee is required to answer.  (Valenzuela vs. Judge of Court of First
Instance of Bulacan, 40 Phil. 163 [1919], Johnson, J.).

 

§2. A Court of First Instance
will not be reversed for having permitted the contestee to amend his
counter-protest three months after the contest had been begun, it appearing
that no proof had at that time been taken by either party and that the taking
of proof thereafter extended over a period of more than a year. (Valenzuela
vs. Carlos and Lopez de Jesus, 42 Phil. 428 [1921], Street, J.).

 

§3. The counterprotest in the
instant case having been presented after the fifteen days’ period fixed by law,
and the protestee not having demurred to the protest, the lower court had no
jurisdiction to pass upon and decide the question raised in the
counterprotest.  The admissibility or inadmissibility
of the ballots involved in the counterprotest cannot, therefore, be examined
and the election returns for the municipalities countercontested must stand. (Arrieta
vs. Rodriquez, 57 Phil. 717 [1932], Villamor, J.).

 

§4. A counter-protest is
tantamount to a counterclaim in a civil action and may be presented as a part
of the answer within the time the protestee is required to answer the protest,
so that, where, the protestee was granted an extension of time to answer the
election protest of protestor until January 6, 1968, the filing by the
protestee of a counter-protest together with the answer, before the expiration
of the extended time, is filed within the statutory time limit. (Maliwanag
vs. Herrera, 25 SCRA 175 [1968], Angeles, J.).

 

§5. It should be stressed
that under the COMELEC Rules of Procedure, the protestee may incorporate in his
answer a counterprotest.  It has been
said that a counterprotest is tantamount to a counterclaim in a civil action
and may be presented as a part of the answer within the time he is required to
answer the protest, unless a motion for extension is granted, in which case it
must be filed before the expiration of the extended time.  Apparently, the counterprotest of Espinosa
was incorporated in his answer.  And as
what was revealed, this answer with counterprotest was filed only on June 15,
1995, which was obviously late for four (4) days.  It appears that Espinosa did not file a
motion for extension of time within which to file his answer with
counterprotest.  In the absence thereof,
there is no basis then for the COMELEC First Division to admit the belatedly
filed answer with counterprotest.

 

It is worthy to note that as early as in
the case of Arrieta vs. Rodriguez, this Court had firmly settled the
rule that the counterprotest must be filed within the period provided by law,
otherwise, the forum loses its jurisdiction to entertain the belatedly filed
counterprotest.  In the case at bar,
there is no question that the answer with counterprotest of Espinosa was filed
outside the reglementary period provided for by law.  As such, the COMELEC First Division has no
jurisdictional authority to entertain the belated answer with counterprotest
much less pass upon and decide the issues raised therein.  It follows therefore that the order of July
26, 1995 which pertains to the admission of the answer with counterprotest of
Espinosa as well as the other consequent orders implementing the order of
admission issued by the COMELEC First Division are void for having been issued
without jurisdiction.  Even if petitioner
Kho did not file a motion for reconsideration of the order dated July 26, 1995
admitting the answer with counterprotest, the jurisdictional infirmity, brought
about by the late filing of the answer to the protest, persists and can not be
cured by the omission on the part of the protestee-petitioner to seek a
reconsideration of the order dated July 26, 1995.  (Kho vs. Commission on Elections, 279 SCRA 463 [1997], Torres, Jr.,
J.).

 

§6. In the case of Maliwanag
v. Herrera, the Court ruled that a counterprotest is equivalent to a
counterclaim in a civil action and, therefore, must be presented as part of the
answer within the time the protestee is required to answer the protest. In Kho
v. COMELEC, this Court reiterated the long-standing rule that the counterprotest
must be filed within the period provided by law, otherwise, the court acquires
no jurisdiction to entertain it. 
Conformably to these cases, we hold that the COMELEC did not commit a
grave abuse of discretion in upholding the trial court’s refusal to conduct a
revision of the ballots subject of petitioner’s counterprotest since the answer
with counterprotest was clearly filed out of time.  The trial court had no jurisdiction to
entertain the counterprotest. (Lim
vs. Commission on Elections, 282 SCRA 53 [1997], Mendoza, J.).

 

§7. In Lim vs. COMELEC,
citing Kho vs. COMELEC, this Court reiterated the long standing rule
that a counterprotest must be filed within the period provided by law,
otherwise, the court acquires no jurisdiction to entertain it. (Roquero vs. Commission on Elections, 289
SCRA 150 [1998], Kapunan, J.).

 

§8. A counterprotest is not a
prohibited pleading under Rule 13 of the 1993 COMELEC Rules of Procedure.  Such pleading is provided for under Ordinary
Actions (Section 3, Rule 20, 1993 COMELEC Rules of Procedure) and is equivalent
to an answer with a counterclaim under the 1997 Rules of Civil Procedure, which
applies suppletorily to the COMELEC Rules of Procedure. (Trinidad vs.
Commission on Elections, 320 SCRA 836 [1999], Buena, J.).

 

 

29. Summary
dismissal

 

§1. Since the motion of
protest does not show either expressly or by implication that it was filed
within the two weeks following the date of the proclamation of the elected
candidate, the lower court did not acquire jurisdiction over said motion of
protest by its mere presentation, and said court did not err in dismissing it
for lack of jurisdiction. (Yumul vs. Palma, 52 Phil. 412 [1928], Villa-Real,
J.).

 

§2. The failure of the
protestant to appear at the hearing and adduce evidence to substantiate the
allegations of his protest, is ground for the dismissal of said protest. (Estella
vs. Edaño, 115 Phil. 44 [1962]; 5 SCRA 65 [1962], Barrera, J.).

§3. A court may dismiss an action at the behest
of the defendant when the plaintiff fails to prosecute his action for an
unreasonable length of time.  The
dismissal of an action on this ground rests on the sound discretion of the
court which must duly consider the facts and circumstances surrounding each
particular case (Smith, Bell & Co. vs. American President Lines, Ltd.
and Manila Terminal Co., 94 Phil. 879; Adorable vs. Bonifacio,
L-10698, April 22, 1959; Flores vs. Philippine Alien Property Administrator,
L-12741, April 27, 1960).  Where the
protestant has failed for an unreasonable length of time to prosecute his
protest against the election of the respondent for governor and it appears that
he ran for Congressman and filed two election protests against the candidate,
who defeated him in the Congressional race, thus relegating to the background
his bid for the gubernatorial position, the lower court did not abuse its
discretion in dismissing his protest. (Ortega vs. De
Guzman, 19 SCRA 391 [1967], Castro, J.).

 

§4. It is true that under Section 7 of
Resolution No. 1451, failure to make the cash deposits within the prescribed
time limit shall result in the automatic dismissal of the protest.  That provision, however, finds no application
herein.  Petitioners were not remiss in
complying with the rules nor with the Order of respondent Court dated February
28, 1980.  This is so because they had
seasonably filed their motions for extension of time within which to comply,
based on meritorious grounds, the last of which was unacted upon by the
Court.  x x x. There should be no
question but that the filing of an election protest and with it the payment of
the docket fees should be done within the statutory period, and that no
extensions of said period are legally permissible. The factual environment in
the instant case, as above explained, however, removes this case from the rigid
application of that mandatory rule. (De Leon vs.
Guadiz, Jr., 104 SCRA 591 [1981], 
Melencio-Herrera, Jr.).

 

 

30. Preservation
and safekeeping of ballots

       and election documents and paraphernalia

 

§1. Upon an issue properly
presented by the motion of protest, it is the mandatory duty of the Court of
First Instance not only to permit but to order all of the ballots used at the
election to be examined, and to hear proof with reference to the legality of
the questioned ballots.

 

The law orders the court to have brought
before it all ballots used at the election in the precincts which are
questioned. It is a right, under an issue properly framed, on the part of the
protestant, and the court has no right to deny it. The law is mandatory. (De
la Merced vs. Revilla and Camacho, 40 Phil. 190 [1919], Johnson, J.).

            §2. This means that the
legislature has foreseen that circumstances may supervene during the
substantiation of an election protest which may warrant the delivery of the
keys to other officials in order that the purpose of the protest may not be
defeated.  There are times when the three
officials charged with the keys are not in a position to attend to the
recanvassing due to pressure of their duties thereby giving to the protestee a
convenient excuse to ask for postponement, or to delay the proceeding. (Dimaporo
vs. Estipona, 112 Phil. 220 [1961]; 2 SCRA 282 [1961], Bautista Angelo, J.).

 

§3. Moreover, it is
clearly provided under the Comelec Rules and Procedure that election documents
and paraphernalia involved in election contests before courts of general
jurisdiction shall be kept and held secure in a place to be designated by the
Court in the care and custody of the Clerk of Court.

 

We are not unaware of the common
practice in the courts with respect to the photocopying or xeroxing of portions
of case records as long as the same are not confidential or disallowed by the
rules to be reproduced.  The judge need
not be bothered as long as the permission of the Clerk of Court has been sought
and as long as a duly authorized representative of the court takes charge of
the reproduction within the court premises if warranted or if not, the said
court representative must bring along the case records where reproduction takes
place and return the same intact to the Clerk of Court.

 

We are in accord with the Investigating
Judge in absolving both the accused in the absence of any prejudice on the part
of the complainant caused by the respondents’ acts of effecting the
photocopying of the questioned ballots. 
It is this Court’s observation that the presiding judge before whom the
election contest was assigned found nothing highly irregular in the
photocopying of the questioned ballots inasmuch as no drastic measures were
taken against the respondents after the said judge learned about the said
xeroxing.  This reinforces our earlier
discussion on the matter of procedure in most courts with respect to the
reproduction of court records when so allowed by the rules.  Thus, as long as no tampering or alteration
was manifest in the xeroxing/photocopying of court records, no liability
attaches to anyone. (Beegan
vs. Borja, 261 SCRA 474 [1996], Hermosisima, Jr., J.).

 

 

31. Withdrawal of contested/

      
identified pilot areas/precincts

 

§1. The contention that the Court of
First Instance erred in refusing to examine the ballots in a certain precinct
upon the ground that the protestant had withdrawn from his complaint the
allegations respecting that precinct does not raise a question of jurisdiction;
and a refusal of the court to hear evidence in relation to such precinct is not
an act in excess of jurisdiction.  The
court has a right to determine what precincts are sufficiently involved in the
charges of misconduct to warrant the opening of the ballot boxes used therein. (Gala
vs. Cui and Rodriguez, 25 Phil. 522 [1913], Moreland, J.).

 

§2. Although the motion for
withdrawal of precincts protested was filed by protestant when the period for
filing the pleadings had already expired and the recanvass of the ballots
covered by the protest already started, still the trial court was justified in
taking cognizance of the motion since such step is not to amend the protest but
to inform the court that protestant is desisting from it which is his exclusive
prerogative.

 

This is a matter that wholly depends upon
protestant. Even if the withdrawal of the protest is not effected, if the
protestant desists from acting thereon or from presenting evidence to
substantiate it, that will be the end of the case.  The most that can happen is that the protest
should be dismissed for lack of action or proof and to such eventuality
protestee can not object nor complain because the precincts concerned are not
involved in his counter-protest. In other words he can not alleged prejudice if
the withdrawal is allowed.  This is the
exclusive prerogative of protestant. (Dimaporo vs. Estipona, 112 Phil. 220
[1961]; 2 SCRA 282 [1961], Bautista Angelo, J.).

 

§3. There are reasons why a
protestant should have the right to withdraw from his protest some precincts
included in his original protest, even without the consent of the
protestee.  The protestant is required by
the election law to file a protest within two weeks after the proclamation of
the results of the election (in case of provincial or municipal
officials).  The protestant or protestee
is not permitted to demand revision of the ballots in precincts which one or
the other has not protested in the petition of protest or counter-protest.  Consequently, the protestant has a very limited
time to investigate where the frauds or irregularities, have taken place, so
that the precincts wherein the same occurred may be included in his petition of
protest.  Naturally, he should be allowed
a leeway to include in his petition of protest as many precincts in which he
believes irregularities have been committed; at the same time he should be
given the choice of the precincts in which he desires revision, after he has
had the opportunity to determine what evidence of such irregularities he may be
able to muster in support of his petition of protest.  There is no reason why he should not be
permitted to withdraw his petition as to precincts where he has subsequently
found no evidence or irregularities or frauds. 
This is conducive to the simplification and limitation of the issues and
will ultimately result in a prompt dispatch or termination of the election
contest.  While the rule that the court
may, in the interest of justice, order the revision in other precincts is
justified by the fact that the question of election is a public question, the
need of prompt termination of the contest demands limitation of revision to
those precincts which the protestant deems sufficient to establish the
allegations of his petition of protest. 
The practice of admitting evidence of facts not alleged is not allowed
in ordinary cases; neither should it be permitted in election contests.
(Matas vs. Romero, 114 Phil. 253 [1962]; 4 SCRA 313 [1962], Labrador, J.).

 

§4. The mere filing of the
motion to withdraw protest on the remaining uncontested precincts, without any
action on the part of respondent tribunal, does not by itself divest the
tribunal of its jurisdiction over the case. 
Jurisdiction, once acquired, is not lost upon the instance of the
parties but continues until the case is terminated (Jimenez v. Nazareno,
G.R. No. L-37933, April 15, 1988, 160 SCRA 1). 
We agree with respondent House of Representatives Electoral Tribunal
when it held:  “We cannot agree with
Protestee’s contention that Protestant’s ‘Motion to Withdraw Protest on
Unrevised Precincts’ effectively withdrew the precincts referred to therein
from the protest even before the Tribunal has acted thereon.  Certainly, the Tribunal retains the authority
to grant or deny the Motion, and the withdrawal becomes effective only when the
Motion is granted.  To hold otherwise
would permit a party to deprive the Tribunal of jurisdiction already
acquired.  We hold therefore that this
Tribunal retains the power and the authority to grant or deny Protestant’s
Motion to Withdraw, if only to insure that the Tribunal retains sufficient
authority to see to it that the will of the electorate is ascertained.  Since Protestant’s ‘Motion to Withdraw Protest
on the Unrevised Precincts’ had not been acted upon by this Tribunal before it
was recalled by the Protestant, it did not have the effect of removing the
precincts covered thereby from the protest. 
If these precincts were not withdrawn from the protest, then the
granting of Protestant’s ‘Urgent Motion to Recall and Disregard Withdrawal of
Protest’ did not amount to allowing the refiling of protest beyond the
reglementary period.”  Where the court
has jurisdiction over the subject matter, its orders upon all questions
pertaining to the cause are orders within its jurisdiction, and however
erroneous they may be, they cannot be corrected by certiorari (Santos v.
Court of Appeals, G.R. No. 56614, July 28, 1987, 152 SCRA 378; Paramount
Insurance Corp. v. Luna, G.R. No. 61404, March 16, 1987, 148 SCRA
564).  This rule more appropriately
applies to respondent HRET whose independence as a constitutional body has time
and again been upheld by Us in many cases. 
(Robles vs. House of
Representatives Electoral Tribunal, 181 SCRA 780 [1990], Medialdea, J.).

 

 

32. Opening and
examination of the ballot box

 

§1. Where
allegations are made by one of the respondents charging fraud and misconduct in
a particular precinct not mentioned in the protest and in which the ballots had
not been ordered recounted, and showing that illegal ballots had been voted and
counted for the protestant, and praying that the ballot boxes of that precinct
be opened and the ballots recounted, the judge hears evidence presented by the
parties relative to said allegations and finds such evidence insufficient to
sustain the allegations and enters judgment denying the application to open the
ballot boxes and recount the ballots of said precinct, such judgment will not
be disturbed by this court unless it is shown to be against the fair preponderance
of the evidence.

 

While the statute seems to require all ballots
to be brought before the court, the practice should be, in the first instance,
to bring before the court for examination only such ballots as are questioned
by the protest. (Manalo vs. Sevilla 24 Phil. 609 [1913], More-land, J.).

 

§2. The
contention that the Court of First Instance erred in refusing to examine the
ballots in a certain precinct upon the ground that the protestant had withdrawn
from his complaint the allegations respecting that precinct does not raise a
question of jurisdiction; and a refusal of the court to hear evidence in
relation to such precinct is not an act in excess of jurisdiction.  The court has a right to determine what precincts
are sufficiently involved in the charges of misconduct to warrant the opening
of the ballot boxes used therein. (Gala vs. Cui and Rodriquez, 25 Phil. 522
[1913], Moreland, J.).

 

§3. Where
in the motion of protest certain irregularities committed by the election
inspectors in the count of the votes are alleged, this constitutes sufficient
ground for the opening of the ballot boxes and the examination of the
questioned ballots.

 

The law does not require any more prima
facie evidence than the sworn allegation in the protest of the commission
of frauds or irregularities in the count of a sufficient number of ballots to
change the result of the election. (Cecilio vs. Belmonte, 48 Phil. 243
[1925], Villamor, J.).

 

§4. It is
within the discretion of a judge presiding at the trial of a contested election
to refuse to order the opening of the ballot boxes of a precinct as to which
the returns have not been impugned; and where one of the parties to the
contest, after having attacked the returns from a particular precinct in his
original protest, withdraws his protest, for acceptable reasons, as to such
precinct, such procedure leaves the case with respect to this precinct in the
same position as if the returns had never been questioned at all. (Salvani
vs. Garduño, 52 Phil. 673 [1929], Street, J.).

 

§5. The
point raised in this mandamus proceeding regarding the opening of the ballot
boxes has repeatedly been decided by this court. In Cecilio vs. Belmonte and Court of First Instance of
Nueva Ecija (48 Phil.,
243), where the court reviewed the earlier cases dealing with this question, it
was held that where irregularity in the conduct of the election inspectors in
recounting the ballots is alleged in the motion of protest, it constitutes a
sufficient ground for opening the ballot boxes and examining the questioned
ballots.

 

The law does not require a prima facie
evidence other than the allegations in the protest, of fraud and irregularities
in order to authorize the opening of the ballot boxes. Upon the proper filing
of a motion of protest duly raising the question of the legality or illegality
of ballots cast and the counting thereof, the law requires the court to have
brought before it all ballots used at the election in the precincts which are
questioned  (De la Merced vs. Revilla
and Camacho, 40 Phil., 190). (Cuevas vs. Lesaca and
Violago, 56 Phil. 25 [1931], Villamor, J.).

 

§6. In
this jurisdiction the rule had invariably been to deny revision in precincts
that are not contested either in the petition of protest or in a
counter-protest.  To permit revision in
precincts not subject of petition of protest or counter-protest would mean
allowing any party to conduct a fishing expedition and unduly prolong the
contest resulting in cutting down the term of the winner.  Since the protestant is not permitted to
demand revision in precincts not included in his petition of protest, neither
should the protestee be allowed to do so. To permit otherwise would encourage
unscrupulous litigants to frustrate prompt termination of protests, delay
proceedings and even frustrate the will of the electorate and would give
protestee more rights than the protestant. 
They should be treated equally. (Matas vs.
Romero, 114 Phil. 253 [1962]; 4 SCRA 313 [1962], Labrador, J.).

 

§7. When
the motion of protest contains sufficient allegations that frauds, errors and
irregularities in the count were committed, and as long as they refer to the
ballots involved in the contested precincts, the trial court is justified in
requiring the production of said ballots even if the parties did not deem it
necessary to present them in evidence.  (Conui-Omega vs. Samson, 9 SCRA 493 [1963], Bautista Angelo, J.)                    

 

§8. Where
the protestant alleged that, in a certain precinct, the board of inspectors
illegally read and credited in favor of the protestee around eighty ballots
wherein the protestant was voted for mayor, the simplest, most expeditious and
best means to determine the truth or falsity of such allegation is to open the
ballot box and examine its contents.  The
trial judge committed a grave abuse of discretion in holding that the ballot
box would be opened only when the court was convinced that the said
irregularity was committed, and not before the presentation of proof to that
effect.  To require parol or other
evidence on said alleged irregularity before opening said box would have merely
given the protestee ample opportunity to delay the settlement of the
controversy, through lengthy cross-examination of the witnesses for the protestant
and the presentation of testimonial evidence for the protestee to the
contrary.  That would be to sanction an
easy way to defeat an electoral protest. (Astorga vs.
Fernandez, et al., 19 SCRA 331 [1967), Concepcion, C.J.).

 

§9. Where
the three copies of the election returns outside the ballot box do not
constitute a reliable basis for a canvass, then the Commission on Elections, in
the exercise of its power to administer and enforce the laws relative to the
conduct of elections, may order the opening of the ballot boxes to ascertain
whether the copy inside each ballot box, corresponding to each precinct, is
also tampered like the three copies outside the ballot box.  The Commission may do this on its own initiative,
or upon petition by the proper party. 
That order does not affect the right to vote or the validity of the
votes cast.

 

Once it is found that the copy of the election
return inside the ballot box is tampered, the Commission on Elections would
then have accomplished two things, namely: (1) secured a basis for the
prosecution for the violation of the laws relative to elections and (2)
afforded the party aggrieved by the alteration of the election returns outside
the ballot box a basis for a judicial recount of the votes.

 

The ballot boxes may be opened in case there is an
election contest.  They may also be
opened, even if there is no election contest, when their contents have to be
used as evidence in the prosecution of election frauds.  Moreover, they may be opened when they are
the subject of any official investigation which may be ordered by a competent
court or other competent authority.  The
competent authority must include the Commission on Elections which is charged
with the administration and enforcement of the laws relative to the conduct of
elections. (Cauton vs. Commission on Elections, 126
Phil. 291 [1967]; 19 SCRA 911 [1967], Zaldivar, J.).

 

§10. The
decisive circumstance that makes it mandatory for the Appellate Court to
consider, and rule on a ballot is that, the ballot is before the court and it is claimed or impugned by a party
in the election contest — be it in the trial court or in the appellate
court.  The court cannot, and it must
not, close its eyes to the realities as presented by the ballots before
it.  The contention, that to
allow a party to claim or impugn ballots for the first time in a motion for
reconsideration of a decision in the appellate court, is to sanction confusion
and delay in the disposal of election cases is of no moment as long as the
claim regarding the ballots is presented before the decision has become final
and the ballots thus claimed would be decisive in determining the real winner
in the elections. (Juliano vs. Court of Appeals, 20
SCRA 808 [1967], Zaldivar, J.).

 

§11. The
election law never intended that where, in a given precinct, some of the
returns are authentic and others are falsified, both the COMELEC and the Court
of First Instance will have concurrent jurisdiction — prior to
proclamation.  To avoid confusion under
such a situation, the remedies are drawn and delineated as follows:  (1) Where before or during canvassing or
before proclamation representations are made that returns are falsified, it
becomes the primary duty, first of the board of canvassers, and then of
the COMELEC, to ascertain this fact.  (2)
If finally the COMELEC summarily finds that there was falsification of the
copies to be used for canvassing purposes, then canvassing must be made upon
the basis of authentic copies.  Because a
falsified return or spurious return amounts to no return at all.  (3) If, on the other hand, the discrepancy in
the returns was the result of honest mistakes of the board of inspectors, two
courses of action are open in the court of first instance: first, a petition
for correction of returns with the consent of all the members of the board of
inspectors under Section 154 of the Revised Election Code; and second, a
petition by the said board or any candidate affected for summary judicial
recount under Sections 163 and 168 of the same Code.  A summary judicial recount is merely for the
purpose of counting the number of votes received by each candidate as they
appear on the face of the ballots” 
(Cawa vs. Del Rosario, L-16837-40, May 30, 1960).  After all, ballot appreciation is proper in
an election contest after proclamation.

 

The remedies thus delineated are explicit.  They serve as guidelines.  The right course to pursue given the fact of
discrepancy — by reason of mistake or otherwise — is there. (Ong vs. Commission on Elections, 22 SCRA 241 [1968], Sanchez, J.).

 

§12. There are weighty reasons that support
the application of such theory in election cases.  One is the cardinal principle that an
election case involves public interest, and, hence, it imposes upon the court
the imperative duty to ascertain by all means within its command who is the
real candidate elected by the electorate. 
That is why the law gives to the court the power, in the interest of
justice, to order motu
proprio that ballot
boxes and other election documents be produced before it so that they may be
examined and recounted regardless of whether the party raises any issue in its
pleading concerning the validity of the ballots (Section 175, Revised Election
Code).  On the other hand, it has been
postulated as a fundamental principle underlying the trial of election cases
that technicalities or procedural barriers should not be allowed to stand if
the same would tend to defeat rather than promote the interest of justice.  Rather, it is enjoined that the Election Law
should be liberally construed to the end that the will of the people may not be
defeated. (Tagoranao vs. Court of Appeals, 37 SCRA 490
[1971], Barredo, J.).

§13. Under Comelec’s
Rules of Procedure, the venue of the revision process shall be the office of
the Comelec’s Clerk of Court at its Main Office in Manila, thus “Sec. 9.  Venue of the revision.¾The revision of the ballots shall be made in the office of the
clerk of court concerned or at such places as the Commission or Division
shall designate and shall be completed within three (3) months from the date of
the order, unless otherwise directed by the Commission.” (Cabagnot vs. Commission on Elections,
260 SCRA 503 [1996], Panganiban, J.).

§14. The task of the
Revision Committee does not end after actual revision of the ballots concerned
— the term shall end only after its Revision Report shall have been duly
submitted for the court’s approval simultaneous with the submission of the
padlocked ballot boxes to the Presiding Judge.

As long as no tampering or alteration was
manifest in the xeroxing/photocopying of court records, no liability attaches
to anyone.  (Beegan
vs. Borja, 261 SCRA 474 [1996], Hermosisima, Jr., J.).

§15. To
recapitulate, petitioner Danilo B. Ferrer garnered a total of twenty-nine (29)
valid votes and no stray vote while respondent Rafael M. Grospe obtained eight
(8) valid votes and three (3) stray votes. 

Since
the main issue at hand is the contested ballots claimed by the parties, the
computation shall be based on the number of uncontested ballots after revision
at the lower court.  Thus, petitioner who
garnered 251 uncontested ballots would be credited with 29 valid votes per
findings above.  He therefore has a total
of 280 votes. 

On the other hand, private respondent with
268 uncontested ballots shall be credited with 8 valid votes out of the 11
votes claimed, or a total of 276 votes. (Ferrer vs. Commission on Elections,
330 SCRA 229 [2000], Pardo, J.).

 

§16. 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.”  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.  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.  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.  (Maruhom vs. Commission on Elections, 331
SCRA 473 [2000], Ynares-Santiago, J.).

 

§17. The rule in this jurisdiction is clear and jurisprudence is
even clearer.  In a string of categorical
pronouncements, we have consistently ruled that when there is an allegation in an election protest that
would require the perusal, examination or counting of ballots as evidence, it
is the ministerial duty of the trial court to order the opening of the
ballot boxes and the examination and counting of ballots deposited therein.

 

In Astorga
vs. Fernandez, this Court inked the rationale behind the principle through
the pen of Chief Justice Roberto Concepcion: “x x x  Obviously, the simplest, the most expeditious
and the best means to determine the truth or falsity of this allegation is to
open the ballot box and examine its contents. 
To require parol or other evidence on said alleged irregularity
before opening said box, would have merely given the protestee ample
opportunity to delay the settlement of the controversy, through lengthy
cross-examination of the witnesses for the protestant and the presentation of
testimonial evidence for the protestee to the contrary.  As held in Cecilio vs. Belmonte, this
‘would be to sanction an easy way to defeat a protest.’ ”

 

In the case
before us, the serious allegations embodied in the election protest mandates
and necessitates the opening of the subject ballot boxes to the end of
resolving the issue of fraud and irregularities in the election.  Precisely, the purpose of ordering the
opening of the ballot boxes is to ascertain, with the least amount of
protracted delay, the veracity of the allegations of fraud and anomalies in the
conduct of the electoral exercise.  Thus,
a preliminary hearing set for the same purpose is a mere superfluity that
negates the essence of affording premium to the prompt resolution of election
cases and incidents relating thereto. 
Stated differently, the lower court clearly committed grave abuse of
discretion in ordering the conduct of a preliminary hearing to achieve the
abovementioned purpose; the court a quo acted outside its province and
overshot the limits of its jurisdiction. 
Evidently, the twin orders of the lower court, dated 07 July 1998 and 11
August 1998, were issued in clear violation of the Rules and existing case law
on the matter. (Miguel vs. Commission on Elections, 335 SCRA 172 [2000],
Buena, J.).

 

 

33. Examination of
Documents

 

§1. The
special remedies of mandamus and prohibition are not available in the instant
case.  Firstly, it is not ministerial on
the part of the respondent judge to allow the examination of the registry lists
of voters, voting records and other election documents in the 62 voting centers
as he is clothed with the discretion to allow or disallow such
examination.  And secondly, the
respondent judge did not abuse his discretion in disallowing such examination. (Abaya vs. Concepcion, 111 SCRA 590 
[1982], Abad         Santos, J.).

 

§2. Petitioner’s contention assumes the very fact in
dispute.  Whether the ballots in this
case were indeed tampered with, is a question which the petitioner has to
prove.  That there is a “huge
discrepancy” between the result of the canvass and that of the revision is no
proof that the Commission committed a grave abuse of discretion in denying his
request for additional time to conduct a technical examination of election
documents and to have his witnesses examine the ballots before requiring them
to make their affidavits.  For as already
stated, he was given sufficient time to present proof of tampering or
substitution of ballots but he failed to do so. 
Petitioner thus begs the question when he claims that because the
ballots have been tampered with, the election returns constitute the best
evidence of the result of the election.

 

Anyway the question whether there has been
substitution of ballots and what the actual result of the election is, will
still be determined by the Commission when it undertakes its own independent
evaluation and appreciation of the contested ballots and election
documents.  As we have held, handwriting
experts, while probably useful, are not indispensable in examining or comparing
handwriting; this can be done by the COMELEC itself.  As for the allegedly fake ballots, no better
authority than the COMELEC can determine their authenticity, having itself
ordered and supervised the printing of all the official ballots. (Bulaong
vs. Commission on Elections, 241 SCRA 180 [1995],                 Mendoza, J.).

 

§3. With
respect to the contention that a technical examination of the ballots should
have been ordered to determine whether they had been written by two or more
persons, or in groups written by only one hand, we hold that the Commission en
banc did not commit an abuse of its discretion in denying
petitioner-protestee’s request.  The rule
is settled that the Commission itself can make the determination without the
need of calling handwriting experts. (Erni vs. Comelec, 243 SCRA 706 [1995],
Mendoza, J.).

 

 

34. Tampered ballot box

 

§1. Where
the returns from a certain precinct are impugned as fraudulent, and it is found
upon opening the boxes that they have been violated, the candidate in whose
interest the act of violation is alleged to have been committed may introduce
as witnesses voters who, waiving their privilege of secrecy, will swear that
they voted for him.  Such evidence is
admissible for the purpose of rehabilitating the returns.

 

Where the correctness of the official
returns is thus established as to the vote of one of the candidates, said
returns should be adhered to as to both, it being manifest that the boxes were
not violated in the interest of either. 
Where the spoliation is the work of a stranger, neither candidate should
be penalized therefor.

 

Where the proof shows that the official
returns in a certain precinct with regard to particular office are false,
secondary evidence is admissible to show what the true vote was.  In this case the testimony of three witnesses
who had been present when the votes were counted and one of whom had kept
accurate tally upon the votes as called out is accepted as sufficient to show the
true result.

 

Where the evidence shows that the ballot
boxes have been violated and their contents changed, the original count must
prevail. Before the ballots found in a box can be used to set aside the returns
the court must be sure that it has before it the ballots deposited by the
voters. (Valenzuela vs. Carlos and Lopez de Jesus, 42 Phil. 428 [1921],
Street, J.).

 

§2. Where
the ballots lose their probative value, because the ballot boxes have been
tampered with and the ballots altered, the count made by the board of election
inspectors is the best evidence of the result of the election.  The oral testimony of the voters who
voluntarily waive the secrecy of the vote 
(Dayrit vs. San Agustin and Valdez, 40 Phil., 782; Valenzuela
vs. Carlos and Lopez de Jesus, supra), is admissible for the purpose
of verifying the returns; but said testimony cannot be given more weight than
the returns of the board of election inspectors, unless it is shown that the
returns are false.

 

Where the legal votes cannot be separated
from the illegal votes, it is improper to deduct a certain number of votes from
those obtained by one candidate and award them to another and the election in
that precinct must be annulled.  (Cailles
vs. Gomez and Barbaza, 42 Phil. 496 [1921], Villamor, J.).

 

§3. Where
ballot boxes are opened before the court and in the opinion of any of the
parties the contents show that they have been tampered with, said party may, in
the discretion of the court, present evidence of said tampering, even though no
allegation to this effect has been made in his protest.

When
the fraudulent are so mixed up with the legal ballots that the legal cannot be
separated from the illegal ballots, and the election returns are not reliable
by reason of certain marks thereon, including that they have been falsified,
the election must be anulled. (Mandac vs. Samonte, 49 Phil. 284 [1926],
Villamor, J.).

§4. Where
ballot boxes are tampered with or violated after the original canvass of votes,
the original count must ordinarily prevail in a subsequent election contest. (Guekeko
vs. Pascual, 50 Phil. 221 [1927], Ostrand, J.).

§5. When
it appears that a ballot box has been unlawfully opened and its contents
disturbed to the extent that it is uncertain whether the ballots found therein
were actually cast by the voters, such ballots cannot be accepted for purposes
of revision, and the official returns, if not otherwise impeached, must be
accepted as stating the true number of votes cast.

The
particular fraud accomplished in this case consisted in the fact that, after
the official count had been made, the box of a certain precinct was opened and
a large number of ballots removed, bearing the name of the successful candidate
for municipal president.  In place of
these ballots an equal number of counterfeit ballots bearing the name of the
same candidate for municipal president were introduced into the box. Held, upon
contest instituted by the unsuccessful candidate, that these ballots should not
be subtracted from the contestee’s vote and that the official returns must
prevail. (San Juan vs. Cornejo, 53 Phil. 230 [1929], Street, J.).                       

§6. In
the absence of evidence showing with sufficient certainty that the substituted
ballots had been cast for the contestant, there is no ground for holding that
they were indeed cast for him.  No matter
how strong the presumption may be that the substituted ballots were made out in
his favor, it is not sufficient to sustain a finding to that effect. (Kiamzon
vs. Pugeda, 54 Phil. 755 [1930], Villamor, J.).

§7. The omission to lock some metal seals
attached to a few ballot boxes and the minor lapses in the preparation of and
in the entries of some data in several copies of said election returns could be
ascribed to the fact that the preparation of the election returns was done
close to midnight subsequent to the conclusion of the canvass in the voting
centers when the members of the Citizen Election Committee were already tired
and hungry, aggravated by lack of adequate lighting. (Pimentel,
Jr. vs. Commission on Elections, 140 SCRA 126 [1985], Makasiar, C.J.).

35. Due
process

 

§1. By
agreeing to have the matter heard and decided on affidavits, counter-affidavits
and rebuttal affidavits, the petitioner in effect waived his right to examine
the affiants, with the result that his subsequent demand that the Comelec  “summon all the election inspectors and poll
clerks, interrogate them and let the parties cross-examine them” is unavailing.
(Ligot vs. Commission on Elections, 31 SCRA 45  [1970], Per Curiam.).

 

§2. Proclamation
of a winning candidate can be set aside only after due notice and hearing;
Grave abuse of discretion of Comelec in setting aside proclamation. – 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 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.  (Jagunap vs. Commission on Elections, 104
SCRA 204 [1981], Concepcion, Jr., J.).

 

§3. Moreover,
petitioner had controverted by means of sworn statements the allegations of
private respondent of massive terrorism and rampant irregularities in the
counting of votes. The COMELEC had weighed the conflicting pleadings,
certifications and affidavits before it and concluded that the case was ripe
for resolution on the merits.  It found
that “a painstaking examination—demanded by the gravity of the issues raised—of
the records in this case resulted in the inescapable finding that serious and
widespread election venalities did occur in the hapless community of
Penaranda.” (Jardiel vs. Commission on Elections, 124
SCRA 650 [1983], Melencio-Herrera, J.).

 

§4. Nor can COMELEC be faulted for merely requiring the parties
to submit their respective Memoranda in support of their respective
positions.  The requirement under Section
246 of the Omnibus Election Code is that the parties be notified and heard.  Petitioners were so notified.  They were also given an opportunity to submit
evidence in support of their allegations. 
They were required to submit a Memorandum in amplification of their
position.  Such procedure is fair, valid
and acceptable and is consistent with the summary character of proceedings in
election cases.  As held in Alonto
vs. COMELEC (22 SCRA 878), the policy of election laws is that
pre-proclamation cases should be summarily decided, consistent with the law’s
desire that the canvass and proclamation be delayed as little as possible. (Casimiro vs. Commission on Elections,
171 SCRA 468 [1989], Melencio-Herrera, J.).

 

§5. Promulgation
is the process by which a decision is published, officially announced, made
known to the public or delivered to the clerk of court for filing, coupled with
notice to the parties or their counsel (Neria v. Commissioner of Immigration,
L-24800, May 27, 1968, 23 SCRA 812).  It
is the delivery of a court decision to the clerk of court for filing and
publication (Araneta v. Dinglasan, 84 Phil. 433).  It is the filing of the signed decision with
the clerk of court (Sumbing v. Davide, G.R. Nos. 86850-51, July 20, 1989, En
Banc Minute Resolution).  The additional
requirement imposed by the COMELEC rules of notice in advance of promulgation
is not part of the process of promulgation. 
Hence, We do not agree with petitioner’s contention that there was no
promulgation of the trial court’s decision.

 

A procedural lapse or error should be
distinguished from lack of jurisdiction. 
In the former, the proceedings are null and void if and when the error
is shown to have caused harm while in the latter, the proceedings are null and
void unconditionally (In the matter of the petition of Joson and Joson v.
Nable, et al., G.R. No. L-3450, September, 1950, XVILJ No. 1, p. 35, cited in
Francisco, Vicente, J., Revised Rules of Courts in the Philippines, 2nd edition, p. 112).  There is a great difference in the results
which follows the failure to give the necessary notice to confer on the court
jurisdiction over the person and the subject matter of the action, and that
which follows a failure to give notice of a step taken after the court has
obtained such jurisdiction and is proceeding with the action.  Failure to give notice of the action by the
service of a summons for example, is a jurisdictional defect and the court
acquires no jurisdiction over the person of the defendant. x x x.  When, however, the court, by the service of
proper notice has obtained jurisdiction of the person and the subject matter,
then the failure to give notice of a subsequent step in the action or
proceeding is not jurisdictional and does not render an order made without
notice void.

 

The fact that petitioners were not served
notice in advance of the promulgation of the decision in the election protest
cases, in Our view, does not constitute reversible error or a reason sufficient
enough to compel and warrant the setting aside of the judgment rendered by the
Comelec.  Petitioners anchor their
argument on an alleged denial to them (of) due process to the deviation by the
Comelec from its own made rules. 
However, the essence of due process is that, the parties in the case
were afforded an opportunity to be heard. 
As long as the parties were given the opportunity to be heard, before
judgment was rendered, the demands of due process were sufficiently met.

 

Petitoner’s protestations of denial of
due process when his notice of appeal was denied for having been filed out of
time must also fail.  The records show
that petitioner’s counsel of record, Atty. Amador Montajo, received a copy of
the decision on February 12, 1990.  The
five-day period for petitioner to file his appeal from the decision of the
trial court commenced to run from such date. 
Petitioner’s notice of appeal was filed with the trial court only on
February 26, 1990, fourteen (14) days after his counsel was served a copy of
the decision.  Clearly, his notice was
filed out of time. (Lindo
vs. Commission on Elections, 194 SCRA 25 [1991], Medialdea, J.).

 

§6. We have recently reiterated the Dianalan and Dimaporo
rulings in the case of Alfonso vs. Commission on Elections, promulgated
in June, 1994.  The prevailing doctrine
in this jurisdiction, therefore, is that as long as the returns appear to be
authentic and duly accomplished on their face, the Board of Canvassers cannot
look beyond or behind them to verify allegations of irregularities in the
casting or the counting of the votes. 
Corollarily, technical examination of voting paraphernalia involving analysis
and comparison of voters’ signatures and thumbprints thereon is prohibited in
pre-proclamation cases which are mandated by law to be expeditiously resolved
without involving evidence aliunde and examination of voluminous
documents which take up much time and cause delay in defeat of the public
policy underlying the summary nature of pre-proclamation controversies.

 

While, however, the COMELEC acted within
its jurisdiction in taking cognizance of the private respondents’ petition to
annul the election results of or to declare failure of elections in Parang,
Sulu, it committed grave abuse of discretion when confronted with essentially
the same situation in petitioners’ own petition to annul the elections of or to
declare failure of elections in the municipalities of Tapul, Panglima Estino, Pata,
Siasi and Kalinggalang Caluang.  The
COMELEC arbitrarily and without valid ground dismissed the said petition
respecting the aforementioned five municipalities.  The untimeliness of the petition is an
untenable argument for such dismissal, because as Commissioner Regalado
Maambong pointed out in his own dissenting opinion, no law provides for
reglementary period within which to file annulment of elections when there is
as yet no proclamation.

 

For in the instant case, petitioners
admitted in their pleadings that they were fully aware of the issuance by
COMELEC of an order directing the Provincial Election Supervisor of Sulu to
bring to the COMELEC office in Manila the election documents to be used in the
technical examination.  In fact,
petitioners anticipated such technical examination and filed a pleading before
the COMELEC in which they prayed that they be informed of any subsequent
proceedings in the same case.  In fine,
it is undeniable that petitioners had the opportunity to participate in the proceedings
respecting the technical examination, aware as they were of the intent of the
COMELEC to conduct the same.  Militating
against them is the fact they did not do so when they had the opportunity to,
especially as public interest in the speedy disposition of this case will only
be further derailed by the re-opening of the case for the benefit of
petitioners who, if they could after all be this assertive of their due process
rights now, should have asserted the same as early as when the issues were ripe
for debate. (Loong vs.
Commission on Elections, 257 SCRA 1 [1996], Hermosisima,                   Jr., J.).

 

 

36. Evidence

 

§1. The
right to examine the voters after they have declared a willingness to testify,
when ballot boxes have been tampered with after the election, is an affirmance
and vindication of the essential principle of the election system – that the
will of the majority of the qualified electors shall determine the right to an
elective office. (Dayrit vs. San Agustin and Valdez, 40 Phil. 782 [1920],
Johnson, J.).

 

§2. Where
the returns from a certain precinct are impugned as fraudulent, and it is found
upon opening the boxes that they have been violated, the candidate in whose
interest the act of violation is alleged to have been committed may introduce
as witnesses voters who, waiving their privilege of secrecy, will swear that
they voted for him.  Such evidence is admissible
for the purpose of rehabilitating the returns.

 

Where the correctness of the official
returns is thus established as to the vote of one of the candidates, said
returns should be adhered to as to both, it being manifest that the boxes were
not violated in the interest of either. 
Where the spoliation is the work of a stranger, neither candidate should
be penalized therefor.

 

Where the proof shows that the official
returns in a certain precinct with regard to particular office are false,
secondary evidence is admissible to show what the true vote was.

 

Where the evidence shows that the ballot
boxes have been violated and their contents changed, the original count must
prevail.  Before the ballots found in a
box can be used to set aside the returns the court must be sure that it has
before it the ballots deposited by the voters. (Valenzuela vs. Carlos and
Lopez de Jesus, 42 Phil. 428 [1921], Street, J.).

 

§3. Where
the ballots lose their probative value, because the ballot boxes have been
tampered with and the ballots altered, the count made by the board of election
inspectors is the best evidence of the result of the election. The oral
testimony of the voters who voluntarily waive the secrecy of the vote (Dayrit
vs. San Agustin and Valdez, 40 Phil., 782; Valenzuela vs. Carlos and
Lopez de Jesus, supra), is admissible for the purpose of verifying
the returns; but said testimony cannot be given more weight than the returns of
the board of election inspectors, unless it is shown that the returns are false.
(Cailles vs. Gomez and Barbaza, 42 Phil. 496 [1921], Villamor, J.).

 

§4. Where
the conservation of the boxes is prima facie shown and their contents
are found intact upon being opened according to law, the ballots themselves
become the best evidence of the votes cast; and it is the duty of the court to
determine the contest, so far as dependent upon the count, by the proof
afforded by the ballots. (Lucero vs. De Guzman, 45 Phil. 852 [1924], Street,
J.).

 

§5. Although
the law directs that the judge in charge of an election contest shall make a
finding as to who was elected, or whether any person was elected to the
contested office, it is nevertheless the duty of the contending parties to
place before the court the evidence upon which such finding can be made; and if
a contestant fails to supply necessary proof as to the result in uncontested
precincts, the judge in charge of the proceeding is necessarily bound to
dismiss the contest without making any finding as to the person actually
elected. (Ayo vs. Flordeliza, 48 Phil. 199 [1925], Street, J.).

 

§6. Where
ballot boxes are opened before the court and in the opinion of any of the
parties the contents show that they have been tampered with, said party may, in
the discretion of the court, present evidence of said tampering, even though no
allegation to this effect has been made in his protest.

 

It is a well settled rule in election
contests that when the protest alleges that the election officers have
improperly judged the ballots, the latter constitute the best proof and the
court must examine them in order to determine the claim of the protestant,
unless the same shall have been substituted after the election or altered in
any manner, for then they lose their probatory value and election returns must
prevail. (Mandac vs. Samonte, 49 Phil. 284 [1926], Villamor, J.).

 

§7. Where
ballot boxes are tampered with or violated after the original canvass of the
votes, the original count must ordinarily prevail in a subsequent election
contest. (Guekeko vs. Pascual, 50 Phil. 221 [1927], Ostrand, J.).

 

§8. Where
the returns from a certain precinct are impugned and, upon opening a ballot
box, the contents are found to have been destroyed by anay and corrosive
acid, the party attacking the returns from that precinct is entitled to prove
by the testimony of individual voters that they voted for him in numbers in
excess of the number returned by the inspectors as having been voted for him,
there being nothing to show that the contents of the box had been destroyed by
the party attempting to introduce such proof. 
When the ballots, which constitute the best evidence of how the votes
were cast have been destroyed, the testimony of voters is admissible as
competent evidence tending to show that the returns were falsely made out.  (Salvani vs. Garduño, 52 Phil. 673 [1929],
Street, J.).

 

§9. There
is no violation of the general rule that the evidence must be confined to the
allegations of the motion of protest, when the contestant, without objection of
the contestee, adduces evidence as to incidental maters not alleged in said
motion.

 

The testimony of witnesses with regard to
alleged schemes on the part of the opposing party to influence the popular will
by means of bribery and the purchase of votes, must be viewed with caution, and
unless strongly corroborated by other legally admissible evidence, is not
sufficient to determine the result of a popular election.

 

In the
cases of Cailles vs. Gomez and Barbaza (42 Phil. 496); Valenzuela vs.
Carlos and Lopez de Jesus (42 Phil., 428); Mandac vs. Samonte (49
Phil., 284); Penson vs. Parungao (52 Phil., 718); and Geirosa vs.
Taningco (G.R. No. 30609, promulgated March 22, 1929, not reported), this
court, construing Section 452 of the Election Law, enunciated certain rules
respecting marked ballots.  In Penson
vs. Parungao, the court said that marks on ballots must appear on the
ballots themselves, and cannot be proved by evidence aliunde, but with
data contained in the ballots themselves. 
In the instant case, several ballots for the appellee and also for the
appellant were found with the names written on the right, or on the left, or in
the middle, but with a space between the names and surnames, although they were
in the proper places. Held, That said ballots, being perfectly clean
upon their face, are not marked ballots within the meaning of the law. (Cruz
vs. De Guzman, 54 Phil. 32 [1929], Villamor, J.). 

§10. It
was found that 21 votes for the contestant were tainted with fraud, as well as
8 votes for the contestee. The contestant’s counsel arose and asked that 8 of
contestee’s ballots should be rejected because they had been prepared by one
and the same person. Under the circumstances, it might, perhaps, be said that
the contestant is not in position to demand that his 21 ballots be admitted
when he had demanded that the contestee’s 8 ballots of the same kind should be
rejected. (Valbuena vs. Tapales and Orayani, 56 Phil. 469 [1932], Ostrand,
J.).

§11. It
is held that such circumstantial evidence is insufficient to warrant the
definite conclusion that those thirty-two electors excluded voted for the
contestee-appellant.

The
necessary and sufficient circumstantial evidence in this case must be such as
to lead to no other reasonable and convincing conclusion than that such votes
were cast in favor of the appellant.

The
rule uniformly established in cases of this nature is that the party alleging
that illegal votes have been cast must adduce the best evidence to prove it,
and it is clear that the best evidence would have been the identification of
the illegal ballots and the testimony of the voters who prepared them, which
the contestant-appellee has not done in this case. (9 R. C. L., pp. 1149-1150).

The
burden of proving that illegal votes have been cast rests on the contestant and
not on the contestee who has been proclaimed elected. (Borja vs. Roxas, 56
Phil. 488 [1932], Imperial, J.).

 

§12. It is a
well known fact that there are persons in a municipality bearing the same names
and surnames, hence the mother’s surname is added to that of the father’s to
distinguish the one from the other. The alleged minor voters not having been
called to testify in order to ascertain if they were really not of age at the
time they voted, the mere presentation of a certified list issued by the
municipal treasurer of some minors whose names coincide with those of some
electors who voted, is not conclusive evidence that those who voted were those
whose names appear in the said list.

 

The fact that living persons bearing the
names of some of the dead have not been found does not conclusively establish
that said persons did not exist, considering the rapid means of communication
nowadays which readily permit persons to travel from one place to another. (Villavert
vs. Lim, 62 Phil. 178 [1935], Villa-Real, J.).

 

§13. Ballots
counted or recounted and revised by commissioners appointed by a Court of First
Instance are among the documentary evidence in an election contest. They can be
examined by the parties, their attorneys and handwriting experts at any time
during the trial or proceedings before the decision, subject to the supervision
of the court so as to avoid loss, destruction, or tampering. (Raymundo vs.
Gonzalez, 80 Phil. 719 [1948], Perfecto, J.).

 

§14. Section
175 of the Revised Election Code orders the Court to cause to be brought before
it all ballots used at the election in the precincts which are questioned, it
does not confer upon the court unconfined discretion to disregard the issues
and examine any ballot boxes and recount any ballots that it may see fit, in
total disregard of the rules of orderly procedure. The rule of allegata et
probata applies to election contests as well as to ordinary actions,
otherwise election contests could easily become interminable. (Robles vs.
Del Rosario, et al., 100 Phil. 886 [1957], Reyes, J.B.L., J.).

§15. Section
175 of the Revised Election Code provides that the court, motu proprio in
the interest of justice may require “that the copies of the registry lists, the
ballot boxes, the election statements, the voters’ affidavits, and the other
documents used in the election be produced before it and that the ballots be
examined and the votes recounted” when judicial counting of the votes may
be found necessary in a contested election. 
This provision is significant.  It
postulates that the court, motu proprio, may require, among other
things, the production of the ballots in order that it may examine them if such
is necessary to do justice to the parties, even if said ballots were not
formally presented as evidence. (Reforma vs. De Luna, 104 Phil. 278 [1958],
Bautista Angelo, J.).

§16. Evidence
in an election case are generally of two kinds: 
(1) the documents which Section 175 of the Revised Election Code
requires to be produced in court for its examination, and (2) the evidence aliunde,
if any, which the parties may deem necessary to present. In the production
of the first, consisting of election paraphernalia, their examination may be
conducted in a summary manner.  In the
presentation of the second, it may be done as in an ordinary trial, in view of
the fact that no particular procedure is outlined in the Code, and Rule 132 of
the Rules of Court provides that the Judicial Rules shall not apply to election
cases except by analogy or in a suppletory character and whenever practicable
and convenient. (Asis vs. Ilao, 114 Phil. 291 [1962]; 4 SCRA 349 [1962], De
Leon, J.).  

§17. The
failure of the protestant to appear at the hearing and adduce evidence to
substantiate the allegations of his protest, is ground for the dismissal of
said protest.  (Estella vs. Edaño, 115
Phil. 44 [1962]; 5 SCRA 65 [1962], Barrera, J.).

§18. The
circumstance that several voters belonging to the same precinct have written
the names of particular candidates in an identical manner may indicate a
preconceived plan on their part to enable them to identify the voters, but the
showing of such circumstance based on what is written on the ballots alone cannot
justify such inference in the absence of evidence aliunde clearly
showing that such was the plan or intention. 
(Villarosa vs. Guanzon, 116 Phil. 365 [1962]; 6 SCRA 40 [1962],
Bautista Angelo, J.).

§19. Ballots not considered as marked in the
absence of evidence “aliunde” showing intention to mark. (Arzaga vs. Bobis, Sr., 116 Phil. 702 [1962]; 6 SCRA 386 [1962],
Reyes, J.B.L., J.).

§20. The
court may not be made to swallow opinions of experts “as is” especially when
its attention is called to an error in the expert’s conclusions, which the
court was able to confirm. (Protacio vs. De Leon, 118
Phil. 1310 [1963]; 9 SCRA 472 [1963], Paredes, J.).

 

§21. Testimonial
evidence introduced in this case after the ballots were examined by the
commissioners of the court and the parties, was held unreliable and not valid
evidence because it was apparent that the same was a mere after-thought, to
suit what appeared on the ballots.

 

Although it is true that in an election protest,
like in a criminal case, the appeal throws the entire case open before the
appellate court, and any of the parties may discuss any matter without need of
any specific assignment of error, yet it is the duty of the party interested to
call the attention of the Court of Appeals to such matter, in order to give
said Court opportunity to pass upon the same. 
The inaction of the Court of Appeals on a point not raised therein,
cannot be assailed for the first time in a petition for certiorari to the
Supreme Court. (Felisilda vs. Achacoso,  9 SCRA 523 [1963], Barrera J.).

 

§22. Frauds
in the holding of an election should be settled by the corresponding courts or
Electoral Tribunals where testimonial or documentary evidence is necessary; but
where the fraud is so palpable from the return itself, there is no reason to
give it prima facie value.

 

Where the returns were obviously false or
fabricated, the Commission on Elections has the power and duty to reject
them.  (Lagumbay
vs. Commission on Elections, et al. 122 Phil. 1274 [1966]; 16 SCRA 175 [1966],
Bengzon, C.J.).

 

§23. Where
protestee-appellant offered evidence aliunde (consisting of the
testimony of the voters themselves) to support the counter-protest against the
official returns in some 22 precincts, because the ballots cast therein were
burned after 3 months, the trial court correctly rejected the offer, for the
reason that to allow the voters in said precincts (some 4,000 in all) to reveal
the names of the candidates for whom they voted, would amount to holding
practically a new election without the secrecy that public policy considers as
essential to the elector’s freedom of choice. 
(Lomugdang vs. Javier, 21 SCRA 402 [1967], Reyes, J.B.L., J.).

 

§24. The
question of whether or not there had been terrorism, vote-buying and other
irregularities should be ventilated in a regular election protest, pursuant to
Section 174 of the Election Code, and not in a petition to enjoin the city
board of canvassers from canvassing the election returns and proclaiming the
winning candidates for municipal offices. (Borromeo vs. Commission on
Elections, 28 SCRA 775 [1969], Concepcion, C.J.).

§25. By
agreeing to have the matter heard and decided on affidavits, counter-affidavits
and rebuttal affidavits, the petitioner in effect waived his right to examine
the affiants, with the result that this subsequent demand that the Comelec
“summon all the election inspectors and poll clerks, interrogate them and let
the parties cross-examine them” is unavailing. (Ligot vs. Commission on
Elections, 31 SCRA 45 [1970], Per Curiam).

 

§26. Erasures,
alterations and superimpositions, uninitialed by those who made them, are in
the natural course of things prima facie unauthorized, since they do not
coincide with the originals of which they are supposed to be exact carbon
copies, and to impose upon the Comelec the duty to make further inquiry and to
receive evidence aliunde, it is the better rule that the party claiming
legitimacy thereof should present proof of circumstances which can reasonably
lead to such conclusion and not merely make bare allegations to such effect, as
is the case here.   In cases of this character,
it is not enough that the party concerned alleges that the alterations,
erasures and super-impositions are bona fide and legitimate, it is
necessary that sufficient specific reasonable proof of such legitimacy must, at
least, be alleged to exist to warrant further inquiry by the Comelec beyond the
ocular comparison of the different copies of the election returns concerned. (Lingad
vs. Aguilar, 31 SCRA 82 [1970], Per Curiam).

 

§27. Where
the canvassing board has found the provincial treasurer’s copies to be
authentic, clean and regular on their face, and the Comelec copies were
tampered, the canvass should be based on the provincial treasurer’s untampered
copies without need of requiring Comelec to make a comparison between the
different copies if the purpose is to ascertain whether said copies were
prepared by different hands.

 

Failure of the board of inspectors of the
precinct to write the name of the candidate on the returns makes the same
incomplete. Because of the incompleteness of the returns, no complete canvass
of votes can be had and cannot be the basis of a subsequent proclamation.  In such a case, the Comelec should order the
board of inspectors concerned to open the ballot boxes, count the votes and
make new returns for the candidates whose name and votes were not reflected in
the returns.  (Tiglao vs. Commission
on Elections, 31 SCRA 719 [1970], Sanchez, J.).

 

§28. Questions
relating to the alleged failure of the trial court to count ballots where the
name of the protestee appears; and error of the trial court in not rejecting
ballots where only the surname is written in spaces for councilor,
notwithstanding there are two candidates with the same surname and for the same
position involves the presentation of evidence aliunde and is not within
the scope of a petition for review of the trial court’s decision in an election
protest. (Moraleja vs. Relova, 42 SCRA 10 [1971], Barredo, J.),

§29. The
COMELEC does not commit any grave abuse of discretion in relying upon the
opinion of its handwriting experts regarding the election returns and not
affording the party adversely affected the opportunity to refute said experts’
findings where the parties waived the submission of evidence and relied merely
on their memorandum for COMELEC’s resolution. (Garcia vs. Commission
on Elections, 105 SCRA 250 [1981], Makasiar, J.).

 

§30. The
respondent judge’s refusal to allow the presentation of the newly discovered
evidence concerning the alleged unregistered voters, as well as the undue haste
with which he rendered the decision in the electoral protest manifested his
arbitrariness and are indicative of grave abuse of discretion amounting to lack
of jurisdiction.

 

The respondent judge erred when he held as an
absolute rule that the presentation of additional evidence could not be allowed
after the party had finished presenting his direct evidence. For a trial judge
has the discretion to allow, in the furtherance of justice, the presentation of
additional evidence after the parties have produced their respective direct
proofs (Sec. 1 [f], Rule 30, Rules of Court).

 

The 30-day requirement has to be subordinated to a
more substantial requirement, namely: to ascertain in a more accurate way the
will of the voters each of which is a particle of sovereignty.  Thus, We hold as arbitrary the act of the
respondent judge invoking the 30-day requirement (which he had already long
violated) without regard for a substantive necessity.  For plainly the presentation of evidence
concerning the alleged 200-300 unregistered voters (constituting almost 20% of
the total number of voters who actually voted in the municipality of Lagayan)
could result in a more accurate determination of the will of the people. (Seares vs. Hernando, 110 SCRA 343 [1981], Abad Santos, J.)

 

§31. It
is presumed that the Clerk of Court forwarded all exhibits of a case to the
COMELEC in the absence of evidence to the contrary.

 

In an election protest tried in court, the best
evidence of election result is not the election return but the results of revision
of ballots ordered by the trial court.

 

COMELEC has broad powers to ascertain results of
election by means available to it, such as relying on the certificate issued by
its registrar which confirms that issued by the board of canvassers.

 

Nor was petitioner denied due process for not having
been given the chance “to question the truth or veracity” of the COMELEC
records.  Those are public records and if
he had wanted to, he could have done so and the COMELEC would surely not have
denied him the opportunity.  It is to be
noted also that Exhibit “B” was marked and presented in the lower Court and
could have been verified even then. 
Furthermore, the complete document contained the official results of the
voting for every barangay and voting center irrespective of whether they were
contested or not.  In fact, the totals
showed the original returns of 4,993 votes for petitioner and 4,886 votes for
private respondent, the figures on the basis of which petitioner was proclaimed
elected.  Surely, segregating the data
from the unprotested voting centers for purposes of resolving the election
protest can hardly be objected to.

 

The act of respondent Court in disregarding the
opinion of the handwriting experts presented in Court by the parties and in
conducting its own examination and making its own findings does not constitute
grave abuse of discretion.

 

Loss of unused official ballots will not be
sufficient to nullify the election return in a precinct if such loss would not
affect the result of the entire voting in the municipality. (Geromo vs. Commission on Elections, 118 SCRA 165 [1982], Melencio-
Herrera, J.).

 

§32. That
the parties were required to submit affidavits of the witnesses which would
then constitute and be considered as the direct testimonies of said persons, is
not improper.  It is a fair, valid and
acceptable procedure.   It is consistent
with the summary character of election protest proceedings.

 

Thus, in the case of Lucman vs. Dimaporo, 33
SCRA 104 (1970), this Court upheld the admissibility of the affidavits of the
witnesses despite the claim of the petitioner therein that such affidavits are
hearsay evidence.  There, as in the case
at bar, the Commission had indicated its intention to determine the case on the
basis of the affidavits and the documentary evidence introduced by the parties
and it was on such understanding that the parties filed affidavits in their
favor and did not object to those submitted by the other.

 

COMELEC committed no grave abuse of discretion in
not anchoring its decision upon a revision of ballots as this was not requested
by the parties.

 

Of course, there may be election protests which may
be disposed of without a recount of the ballots cast.  There may be cases where, by reason of the
fraudulent manner on which the entire election was conducted, the Court would
be justified in annulling and setting the election aside without an examination
of the ballots.  There may be cases also
where all the ballots used at the election need not be examined.

 

Where due to the stated serious irregularities,
there has been, as in this instance, a consequent declaration of nullity of the
election itself and the election returns in the voting centers mentioned, no
fault whatsoever may be attributed to the action of the Comelec in declining to
order a revision of the ballots cast in those election centers.  A recount or revision of the ballots in those
election centers can no longer possess any significance due to the nullity of
the election itself in said places. (Pimping vs.
Commission on Elections, 140 SCRA 192 [1985], Alampay, J.).

 

§33. In an
election contest where what is involved is the correctness of the number of
votes of each candidate, the best and most conclusive evidence are the ballots
themselves.  But where the ballots cannot
be produced or are not available, the election returns would be the best
evidence.  Where it has been duly
determined that actual voting and election by the registered voter had taken
place in the questioned precincts or voting centers, the election returns
cannot be disregarded and excluded with the resulting disenfranchisement of the
voters, but must be accorded prima facie status as bona fide
reports of the results of the voting. 
Canvassing boards, the Comelec and the HRET must exercise extreme
caution in rejecting returns and may do so only upon the most convincing proof
that the returns are obviously manufactured or fake.  And, conformably to established  rules, it is the party alleging that the
election returns had been tampered with, who should submit proof of this
allegation.

 

Under the best evidence rule, “there can
be no evidence of a writing, the contents of which are the subject of inquiry,
other than the original writing itself” except only in the cases enumerated in
Rule 130, Sec. 2 of the Rules of Court. 
The exceptions are not present here. 
Moreover, the xerox copy of the certificate of canvass is inadmissible
as secondary evidence because the requirements of Sec. 4 of the same Rule have
not been met (Dissent of J. Cruz, p. 254). 
Besides this certificate of canvass had been disowned by the chairman
and members of the municipal board of canvassers, claiming that the same was
falsified since their signatures and thumbmarks appearing thereon are not
theirs and the number of votes credited to Lerias in the municipality of
Libagon had been reduced from 1,811 to 1,411 (TSN, Sept. 13, 1988 AM, pp.
74-78; TSN, Sept. 13, 1988 PM, pp. 41-46; Dissenting Opinion, Rep. A.H.
Cerilles, p. 2).

 

The finding of the Comelec in the
pre-proclamation proceedings that its copy of the certificate of canvass is
“genuine and authentic” and which finding was sustained by this Court (G.R. No.
78833; 79882-83) is not binding and conclusive. 
The HRET must be referring to the following portion of the decision of
this Court¾ “Public interest demands that
pre-proclamation contests should be terminated with dispatch so as not to
unduly deprive the people of representation, as in this case, in the halls of
Congress.  As the Court has stressed in Enrile
v. Comelec, and other cases, the policy of the election law is that
pre-proclamation controversies should be summarily decided, consistent with the
law’s desire that the canvass and proclamation should be delayed as little as
possible.  The powers of the COMELEC are
essentially executive and administrative in nature and the question of fraud,
terrorism and other irregularities in the conduct of the election should be
ventilated in a regular election protest and the Commission on Elections is not
the proper forum for deciding such matters; neither the Constitution nor
statute has granted the COMELEC or the board of canvassers the power, in the
canvass of elections returns to look beyond the face thereof ’once satisfied of
their authenticity’.  We believe that the
matters brought up by petitioner should be ventilated before the House
Electoral Tribunal.  Unlike in the past,
it is no longer the COMELEC but the House Electoral Tribunal which is ‘the sole
judge of all contests relating to the election, returns and qualifications’ of
the members of the House of Representatives. 
“In opting to go by the COMELEC copy of which on its face did not show
any alteration, the COMELEC did not commit any grave abuse of discretion,
specially since both parties agreed to the COMELEC using its own copy (Copy No.
3). “Accordingly, the Court resolved to DISMISS the petition for lack of
merit.  The temporary restraining order
issued on July 23, 1987 is hereby LIFTED effective immediately.”  (Rollo, pp. 264-265). (Lerias vs. House of
Representatives Electoral Tribunal, 202 SCRA 808 [1991],          Paras, J.).

 

§34. Time and again, this Supreme Court has declared in numerous
cases that, when there is an allegation in an election protest that would
require the perusal, examination, or counting of ballots as evidence, it is the
ministerial duty of the trial court to order the opening of the ballot boxes
and the examination and counting of the ballots deposited therein.

 

The rationale for the doctrine was
further elucidated on in Astorga vs. Fernandez wherein this Court
stated:  “x x x  Obviously the simplest, the most expeditious
and best means to determine the truth or falsity of this allegation is to open
the ballot box and examine its contents. 
To require parol or other evidence on said alleged irregularity before
opening said box, would have merely given the protestee ample opportunity to
delay the settlement of the controversy, through lengthy cross-examination of
the witnesses for the protestant and the presentation of testimonial evidence
for the protestee to the contrary.  As
held in Cecilio vs. Belmonte, (supra,), this ‘would be to sanction an
easy way to defeat a protest.’ ”

 

While the
abovementioned rule pertains to election protests falling within the exclusive
original jurisdiction of the Commission, the same procedure is prescribed for
election contests which are within the exclusive original jurisdiction of
courts of general jurisdiction as well as election contests within the exclusive
original jurisdiction of courts of limited jurisdiction. (Crispino vs. Panganiban, 219 SCRA 621
[1993], Davide, Jr., J.).

§35. Petitioner’s
contention assumes the very fact in dispute. 
Whether the ballots in this case were indeed tampered with, is a question
which the petitioner has to prove.  That
there is a “huge discrepancy” between the result of the canvass and that of the
revision is no proof that the Commission committed a grave abuse of discretion
in denying his request for additional time to conduct a technical examination
of election documents and to have his witnesses examine the ballots before
requiring them to make their affidavits. 
For as already stated, he was given sufficient time to present proof of tampering
or substitution of ballots but he failed to do so.  Petitioner thus begs the question when he
claims that because the ballots have been tampered with, the election returns
constitute the best evidence of the result of the election.

Anyway the
question whether there has been substitution of ballots and what the actual
result of the election is, will still be determined by the Commission when it
undertakes its own independent evaluation and appreciation of the contested
ballots and election documents. As we have held, handwriting experts, while
probably useful, are not indispensable in examining or comparing handwriting;
this can be done by the COMELEC itself. As for the allegedly fake ballots, no
better authority than the COMELEC can determine their authenticity, having
itself ordered and supervised the printing of all the official ballots. (Bulaong vs. Commission on Elections, 241
SCRA 180 [1995],  Mendoza, J.).

§36. With
respect to the contention that a technical examination of the ballots should
have been ordered to determine whether they had been written by two or more
persons, or in groups written by only one hand, we hold that the Commission en
banc did not commit an abuse of its discretion in denying
petitioner-protestee’s request. The rule is settled that the Commission itself
can make the determination without the need of calling handwriting experts.

Nor was
evidence aliunde necessary to enable the Commission to determine the
genuineness of the handwriting on the ballots, an examination of the ballots
themselves being sufficient, although as already stated, the Commission en
banc asked the chairpersons of twelve Board of Election Inspectors (BEIs)
to examine the ballots and see if the signatures, initials and markings thereon
were theirs.  The twelve did as required
and later affirmed that the signatures, initials and markings were theirs.

Anyway, as
a result of petitioner-protestee’s charge that there was a syndicate
substituting ballots with spurious ones in the Commission, the Commission en
banc asked the NBI to investigate the charge.  The NBI, however, found the charge to be
without any basis.  In addition, as
previously noted, the Commission en banc asked its document examiners to
examine the ballots but the examiners likewise found the charge to be without
any basis.  It is equally settled that
the Commission is the best judge of the authenticity of ballots.  Having ordered and supervised their printing,
there is no better authority for determining the authenticity of ballots than
the Commission itself. (Erni
vs. Commission on Elections, 243 SCRA 706 [1995], Mendoza, J.).

§37. The
majority members of public respondent HRET undisputedly admitted and
appreciated as evidence mere photocopies of election-related documents when
there is not even the slightest showing that the original or even certified
true copies thereof cannot be reasonably produced before the Tribunal.  These photocopies violate the best evidence
rule which is simply meant that no evidence shall be received which is merely
substitutionary in its nature so long as the original evidence can be had.  They should have been rejected altogether
unworthy of any probative value at all, being incompetent pieces of evidence.

Certain
vital election documents (such as certified xerox copy of the number of
registered voters per precinct and photocopies of statements of votes) were
procured at the sole instance of the ponente of the majority decision
which, as the Tribunal readily admitted, were never offered in evidence by
either of the parties.  Aside from that,
acting upon the self-serving allegation of private respondent Syjuco supported
by mere photocopied election documents that around 12,075 signatures of voters
scattered in 777 precincts were forged or falsified, the majority
congressmen-members of the Tribunal by themselves without the participation of
any of the three (3) remaining Justices-members, declared that 10,484 of the
contested signatures are fake.  This
course of action grossly violates not only Rule 68 of the Tribunal’s own rules
which requires that all questions shall be submitted to the Tribunal as a body,
but also Rule 5 thereof which further requires the presence of at least one (1)
Justice-member to constitute a valid quorum. 
In order, therefore, that any and all matters presented before it can be
properly addressed and considered, the Tribunal is mandated to act as a
collegial body.  And without collective
effort as enjoined by Rule 68 but qualified by Rule 5 in this particular and
most crucial stage of the proceedings, any resulting action purporting to be the
official act of the Tribunal should be, as it is hereby, struck down as highly
irregular. (Arroyo vs. House
of Representatives Electoral Tribunal, 246 SCRA 384 [1995], Francisco, J.).

§38. Moreover, it is clearly provided
under the Comelec Rules and Procedure that election documents and paraphernalia
involved in election contests before courts of general jurisdiction shall be
kept and held secure in a place to be designated by the Court in the care and
custody of the Clerk of Court. (Beegan vs. Borja, 261 SCRA 474 [1996],
Hermosisima, Jr., J.).

 

§39. In the course of the hearing,
the COMELEC likewise found that the invalidation of ballots by Judge Agcaoili
was based on two grounds:  (1) the
ballots were written by one hand; and (2) the ballots were marked.  Since Judge Agcaoili did not view, examine
and appreciate the original ballots involved, the COMELEC acted correctly and
judiciously in declaring that “(v)iewed in the light of the rules on
appreciation of ballots under Section 211 of the Omnibus Election Code. . . the
lower court’s decision [is] seriously impaired.”  Indeed, it would have been impossible for
Judge Agcaoili to determine if the ballots were written by one person or that
they were marked solely on the basis of the photocopies thereof as the latter
were not the best evidence of the impugned ballots.  These findings of the COMELEC can thus hardly
be characterized as having been attended by grave abuse of discretion. (Nazareno vs. Commission on Elections,
279 SCRA 89 [1997], Davide,                  Jr., J.).

 

§40. [I]t is axiomatic that the
COMELEC need not conduct an adversarial proceeding or a hearing to determine
the authenticity of ballots or the handwriting found thereon.  Neither does it need to solicit help of
handwriting experts in examining or comparing the handwriting.

 

The opinion of one claiming to be a
handwriting expert is not binding upon the COMELEC especially so where the
question involves the mere similarity or dissimilarity of handwritings which
could be determined by a comparison of existing signatures or handwriting.

 

In Lorenzo v. Diaz, this Court
enumerated the tools to aid one in the examination of handwriting, thus:  The authenticity of a questioned signature
cannot be determined solely upon its general characteristics, similarities or
dissimilarities with the genuine signature. 
Dissimilarities as regards spontaneity, rhythm, presence of the pen,
loops in the strokes, signs of stops, shades, etc., that may be found between
the questioned signature and the genuine one are not decisive on the question
of the former’s authenticity.  The result
of examination of questioned handwriting, even with the benefit of aid of
experts and scientific instruments, is, at best, inconclusive.  There are other factors that must be taken into
consideration.  The position of the
writer, the condition of the surface on which the paper where the questioned
signature is written is placed, his state of mind, feelings and nerves, and the
kind of pen and/or paper used, played an important role on the general
appearance of the signature.  Unless,
therefore, there is, in a given case, absolute absence, or manifest dearth, or
direct or circumstantial competent evidence of the character of a questioned
handwriting, much weight should not be given to characteristic similarities, or
dissimilarities, between the questioned handwriting and an authentic one.  Indeed, the haste and pressure, the rush and
excitement permeating the surroundings of polling places could certainly affect
the handwriting of both the voters and the election officers manning the said
precincts.  The volume of work to be done
and the numerous documents to be filled up and signed must likewise be
considered. Verily, minor and insignificant variations in handwriting must be
perceived as indicia of genuineness rather than of falsity.

                        

In Go
Fay v. Bank of the Philippine Islands, this Court held that carelessness,
spontaneity, unpremeditation, and speed in signing are evidence of
genuineness.  In U.S. v. Kosel, it
was ruled that dissimilarity in certain letters in a handwriting may be
attributed to the mental and physical condition of the signer and his position
when he signed.  Grief, anger, vexation,
stimulant, pressure and weather have some influence in one’s writing.  Because of these, it is an accepted fact that
it is very rare that two (2) specimens of a person’s signature are exactly
alike.

Expert opinions are not ordinarily
conclusive in the sense that they must be accepted as true on the subject of
their testimony, but are generally regarded as purely advisory in character;
the courts may place whatever weight they choose upon such testimony and may
reject it, if they find that it is inconsistent with the facts in the case or
otherwise unreasonable. (Punzalan vs. Commission on
Elections, 289 SCRA 702 [1998], Kapunan, J.).

§41. Petitioner is not really contesting the method of the
COMELEC in conducting a technical examination, but only the correctness
thereof, petitioner theorizing double deductions in the appreciation of the
results.  But petitioner is estopped from
adopting inconsistent positions.  He
cannot contest the method of dispute resolution, while at the same time affirm
the validity thereof.  It is worthy to
note that the petitioner is contesting only the correctness of the report and
not the method of dispute resolution. 
Then too, the Court has already sanctioned the method of technical
examination of the thumbprints of voters, over revision of ballots, where a
recount or revision of the ballots will not be reflective of the sovereign will
due to the irregularities committed during the elections.

Since a revision and recount of the votes cast will unearth nothing
except the fraudulent and spurious result of the elections, the COMELEC was
justified in ordering a technical examination of the thumbprints of the voters
based on the voters affidavits and the Computerized Voters List.  The COMELEC was well within its authority to
order such approach considering the circumstances obtaining in the election
dispute.

It is possible that double deduction may occur, but absent any
specific showing by petitioner of double deduction, the Court cannot grant the
relief prayed for.  Findings of fact of
the COMELEC supported by substantial evidence shall be final and
non-reviewable.  Factual findings of the
COMELEC based on its own assessments and duly supported by evidence, are
conclusive upon the Court, more so, in the absence of a substantiated attack on
the validity of the same.  The COMELEC,
as the government agency tasked with the enforcement and administration of
election laws, is entitled to the presumption of regularity of official acts
with respect to the elections.  Having
the expertise and skill of enforcing and implementing election laws, the
COMELEC could not have erred as to allow double deductions, thereby frustrating
the will of the people. (Mohammad vs. Commission on Elections, 320 SCRA 258
[1999], Purisima, J.).

§42. The
issue on incomplete canvassing was raised for the first time in Manifestation
and Comments filed by petitioner.  We
take pains to emphasize that the same was filed only on July 18, 1998,
thirty-four (34) days after the case had been submitted for resolution on June
14, 1998.  When a case is already deemed
submitted for decision or resolution, the court can only consider the evidence
presented prior to this period.  It can
not and must not take into account evidence presented thereafter without
obtaining prior leave of court.  For as
held in the case of Arroyo vs. House of Representatives Electoral Tribunal,
“(t)he rule in an election protest is that the protestant or counter protestant
must stand or fall upon the issues he had raised in his original or amended
pleading filed prior to the lapse of the statutory period for filing a protest
or counter protest”. (Trinidad vs. Commission on Elections, 320 SCRA 836
[1999], Buena, J.).

 

§43. The
rule in this jurisdiction is clear and jurisprudence is even clearer.  In a string of categorical pronouncements, we
have consistently ruled that when there is an allegation in an election
protest that would require the perusal, examination or counting of ballots
as evidence, it is the ministerial duty of the trial court to order the
opening of the ballot boxes and the examination and counting of ballots
deposited therein. 

 

In Astorga
vs. Fernandez, this Court inked the rationale behind the principle through
the pen of Chief Justice Roberto Concepcion: “x x x  Obviously, the simplest, the most expeditious
and the best means to determine the truth or falsity of this allegation is to
open the ballot box and examine its contents. 
To require parol or other evidence on said alleged irregularity
before opening said box, would have merely given the protestee ample
opportunity to delay the settlement of the controversy, through lengthy
cross-examination of the witnesses for the protestant and the presentation of
testimonial evidence for the protestee to the contrary.  As held in Cecilio vs. Belmonte, this
‘would be to sanction an easy way to defeat a protest.’ ”

 

In the case before us, the serious allegations embodied in the
election protest mandates and necessitates the opening of the subject ballot
boxes to the end of resolving the issue of fraud and irregularities in the
election.  Precisely, the purpose of
ordering the opening of the ballot boxes is to ascertain, with the least amount
of protracted delay, the veracity of the allegations of fraud and anomalies in
the conduct of the electoral exercise. Thus, a preliminary hearing set for the
same purpose is a mere superfluity that negates the essence of affording
premium to the prompt resolution of election cases and incidents relating
thereto.  Stated differently, the lower
court clearly committed grave abuse of discretion in ordering the conduct of a
preliminary hearing to achieve the abovementioned purpose; the court a quo
acted outside its province and overshot the limits of its jurisdiction.  Evidently, the twin orders of the lower court,
dated 07 July 1998 and 11 August 1998, were issued in clear violation of the
Rules and existing case law on the matter. (Miguel vs. Commission on
Elections, 335 SCRA 172 [2000], Buena, J.).

 

37. Demurrer to Evidence

§1. When
a party litigant demurs to the pleading and then presents or files an answer to
the same pleading, he thereby waives his demurrer and the courts will only
consider the questions presented and raised by the answer. (Santos vs.
Miranda and Clemente, 35 Phil. 643 [1916], Johnson, J.).

§2. A
complaint in an action of quo warranto to determine the title to the
office of provincial governor which shows that there is pending an election
contest to determine the rights of the parties to the action of quo warranto
with respect to the same office is demurrable on the ground that there is
another action or proceeding pending for the determination of the same
question, it appearing from the complaint that the two proceedings are based
upon the same facts. (Luna vs. Rodriquez, 36 Phil. 401 [1917], Moreland,
J.).

§3. While
the law does not specify what defenses the protestees may make, it is certainly
contemplated by the law that any defense which they have which denies, or tends
to deny, or has the effect of defeating, the purpose of the contest, is open to
them. They may demur or answer. If they answer by special defense it may be by
any fact or facts which defeat or tend to defeat the purpose of the contest. (Valenzuela
vs. Judge of Court of First Instance of Bulacan, 40 Phil. 163 [1919], Johnson,
J.).

§4. In
an election contest, the contestee may demur to the protest, provided he does
so within the period fixed for filing an answer.

The
fact that in the protest the number of votes which would result in favor of the
protestant after the judicial counting is not specified, does not affect the
right of the protestant, for it being known that said omission is a defect of
the protest, the same may be cured by a specification of the votes mentioned in
the protest, without thereby adding new grounds to those already alleged by the
protestant.  Hence when a demurrer to the
motion of protest is sustained on account of this defect, the case must not be
dismissed, but the court must allow the contestant to make the specification
necessary to make clear the facts alleged in the protest. (Gallares vs.
Caseñas, 48 Phil. 362 [1925], Villamor, J.).

§5. In
an election contest proceeding, if the protestee presents a motion for
dismissal or a demurrer to the evidence introduced by the protestant after the
latter has rested, he thereby impliedly waives his right to present his own
evidence; and if the ruling on his motion or demurrer is adverse, he shall not
be permitted to present such evidence as he may have, and the trial court shall
finally decide the contest. (Demeterio vs. Lopez, 50 Phil. 45 [1927],
Villa-Real, J.).

§6. It
was held that the protestee could validly file a demurrer to the protest of the
petitioner; that the respondent court, in overruling said demurrer, had the
power to fix a reasonable period within which the protestee should file his
answer, and in any case before the commencement of the trial before the court,
and that the respondent judge also had jurisdiction to entertain the answer
with the counter-protest filed by the respondent. (Morente vs. Filamor and
Arce Ignacio, 52 Phil. 289 [1928], Villamor, J.).

§7. The
motion for dismissal filed by the contestee, which originated the judgment
appealed from does not constitute an implied admission of the alleged facts in the
protest.  The purpose of such a motion
was merely to raise before the court the question of jurisdiction over the
subject matter, in view of the contestee’s opinion that the protest did not
allege a good jurisdictional cause of action. (Aquino vs. Calabia and Sahagun, 55 Phil. 984
[1931],  Romualdez, J.).

§8. When a demurrer is filed to an election
contest, the answer and counter-protest may be filed within the period fixed by
the court or by the rules of court but before the hearing begins, and not
necessarily within fifteen days of the service of summons upon the contestee.
(Morente vs. Filamor and Arce Ignacio, supra.). (Ignacio vs. Sison and Navarro, 56 Phil. 451 [1931], Villamor, J.).  

§9. The counterprotest in the instant case
having been presented after the fifteen days’ period fixed by law, and the
protestee not having demurred to the protest, the lower court had no
jurisdiction to pass upon and decide the question raised in the counterprotest.
The admissibility or inadmissibility of the ballots involved in the
counterprotest cannot, therefore, be examined and the election returns for the
municipalities counter-contested must stand. (Arrieta
vs. Rodriguez, 57 Phil. 717 [1932], Villamor, J.).

§10. An election protest being summary in
nature, the COMELEC acted correctly in disposing the writs of the protest based
on the sworn statements of the parties without first specifically resolving the
motion to dismiss filed by protestee.

A motion to dismiss is to be considered a demurrer
to evidence in election protest cases. (Jardiel vs.
Commission on Elections, 124 SCRA 650 [1983], Melencio-Herrera, J.).

 

§11. Petitioners are obviously misled by the
title of Rule 35 of the Rules of Court, “Judgment on Demurrer to
Evidence.”  Said Rule, consisting of only
one section, allows the defendant to move for dismissal of the case after
plaintiff has presented his evidence on the ground of insufficiency of
evidence, and provides for the effects of the dismissal or non-dismissal, as
the case may be, on the right of the defendant to present his cause.  Otherwise stated, it authorizes a judgment on
the merits of the case without the defendant having to submit evidence on his
part as he would ordinarily have to do, if it is shown by plaintiff’s evidence
that the latter is not entitled to the relief sought.  The demurrer, therefore, is an aid or
instrument for the expeditious termination of an action, similar to a motion to
dismiss, which the court or tribunal may either grant or deny.

 

It is thus apparent that the requirement of Section
1 of Rule 36 would only apply if the demurrer is granted, for in this event,
there would in fact be an adjudication on the merits of the case, leaving
nothing more to be done, except perhaps to interpose an appeal.  However, a denial of the demurrer is not a
final judgment, but merely interlocutory in character as it does finally
dispose of the case, the defendant having yet the right to present his evidence,
as provided for under Section 1 of Rule 35.

 

It is plain that this provision refers to a decision
on the merits of the case, where the contending causes of the parties are
decided with finality, one way or the other. 
The fallacy of petitioners’ contention is obvious.  Their argument proceeds from the erroneous
premise that the April 16, 1982 resolution is a decision on the merits.  Clearly, the said resolution is merely
interlocutory, and being such, the Presiding Commissioner of the Division is
competent to sign said resolution alone (Resolution No. 9805 dated June 18,
1980 of the Comelec).  (Nepomuceno vs. Commission on Elections, 126 SCRA 472  [1983], Escolin, J.).

 

§12. In an election protest proceeding,
however, which is a summary one, and in which the periods are short and fatal,
and trials rapid and preferential as the peremptory nature of the litigation so
requires, the motion for dismissal at that stage of the proceeding must be
considered as a demurrer to the evidence presented by the protestant, with
implied waiver by the protestee to present his evidence, whatever may be the
ruling, whether adverse or favorable, either in the first instance or on
appeal, the court of origin or appellate court having the power to definitely
decide the protest.  If, in the
prosecution of election protests the ordinary practice were to be followed in
regard to the presentation of motions for dismissal or of demurrers to the
evidence, in the majority of cases, if not always, the law would be frustrated
and the will of the electorate defeated, to the great detriment of the
underlying principles of representative government, because,  in case of revocation of a ruling sustaining
the motion of dismissal or the demurrer on appeal, the case would have to be
remanded to the court below for the continuation of the trial and the
introduction of evidence by the protestee, thus causing the proceeding to
continue during the term of the office in question, with the possible result
that the defeated, and not the elected, candidate would be discharging the
office.  (Calabig
vs. Villanueva, 135 SCRA 300 [1985], Cuevas, J.).

 

§13. The present controversy does not
involve a novel issue.  As early as the
case of Demetrio vs. Lopez, wherein after the protestant had
introduced his evidence, the protestee, before presenting his own,
filed a motion to dismiss the protest upon the ground that the evidence
presented by the protestant did not show that he had obtained a greater number
of votes than the protestee, and reserving the right to present his evidence if
his motion was decided adversely, this Court held that: “In regard to the first
assignment of error, the practice followed in the courts of these Islands is to
permit the defendant to present a motion for dismissal in ordinary cases after
the plaintiff has rested, reserving the right to present his evidence if the
ruling on his motion is adverse to him either in the first instance or on
appeal.  In an election protest
proceeding, however, which is a summary one, and  in which the periods are short and fatal, and
trials rapid and preferential as the peremptory nature of the litigation so
requires, the motion for dismissal at that stage of the proceeding must be
considered as a demurrer to the evidence presented by the protestant, with
implied waiver by the protestee to present his evidence, whatever may be the
ruling, whether adverse or favorable, either in the first instance or on
appeal, the court of origin or appellate court having the power to definitely
decide the protest.  In election
protests, therefore, the protestee should not be permitted to present a motion
for dismissal or a demurrer to the evidence of the protestant, unless he waives
the introduction of his own evidence in case the ruling on his motion or
demurrer is adverse to him, in which case the court that tries the case must
definitely decide it.

 

The ground for dismissal based on the
fact that the pleading asserting the claims states no cause of action is
different from the ground that the case of the claimant should be dismissed for
lack of cause of action.  The
first is raised in a motion to dismiss under Rule 16 before a responsive
pleading is filed and can be determined only from the allegations in the
initiatory pleading and not from evidentiary or other matters aliunde.  The second is raised in a demurrer to
evidence under Rule 33 after the plaintiff has rested his case and can be
resolved only on the basis of the evidence he has presented in support of his
claim.

 

It likewise bears stressing that a
demurrer to evidence under Rule 33 is in the nature of a motion to dismiss on
the ground of insufficiency of evidence and is presented after the plaintiff
rests its case.  It thus differs from a
motion to dismiss under Rule 16 which is grounded on preliminary objections and
is presented at the outset of the case, that is, before a responsive pleading
is filed by the movant and within the period for the filing thereof.

           

It is thus obvious that the motion to
dismiss filed by respondent Rodriguez before the trial court in Special
Election Case No. 891 was, in point of time, actually a demurrer to
evidence.  It was filed after petitioner
Enojas, Jr. had offered his evidence and rested his case, and
before respondent Rodriguez was supposed to present his own.  Although the motion contained other grounds,
specifically alleged therein was the contention that petitioner Enojas had no
cause of action.  The ground necessarily
connotes that despite the evidence offered by petitioner, it was respondent’s
submission that such evidence was insufficient to establish his cause of
action.  Ineluctably, therefore, such a
motion presented at that stage of the action and on that ground cannot be
anything else other than a demurrer to evidence.

 

What conjointly determine the nature of
a pleading are the allegations therein made in good faith, the stage of the
proceeding at which it is filed, and the primary objective of the party filing
the same.  The ground chosen or the
rationale adopted by the court in resolving the motion does not determine or
change the real nature thereof.  It is
also significant that respondent Rodriguez did obviously rely primarily on what
he believed was the lack of the requisite quantum of evidence to prove
the election protest, so much so that he did not even bother to file a
counter-protest. All the foregoing considerations convince us that the supposed
motion to dismiss is actually a demurrer, hence the trial court correctly held
that respondent Rodriguez had waived his right to present evidence. (Enojas, Jr., vs. Commission on
Elections, 283 SCRA 229 [1997], Regalado, J.).

         

 

38. Summary
judgment

 

§1. That an election protest may
not be disposed of by summary judgment, is inferable from the following
provision of the Election Code. “Where the allegations in a protest x x x so
warrant, or whenever in the opinion of the court the interest of justice so
requires, it shall immediately order x x x that the ballots be examined and the
votes counted.”

 

Summary judgment applies only to
ordinary civil actions for the recovery of money claims (Remedial Law
Compendium by Regalado, Vol. I, 1986 Edition, p. 209, citing the case of Roque
vs. Encarnacion, et  al., 50 O.G.
4193). The rules on summary judgment have no application to election protests
for “beyond the narrow personal stakes of the opposing candidates, the rights
of the electorate, or the people, are involved.” (Dayo vs. Commission on Elections, 199 SCRA 449
[1991], Griño-Aquino, J.).

 

 

39. Drawing
of lots

 

§1. If upon hearing of the protest a
recount of the ballots results in a tie between protestor and protestee, the
court may, under Section 479 of the Administrative Code as amended by Section
25 of Act No. 3210, order that the tied candidates draw lots in its presence
and may render judgment in accordance with the result of the drawing. (Noble
vs. Tuason and Penoso, 48 Phil. 387 [1925], Ostrand, J.). 

 

§2. A candidate who lost in the
drawing of lots is estopped from contesting the election of the one who won in
the draw, because by submitting himself to the draw the defeated candidate is
considered to have admitted that the announcement made by the board of
canvassers regarding the tie was the result of a valid and lawful canvass.  The candidate who submitted himself to the
draw is considered as having deliberately induced his opponent to believe that
that canvass which resulted in a tie was legal and he had thereby led his
opponent to act upon such belief in the validity of the canvass and the tie, so
that he can not be permitted to repudiate his own acts.

 

A candidate who had tied with another and
who submits himself to the drawing of lots, stating that if the result of said
drawing of lots should be adverse to him, he would file a protest before a
competent court, is not estopped from doing so. 
The view adopted by the Supreme Court in this latter case is in keeping
with the doctrine that an election protest involves public interest, so that
the court should allow all opportunity possible for the ascertainment of the
true result of the elections. (De Castro vs. Ginete, 27 SCRA 623 [1969],
Zaldivar, J.).

 

§3. Under Section 70 of the Revised
Election Code, where the election results in a tie, a drawing of lots between
the tied candidates shall be held. (Moraleja vs. Relova, 42 SCRA 10 [1971],
Barredo, J.).

 

 

40. Motion
for Reconsideration

 

            §1. As
a matter of court practice, the courts have the power to reexamine the evidence
they have before them, when one of the parties asks for a reconsideration of
the original decision, in order to decide the question raised, and there is no
reason why this rule cannot be applied to election contests. (Santos vs.
Court First Instance of Cavite, 49 Phil. 398 [1926], Villamor, J.).  

 

§2. The respondent judge, in the exercise of
his jurisdiction, could also, motu proprio, reexamine all the ballots of
both candidates and set aside the decision previously promulgated, before the
same became final and was executed, for the purpose of making its decision
conformable to the true weight of the evidence. (Santos vs. Court of
First Instance of Cavite, 49 Phil., 398). (Montiague
vs. Buyson Lampa and Legaspi, 61 Phil. 58 [1934], Imperial, J.).

 

§3. Where the motion for reconsideration of a
decision in an electoral protest was in reality based on the ground that the
decision was not justified by the evidence, the trial court did not err in not
dismissing the appeal.  While the
epigraph of said motion seems to indicate that it was pro forma, the
epigraph should yield to the contents of the motion, as substance should
prevail over form. (Morales vs. Tuguinay, 19 SCRA 338
[1967], Reyes, J.B.L., J.).

 

§4. A party may claim, in a motion for
reconsideration, that certain ballots should be counted for him. The
circumstance that the claim was made in a motion for reconsideration should not
deter the court from examining, and ruling on, those ballots.

 

The decisive circumstance that makes it mandatory
for the Appellate Court to consider, and rule on a ballot is that, the ballot
is before the court and it is claimed or impugned by a party in the
election contest — be it in the trial court or in the appellate court.  The court can not, and it must not, close its
eyes to the realities as presented by the ballots before it.  The contention, that to allow a
party to claim or impugn ballots for the first time in a motion for
reconsideration of a decision in the appellate court, is to sanction confusion
and delay in the disposal of election cases is of no moment as long as the
claim regarding the ballots is presented before the decision has become final
and the ballots thus claimed would be decisive in determining the real winner
in the elections. (Juliano vs. Court of Appeals, 20
SCRA 808 [1967], Zaldivar, J.).

 

§5. Petitioner went to the Comelec
for the annulment of the respondent’s proclamation.  He also filed an election protest in the
Court of First Instance.  Comelec
rejected him. He asked Comelec to reconsider. 
That reconsideration was pending when, meanwhile, the court protest came
up for hearing.  Petitioner, instead of
awaiting the results of his motion for reconsideration in Comelec, insisted
upon the hearing in court of his election protest.  He opposed the petition of respondent, his
opponent, to hold in abeyance the hearing of said election protest pending the
result of his (petitioner’s) motion for reconsideration before Comelec.  To lend support to his opposition to the
postponement of the hearing of the election case, he told the court that he was
“withdrawing” his “motion for reconsideration in COMELEC” and sued for time “to
get the withdrawal” of that motion for reconsideration.  The election protest was concluded in the
Court of First Instance.  But, petitioner
lost. (Ondona vs. Commission on Elections, 27 SCRA 554  [1969], Sanchez, J.).

 

§6. The burden of the motion for
reconsideration is that the Court’s ratio decidendi that questions
concerning alleged falsification or tampering of returns and asking for the
exclusion in the canvass should first be raised before the canvassing board,
subject to appeal from its decision in the Comelec (as specifically ordered by
Comelec in its Resolution No. 78 of November 26, 1971 directing that all such
questions should “be initially raised before the board during the canvass”)
should equally apply to the 164 election returns sought to be questioned in
pending Case C-339 of the Comelec.  The
Court believes that this question is best raised and resolved in Case L-35918
entitled “Julasiri M. Anni vs. Muss Izquierdo, et al.  x x x. (Anni vs. Rasul, 57 SCRA 686
[1974], Teehankee, J.).

 

§7. Anent the propriety of the
issuance of the resolution denying petitioner’s motion for reconsideration,
suffice it to say that the requirement of notice in the promulgation of
resolutions and decisions of the COMELEC embodied in Section 5 of Rule 18 of
the Rules does not apply in the case at bar for the simple reason that a motion
for reconsideration of an en banc ruling, resolution, order or decision
is not allowed under Section 1, Rule 13 thereof.  (Lozano vs. Yorac, 203 SCRA 256 [1991],
Regalado, J.).

 

§8. There is no merit in this
petition for review for the COMELEC correctly found that the petitioners’
appeal from the court’s order dismissing their election protest was indeed
tardy.  It was tardy because their motion
for reconsideration did not suspend their period to appeal.

 

Petitioners admitted receipt of the
resolution of the trial court dated March 7, 1990 on March 15, 1990 but they
filed a notice of appeal on April 3, 1990 only, instead of on or before March
20, 1990 (five days from receipt of the trial court’s decision), because they
filed a motion for reconsideration which, as previously stated, is prohibited
by Section 256 of the Omnibus Election Code and Section 20, Rule 35 of the
COMELEC RULES OF PROCEDURE. The COMELEC, therefore, correctly ruled that the
motion for reconsideration filed by the petitioners in the trial court on March
20, 1990 did not suspend the period to appeal since a “motion for
reconsideration” is prohibited under Section 256 of the Omnibus Election Code. (Veloria vs. Commission on Elections, 211
SCRA 907 [1992], Griño-          Aquino,
J.).

§9. Admittedly,
the order regarding the revision of ballots is an interlocutory order because
it still requires a party to perform certain acts leading to the final
adjudication of a case.  The order in the
case at bar is for the Provincial Election Supervisor of Camarines Sur to
transfer the ballot boxes from Camarines Sur to Manila for a recount and
revision of ballots, for the purpose of determining who won the gubernatorial
race in Camarines Sur.  Being an
interlocutory matter, the question now before us is whether or not the First
Division of the COMELEC committed grave abuse of discretion in refusing to
refer petitioner’s motion for reconsideration to the COMELEC en banc.  It is our opinion that the COMELEC did not
commit grave abuse of discretion.  For
said motion to be considered en banc, it requires the unanimous vote of
the members of the division as mandated by Section 2 of Rule 3 of the COMELEC
Rules.  In the case at bar, there was an
absence of such vote.

Even if we
are to consider the case at bar as falling within the jurisdiction of the
COMELEC en banc by virtue of Section 3 of Rule 5(c) of the COMELEC
Rules, it goes without saying that only motions for reconsideration filed
within the five (5) day reglementary period as prescribed by Section 2 of Rule
19 of said Rules can be referred to the COMELEC en banc.  Petitioner should have filed his motion for
reconsideration on or before September 21, 1992 considering that he received
the COMELEC’s order dated September 9, 1992 
on September 16, 1992.  Petitioner
may have been overly optimistic in expecting that his “urgent motion for
one-day extension” would be granted forthwith by the First Division, which it
did not.  Hence, upon the lapse of five
(5) days, the order of the COMELEC dated September 9, 1992 can no longer be
questioned; much less can it be referred to the COMELEC en banc. (Bulaong vs. Commission on Elections,
First Division, 220 SCRA 745  [1993],
Romero, J.).

§10. It
is beyond doubt that SPC No. 92-341 and SPC No. 92-358 are in the guise of a
motion for reconsideration of the COMELEC’s Resolution No. 92-180, which
allowed the reconvening of the Board of Election Inspectors of Precinct No.
40-A-1 only if the seven questioned ballots would materially affect the results
of the election.  Both actions seek the
canvassing of the election return of Precinct No. 40-A-1.  Under Section 1 of Rule 13 of the COMELEC
Rules of Procedure, a motion for reconsideration of an en banc ruling is
among the prohibited pleadings. (Papandayan vs. Commission on Elections, 230 SCRA 469 [1994], Quiason,
Jr.).

§11. The Solicitor General, in
behalf of the COMELEC, raises a fundamental question.  He contends that the filing of the present
petition, without petitioner first filing a motion for reconsideration before
the COMELEC en banc, violates Art. IX, A, Section 7 of the Constitution
because under this provision only decisions of the COMELEC en banc may
be brought to the Supreme Court on certiorari. 
This is correct. It is now settled that in providing that the decisions,
orders and rulings of COMELEC “may be brought to the Supreme Court on
certiorari” the Constitution in its Art. IX, A, Section 7 means the special
civil action of certiorari under Rule 65, Section 1.

 

Conformably to these provisions of the
Constitution all election cases, including pre-proclamation controversies, must
be decided by the COMELEC in division. 
Should a party be dissatisfied with the decision he may file a motion
for reconsideration before the COMELEC en banc.  It is, therefore, the decision, order or
ruling of the COMELEC en banc that, in accordance with Art. IX, A,
Section 7, “may be brought to the Supreme Court on certiorari.” (Reyes vs. Regional Trial Court of
Oriental Mindoro, Branch XXIX, 244 SCRA 41 [1995], Mendoza, J.).

 

§12. 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 “x x x filed within five (5) days from the promulgation
thereof,” thus: “Sec. 2. Period for Filing Motions for Reconsideration.¾A motion to reconsider a decision,
resolution, order or ruling of a Division shall be filed within five (5) days
from 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. (Velayo vs. Commission on Elections, 327 SCRA 713
[2000], Puno, J.).

 

§13. The Supreme Court has no power
to review via certiorari an interlocutory order or even a final resolution of a
Division of the Commission on Elections.

 

A motion for reconsideration is a plain
and adequate remedy provided by law. 
Failure to abide by this procedural requirement constitutes a
ground for dismissal of the petition.

 

A decision, order or resolution of a
division of the Comelec must be reviewed by the Comelec en banc via a
motion for reconsideration before the final en banc decision may be
brought to the Supreme Court on certiorari.

 

The exceptions to the rule in certiorari
cases, dispensing with a motion for reconsideration prior to the filing of the
petition, do not apply to election cases where a motion for reconsideration is
mandatory by Constitutional fiat to elevate the case to the Comelec en banc.

 

A
motion for reconsideration then is a pre-requisite to the viability of a
special civil action for certiorari, unless the party who avails of the
latter can convincingly show that his case falls under any of the following
exceptions to the rule: (1) when the question is purely legal, (2) where
judicial intervention is urgent, (3) where its application may cause great and
irreparable damage, (4) where the controverted acts violate due process, (5)
failure of a high government official from whom relief is sought to act on the
matter, and (6) when the issue for non-exhaustion of administrative remedies
has been rendered moot. (Ambil, Jr. v s. Commission on Elections, 344 SCRA
358 [2000], Pardo, J.]).

§14. Respondents
contend that the instant petition should be dismissed for being premature,
because petitioner has a pending motion for reconsideration of the resolution,
dated August 18, 1998, of the COMELEC. 
We hold that petitioner acted correctly in filing the present petition
because the resolution of the COMELEC in question is not subject to
reconsideration and, therefore, any party who disagreed with it had only one
recourse, and that was to file a petition for certiorari under Rule 65 of the
Rules of Civil Procedure. Rule 13, Sec. 1 of the COMELEC Rules of Procedure
provides: What Pleadings are Not Allowed.¾The following pleadings are not allowed: .
. . d) motion for reconsideration of an en banc ruling, resolution,
order or decision except in election offense cases.

As the
case before the COMELEC did not involve an election offense, reconsideration of
the COMELEC resolution was not possible and petitioner had no appeal or any
plain, speedy, and adequate remedy in the ordinary course of law.  For him to wait until the COMELEC denied his
motion would be to allow the reglementary period for filing a petition for
certiorari with this Court to run and expire.

The
COMELEC contends that petitioner should not be allowed to speculate on the
outcome of his motion for reconsideration, which he has not formally
withdrawn.  Indeed, it would have been
more appropriate for petitioner to first withdraw his motion for
reconsideration in the COMELEC before filing the present petition.  Nevertheless, the filing by petitioner of the
instant petition and his reply to the comments of respondents¾where he admitted that, except in cases
involving election offenses, a motion for reconsideration of a decision of the
COMELEC en banc is a prohibited pleading¾sufficiently indicated his intention to
abandon his motion for reconsideration. (Angelia vs. Commission on
Elections, 332 SCRA 757 [2000], Mendoza, J.).

 

41. Motion
for New Trial

 

§1. The provisions of Section 145 of
the Code of Civil Procedure authorizing the vacation of judgments and the
granting of new trials, in certain cases, are not applicable to proceedings had
in election contests under the provisions of Section 27 of Act No. 1582. (Arnedo
vs. Llorente and Liongson, 18 Phil. 257 [1911], Carson, J.).

 

§2. Under the provisions of Section
145 of Act No. 190, and within the time prescribed by said section, the judge
was fully authorized to set aside his first judgment and to grant a new trial
when he was convinced that his judgment was against the law.  (Palomata vs. Villareal, 40 Phil. 641
[1920], Johnson, J.).

 

§3. The consideration of a motion for
new trial lies entirely within the discretion of the judges, who may grant or
deny them as the facts may justify.  The
summary character of election protest proceedings is no bar to the introduction
of additional evidence necessary for the proper resolution of the questions
raised by the parties.  (Calangi vs.
Jocson, G.R. No. 16108 [not reported]; Palomata vs. Villareal, 40 Phil.
641). (Cecilio vs. Belmonte, 51 Phil. 540 [1928], Villamor, J.).

 

 

42. Execution of
judgment pending appeal

           

§1. The right of the prevailing party
in a pre-proclamation case to the execution of the COMELEC’s decision (i.e., to
be proclaimed and to assume office) after the lapse of five (5) days from
receipt of said decision by the losing party, unless restrained by the Supreme
Court, does not bar the losing party from filing an election contest within the
ten-day period fixed in Section 251.  The
absence of a restraining order from the Supreme Court simply allows the
prevailing party to be proclaimed and assume office.

 

In Gallardo vs. COMELEC, G.R. No.
85974, May 30, 1989, the appellant did not ask this Court to restrain the execution
of the COMELEC  decision for the simple
reason that his opponent, Rimando, had already been proclaimed even before the
pre-proclamation case was filed by him (Gallardo) in the COMELEC.  That circumstance, was precisely the reason
why the COMELEC dismissed the pre-proclamation case, for the rule is that after
the winning candidate has been proclaimed and assumed office, a
pre-proclamation petition does not lie against him.

 

But, although already proclaimed and
installed in office, he may still be unseated: 
(1) when his opponent is adjudged the true winner of the election by a
final judgment of the courts in the election contest (Sec. 251, Omnibus
Election Code); (2) when the prevailing party is declared ineligible or
disqualified by final judgment in a quo warranto case (Sec. 253, Omnibus
Election Code); and (3) when the incumbent is removed from office for cause. (Gallardo vs. Rimando, 187 SCRA 463
[1990], Griño-Aquino, J.).

 

§2. 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, 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.  Since the motion for execution pending appeal
was filed 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.  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. (Relampagos vs. Cumba, 243 SCRA 690 [1995], Davide,
Jr., J.).

 

§3. The settled rule is that the
mere filing of a notice of appeal does not divest the trial court of its
jurisdiction over a case and resolve pending incidents.  Where the motion for execution pending appeal
was filed within the reglementary period for perfecting an appeal, as in the
case at bench, the filing of a notice of appeal by the opposing party is of no
moment and does not divest the trial court of its jurisdiction to resolve the
motion for immediate execution of the judgment pending appeal because the court
must hear and resolve it for it would become part of the records to be elevated
on appeal.  Since the court has
jurisdiction to act on the motion at the time it was filed, that jurisdiction
continued until the matter was resolved and was not lost by the subsequent action
of the opposing party. (Edding
vs. Commission on Elections, 246 SCRA 502 [1995], Francisco, J.).

 

§4. The rule is now settled that
Section 2, Rule 39, of the Rules of Court, which allows Regional Trial Courts
to order executions pending appeal upon good reasons stated in a special order,
can be applied, pursuant to Rule 41 of the COMELEC Rules of Procedure, to
election contests decided by the courts.

 

A motion for execution pending appeal
may be filed at any time before the period for the perfection of the
appeal.  Such an appeal, when made, is
deemed perfected on the last day for any of the parties to appeal or, in this
particular case, on 16 July 1996.  Petitioner
and private respondent both received their respective copies of the decision on
11 July 1996.  An appeal therefrom may
thus be filed within five (5) days from 11 July 1996 or until 16 July
1996.  On 12 July 1996, the same date
that petitioner filed her motion for execution pending appeal, private
respondent filed his notice of appeal and furnished the COMELEC, through its
Electoral Contest Adjudication Department, with a copy thereof on 15 July
1996.  The corresponding fee was paid,
and the appeal was docketed EAC No. 30-96

 

The wisdom of immediate execution has
been upheld in the past by this Court in similar cases; thus, in Gahol vs.
Riodique, we have said:  “x x x [T]he
board of canvassers is composed of persons who are less technically prepared to
make an accurate appreciation of the ballots, apart from their being more apt
to yield to extraneous considerations, and that board must act summarily,
practically racing against time, while, on the other hand, the judge has the
benefit of all the evidence the parties can offer and of admittedly better
technical preparation and background, apart from his being allowed ample time
for conscientious study and mature deliberation before rendering judgment, one
cannot perceive the wisdom of allowing the immediate execution of decisions in
election cases adverse to the protestees, notwithstanding the perfection and
pendency of appeals therefrom, as long as there are, in the sound discretion of
the court, good reasons therefor.” (Gutierrez vs. Commission on Elections, 270 SCRA 413
[1997], Vitug, J.).

 

§5. Pursuant
to Section 1, Rule 41 of the COMELEC Rules of Procedure, Section 2, Rule 39 of
the Rules of Court, which allows Regional Trial Courts to order execution
pending appeal upon good reasons stated in a special order, may be made to
apply suppletorily or by analogy to election cases decided by them.  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.  Following civil law jurisprudence, the reason
allowing for immediate execution must be of such urgency as to outweigh the
injury or damages 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.

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. (Camlian vs. Commission on Elections, 271 SCRA 757 [1997], Kapunan,
J.).

§6. It also bears emphasis that
Rule 143 of the Rules of Court allows execution pending appeal in election
cases upon good reasons stated in the special order.  In its Order of execution, respondent RTC
Judge Dilag cited two reasons to justify execution of his decision pending
appeal, viz:  (1) the grant of
execution would give substance and meaning to the people’s mandate, especially
since the RTC has established private respondent’s right to office; and (2)
barely 18 months is left on the tenure of the Ternate mayor and the people have
the right to be governed by their chosen official.  In the recent case of Gutierrez v.
COMELEC, the same grounds for execution pending appeal of the decision in the
protest case were relied upon by the trial court and we found them to be valid
reasons for execution.

 

In a long line of cases, we have
consistently held that Section 2, Rule 39 of the Rules of Court applies
suppletorily to election cases.  It is
also settled that as long as the motion for execution pending appeal is
filed before the perfection  of appeal,
the writ of execution may issue after the period of appeal.  In Universal Far East Corporation v.
Court of Appeals, where the motion for execution was resolved more than
four (4) months after the expiration of the period to appeal, we recognized
that even in  civil cases where the
period to appeal (15 days) is longer, the ruling on the motion for execution
cannot always be made within 15 days. (Lindo vs. Commission on Elections, 274 SCRA 511 [1997], Puno, J.).

 

§7. The Omnibus Election Code of
the Philippines (B.P. Blg. 881) and the other election laws do not specifically
provide for execution pending appeal of judgment in election cases, unlike the
Election Code of 1971 whose Section 218 made express reference to the Rules of
Court on execution pending appeal; thus: SEC. 218.  Assumption of office notwithstanding an
election contest.¾Every candidate for a
provincial, city, municipal or municipal district office duly proclaimed
elected by the corresponding board of canvassers shall assume office,
notwithstanding the pendency in the courts of any contest against his election,
without prejudice to the final decision thereon and applicable provisions of
the Rules of Court regarding execution of judgment pending appeal.  In Gahol v. Riodique, we explicitly
ruled that the assumption of office provided for in the aforementioned section
“is that of the protestant, which is made possible by the provisions of the
Rules of Court regarding execution pending appeal, which is none other than
Section 2 of Rule 39.”

 

The failure of the extant election laws
to reproduce Section 218 of the Election Code of 1971 does not mean that
execution of judgment pending appeal is no longer available in election
cases.  In election contests involving
elective municipal officials, which are cognizable by courts of general
jurisdiction; and those involving elective barangay officials, which are
cognizable by courts of limited jurisdiction, execution of judgment pending appeal
under Section 2 of Rule 39 of the Rules of Court are permissible pursuant to
Rule 143 of the Rules of Court, which is now Section 4, Rule 1 of the 1997
Rules of Civil Procedure.

 

As to election cases involving regional,
provincial, and city officials, which fall within the exclusive original
jurisdiction of the COMELEC, Section 3 of Article IX-C of the Constitution
vests the COMELEC with the authority to promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-proclamation
controversies.  Additionally, Section
52(c), Article VII of the Omnibus Election Code empowers the COMELEC to
promulgate rules and regulations implementing the provisions of the Code or
other laws which it is required to enforce and administer.  Accordingly, the COMELEC promulgated the
COMELEC Rules of Procedure.  Section 1 of
Rule 41 thereof expressly provides that “[i]n the absence of any applicable
provision in [said] Rules, the pertinent provisions of the Rules of Court in
the Philippines shall be applicable by analogy or in a suppletory character and
effect.”  This Court has explicitly
recognized and given approval to execution of judgments pending appeal in
election cases filed under existing election laws.  In those cases, the immediate execution was
made in accordance with Section 2 of Rule 39 of the Rules of Court.

 

All that was required for a valid
exercise of the discretion to allow execution pending appeal was that the
immediate execution should be based “upon good reasons to be stated in a
special order.”  The rationale why such
execution pending appeal is allowed in election cases is, as stated in Gahol
v. Riodique, “to give as much recognition to the worth of a trial judge’s
decision as that which is initially ascribed by the law to the proclamation by
the board of canvassers.”  Thus:  Why should the proclamation by the board of
canvassers suffice as basis of the right to assume office, subject to future
contingencies attendant to a protest, and not the decision of a court of
justice?  Indeed, when it is considered
that the board of canvassers is composed of persons who are less technically
prepared to make an accurate appreciation of the ballots, apart from their
being more apt to yield to extraneous considerations, and that the board must
act summarily, practically raising [sic] against time, while, on the
other hand, the judge has the benefit of all the evidence the parties can offer
and of admittedly better technical preparation and background, apart from his
being allowed ample time for conscientious study and mature deliberation before
rendering judgment, one cannot but perceive the wisdom of allowing the
immediate execution of decisions in election cases adverse to the protestees,
notwithstanding the perfection and pendency of appeals therefrom, as long as
there are, in the sound discretion of the court, good reasons therefor.

 

In a nutshell, the following constitute
“good reasons” and a combination of two or more of them will suffice to grant
execution pending appeal:  (1) the public
interest involved or the will of the electorate; (2) the shortness of the
remaining portion of the term of the contested office; and (3) the length of
time that the election contest has been pending. The filing of a bond, which
was mentioned in Tobon Uy, does not constitute a good reason.  Nevertheless, the trial court may require the
filing of a bond as a condition for the issuance of a corresponding writ of
execution to answer for the payment of damages which the aggrieved party may
suffer by reason of the execution pending appeal.

 

Because of COMELEC’s inaction on the
first motion, the temporary restraining order issued on 6 June 1996 was taken
full advantage of by the petitioners, who then refused to surrender to the prevailing
private respondents their offices.  This
created an unwholesome spectacle:  two
sets of officials exercising the functions of the elective local positions of
Guipos, Zamboanga del Sur.  Such a
situation was inimical to public interest and was a potential source of trouble
and even bloodshed between the contending partisan forces.  The COMELEC should have taken a more drastic
and positive action to prevent such a situation by complying strictly with the
rule on restraining orders.  Under
Section 5, Rule 30 of the COMELEC Rules of Procedure and Section 5, Rule 58 of
the Rules of Court, the lifetime of a restraining order is only twenty
days.  This period is nonextendible.  If the COMELEC wanted to restrain further the
implementation of the trial court’s order granting execution pending appeal and
the writ of execution, it should have, if warranted, issued a writ of
preliminary injunction; but it did not. (Ramas vs. Commission on Elections, 286 SCRA 189
[1998], Davide, Jr., J.).

           

§8. Since ABALLE has appealed to the
COMELEC from the decision in Election Protest Case No. 130 of the MTCC, by
filing a Notice of Appeal on 22 January 1998, and submitting at the same time
the postal money orders for the appeal fees, it follows that the COMELEC has
primary jurisdiction on the petition for certiorari to annul the
execution pending appeal granted by the MTCC. 
This is an issue which we resolved in Relampagos v. Cumba, et al.(243
SCRA 690 [1995]).

 

We ruled in Relampagos that the
last paragraph of Section 50  of B.P.
Blg. 697 remains in full force and effect in such cases where, under paragraph
(2), Section 1 (should be Section 2) Article IX-C of the Constitution, the
COMELEC has exclusive appellate jurisdiction over the election contest in
question.  In such cases the COMELEC has
the authority to issue the extraordinary writs of certiorari,
prohibition and mandamus in aid of its appellate jurisdiction.  The last paragraph of Section 50 reads:  The Commission is hereby vested with
exclusive authority to hear and decide petitions for certiorari,
prohibition and mandamus involving election cases.

Under the second paragraph of Section 2,
Article IX-C of the Constitution, the Commission on Elections has exclusive
appellate jurisdiction over, inter alia, contests involving elective
barangay officials decided by trial courts of limited jurisdiction. (Beso
vs. Aballe, 326 SCRA 100 [2000], Davide, Jr., C.J.).

 

§9. A valid exercise of the
discretion to allow execution pending appeal requires that it should be based
“upon good reasons to be stated in a special order.”  The following constitute “good reasons” and a
combination of two or more of them will suffice to grant execution pending
appeal:  (1.) public interest involved or
will of the electorate; (2.) the shortness of the remaining portion of the term
of the contested office; and (3.) the length of time that the election contest
has been pending (emphasis supplied).  In
Lauban vs. COMELEC, this Court ruled that “shortness of the remaining
term of office and posting a bond are not good reasons for execution of a
judgment pending appeal”. (Fermo
vs. Commission on Elections, 328 SCRA 52 [2000], Gonzaga-Reyes, J.).

 

           

43. Effect of an appeal

 

§1. A
mere submission of a particular ballot to the judgment of this court, without
any attempt on the part of the appellant to show wherein the trial court erred
in admitting or rejecting such ballot, is not a sufficient assignment of error
with reference to such ballot and will be ignored. (Lucero vs. De Guzman, 45
Phil. 852 [1924], Street, J.).

§2. As
a rule of court practice, the appellant must point out in his written brief or
in his oral argument, which ballots should be adjudicated to the protestant and
which should be deducted from the protestee, so that there will be sufficient
assignment of error to justify the consideration of the court on appeal.

The
assignments of error made by the appellant as to the canvass of votes, when
they do not affect the result of the election, do not require the special
determination of the court. (Cecilio vs. Belmonte, 51 Phil. 540 [1928],
Villamor, J.). 

§3. Under
the doctrine of Mendoza vs. Mendiola (53 Phil., 267), and Rule 20 of the
Revised Rules of this court, appellees in election cases have a right to assign
errors in a decision rendered therein although they have not appealed
therefrom. (Villavert vs. Lim, 62 Phil. 178 [1935], Villa-Real, J.).

§4. The
ruling that the appellate court may refuse to examine ballots not assigned as
errors, cannot be so interpreted as to deprive an appellate court of the right
given to it by law to examine any ballot even motu proprio if that is
necessary to arrive at a correct decision.

An apeal in an election case is likened to appeal in
a criminal case, where the case is deemed tried de novo (Section 178,
Revised Election Code), thus throwing wide open the appeal before the court (Cabasada
vs. Valmoria, 83 Phil. 112). (Borja vs. De Leon,
118 Phil. 1050 [1963]; 9 SCRA 216 [1963], Bautista Angelo J.).

 

§5. The Revised Election Code
considers an election protest similar to a criminal case, wherein on appeal the
case is tried de novo, and the Court of Appeals may review a ruling of
the court of first instance on any ballot motu proprio whether the
ballot had been the object of appeal or not.

 

An appeal by certiorari from a decision of the Court
of Appeals to the Supreme Court in an election case does not have the effect of
authorizing the review and revision of all the ballots contained in the
contested precincts without specific allegations of the supposed errors
committed by the Court of Appeals.  The
Supreme Court is limited to examining those supposed errors in the decision of
the Court of Appeals that are expressly and specifically pointed out. (Roldan vs. Monsato, 118 Phil. 1328 [1963]; 9 SCRA 489 [1963],
Labrador, J.).

 

§6. Section 178 of the Revised
Election Code, in providing for an appeal to the Supreme Court or Court of
Appeals, as the case may be, from any decision of the Court of First Instance
in protests against the eligibility or the election of governors, board
members, city councilors and mayors, impliedly denies the right to appeal from
said decision in election protests involving the office of vice-mayor and
municipal councilors.  However, whenever
legal questions are raised, a review may be sought from the Supreme Court. (Nalog
vs. De Guzman, 20 SCRA 338 [1967], Concepcion, C. J.).

 

§7. The action of the Court of Appeals in
crediting motu proprio for additional votes for respondent, although the
board of canvassers failed to count those votes and the trial court did not
consider them and no issue was raised on appeal as to those votes, is correct.
The Appellate Court, in election contests, may consider ballots not taken up in
an assignment of error in order that substantial justice, the will of the
electorate and public interest should be served and protected.  (Monteza vs. Court of
Appeals, 20 SCRA 773 [1967], Reyes, J.B.L., J.).

 

§8. An appeal in an election contest proceeds
as in a criminal case.  The appellate
court may take notice of every error in fact or in law committed by the trial
court.  It may examine any ballot motu
proprio if that is necessary to arrive at a correct decision.  To ascertain the will of the people or who is
the one duly elected, the case is thrown wide open for review by the appellate
court. (Juliano vs. Court of Appeals, 20 SCRA 808
[1967], Zaldivar, J.).

§9. It should be borne in the mind that under
the law, appeals in election cases 
“shall proceed as in a criminal case” 
(Sec. 178, Revised Election Code, as amended).  While it is true that under the Revised Rules
of Court of 1964, it is not required of appellants in criminal cases to make
assignment of errors, unlike in the old rules which expressly provided that in
criminal cases “appellants are not required to make assignment of errors
although it is advisable for them to do so,” and, accordingly, the new rule
should equally apply to present appeals in election cases, the amendment of the
rule was not intended to completely change the nature of appeals in criminal
and election cases from that of a total review or a trial de novo to
that of an appeal by writ of error as in civil cases.  The only purpose of the amendment is to
compel appellants to make such assignments and thereby lighten the burden of
the court in reviewing the whole case without the necessity of having to comb
the entire record and mass of evidence blindly and without proper guide as to
where and how the trial court might have erred, aside, of course, from the
advantage that when there are assignments of errors, the discussions of the
alleged errors are bound to be more orderly, systematic and more easily
comprehensible.  The time consequently
saved may well be spent by the courts in deeper study of the merits of the
appeal and, of course, in the consideration of many other cases which may be
more urgent or may demand equal, if not more, attention due to their nature and
character and the more paramount interests that might be involved.  Of course, the basic nature of the appeal
remains to be a trial de novo and to the appellate court is reserved the
power to review the whole record and take into account any error it may
perceive in the consideration of the whole record, regardless of the
appellant’s assignment of errors.  In
criminal cases, the fundamental reason for this method of review is the high
regard that the law has for the presumption of innocence which it accords all
persons accused of an offense which must be given full effect in spite of
procedural and technical errors such accused or counsel may themselves commit
against their interest, either thru honest mistake or inadequate
knowledge.  In election cases, “the
philosophy behind this ruling is that the real purpose of an election case is
to ascertain what is the true will of the people or who is the one duly elected
and this can only be achieved by throwing wide open the appeal before the
court.” (Tagoranao vs. Court of Appeals, 37 SCRA 490
[1971], Barredo, J.).

§10. The COMELEC should not dismiss the appeal
on the basis of a technicality which was partly, if not primarily, of its own
making.  There is no reason why the rule
that a reasonable extension of time should be allowed for good and sufficient
cause, followed not only by the Court of Appeals but this Court as well, should
not also apply whenever the Commission on Elections acts in an appellate
judicial capacity. (Rodriguez vs. Commission on
Elections, 119 SCRA 465  [1982],
Gutierrez, Jr., J.).

§11. The propriety of Millare’s filing a
separate election contest in lieu of appealing the order of disqualification in
Election Case No. 48 could have been induced also by the need to raise issues
in the election contest other than the sole question of the alleged non-residence
of Millare in Barangay Budac; such as, the denial of due process consisting in
the lack of opportunity to present evidence in his behalf, the propriety of
declaring the votes cast in his favor as stray, and the refusal of Judge
Bernardino to allow the reopening of the ballot boxes for a recanvassing of the
votes.  At any rate, if appeal is indeed
the proper remedy, the filing of Election Protest No. 49 on May 20, 1982, or
well within the period of appeal, may be considered as in the nature of that
remedy.  Whatever procedural misstep may
have been committed in this regard may not override the paramount consideration
of upholding the sovereign will of the people expressed through the democratic
process of suffrage.  Millare may not be
faulted for sleeping on his rights.  He
had insisted on his qualification for the position he ran for, and took
determined and seasonable steps to assert the same.
(Millare vs. Gironella, 122 SCRA 623 [1983],            Vasquez, J.).

§12. Even on the merits, we think
the First Division of the COMELEC properly dismissed petitioner’s appeal from
the decision of the trial court because of his failure to pay the appeal fee
within the time for perfecting an appeal. 
In accordance with Sec. 2(b) of COMELEC Resolution No. 2108-A, the
appeal fee must be paid within the period to perfect the appeal. This
resolution, which was promulgated on July 14, 1989, superseded COMELEC
Resolution No. 1456 on which petitioner relies for his contention that the fee
is to be paid only upon the filing of the appeal brief. (Reyes vs. Regional Trial Court of
Oriental Mindoro, Branch XXIX, 244 SCRA 41 [1995], Mendoza, J.).

 

 

44. Promulgation
of decision

 

§1. Sec. 9, Art. X of the Constitution
requiring that no decision shall be rendered by any court without expressing
clearly and distinctly the facts and the law on which it is based, applies only
to courts of justice, not to Comelec; Comelec is not a court of justice. (Mangca vs. Commission on Elections, 112 SCRA 273  [1982], Abad Santos, J.).

 

45. Expenses

 

§1. The word “expenses,” as
used in Section 27 of the Election Law, has the same signification as the word
““disbursements;” it does not include attorney’s fees.  The costs to which a party is entitled in the
Courts of First Instance are regulated by Section 492 of the Code of Civil
Procedure, by which section attorney’s fees are not allowed, and they can not,
therefore, be included in the “costs.”  (Mendiola vs. Villa, 15 Phil. 131
[1910], Moreland, J.).

46. Costs

 

§1. An “election protest” is an action
in the court of first instance and said article (492) is applicable in the
taxation of costs in such cases.  Costs
not permitted by the statute cannot be taxed. 
Costs are statutory allowances to a party to an action for his expenses
incurred in the action, and have reference only to the parties and the amounts
paid by them. (Hontiveros vs. Altavas, 39 Phil. 226 [1918], Johnson,
J.). 

 

§2. The award as costs to the
protestee-appellee of the fees paid to the revision commissioners and the
premium paid on the bond posted by protestee in connection with his counter
protest is held to be in accordance with Section 180 of the Revised
Election Code. (Tiongco vs. Porras, 9 SCRA 378 [1963], Dizon, J.).

 

§3. No allowance can be made to the
prevailing party in the Appellate Court for the brief or written or printed
arguments of his attorney, or copies thereof, aside from the sum of thirty or
fifty pesos as the case may be.  This
rule applies to election cases in a suppletory character since the Election
Code is silent on the point.  The payment
for a copy of the transcript of the stenographic notes taken at the trial and
the cost of printing the brief cannot be recovered as costs.  While the contestant in an election case
undertakes to pay for all expenses and costs incidental to the protest, such
obligation is subject to regulation by the Court.  The said items should not be allowed as costs
in the absence of a finding that the original contest was without justification
or that it was filed in bad faith.

(Conui-Omega vs. Samson, 20 SCRA 1020
[1967], Reyes, J.B.L., Acting C.J.).

 

 

47. Damages

                       

§1. There is merit in the petition.  Respondent judge found no basis for actual or
compensatory damages and exemplary damages when it said that “to slap a heavy
damage upon the defendant would be tantamount to imposing a prohibitive premium
upon the filing of complaints against public officials for misconduct in
office, a policy that is neither sound nor conducive to a healthy development
of civic courage and public interest so necessary and indispensable in the
conduct of the affairs of the government (pp. 53-54, Rollo).” (Perfecto vs. Gonzales, 128 SCRA 635 
[1984], Relova, J.).

 

§2. Given
this setting, it would appear virtually impossible for a party in an election
protest case to recover actual or compensatory damages in the absence of the
conditions specified under Articles 2201 and 2202 of the Civil Code, or in the
absence of a law expressly providing for situations allowing for the recovery
of the same.  It follows, naturally, that
in most election protest cases where the monetary claim does not hinge on
either a contract or quasi-contract or a tortious act or omission, the
claimant must be able to point out to a specific provisions of law authorizing
a money claim for election protest expenses against the losing party.  This, petitioner has been unable to do.

The
country’s early election laws contained provisions requiring the furnishing of
a bond or cash deposit for purpose of payment of expenses and costs incidental
to election contests and appeals.  The
Election Law of 1938 (Commonwealth Act No. 357) contained the same provision with
a minor modification providing for increasing or decreasing the bond or cash
deposit “as the course of the contest may require.”  This provision was repeated in toto in
the Revised Election Code of 1947. 
Republic Act No. 6388, and Election Code of 1971, P.D. No. 1296, and the
1978 Election Code contained provisions allowing awards for moral and exemplary
damages “as the Commission may deem just if the aggrieved party has included
(such) in his pleadings,” but left out the provision for bond and cash deposits
found in the earlier election codes.  The
provisions for moral and exemplary damages as well as the early provisions
requiring the furnishing of a bond to cover expenses related to election
contests have all but disappeared in the current Omnibus Election Code.

An
examination of the above quoted provision, however, reveals that the bonds or
cash deposits required by the COMELEC Rules of Procedure are in the nature of
filing fees, not damages. These filing fees obviously refer to the expenses
incurred by the COMELEC in the course of administering election cases and are
species different from the bond or cash deposit required by previous election
laws which are clearly in the nature of actual and compensatory damages.

Plainly
then, the deposit requirements under previous election laws which were
obviously compensatory damages, were repealed or abrogated as a result of their
non-inclusion both in the Election Code of 1978 and the Omnibus Election Code
of 1981.  If their non-inclusion in the
1978 statute was a mere legislative lapse, then the previous provisions on
bonds or cash deposits would have been included in the Omnibus Election
Code.  Their non-inclusion, and the
omission of provisions allowing for moral and exemplary damages in the Omnibus
Election Code, furthermore clearly underscores the legislative intent to do
away with provisions for damages other those specified in Section 259 of the
Omnibus Election Code. In fact, the COMELEC, in justifying its deletion of
actual damages in its assailed en banc resolution, ignored the fees
provision of its Comelec Rules of Procedure and explained that the bond or cash
deposit provisions of previous election laws were abrogated by their
non-inclusion in the current law.

In
fine, Section 259 of the Omnibus Election Code merely provides for the granting
of actual and compensatory damages in accordance with law.  That it was the intent of the legislature to
do away with provisions indemnifying the victorious party for expenses incurred
in an election contest in the absence of a wrongful act or omission clearly
attributable to the losing party cannot be gainsaid.  The intent, moreover, to do away with such
provisions merely recognizes the maxim, settled in law that a wrong without
damage or damage without wrong neither constitutes a cause of action nor creates
a civil obligation. (Atienza vs. Commission on Elections, 239 SCRA 298
[1994], Kapunan, J.).

§3. The
Omnibus Election Code provides that “actual or compensatory damages may be
granted in all election contests or in quo warranto proceedings in
accordance with law.”  COMELEC Rules of
Procedure provide that “in all election contests the Court may adjudicate
damages and attorney’s fees as it may deem just and as established by the
evidence if the aggrieved party has included such claims in his pleadings.”  This appears to require only that the
judicial award of damages be just and that the same be borne out by the
pleadings and evidence.  The overriding
requirement for a valid and proper award of damages, it must be remembered, is
that the same is in accordance with law, specifically, the provisions of the
Civil Code pertinent to damages.

Considering
that actual or compensatory damages are appropriate only in breaches of
obligations in cases of contracts and quasi-contracts and on the occasion of
crimes and quasi-delicts where the defendant may be held liable for all damages
the proximate cause of which is the act or omission complained of, the monetary
claim of a party in an election case must necessarily be hinged on either a
contract or a quasi-contract or a tortious act or omission or a crime, in order
to effectively recover actual or compensatory damages.  In the absence of any or all of these, “the
claimant must be able to point out a specific provision of law authorizing a
money claim for election protest expenses against the losing party.”

Respondent
COMELEC also found the order granting execution of judgment pending appeal to
be defective because of alleged non-compliance with the requirement that there
be a good and special reason to justify execution pending appeal.  We, however, find that the trial court acted
judiciously in the exercise of its prerogatives under the law in issuing the
order granting execution pending appeal. 
First, it should be noted that the applicability of the provisions of
the Rules of Court, relating to execution pending appeal, has ceased to be
debatable after we definitively ruled in Garcia vs. de Jesus that
“Section 2, Rule 39 of the Rules of Court, which allows Regional Trial Courts
to order executions pending appeal upon good reasons stated in a special order,
may be made to apply by analogy or suppletorily to election contests decided by
them.” It is not disputed that petitioner filed a bond in the amount of
P500,000.00 as required under the Rules of Court.

To recapitulate, Section 259 of the
Omnibus Election Code only provides for the granting in election cases of
actual and compensatory damages in accordance with law.  The victorious party in an election case
cannot be indemnified for expenses which he has incurred in an electoral
contest in the absence of a wrongful act or omission or breach of obligation
clearly attributable to the losing party. 
Evidently, if any damage had been suffered by private respondent due to
the execution of judgment pending appeal, that damage may be said to be
equivalent to damnum absque injuria, which is, damage without injury, or
damage or injury inflicted without injustice, or loss or damage without
violation of a legal right, or a wrong done to a man for which the law provides
no remedy.  (Malaluan vs. Commission
on Elections, 254 SCRA 397 [1996], Hermosisima, Jr., J.).

 

 

48. Vacation
of Judgment

 

§1. The provisions of Section 145
of the Code of Civil Procedure authorizing the vacation of judgments and the
granting of new trials in certain cases are not applicable to proceedings had
in election contests under the provisions of Section 27 of Act 1582. 

 

Courts of First Instance have no
jurisdiction to vacate final judgments entered by them “determining” election
contests had under the provisions of Section 27 of Act No. 1582. (Arnedo vs.
Llorente and Liongson, 18 Phil. 257 [1911], Carson, J.).

 

 

49. Right of a
second placer

 

§1. The disqualification of
petitioner Labo does not necessarily entitle petitioner Ortega as the candidate
with the next highest number of votes to proclamation as the Mayor of Baguio
City.

 

While Ortega may have garnered the
highest number of votes for the office of city mayor, the fact remains that he
was not the choice of the sovereign will. 
Petitioner Labo was overwhelmingly voted by the electorate for the
office of mayor in the belief that he was then qualified to serve the people of
Baguio City and his subsequent disqualification does not make respondent Ortega
the mayor-elect.

 

The rule, therefore, is: the
ineligibility of a candidate receiving majority votes does not entitle the
eligible candidate receiving the next highest number of votes to be declared
elected.  A minority or defeated candidate
cannot be deemed elected to the office. (Labo, Jr. vs. Commission on Elections, 211 SCRA 297
[1992], Bidin, J.)

 

§2. Where the candidate who obtained
the highest number of votes is later declared to be disqualified, the candidate
who garnered the second highest number of votes is not entitled to be declared
winner. (Republic vs. De la Rosa, 232 SCRA 785  [1994],                Quaison, J.)

 

§3. The question raised in the
instant petition is not new.  As early as
Geronimo vs. Ramos, this Court has held that:  “The fact that the candidate who obtained the
highest number of votes is later declared to be disqualified or not eligible
for the office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to be declared the
winner of the elective office.  The votes
cast for a dead, disqualified or non-eligible person may not be valid to vote
the winner into office or maintain him there. 
However, in the absence of a statute which clearly asserts a contrary
political and legislative policies on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they
should not be treated as stray, void or meaningless.”

 

The rationale for the rule was explained
in Benito vs. COMELEC as follows: 
“For to allow the defeated and repudiated candidate to take over the
mayoralty despite his rejection by the electorate is to disenfranchise the
electorate without any fault on their part and to undermine the importance and
meaning of democracy and the people’s right to elect officials of their
choice.”  (Loreto vs. Brion, 311 SCRA 694 [1999],
Gonzaga-Reyes, J.).

 

 

CHAPTER XXI
Election Offenses

 
           

1. Mala
prohibita

 

§1. Malice is not an element of a violation
of Election Code. (People vs. Quebral, 58 O.G. 7399).

 

§2. In the light of the statutory purpose,
the seriousness of respondent’s failure to comply with the requirements of
Section 136 of the electoral law (to furnish the notice of hearing for
inclusion of voters upon a member of the board of inspectors) becomes
evident.  His good faith or lack of
malice is of no avail, considering that in crimes which are mala prohibita,
the act alone irrespective of its motives, constitutes the offense.

 

There is no question that as a consequence
of the general amnesty all persons who violated the election law on the dates
and occasions therein mentioned are relieved of their criminal liability.  In the case at bar, respondent is relieved of
any criminal liability for his aforecited infraction; however, in the public
interest he should be admonished. (Lacson, Jr. vs. Posadas, 72 SCRA
168  [1976], Antonio, J.).

 

           

2. Illegal
registration

 

§1. It is alleged in the information
that the accused, knowing that he had no qualifications to be a voter,
inscribed and caused his name to be registered in the election list. (United
States vs. Adyuba, 42 Phil. 17 [1921], Villamor, J.).

 

§2. The appellant knew the law which
prohibited him from voting without the necessary qualifications. He knew that
fact better than any one else. When he voted, he voted knowingly that he was
without the necessary qualifications, and will not be heard to plead his
ignorance. (United States vs. De la Torre, 42 Phil. 62 [1921], Johnson, J.).

 

           

3. Failure to
register or failure to vote

 

§1. Petitioners were charged with
violating Section 261 (o) of the Omnibus Election Code.  Under Section 268 of the said Code, regional
trial courts have exclusive jurisdiction to try and decide any criminal
action or proceeding for violation of the Code, “except those relating to the
offense of failure to register or failure to vote.” x x x Clearly then,
regional trial courts have jurisdiction to hear and decide cases for violation
of the Omnibus Election Code, such as those filed against petitioners. (Juan
vs. People of the Philippines, 322 SCRA 125 [2000], Panganiban, J.).

 

 

4. Not
entitled to vote

 

§1. A Court of First Instance has no
authority to declare whether the election of a person who has received a
majority of the votes at an election for municipal president, but who has been
sentenced to four years of prision correccional, should be confirmed or
not.  This question is not submitted to
the jurisdiction of the court by the Election Law. (Castro vs. Wislizenus,
12 Phil. 468 [1909], Arellano, C.J.).

 

§2. Whoever at any election votes
knowing that he is not entitled to do so 
incurs in criminal responsibility.

 

The right of the State to deprive
persons of the right of suffrage by reason of their having been convicted of
crime, is beyond question. The manifest purpose of such restriction is to
preserve the purity of election.

 

The exclusion from the exercise of
suffrage must be adjudged a mere disqualification imposed for protection and
not for punishment, the withholding of a privilege and not the denial of a
personal right. (People vs. Corral, 62 Phil. 945 [1936], Abad Santos, J.).

 

 

5. Thwarting the will of the people

 

 §1. x
x x The right to participate directly in the form of government, by secret
ballot, is among the most important and sacred of the rights of the people in
self government and one which must be most vigilantly guarded if a people
desire to maintain for themselves and their posterity a republic form of
government in which the individual may, in accordance with law, have a voice in
the form of his government. x x x  When
election inspectors confess that they have attempted to defeat the will of the
people at the polls, the maximum penalty of the law should be imposed. (United
States vs. Iturrius, 37 Phil. 762 [1918], Johnson, J.).   

§2. They
have not, it seems, the slightest compunction in thwarting the will of the
people by unduly influencing the voters tampering with the ballots, or
falsifying election returns, in order to attain their selfish personal
ambitions.

Needless
to say, such persons deserve the severest penalty allowed by law.  And it is equally regrettable, in our
opinion, that the penalty prescribed by the present Election Law for such
nefarious crimes is comparatively too light. (United States vs. Magno, 42
Phil. 239 [1921], Johnson, J.).

§3. Under
Section 27(b) of R.A. 6646, two acts, not one, are penalized – first,
the tampering, increasing or decreasing of votes received by a candidate in any
election; and second, the refusal, after proper verification and
hearing, to credit the correct votes or deduct such tampered votes.

To take
the view that a member of the board of election inspectors or board of
canvassers cannot be charged with the offense under Section 27 (b) of R.A. 6646
unless his attention is first called to the tampering, increasing or decreasing
of the votes of a candidate and unless he is first given the opportunity to
rectify, correct or undo his illegal act, is to tolerate, if not abet, a
massive tampering of votes by allowing the wrongdoer a built-in and sure-fire
defense for his exoneration. (Pimentel, Jr., vs. Commission on Elections,
289 SCRA 586 [1998], Kapunan, J.).

                       

6. Flying voters

§1. Considering
that an examination of the record yields no evidentiary proof that the
questioned flying voters, had, in fact, cast their votes for ALEMAN, which
votes should be deducted from the total votes obtained by the latter, the Court
has RESOLVED, in order to determine with certainty in whose favor those votes
were cast, and to be able to better determine the true will of the electorate,
that the ballots be recounted in the presence of the parties. (Aleman vs.
Genato, 133 SCRA 797  [1984],
Melencio-Herrera, J.).

           

7. Corruption of voters

§1. The
circumstance that a candidate for the office of provincial governor made a
small contribution for the repair of a dangerous road leading to one of the
precincts and that a few electors testified that they voted for him because of
his liberality, does not justify the subtraction of their votes from the votes
of said candidate in a contest subsequently instituted over the office. (Lucero
vs. De Guzman, 45 Phil. 852 [1924], Street, J.).

§2. Causing cigarettes or things of
value to be distributed by the defendant to the people who attended a political
meeting is a violation distinct from that of electioneering committed by a
classified civil service officer or employee. (People vs. Ferrer, 101 Phil.
234 [1957], Padilla, J.).

 

 

8. Vote buying

§1. Blanco also urges that COMELEC erred in
using summary proceedings to resolve his disqualification case.  Again, the COMELEC action is safely anchored
on Section 4 of its Rules of Procedure which expressly provides that petitions
for disqualification “shall be heard summarily after due notice.”  Vote-buying has its criminal and electoral
aspects. Its criminal aspect to determine the guilt or innocence of the accused
cannot be the subject of summary hearing. 
However, its electoral aspect to ascertain whether the offender should
be disqualified from office can be determined in an administrative proceeding
that is summary in character.  (Nolasco vs. Commission on Elections, 275 SCRA 762 [1997], Puno,
J.).

 

 

9. Use of carbon paper

            §1. To begin with, there is here no showing
that the specific incident involving petitioner Estela Isip is involved in the
protest before the Electoral Tribunal of the House of Representatives referred
to by petitioners.  It is true that in
said electoral protest, the Electoral Tribunal must necessarily resolve the
question of whether or not protestee therein and his leaders or followers used
carbon paper for the purpose of identifying certain votes cast in the elections
concerned, but as pointed out by private respondent — and this is not denied by
petitioners — the carbon paper allegedly used by petitioner Estela Isip, which
is the basis of the criminal complaint against petitioners, is not among the
hundreds of such white carbon paper devices already marked as exhibits in said
electoral protest, and according to private respondent, the carbon paper
allegedly used by petitioner Estela Isip is still in his possession; it follows
then, that even if the Electoral Tribunal should find that there really had
been extensive use of such carbon paper devise by other voters, such finding
would not necessarily be determinative of the guilt or innocence of petitioners
under the criminal complaint filed against them. (Isip
vs. Gonzales, 39 SCRA 255  [1971],
Barredo, J.).

 

10. Vote
padding

 

§1. It can be clearly seen from the
list above that the discrepancies are too substantial and rounded off to be
categorized as a mere ‘computation error’ or a result of fatigue.  There is a limit to what can be construed as
an honest mistake or oversight in the performance of official duty.  Suffice it to state that the magnitude of the
error as reflected in the discrepancies itemized above renders unacceptable the
defense of ‘computer error’ or honest mistake.

 

It was indeed highly unlikely that the padded vote
totals were entered in the SoV per Municipality/City without the knowledge of
petitioners, if they were faithfully and regularly performing their assigned
tasks. A reasonably prudent man on the other hand would readily come to the
conclusion that there exists a probable cause to believe that the petitioners
are culpable together with the other members of the support staff as well as
the PBC members in the padding of the vote totals of the said senatorial candidates.  It can not be denied that the members of the
PBC and their support staff, including herein petitioners, were the only ones
in control and in possession of said documents during its preparation.   It need not be overemphasized, given this
fact, that the padding of the vote totals could only have been done by all of
them acting in concert with one another. (Domalanta vs.
Commission on Elections, 334 SCRA 555 [2000], Ynares-Santiago, J.).

 

 

11. Fraud

 

§1. An inspector who fails to write
upon the ballot the name or names expressly indicated by the voter is guilty of
a fraud practiced against the voter and thus of a violation of the penal
provisions of the Election Code. (U.S. vs. De La Serna and Callet, 12 Phil.
672; U.S. vs. Cueto, 38 Phil. 935; U.S. vs. Magno, 42 Phil. 239).

 

 

12. Terrorism

 

§1. The COMELEC has the power to annul an
entire municipal election on the basis of post-election terrorism.

 

The COMELEC has the authority to call for the
holding of a special election whether widespread terrorism resulting in a
failure to elect occurred before or after the election, as in the case where
terrorism was employed in the preparation of election returns. (Sanchez vs. Commission on Elections, 114 SCRA 454 [1982],
Melencio-Herrera, J.).

13. Possession of deadly weapon

§1. To support a conviction under
Section 261(p) of the Omnibus Election Code, it is not necessary that the
deadly weapon should have been seized from the accused while he was in the
precinct or within a radius of 100 meters therefrom.  It is enough that the accused carried the
deadly weapon “in the polling place and within a radius of one hundred meters
thereof” during any of the specified days and hours.  After respondent himself had found that the
prosecution had established these facts, it is difficult to understand why he
acquitted Alejandro of the charge of violation of Section 261(p) of the Omnibus
Election Code. (Mappala vs. Nuñez, 240 SCRA 600 [1995], Quiason, J.).      

           

 

14. Violation of Gun Ban

§1. The checkpoint herein conducted
was in pursuance of the gun ban enforced by the COMELEC.  The COMELEC would be hard put to implement
the ban if its deputized agents were limited to a visual search of pedestrians.  It would also defeat the purpose for which
such ban was instituted.  Those who
intend to bring a gun during said period would know that they only need a car
to be able to easily perpetrate their malicious designs. (People of the
Philippines vs. Escaño, 323 SCRA 754 [2000], Davide, Jr., C.J.).

 

 

15. Obstacle to free entry to the polling place

§1. As numerous as they are insidious are
long-standing techniques of terror and intimidation that have been conceived by
man—in derogation of the right of suffrage—which we have repeatedly and
unqualifiedly condemned.  Section 133 of
the Revised Election Code, an explicit and unequivocal guarantee of a voter’s
free access to enter the polling place, has no other purpose than to maintain
inviolate the right to vote by safeguarding the voter against all manner of
unauthorized interference and travesty that purveyors of fear can devise.  Every unlawful obstacle, by whatever means or
method, interposed to the free entry of a voter into the polling place to cast
his vote, strikes at the very heart of the right of suffrage. (People of the Philippines vs. San Juan, 22 SCRA 498 [1968], Castro
J.).

 

 

16. Violation on the Ban on
Appointment/Detail/Transfer

§1. The
aforequoted provision does not apply to both assailed appointments because of
the following reason: The permanent vacancy for councilor exists and its
filling up is governed by the Local Government Code while the appointment
referred to in the election ban provision is covered by the Civil Service
Law.  For having satisfied the formal
requisites and procedure for appointment as Councilor, which is an official
position outside the contemplation of the election ban, respondent’s
appointment is declared valid.  The issue
on the alleged discrepancy between the dates of petitioner’s oath and his
residence certificate need not be tackled now because it will not anymore
affect the recalled appointment of petitioner. If ever, the matter casts a
doubt on petitioner’s credibility and honesty. (Ong vs. Herrera-Martinez, 188 SCRA 830 [1990],
Paras, J.).

§2. Zaldivar
vs. Estenzo, 23 SCRA 533, decided by this Court on 3 May 1968, had squarely
resolved the issue above posed.  Speaking
through then Associate Enrique Fernando (who later became Chief Justice), this
Court explicitly ruled that considering that the Commission on Elections is
vested by the Constitution with exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections, the assumption
of jurisdiction by the trial court over a case involving the enforcement of the
Election Code “is at war with the plain constitutional command, the
implementing statutory provisions, and the hospitable scope afforded such grant
of authority so clear and unmistakable in recent decisions.”

Under the
present law, however, except in case of urgent need, the appointment or hiring
of new employees or the creation or filling up of new positions in any
government office, agency or instrumentality, whether national or local,
including government-owned or controlled corporations, is banned during the
period of forty-five (45) days before a regular election and thirty (30) days
before a special election if made without the prior authority of the Commission
on Elections.  A violation thereof
constitutes an election offense.  Then
too, no less than the present Constitution, and not just the Election Law as
was the case at the time of Zaldivar, expressly provides that the
Commission may “[R]ecommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other disciplinary action,
for violation or disregard of, or disobedience to its directive, order, or
decision.”  Moreover, the present
Constitution also invests the Commission with power to “investigate and, where
appropriate, prosecute cases of violations of election laws, including acts or
omissions constituting election frauds, offenses, and malpractices.” (Gallardo vs. Tabamo, Jr., 218 SCRA 253
[1993], Davide, Jr., J.).

§3. The two elements of the offense
prescribed under Sec. 261(h) of the Omnibus Election Code, as amended, are: (1)
a public officer or employee is transferred or detailed within the election
period as fixed by the COMELEC, and (2) the transfer or detail was effected
without prior approval of the COMELEC in accordance with its implementing rules
and regulations.

Thus, contrary to petitioner’s claim, a
transfer under Section 24(c) of P.D. No. 807 in fact includes personnel
movement from one organizational unit to another in the same department or
agency.

 

It may well be that Barangay Sto. Niño in
January 1988 was in need of health service personnel.  Nonetheless, this fact will not excuse the
failure of petitioner to obtain prior approval from the COMELEC for the
movement of personnel in his office. 
Indeed, appointing authorities can transfer or detail personnel as the
exigencies of public service require. 
However, during election period, as such personnel movement could be
used for electioneering or even to harass subordinates who are of different
political persuasion, Sec. 261(h) of the Omnibus Election Code, as amended,
prohibits the same unless approved by the COMELEC. (Regalado, Jr., vs. Court
of Appeals, 325 SCRA 516 [2000],             
Mendoza, J.).

 

 

17. Electioneering

 

§1. The Constitution has fixed the
election period for all elections to commence ninety (90) days before the day
of election and end thirty (30) days thereafter, unless otherwise fixed in
special cases by the COMELEC.  For the
May 11, 1992 synchronized national and local elections, the COMELEC fixed a
longer election period of one hundred twenty (120) days before the scheduled
elections and thirty (30) days thereafter. 
It issued Resolution No. 2314 on September 23, 1991 primarily adopting
therein a calendar of activities.  In the
process, it designated January 12, 1992 to June 10, 1992 as the election
period.

 

We start with the constitutional
injunction that no officer or employee in the civil service shall engage,
directly or indirectly, in any electioneering or partisan political
campaign.  This prohibition is reiterated
in the Administrative Code of 1987. 
Section 261 (h) of B.P. Blg. 881 implements this constitutional
prohibition.

 

It ought to be immediately obvious that
Section 261 (h) of B.P. Blg. 881 does not per se outlaw the transfer of
a government officer or employee during the election period.  To be sure, the transfer or detail of a
public officer or employee is a prerogative of the appointing authority.  It is necessary to meet the exigencies of
public service sometimes too difficult to perceive and predict.  Without this inherent prerogative, the
appointing authority may not be able to cope with emergencies to the detriment
of public service.  Clearly then, the
transfer or detail of a government officer or employee will not be penalized by
Section 261 (h) of B.P. Blg. 881 if done to promote efficiency in the
government service.  Hence, Section 2 of
Resolution No. 2333 provides that the COMELEC has to pass upon the reason for
the proposed transfer or detail.

 

Prescinding from this predicate, two (2)
elements must be established to prove a violation of Section 261(h) of B.P.
Blg. 881, viz: (1) The fact of transfer or detail of a public officer or
employee within the election period as fixed by the COMELEC, and (2) the
transfer or detail was effected without prior approval of the COMELEC in
accordance with its implementing rules and regulations.

 

In the case at bench, respondent Maniego
transferred Ebio, then the Customs Operation Chief, MICP to the Office of the
Deputy Collector of Customs for Operations as Special Assistant on January 14,
1992.  On this date, January 14, 1992,
the election period for the May 11, 1992 synchronized elections had already
been fixed to commence January 12, 1992 until June 10, 1992.  As aforestated, this election period had been
determined by the COMELEC in its Resolution No. 2314 dated November 20, 1991
and Resolution No. 2328 dated January 2, 1992. 
Nonetheless, it was only in Resolution No. 2333 which took effect on
January 15, 1992 that COMELEC promulgated the necessary rules on how to get its
approval on the transfer or detail of public officers or employees during the
election period.  Before the effectivity
of these rules, it cannot be said that Section 261 (h) of B.P. Blg. 881, a penal
provision, was already enforceable.  Needless
to state, respondent Maniego could not be charged with failing to secure the
approval of the COMELEC when he transferred Ebio on January 14, 1992 as on that
day, the rules of the COMELEC on the subject were yet inexistent. (People of
the Philippines vs. Reyes, 247 SCRA 328 [1995], Puno, J.).

 

 

18. Determination
of probable cause

 

§1. 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.” 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.

 

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” or a “high
level legal abstraction to the subject of warring thoughts.”  It constitutes those “facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an
offense has been committed” by a 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.  (Kilosbayan, Inc., vs. Commission on Elections, 280
SCRA 892 [1997], Hermosisima, Jr., J.).

 

§2. A preliminary investigation is
essentially inquisitorial and is only the means to discover who may be charged
with a crime, its function being merely to determine probable cause.

 

The finding of the existence or
non-existence of probable cause in the prosecution of criminal cases brought
before it, rests in the discretion of the COMELEC in the exercise of its
Constitutional authority to investigate and, where appropriate, prosecute cases
of violation of election laws, including acts or omissions constituting
election frauds, offenses and malpractices. (Pimentel, Jr., vs. Commission
on Elections, 289 SCRA 586 [1998], Kapunan, J.).

 

§3. On the other hand, if the
preliminary investigation of a complaint for election offense is conducted by
the COMELEC itself, its investigating officer prepares a report upon which the
Commission’s Law Department makes its recommendation to the  COMELEC en banc on whether there is
probable cause to prosecute.  It is thus
the COMELEC en banc which determines the existence of probable
cause.  Consequently, an appeal to the
Commission is unavailing.  Under the
present Rules of Procedure of the COMELEC, however, a motion for reconsideration
of such resolution is allowed.  This
effectively allows for a review of the original resolution, in the same manner
that the COMELEC, on appeal or motu proprio, may review the resolution
of the State Prosecutor, or Provincial or City Fiscal. (Faelnar vs. People
of the Philippines, 331 SCRA 429 [2000], Mendoza, J.).

 

§4. It bears stressing in this regard that
all that is required in the preliminary investigation is the determination of
probable cause so as to justify the holding of petitioners for trial.  Probable cause is defined . . . as the
existence of such facts and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge of the prosecutor,
that the person charged was guilty of the crime for which he was
prosecuted.   This definition is still
relevant today as we continue to cite it in recent cases. x x x Pilapil v.
Sandiganbayan sets the standard for determining probable cause. x x x  There we said: Probable cause is a reasonable
ground of presumption that a matter is, or may be, well founded such a state of
facts in the mind of the prosecutor as would lead a person of ordinary caution
and prudence to believe or entertain an honest or strong suspicion, that a
thing is so.  The term does not mean
“actual or positive cause” nor does it import absolute certainty.  It is merely based on opinion and reasonable
belief.  Thus, a finding of probable
cause does not require an inquiry into whether there is sufficient evidence to
procure a conviction.  It is enough that
it is believed that the act or omission complained of constitutes the offense
charged.  Precisely, there is a trial for
the reception of evidence of the prosecution in support of the charge. (Domalanta vs. Commission on Elections, 334 SCRA 555 [2000],
Ynares-Santiago, J.).

 

 

19. Conduct
of preliminary investigation

 

            a.) Under the Revised Election Code
(RA 180)

 

§1. The provisions of Section 187 of the
Revised Election Code vesting exclusive jurisdiction on the Court of First
Instance to conduct preliminary investigations of election offenses is
explicit. While Provincial Fiscals are authorized to conduct preliminary
investigations under the general law (Rep. Act No. 732), Section 187 of the
Revised Election Code, which gives Courts of First Instance exclusive original
jurisdiction to make preliminary investigations for violation of said Code,
must be construed as a limitation upon the powers of the fiscal to conduct the
preliminary investigations of criminal offenses.

 

The filing of the complaint before the Court of
First Instance for purposes of preliminary investigation tolled the period of
prescription provided in Section 188 of the Revised Election Code.  The filing of a complaint for alleged
violation of the Revised Election Code with the Court of First Instance which
is vested with the exclusive jurisdiction to conduct the preliminary
investigation thereof properly interrupts the period of prescription.  Article 91 of the Revised Penal Code, which
provides that the period of prescription of offenses shall be interrupted by
the filing of the complaint or information, should be applied as suppletory to
the Revised Election Code.

It appearing that the Court of First Instance has
not yet conducted, much less terminated the requisite preliminary
investigation, the issue of pre-judicial question is, therefore, prematurely raised.  It is only after a preliminary investigation
that the Court could determine the existence of a probable cause which would
warrant the holding of the accused for trial, as absent a finding of probable
cause, the complaint would be automatically dismissed.  The time or moment to ask for the suspension
of the criminal proceedings is not during the period of preliminary
investigation but after such investigation and after the information has been
filed. (Astorga vs. Puno, 67 SCRA 182 [1975], Antonio,
J.).

 

b.) Under
the 1978 Election Code (PD 1296)

 

§1. However, Section 182 of Presidential
Decree No. 1296, otherwise known as “THE 1978 ELECTION CODE” provides that:

 

“Section 182. Prosecution. – The Commission shall,
through its duly authorized legal officers, have the 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.”

 

Thus, it is no longer the Courts of First Instance
which shall conduct the preliminary investigation of election offenses.  The power has been transferred to the
Commission on Elections. (People of the Philippines vs.
Golez, 116 SCRA 165 [1982], Relova, J.).

 

 

c.) Under the Omnibus Election Code (BP Blg. 881)

 

§1. From the foregoing provisions of
the Constitution and the Omnibus Election Code, it is clear that aside from the
adjudicatory or quasi-judicial power of the COMELEC to decide election contests
and administrative questions, it is also vested the power of a public
prosecutor with the exclusive authority to conduct the preliminary
investigation and the prosecution of election offenses punishable under the
Code before the competent court.

 

Thus, when COMELEC, through its duly
authorized law officer, conducts the preliminary investigation of an election
offense and upon a prima facie finding of a probable cause, files the
information in the proper court, said court thereby acquires jurisdiction over
the case.  Consequently, all the
subsequent disposition of said case must be subject to the approval of the
court.  The COMELEC cannot conduct a
reinvestigation of the case without the authority of the court or unless so
ordered by the court.  The records of the
preliminary investigation required to be produced by the court must be
submitted by the COMELEC. The trial court may rely on the resolution of the
COMELEC to file the information, by the same token that it may rely on the
certification made by the prosecutor who conducted the preliminary
investigation, in the issuance of the warrant of arrest.  Nevertheless the court may require that the
record of the preliminary investigation be submitted to it to satisfy itself
that there is probable cause which will warrant the issuance of a warrant of
arrest.  The refusal of the COMELEC or
its agents to comply with the order of the trial court requiring them to
conduct a reinvestigation in this case and to submit to the court the record of
the preliminary investigation on the ground that only this Court may review its
actions is certainly untenable. (People of the Philippines vs. Delgado, 189
SCRA 715 [1990], Gancayco, J.).

 

 

20. Disqualification
Case

 

§1. A
complaint for disqualification filed before the election must be inquired
into by the COMELEC for the purpose of determining whether the acts complained
of have in fact been committed.  Where
the inquiry results in a finding before the election, the COMELEC shall order
the candidate’s disqualification.  In
case the complaint was not resolved before the election, the COMELEC may motu
proprio or on motion of any of the parties, refer the said complaint to the
Law Department of the COMELEC for preliminary investigation.

 

COMELEC did not
err in not ordering the suspension of respondent’s proclamation.  The second paragraph of paragraph 2 of
Resolution No. 2050 provides that where a complaint is filed after the
elections but before proclamation, as in this case, the complaint must be
dismissed as a disqualification case but shall be referred to the Law
Department for preliminary investigation. 
If before the proclamation, the Law Department makes a prima facie finding
of guilt and the corresponding information has been filed with the appropriate
trial court, the complainant may file a petition for suspension of the
proclamation of respondent with the court before which the criminal case is
pending and that court may order the suspension of the proclamation if the
evidence of guilt is strong.  It
appearing that none of the foregoing circumstances obtain herein as there is no
prima facie finding of guilt yet, a suspension of respondent’s
proclamation is not warranted. (Bagatsing vs. Commission on Elections, 320
SCRA 220 [1999], Kapunan, J.).

 

§2. Notably, there is nothing in paragraph 1 of Resolution No.
2050 which directs the dismissal of the disqualification case not resolved
before the election.  It says the COMELEC
“may motu proprio or on motion of any of the parties, refer the
complaint to the Law Department of the Commission as an instrument of the
latter in the exercise of its exclusive power to conduct a preliminary
investigation of all cases involving criminal infractions of the elections
laws.”  The referral to the Law
Department is discretionary on the part of the COMELEC and in no way may it be
interpreted that the COMELEC will dismiss the disqualification case or will no
longer continue with the hearing of the same. 
The reason for this is that a disqualification case may have two (2) aspects,
the administrative, which requires only a preponderance of evidence to prove
disqualification, and the criminal, which necessitates proof beyond reasonable
doubt to convict.  Where in the opinion
of the COMELEC, the acts which are grounds for disqualification also constitute
a criminal offense or offenses, referral of the case to the Law Department is
proper.

Section 6 (RA 6646) explicitly applies only to any candidate who has
been declared by final judgment to be disqualified before an
election.  The section provides further
that “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 x x x.” There is no
provision in R.A 6646 that treats of a situation where the complaint for
disqualification is filed after the election.  If the intention of the law is for the
COMELEC to hear and decide disqualification cases filed after the election, it
would not have made a distinction between cases filed before and after
the election.  Section 6 would not have
used the word “before” preceding “an election.” 
Thus, the need for implementing rules as embodied in Comelec Resolution
No. 2050 which provide that any complaint for disqualification based on Section
6 of R.A. 6646 is filed after the election against a candidate who has already
been proclaimed as winner shall be dismissed as a disqualification case, but
the complaint shall be referred for preliminary investigation to the Law
Department of COMELEC.

It bears
stressing that the Court in Sunga recognized the difference between a
disqualification case filed before and after an election when, as earlier
mentioned, it stated that the referral of the complaint for disqualification
where the case is filed before election “is totally different from the other
two situations contemplated by Resolution No. 2050, i.e., a disqualification
case filed after the election but before the proclamation of winners and that
filed after the election and the proclamation of winners, wherein it was
specifically directed by the same Resolution to be dismissed as a
disqualification case.”  Why there is a
difference between a petition for disqualification filed before and after
the election proceeds from the fact that before the election, the question of
disqualification is raised as an issue before the electorate and those who vote
for the candidate assume the risk that should said candidate be disqualified
after the election, their votes would be declared stray or invalid votes.  Such would not be true in the case of one
filed after the electorate has already voted. 
(Bagatsing vs. Commission on Elections, 320 SCRA 817 [1999], Kapunan,
J.).

 

 

21. Initiation
of Complaint

 

§1. In election cases, the criminal
prosecution may be initiated by filing either a criminal complaint subscribed
and sworn to by the offended party, any peace officer or any duly authorized
representative of the Comelec (Sec. 2, Rule 110) or an information signed by
the fiscal, who need not necessarily conduct the preliminary investigation
since pursuant to Sec. 14 of the Rule 112, a fiscal may file an information
even without conducting a preliminary investigation when such investigation is
required by law to be undertaken by a judge or another officer.  (People of the
Philippines vs. Golez, 39 SCRA 248 
[1971], Barredo, J.).

 

§2. Under the COMELEC Rules of
Procedure, initiation of complaints for election offenses may be done motu
proprio by the Commission on Elections or upon written complaint by any
citizen, candidate or registered political party or organization under the
party-list system or any of the accredited citizens arms of the
Commission.  However, such written
complaints should be filed with the “Law Department of the Commission; or with
the offices of the Election Registrars, Provincial Election Supervisors or
Regional Election Directors, or the State Prosecutor, Provincial Fiscal or City
Fiscal.” (Gallardo vs.
Tabamo, Jr., 218 SCRA 253 [1993], Davide, Jr., J.).

 

§3. We emphasize that we do so take
cognizance of the case exceptionally under Rule 65 of the Revised Rules of
Court pursuant to Section 1, Article VIII of the 1987 Constitution, as we
recognize that the COMELEC must be accorded full discretion whether or not to
initiate a criminal case, pursuant to its power to investigate and prosecute
election offenses.  We note that when
investigating and prosecuting election offenses, the COMELEC is acting
analogous to the Ombudsman with its investigatory and prosecutory powers. (Pimentel, Jr., vs. Commission on
Elections, 289 SCRA 586 [1998], Kapunan, J.).

 

§4. The Constitution gives the
COMELEC the power to investigate and, where appropriate, to prosecute cases of
violations of election laws.  This power
is an exclusive prerogative of the COMELEC. 
There are two ways through which a complaint for election offenses may
be initiated.  It may be filed by the
COMELEC motu proprio, or it may be filed via 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 citizens arms of the Commission. 
Motu proprio complaints may be signed by the Chairman of the
COMELEC and need not be verified.

 

On the other hand, complaints filed by
parties other than the COMELEC must be verified and supported by affidavits and
other evidence.  The complaint shall be
filed with the COMELEC Law Department or with the offices of election
registrars, provincial election supervisors or regional election directors, or
of the state prosecutor, provincial or city fiscal.  Whether initiated motu proprio or
filed with the COMELEC by any other party, the complaint shall be referred to
the COMELEC Law Department for investigation. 
Upon direction of the Chairman, the preliminary investigation may be
delegated to any lawyer of the Department, any Regional Election Director or
Provincial Election Supervisor, or any COMELEC lawyer.

 

But petitioner insists, and this is the
crux of his arguments, that absent an en banc resolution directing the
Law Department to conduct a preliminary investigation, there could be no valid
investigation.  Without a valid
preliminary investigation, no valid information could be filed against
him.  He cites Rule 34, Section 5 of the
COMELEC Rules of Procedure in support of his claim. x x x However, we fail to
see from Section 5 the requirement that only the COMELEC en banc may
refer a complaint to the Law Department for investigation.  What Section 5 states only is that it is the
Law Department, not another office, of the COMELEC which may conduct an
investigation into the allegations in the complaint.  There is no specific requirement as to how
referral to the department shall be made. 
We cannot read into the rules what simply is not there.

 

Section 5 refers to two situations, one of
which is where a complaint filed by a party other than the COMELEC is addressed
to the Commission itself.  Since it is
not the entire Commission that conducts the preliminary investigation, the
complaint must necessarily be referred to its Law Department.  Under the rules, this department is tasked
with conducting preliminary investigations of complaints filed before the
COMELEC.  Where, as in this case, the
complaint was directly filed with the Law Department under Section 4 of Rule
34, obviously there is no need to refer such complaint to the same Law
Department.

 

There is likewise no rule against the
COMELEC chairman directing the conduct of preliminary investigation, even if he
himself were the complainant in his private capacity.  In fact, under Section 5, the preliminary
investigation may be delegated to any of those officials specified in the rule,
upon the direction of the COMELEC chairman.

 

The
entire COMELEC cannot possibly be restrained from investigating the complaint
filed against petitioner, as the latter would like the courts to do.  The COMELEC is mandated by no less than the
Constitution to investigate and prosecute, when necessary, violations of
election laws.  This power is lodged
exclusively with the COMELEC.  For the
entire Commission to inhibit itself from investigating the complaint against
petitioner would be nothing short of an abandonment of its mandate under the
Constitution and the Omnibus Election Code. 
This we cannot allow. (Laurel vs. Judge of Regional Trial Court of
Manila, Branch 10, 323 SCRA 778 [2000], Quisumbing, J.).

 

22. Jurisdiction
of Regional Trial Court

 

§1. We
have explicitly ruled in Morales v. Court of Appeals that by virtue of
the exception provided for in the opening sentence of Section 32, the exclusive
original jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts does not cover those criminal cases which by
specific provisions of law fall within the exclusive original jurisdiction of
Regional Trial Courts and of the Sandiganbayan, regardless of the penalty
prescribed therefor.  Otherwise stated,
even if those excepted cases are punishable by imprisonment of not exceeding
six (6) years (i.e., prision correccional, arresto mayor, or arresto
menor), jurisdiction thereon is retained by the Regional Trial Courts or
the Sandiganbayan, as the case may be. (Commission on Elections vs. Noynay, 292 SCRA 254 [1998], Davide, Jr.,
J.).

§2. Petitioners
insist that the RTC did not have the jurisdiction to hear and decide cases
filed against them, because the penalty for the offenses charged did not exceed
six years.  Thus, they claim that the
authority to hear the cases is vested by R.A. 7691 in the first-level
courts.  The argument does not
persuade.  It is evident from Section 32,
BP 129, as amended by Section 2 of R.A. 7691, that the jurisdiction of first level
courts – the metropolitan trial courts, municipal trial courts and municipal
circuit trial courts – does not cover those criminal cases which by specific
provisions of law are cognizable by regional trial courts.

Petitioners
were charged with violating Section 261 (o) of the Omnibus Election Code. Under
Section 268 of the said Code, regional trial courts have exclusive jurisdiction
to try and decide any criminal action or proceeding for violation of the Code,
“except those relating to the offense of failure to register or failure to
vote.” x x x  Clearly then, regional
trial courts have jurisdiction to hear and decide cases for violation of the
Omnibus Election Code, such as those filed against petitioners. (Juan vs. People, 322 SCRA 125 [2000],
Panganiban, J.).

 

23. Authority
to appeal

§1. The authority to decide whether
or not to appeal the dismissal of a criminal prosecution for an election
offense belongs to the COMELEC, not the designated prosecutor.

 

Prosecutors designated by the COMELEC to
prosecute the cases act as its deputies. 
They derive their authority from it and not from their offices.

 

The COMELEC has the right to appeal, in
its own name, from a decision dismissing a criminal case filed by it.

 

 Considering the authority of the COMELEC over
the prosecution of election offenses, its decision to bring a petition for
certiorari and mandamus is conclusive on the Solicitor General. (Commission on Elections vs. Silva, Jr.,
286 SCRA 177 [1998], Mendoza, J.).

 

§2. In cases where the State
Prosecutor, or Provincial or City Fiscal exercises the delegated power to
conduct preliminary investigation of election offense cases, after the
investigating officer submits his recommendation, said officers already resolve
the issue of probable cause.  From such
resolution, appeal to the COMELEC lies. 
As the exercise by the Commission of its review powers would, at this
point, already constitute a second look on the issue of probable cause, the
COMELEC’s ruling on the appeal would be immediately final and executory. (Faelnar
vs. People of the Philippines, 331 SCRA 429 [2000], Mendoza, J.).

 

 

24. Effects of
re-election

 

§1. [a]s early as 18 December 1967
in Ingco v. Sanchez, this Court explicitly ruled that the re-election of
a public official extinguishes only the administrative, but not the criminal,
liability incurred by him during his previous term of office, thus: The ruling,
therefore, that , “when the people have elected a man to his office it must be
assumed that they did this with knowledge of his life and character and that
they disregarded or forgave his faults or misconduct if he had been guilty of
any”, refers only to an action for removal from office and does not apply to a
criminal case, because a crime is a public wrong more atrocious in character
than mere misfeasance or malfeasance committed by a public officer in the
discharge of his duties, and is injurious not only to a person or group of
persons but to the State as a whole. This must be the reason why Article 89 of
the Revised Penal Code, which enumerates the grounds for extinction of criminal
liability, does not include reelection to office as one of them, at least
insofar as a public officer is concerned. 
Also, under the Constitution, it is only the President who may grant the
pardon of a criminal offense. (Conducto
vs. Monzon, 291 SCRA 619 [1998], Davide, Jr., J.).

 

25. Condonation

 

§1. It must be emphasized that the
purpose of a disqualification proceeding is to prevent the candidate from
running or, if elected, from serving, or to prosecute him for violation of the
election laws.  Obviously, the fact that
a candidate has been proclaimed elected does not signify that his disqualification
is deemed condoned and may no longer be the subject of a separate
investigation.

 

It is worth to note that an election
offense has criminal as well as electoral aspects.  Its criminal aspect involves the
ascertainment of the guilt or innocence of the accused candidate.  Like in any other criminal case, it usually
entails a full-blown hearing and the quantum of proof required to secure a
conviction is beyond reasonable doubt. 
Its electoral aspect, on the other hand, is a determination of whether
the offender should be disqualified from office.  This is done through an administrative
proceeding which is summary in character and requires only a clear
preponderance of evidence.  Thus, under
Sec. 4 of the COMELEC Rules of Procedure, petitions for disqualification “shall
be heard summarily after due notice.”  It
is the electoral aspect that we are more concerned with, under which an erring
candidate may be disqualified even without prior criminal conviction. (Sunga vs. Commission on Elections, 288
SCRA 76 [1998], Bellosillo, J.).

 

 

26. Amnesty

 

§1. At any rate, it is undoubted that it is
the Commission on Elections which is the appropriate agency designated by the
President to pass upon the application for amnesty.  While this petition is not thus the appropriate
vehicle for granting the plea to be released from detention, it nonetheless
served a useful purpose.  It is a
confirmation of the “latitudinarian scope” of this protean writ to assure
judicial inquiry into the legality of a detention or restraint. (De Vera vs. Animas, 84 SCRA 594 [1978], Fernando, J.).

 

 

27. Misconduct

 

§1. Failure of petitioner to
disclose the fact that he was charged with an election offense in his personal
data sheet constitutes mental dishonesty amounting to misconduct.  Defense of dismissal of criminal complaint
for violation of election offense by the court because the fiscal was not
authorized under the Rules of Court to file the complaint is, not a valid
defense, as dismissal is not considered dismissal on the merits. (Bautista vs. Navarro, 114 SCRA 794
[1982], Relova, J.).

28. Damages

 

§1. The award of P500,000.00 as moral
damages to Barba must be deleted.  Under
Sec. 264, par. 1 of the Omnibus Election Code, as amended, the only imposable
penalties for the commission of any of the election offenses thereunder by an
individual are¾imprisonment of less than one year but not
more than six years [which] shall not be subject to probation.  In addition, the guilty party shall be
sentenced to suffer disqualification to hold public office and deprivation of
the right of suffrage. (Regalado, Jr., vs. Court of Appeals, 325 SCRA 516
[2000], Mendoza, J.).

 

 

29. Prescription
of election offenses

 

§1. Section 188 of the Revised
Election Code fixes a very short period of prescription.  The specific provision in said Section 188 to
the effect that “if the discovery of such (electoral) offenses be made in
election contest proceedings, the period of prescription shall commence on the
date in which the judgment in such proceedings becomes final” strongly indicates
that as a rule, electoral offenses the commission of which is already known
before an election contest is filed should be prosecuted without regard to such
contest. (Isip vs. Gonzales,
39 SCRA 255  [1971], Barredo, J.).

BIBLIOGRAPHY

 

I.          Constitution
and Codes

 

The 1935 Philippine Constitution

The 1973 Philippine Constitution

The 1987 Philippine Constitution

The Omnibus Election Code

The Administrative Code of 1987

 

II.         Books

 

Agpalo, Ruben E., Comments on the Omnibus

            Election
Code, 1998 Revised Edition

 

Bernas, Joaquin G., S.J., The 1987
Constitution

            of
the Republic of the Philippines: A

            Commentary,
1996 Edition

 

Calderon, Amado M., The Updated Omnibus

            Election
Code, Second Edition

 

                                    Cruz,
Isagani A., Philippine Political Law,

                                                1996
Edition

 

                                    Defensor-Santiago,
Miriam, Election Code Annotated,

2001

 

                                    De
Leon & De Leon, Jr., The Law on Public Officers

                                                and
Election Law, Third Edition, 1997

 

                                    Francisco,
Vicente J., How To Try Election Cases,

                                                Second
Edition, 1952

 

                                    Gonzales,
Neptali A., Administrative Law, Law on

                                                Public
Officers and Election Law,

Second
Edition, 1966

                                   

Martin
& Martin, Administrative Law, Law of Public

                                                Officers
and Election Law, Revised Edition, 1983

 

Rodriquez,
Rufus B., The Omnibus Election Code, and

                                                Other
Election Laws, Rules and Regulations of

                                                The
Philippines, 2001 Edition

 

                                    Sibal,
Jose Agaton R., Omnibus Election Code of the

                                                Philippines
(Annotated)

 

                                    Sinco,
Vicente, G., Philippine Political Law,

Eleventh
Edition, 1962

 

 

III.       Reports

 

Philippine Reports

 

Supreme Court Reports Annotated (SCRA)

 

 

IV.       Rules and
Procedures

 

The Revised Rules of the Presidential Electoral Tribunal

 

The Revised Rules of the Senate Electoral Tribunal

 

The 1998 Rules of the House of
Representatives Electoral Tribunal

 

The 1993 Commission on Elections Rules of
Procedure

CASE
TITLE INDEX

A

Abad, Jr., vs. Commission on Elections,
320 SCRA 507 [1999], p. 396

Abañil vs. Justice of the Peace Court of
Bacolod, Negros Occidental,

70
Phil. 28 [1940], p. 4                                                                      

Abaya vs. Concepcion, 111 SCRA 590 [1982],
pp. 370, 438

Abbas, et al. vs. Senate Electoral
Tribunal, 166 SCRA 651 [1988], p. 55             

Abeja vs. Tanada, 236 SCRA 60 [1994], p.
395

Abella vs. Commission on Elections, 201
SCRA 253 [1991], p. 40

Abella vs. Larrazabal, 180 SCRA 509
[1989], pp. 170, 289, 304, 332, 384           

Abes vs. Commission on Elections, 21 SCRA
1252 [1967], pp. 105, 110,

263,
285, 295             

Abesamis
vs. Reyes, 31 SCRA 178 [1970], p. 69

Abiera vs. Abiera, 54 Phil. 793 [1930], p.
196

Abrea vs. Lloren, 81 Phil. 809 [1948], pp.
196, 213

Abrigo
vs. Commission on Elections, 31 SCRA 26 [1970], pp. 79, 316

ABS-CBN Broadcasting Corp. vs. Commission
on Elections,

323
SCRA 811 [2000], pp. 149, 180

Acain and Malimit vs. Board of Canvassers
of Carmen, Agusan,

108
Phil. 165 [1960], pp. 363, 369

Acuña
vs. Golez, 122 Phil. 1129 [1966]; 16 SCRA 32 [1966], p. 251

Adiong vs. Commission on Elections, 207
SCRA 712 [1992], p. 131

Agbayani vs. Commission on Elections, 186
SCRA 484 [1990], pp. 333, 385

Aguam
vs. Commission on Elections, 23 SCRA 883 [1968], pp. 122, 253, 300, 382

Aguilar and Casapao vs. Navarro, 55 Phil.
898 [1931], p. 268

Aguinaldo vs. Commission on Elections, 102
SCRA 1 [1981], pp. 174, 177

Agujetas vs. Court of Appeals, 261 SCRA 17
[1996], p. 307

Akbayan-Youth vs. Commission on Elections,
355 SCRA 318 [2001], p. 155

Albano vs. Arranz, 114 Phil. 318 [1962]; 4
SCRA 386  [1962], pp. 77, 121

Albano vs. Provincial Board of Canvassers
of Isabela,

115
Phil. 6 [1962]; 5 SCRA 13 [1962], pp. 78, 311

Alberto vs. Commission on Elections, 311
SCRA 215 [1999], p. 343

Alcantara vs. Secretary of Interior, 61
Phil. 459 [1935], pp. 4, 38

Aleman vs. Genato, 133 SCRA 797 [1984],
pp. 316, 488

Alfonso vs. Commission on Elections, 232
SCRA 777 [1994], p. 324

Ali vs. Court of First Instance of Lanao,
80 Phil. 506 [1948], p. 341

Alialy
vs. Commission on Elections, 112 Phil. 856 [1961];

2 SCRA 957 [1961], pp. 159, 169

Alido
vs. Alar, 3 SCRA 561 [1961], p. 370

Almeda
vs. Silvosa, 100 Phil. 844 [1957], p. 416

Alonto
vs. Commission on Elections, 22 SCRA 878 [1968], pp. 107, 120, 253,

300, 314

Alvendia vs. Moir and Dinio, 35 Phil. 356
[1916], pp. 73, 349

Ambil, Jr., vs. Commission on Elections,
344 SCRA 358 [2000], pp. 89, 470

Amurao vs. Calangi, 104 Phil. 347 [1958], pp.
223, 243

Ancheta and Aguilar vs. Judge, CFI of La
Union, 40 Phil. 73 [1919], p. 407

Ang Bagong Bayani OFW Labor Party vs. Commission
on Elections,

359
SCRA 698, p. 153

Angara vs. Electoral Commission, 63 Phil.
139 [1936], pp. 49, 51, 57, 59

Angelia vs. Commission on Elections, 332
SCRA 757 [2000], pp. 274, 291, 387, 470

Angobung vs. Commission on Elections, 269
SCRA 245 [1997], pp. 20, 21

Anis vs. Contreras, 55 Phil. 923 [1931], pp.
77, 350, 358

Anni vs. Izquierdo, 57 SCRA 692 [1974], pp.
249, 345, 352

Anni vs. Rasul, 46 SCRA 758 [1972], pp.
302, 328

Anni vs. Rasul, 57 SCRA 686 [1974], p.
467

Antonio vs. Commission on Elections, 315
SCRA 62 [1999], p. 81

Antonio, Jr. vs. Commission on Elections,
32 SCRA 319 [1970], pp. 58, 102, 123,

            141, 265, 275

Aportadera vs. Sotto, 3 SCRA 626 [1961], pp.
43, 154

Aquino vs. Calabia and Sahagun, 55 Phil.
984 [1931], pp. 293, 358, 419, 461

Aquino vs. Commission on Elections, 22
SCRA 288 [1968], pp 106, 282, 292     

Aquino vs. Commission on Elections, 248
SCRA 400 [1995], pp. 40, 41, 62,

354,
377

Aquisola
vs. Municipal Council of Barili, 43 Phil. 286 [1922], p. 186

Arao
vs. Commission on Elections, 210 SCRA 290 [1992], P. 247

Aratuc vs. Commission on Elections, 88
SCRA 251 [1979], pp. 84, 108, 192,

328,
372

Arnedo vs. Llorente and Liongson, 18 Phil.
257 [1911], pp. 73, 471, 484

Arrieta vs. Rodriguez, 57 Phil. 717 [1932],
pp. 426, 461

Arroyo vs. House of Representatives
Electoral Tribunal, 246 SCRA 384 [1995],

pp.
418, 456

Aruelo, Jr., vs. Court of Appeals, 227
SCRA 311 [1993], pp. 139, 335, 342, 347,

394,
420, 422

Arzaga vs. Bobis, Sr., 116 Phil. 702
[1962]; 6 SCRA 386 [1962], pp. 201, 205, 214,

234,
241, 244, 448

Asis vs. Ilao, 114 Phil. 291 [1962]; 4
SCRA 349 [1962], p. 448

Astilla vs. Asuncion, 119 Phil. 739
[1964]; 10 SCRA 456 [1964], p. 268

Astorga vs. Fernandez, et al., 19 SCRA 331
[1967], p. 434

Astorga vs. Puno, 67 SCRA 182 [1975], pp.
79, 497

Asuncion, Jr., vs. Segundo, 124 SCRA 729
[1983], pp. 365, 404

Atienza vs. Commission on Elections, 239
SCRA 298 [1994], p. 483

Aviado vs. Talens, 52 Phil. 665 [1929], pp. 191, 195, 204, 222, 233, 243, 254

Ayo vs. Flordeliza, 48 Phil. 199 [1925], p. 445

Aznar v. Commission on Elections, 185 SCRA
703 [1990], pp. 33, 167

 

B

Badoy, Jr., vs. Commission on Elections,
35 SCRA 285 [1970], pp. 129, 178

Bagatsing vs. Commission on Elections, 320
SCRA 220 [1999], pp. 308, 498

Bagatsing vs. Commission on Elections, 320
SCRA 817 [1999], pp. 374, 500

Balason vs. Balido, 21 SCRA 1136 [1967], p.
83

Balindong
vs. Commission on Elections, 27 SCRA 567 [1969], pp. 257, 316

Balindong vs. Commission on Elections, 260
SCRA 494 [1996], pp. 112, 184, 325

Balon vs. Moreno, 57 Phil. 60 [1932], pp.
191, 196, 208, 222, 248

 

Banaga, Jr., vs. Commission on Elections,
336 SCRA 701 [2000], pp. 115, 355,

375,
412

Barroso vs. Ampig, Jr., 328 SCRA 530
[2000], pp. 339, 398, 400

Basher vs. Commission on Elections, 330
SCRA 736 [2000], p. 114

Bashier vs. Commission on Elections, 43
SCRA 238 [1972], pp. 156, 249

Baterina vs. Commission on Elections, 205
SCRA 1 [1992], p. 306

Batino, Jr., vs. Commission on Elections,
137 SCRA 698 [1985], p. 337

Batioco vs. Bautista, 42 SCRA 192 [1971], p.
413

Bautista vs. Castro, 206 SCRA 305 [1992], pp.
207, 211, 215, 243, 245

Bautista vs. Commission on Elections, 298
SCRA 480 [1998], pp. 146, 169, 326, 335

Bautista vs. De la Cruz, 9 SCRA 725
[1963], p. 30

Bautista vs. Fugoso and Sison, 60 Phil.
383 [1934], p. 292

Bautista vs. Navarro, 114 SCRA 794 [1982],
p. 504

Beegan vs. Borja, 261 SCRA 474 [1996], pp.
429, 436, 456

Bello vs. Reyes and Dacuycuy, 36 Phil. 83
[1917], p. 74

Benitez vs. Paredes and Dizon, 52 Phil.
1[1928], pp. 76, 267

Benito vs. Commission on Elections, 235
SCRA 436 [1994], pp. 11, 125, 307, 342

Beso vs. Aballe, 326 SCRA 100 [2000], p.
477

Bince, Jr. vs. Commission on Elections,
242 SCRA 273 [1995], pp. 273, 343

Binging
Ho vs. Municipal Board of Canvassers of Bongao,

Sulu, 28 SCRA 829 [1969], p. 316

Bisnar vs. Lapasa, 125 Phil. 932 [1967];
19 SCRA 534 [1967], pp. 209, 215, 216, 218,

            233,
236, 239

Board of Election Inspectors, et al., vs.
Piccio, 81 Phil. 577 [1948]. P. 280

Bocobo vs. Commission on Elections, 191
SCRA 576 [1990], p. 137

Bondoc vs. Pineda, 201 SCRA 792 [1991], p.
61

Borja vs. De Leon, 118 Phil. 1050 [1963];
9 SCRA 216 [1963], p. 478

Borja vs. Roxas, 56 Phil. 488 [1932], p.
447

Borja, Jr., vs. Commission on Elections,
260 SCRA 604 [1996], pp. 80, 113, 144

Borja, Jr., vs. Commission on Elections,
295 SCRA 157 [1998], p. 171

Borromeo vs. Commission on Elections, 28
SCRA 775 [1969], pp. 351, 389, 449

Brilliantes, Jr., vs. Yorac, 192 SCRA 358
[1990], p. 91

Buenviaje vs. Aquino, 42 SCRA 209 [1971], p.
67

Bulaong vs. Commission on Elections, First
Division, 220 SCRA 745 [1993], p. 468

Bulaong vs. Commission on Elections, 241
SCRA 180 [1995], pp. 141, 438, 455

Bustos vs. Moir and Fajardo, 35 Phil. 415
[1916], pp. 74, 371

 

C

Caasi vs. Court of Appeals, 191 SCRA 229
[1990], p. 39

Cabagnot vs. Commission on Elections, 260
SCRA 503 [1996], p. 436

Cabili vs. Badelles, 116 Phil. 493 [1962];
6 SCRA 190 [1962], p. 397

Cacho vs. Abad, 62 Phil. 564 [1935], p.
227

Caesar vs. Garrido, 53 Phil. 97 [1929], pp.
158, 358, 361

Cailles vs. Gomez and Barbaza, 42 Phil.
496 [1921], pp. 115, 188, 195, 200, 204,

207,
210, 212, 217, 220, 221, 222, 225, 226, 227, 232, 240, 248, 414, 439, 445

Calabig vs. Villanueva, 135 SCRA 300
[1985], pp. 420, 422, 463

Calimbas vs. Commission on Elections, 139
SCRA 171 [1985], pp. 155, 192

 

Calo vs. Court of Appeals, 118 Phil. 1056
[1963];  9 SCRA 222 [1963], pp. 196,

            201,
209, 219, 234

Calo vs. Enage, 21 SCRA 1416 [1967], p.
313

Calucag vs. Commission on Elections, 274
SCRA 405 [1997], p. 410

Camlian vs. Commission on Elections, 271
SCRA 757 [1997], p. 474

Campos vs. Degamo, 116 Phil. 541 [1962], p.
363

Campos vs. Wislizenus and Aldanese, 35
Phil. 373 [1916], pp. 74, 349

Canicosa vs. Commission on Elections, 282
SCRA 512 [1997], pp. 67, 114

Caraecle vs. Court of Appeals, 94 Phil.
308 [1954], pp. 199, 201, 237, 247

Carlos vs.
Angeles, 346 SCRA 571 [2000], pp. 9, 144

Caruncho III vs. Commission on Elections,
315 SCRA 693 [1999], pp. 308, 360

Casimiro vs. Commission on Elections, 171
SCRA 468 [1989], pp. 142, 304, 442

Castañeda vs. Yap, 91 Phil. 819 [1952], p.
377

Castillo vs. Provincial Board of
Canvassers of Surigao del Sur, 121 Phil. 175

[1965];
13 SCRA 162 [1965], p. 370

Castro vs. Gatuslao, 98 Phil. 194 [1956], p.
161

Castro vs. Wislizenus, 12 Phil. 468, p.
487

Castromayor vs. Commission on Elections,
250 SCRA 298 [1995], pp. 273, 289

Cauton vs. Commission on Elections, 126
Phil. 291 [1967]; 19 SCRA 911 [1967],

pp. 13,
100, 101, 104, 105, 252, 295, 434

Cawa vs. Del Rosario, 108 Phil. 520
[1960], p. 310

Cayetano vs. Monsod, 201 SCRA 210 [1991], p.
92

Cecilio vs. Belmonte, 48 Phil. 243 [1925],
pp. 309,  432

Cecilio vs. Belmonte, 51 Phil. 540 [1928],
pp. 158, 471, 477

Cecilio vs. Tomacruz, 62 Phil. 689 [1935],
pp. 213, 416

Ceniza
vs. Commission on Elections, 95 SCRA 763 [1980], pp. 5, 156

Cereno
vs. Dictado, 160 SCRA 759 [1988], p. 376

Chavez vs. Commission on Elections, 211
SCRA 315 [1992], pp.  272, 329

City Board of Canvassers of Tacloban City
vs. Moscoso, 118 Phil. 935 [1963];

9 SCRA
91[1963], pp.  284, 294, 350, 369

City of Pasig vs. Commission on Elections, 314 SCRA
179 [1999], p. 20

Claudio vs. Commission on Elections, 42
SCRA 586 [1971], p. 186

Claudio vs. Commission on Elections, 331
SCRA 388 [2000], p. 21

Co vs. House of Representatives Electoral
Tribunal, 199 SCRA 692 [1991], p. 60

Collado vs. Alonzo, 122 Phil. 957 [1965];
15 SCRA 562 [1965], pp. 159, 181

Comelec vs. Noynay, 292 SCRA 254 [1998], p.
502

Comelec vs. Silva, Jr., 286 SCRA 177
[1998}, p. 503

Conducto vs. Monzon, 291 SCRA 619 [1998], p.
503

Conquilla vs. Commission on Elections, 332
SCRA 861 [2000], p. 169

Conui-Omega vs. Samson, 118 Phil. 1333
[1963]; 9 SCRA 493 [1963], pp. 198, 201,

217,
229, 235, 242, 312, 402, 413, 424, 433

Conui-Omega vs. Samson, 20 SCRA 1020
[1967], p. 481

Cordero vs. Commission on Elections, 310
SCRA 118 [1999], p. 340

Cordero vs. Court of First Instance of
Rizal, 40 Phil. 246 [1919], pp. 105, 283, 291

Cordero vs. Moscardon, 132 SCRA 413
[1984], p. 207

Corocoro vs. Bascara, 118 Phil. 1362
[1963]; 9 SCRA 519 [1963], pp. 14, 164, 214

Corpuz vs. Ibay, 84 Phil. 184 [1949], pp.
228, 237, 240, 350, 359

Cortez vs. Commission on Elections, 79
Phil. 352 [1947], p. 101

Crispino vs. Panganiban, 219 SCRA 621
[1993], p. 455

Cristino vs. Cavite, 125 Phil. 757 [1967];
19 SCRA 350 [1967], p. 206

Cruz vs. De Guzman, 54 Phil. 32 [1929], p.
446

Cuevas vs. Lesaca and Violago, 56 Phil. 25
[1931], p. 433

 

D

Dagloc vs. Commission on Elections, 321
SCRA 273 [1999], p. 406

Dayo vs. Commission on Elections, 199 SCRA
449 [1991], p. 465

Dayrit vs. San Agustin and Valdez, 40
Phil. 782 [1920], pp. 11, 245, 444

Deananeas vs. Mangosing, 21 SCRA 1051
[1967], p. 82

De Castro vs. Commission on Elections, 267
SCRA 806 [1997], pp. 387, 388

De Castro vs. Ginete, 27 SCRA 623 [1969], pp.
345, 465

De Guzman vs. Board of Canvassers of La
Union and Lucero, 48 Phil. 211 [1925],

pp. 14,
157, 164

De Jesus vs. People, 120 SCRA 760 [1983], p.
127

De la Cruz vs. Revilla and Bustos, 40
Phil. 234 [1919], p. 419

De la Merced vs. Revilla and Camacho, 40
Phil. 190 [1919], p. 428

De la Rosa vs. Yonson, 52 Phil. 446
[1928], pp. 349, 361

De la Victoria vs. Commission on
Elections, 199 SCRA 561 [1991], p. 389

De Leon vs. Cruz, 92 Phil. 403 [1952], p.
350

De Leon vs. Guadiz, Jr., 104 SCRA 591
[1981], pp. 407, 428

De Leon vs. Imperial, 94 Phil. 680 [1954],
pp. 268, 293

De los Angeles vs. Rodriquez, 46 Phil. 595
[1924], pp. 14, 160, 186, 248

De los Reyes vs. Solidum, 61 Phil. 893
[1935], p. 38

De Vera vs. Animas, 84 SCRA 594 [1978], p.
504

Defensor-Santiago vs. Ramos, 253 SCRA 559
[1996], pp. 46, 160, 392

Defensor-Santiago vs. Commission on
Elections and Lucero, 270 SCRA 106

[1997],
p. 134

Delgado vs. Tiu, 105 Phil. 835 [1959],
pp. 223, 243

Demafiles vs. Commission on Elections, 21
SCRA 1462 [1967], pp. 121, 286,

296,
351

Demeterio vs. Lopez, 50 Phil. 45 [1927], pp.
116, 183, 188, 415, 419, 461

Diangka vs. Commission on Elections, 323
SCRA 887 [2000], p. 396

Diaz, Sr. vs. Commission on Elections, 42
SCRA 426 [1971], pp. 192, 257

Dimaporo vs. Commission on Elections, 186
SCRA 769 [1990], pp. 262, 335

Dimaporo vs. Estipona, 112 Phil. 220
[1961]; 2 SCRA 282 [1961], pp. 429, 430

Dimaporo vs. Mitra, Jr. , 202 SCRA 779
[1991], p. 163

Dipatuan vs. Commission on Elections, 47
SCRA 258 [1972], p. 98

Dipatuan vs. Commission on Elections, 185
SCRA 86 [1990], pp. 188, 250, 259,

275,
323

Disini vs. Commission on Elections, 119
SCRA 511 [1982], p. 364

Dizon vs. Provincial Board of Canvassers
of Laguna,  52 Phil. 47 [1928], pp.
267,

292,
293

Dizon vs. Tizon, 22 SCRA 1311 [1968], pp.
107, 314

Domalanta vs. Commission on Elections, 334
SCRA 555 [2000], pp. 490, 496

Domingo vs. Ramos, 125 Phil. 153 [1966];
17 SCRA 749 [1966], pp. 202, 206, 209,

218

Domingo, Jr., vs. Commission on
Elections, 313 SCRA 311 [1999], p. 400

Domino vs. Commission on
Elections, 310 SCRA 546 [1999], pp. 41, 69

Doruelo vs. Commission on
Elections, 133 SCRA 376 [1984], p. 260

Duremdes vs. Commission on
Elections, 178 SCRA 746 [1989], pp. 102, 108, 124,

136, 278, 304, 322

 

E

Edding vs. Commission on Elections, 246
SCRA 502 [1995], pp. 144, 472

Ello vs. Judge of First Instance of
Antique and Valdevin,  49 Phil. 152
[1926],

pp.
248, 371

Enojas, Jr., vs. Commission on Elections,
283 SCRA 229 [1997], p. 464

Erni vs. Commission on Elections, 243 SCRA
706 [1995], pp. 438, 456

Espino vs. Zaldivar, 21 SCRA 1204 [1967], pp.
104, 106, 256

Esquivel vs. Commission on Elections, 121
SCRA 786 [1983], p. 403

Estaniel vs. Commission on Elections, 42
SCRA 436 [1971], p. 257

Estella vs. Edaño, 115 Phil. 44 [1962]; 5
SCRA 65 [1962], pp. 427, 448

Estrada vs. Navarro, 21 SCRA 1514 [1967], p.
270

Evardone vs. Commission on Elections, 204
SCRA 464 [1991], p. 19

 

F

Faelnar vs. People, 331 SCRA 429 [2000], pp.
375, 495, 503

Farin vs. Gonzales, 53 SCRA 237 [1973], pp.
207, 208, 218, 224, 226, 228, 232

Faypon vs. Quirino, 96 Phil. 294 [1954], pp.
39, 42

Feliciano vs. Lugay, 93 Phil. 744 [1953], p.
156

Felisilda vs. Achacoso, 118 Phil. 1366
[1963]; 9 SCRA 523 [1963], pp. 211, 214, 449

Felix vs. Commission on Elections, 23 SCRA
1288 [1968], pp. 123, 301

Fermo
vs. Commission on Elections, 328 SCRA 52 [2000], p. 477

Fernandez
vs. Commission on Elections, G.R. No. 91351,

April 3, 1990, Minute Resolution, pp. 186, 194

Fernando vs. Endencia, 66 Phil. 148
[1938], pp. 358, 416

Ferraren vs. Añonuevo, 118 Phil. 1428
[1963]; 9 SCRA 583 [1963], pp. 202, 235, 238

Ferrer vs. Commission on Elections, 330
SCRA 229 [2000], p. 436

Ferrer vs. De Alban, 101 Phil. 1018
[1957], pp. 205, 210, 222, 229, 237, 240

Ferrer vs. Gutierrez David and Lucot, 43
Phil. 795 [1922], pp. 177, 356

Filart vs. Commission on Elections, 53
SCRA 457 [1973], pp. 257, 398

Florendo, Sr., vs. Buyser, 21 SCRA 1106
[1967], pp. 116, 156

Flores vs. Commission on Elections, 184
SCRA 484 [1990], pp. 31, 69, 86, 144

French vs. Commission on Elections, 24
SCRA 23 [1968], p. 315

Frivaldo vs. Commission on Elections, 174
SCRA 245 [1989], pp. 32, 33, 366

Frivaldo vs. Commission on Elections, 257
SCRA 727 [1996], pp. 34, 36, 43, 170

 

G

Gabatan vs. Commission on Elections, 122
SCRA 1 [1983], pp. 79, 353

Gabuya vs. Dajao, 118 Phil. 1046 [1963]; 9
SCRA 213 [1963], pp. 228, 241

Gadon vs. Gadon, 118 Phil. 1502 [1963]; 9
SCRA 652 [1963], pp. 197, 214, 217, 236,

238,
242, 351, 417

Gaerlan,
Jr., vs. Catubig, 123 Phil. 1229 [1966]; 17 SCRA 376 [1966], pp. 36, 364

Gala vs. Cui and Rodriquez, 25 Phil. 522
[1913], pp. 430, 432

Galang vs. Miranda and De Leon, 35 Phil.
269 [1916], pp. 341, 356, 414

Galido vs. Commission on Elections, 193 SCRA
78 [1991], p. 86

Gallardo vs. Rimando, 187 SCRA 463 [1990],
pp. 142, 338, 404, 471

Gallardo vs. Tabamo, Jr., 218 SCRA 253
[1993], pp. 80, 128, 138, 348, 492, 500

Gallardo vs. Tabamo, Jr., 232 SCRA
690[1994], p. 98

Gallares vs. Caseñas, 48 Phil. 362 [1925],
pp. 356, 415, 461

Gallego vs. Verra, 73 Phil. 453 [1941], pp.
39, 41

Gaminde vs. Commission on Audit, 347 SCRA
655 [2000], p. 93

Garay vs. Commission on Elections, 261
SCRA 222 [1996], pp. 113, 278, 280

Garces vs. Court of Appeals, 259 SCRA 99
[1996], pp. 88, 368

Garchitorena vs. Crescini and Imperial, 39
Phil. 258 [1918], pp. 6, 8

Garcia vs. Commission on Elections, 105
SCRA 250 [1981], pp. 275, 451

Garcia vs. Commission on Elections, 227
SCRA 100 [1993], p. 19

Garcia vs. Court of Appeals, 36 SCRA 582 [1970],
p. 224

Garcia
vs. De Jesus, 206 SCRA 779 [1992], p. 373

Garcia
vs. House of Representatives Electoral Tribunal,  312 SCRA 353 [1999],

pp. 64, 411

Gardiner
vs. Romulo, 26 Phil. 254 [1914], pp. 11, 12, 13, 14, 178, 183, 185, 255, 355

Garvida
vs. Sales, Jr., 271 SCRA 767 [1997], pp. 36, 168

Gatchalian vs. Commission on Elections, 35
SCRA 435 [1970], p. 15

Gatchalian vs. Court of Appeals, 245 SCRA
208 [1995], pp. 385, 409

Geromo vs. Commission on Elections, 118
SCRA 165 [1982], p. 225, 452

Geronimo vs. Ramos, 136 SCRA 435 [1985], p.
11

Ginete
vs. Arcangel, 21 SCRA 1178 [1967], pp. 341, 359

Goboy vs. Commission on Elections, 126
SCRA 441 [1983], p. 337

Gonzaga vs. Seno, 117 Phil. 751 [1963]; 7
SCRA 741 [1963], pp. 198, 209, 214

Gonzales vs. Commission on Elections, 27
SCRA 835 [1969], pp. 159, 178

Gorospe vs. Peñaflorida, 101 Phil. 886
[1957], p. 362

Grand Alliance for Democracy (GAD) vs.
Commission on Elections, 150 SCRA

665  [1987], p. 9

Grego vs. Commission on Elections, 274
SCRA 481 [1997], p. 290

Guekeko vs. Pascual, 50 Phil. 221 [1927], pp.
195, 204, 440, 445

Guerrero vs. Commission on Elections, 336
SCRA 458 [2000], pp. 65, 166, 375

Guerrero vs. Villareal and Guerrero, 41
Phil. 50 [1920], p. 75

Guevara vs. Commission on Elections, 104
Phil. 268 [1958], pp. 98, 140

Guiao
vs. Commission on Elections, 137 SCRA 356 [1985], p. 303

Guieb vs. Fontanilla, 247 SCRA 348 [1995],
pp. 70, 144

Gumiran
vs. Gumiran, 21 Phil. 174 [1912], p. 355

Gumpal vs. Arranz, 110 Phil. 287 [1960], pp.
268, 311

Gundan vs. CFI of Cagayan, 66 Phil. 125
[1938], pp. 158, 164

Gutierrez vs. Commission on Elections, 270
SCRA 413 [1997], p. 473

 

H

Hassan vs. Commission on Elections, 264
SCRA 125 [1996], pp. 113, 119

Hidalgo vs. Manglapus, et al. , SET Case
No. 5, 0.G. 64, April 24, 1967, p. 53

Hontiveros vs. Altavas, 24 Phil. 632
[1913], p. 8

Hontiveros vs. Altavas, 26 Phil. 213
[1913], pp. 11, 245

Hontiveros vs. Altavas, 39 Phil. 226
[1918], p. 481

 

I

Ibasco vs. Ilao, 110 Phil. 553 [1960], pp.
341, 423

Ibuna vs. Commission on Elections, 21 SCRA
1457 [1967], p. 282

Ignacio vs. Sison and Navarro, 56 Phil.
451 [1931], p. 461

Ilarde vs. Commission on Elections, 31
SCRA 72 [1978], pp. 260, 302

Illescas vs. Court of Appeals, 94 Phil.
215 [1953], pp. 213, 246

Immam vs. Commission on Elections, 322
SCRA 866 [2000], pp. 119, 309

Inguito vs. Court of Appeals, 21 SCRA 1015
[1967], p. 244

Inting vs. Clarin, 21 SCRA 1421 [1967], p.
241

Isip vs. Gonzales, 39 SCRA 255 [1971], pp.
489, 505

 

J

Jagunap vs. Commission on Elections, 104
SCRA 204 [1981], pp. 364, 441

Jalandoni vs. Sarcon, 94 Phil. 266 [1954],
p. 359

Jamil vs. Commission on Elections, 283
SCRA 349 [1997], p. 267

Janairo vs. Commission on Elections, 21
SCRA 1173 [1967], pp. 110, 111

Jardiel vs. Commission on Elections, 124
SCRA 650 [1983], pp. 419, 441, 462

Jaucian vs. Callos, 104 Phil. 603 [1958], p.
223

Javellana vs. Executive Secretary, 50 SCRA
30 [1973], p. 4

Javier vs. Commission on Elections, 121
Phil. 168 [1965]; 13 SCRA 156 [1965],

pp.
104, 121

Javier vs. Commission on Elections, 144
SCRA 194 [1986], p. 346

Javier vs. Court of First Instance of
Antique, 123 Phil. 180 [1966];

16 SCRA
360 [1966], p. 269

Javier vs. Nadres, 36 Phil. 226 [1917], p.
74

            Jimenez
vs. Lofranco, 118 Phil. 1303 [1963]; 9 SCRA 465 [1963], p. 211

Juan vs. People, 322 SCRA 125 [2000], pp.
487, 502

Juliano vs. Court of Appeals, 20 SCRA 808
[1967], pp. 82, 194, 229, 231, 246,

248,
341, 434, 466, 478

 

K

Karagdag vs. Barado, 33 Phil. 529 [1916], p.
423

Katigbak vs. Mendoza, 125 Phil. 943
[1967]; 19 SCRA 543 [1967], pp. 206, 215, 224,

228,
232, 233

Kho vs. Commission on Elections, 279 SCRA
463 [1997], p. 427

Kiamzon vs. Pugeda, 54 Phil. 755 [1930], pp.
189, 440

Kibad vs. Commission on Elections, 23 SCRA
588 [1968], p. 259

Kilosbayan, Inc., vs. Commission on
Elections, 280 SCRA 892 [1997], p. 495

 

L

Labo, Jr., vs. Commission on Elections,
176 SCRA 1 [1989], pp. 33, 366

Labo, Jr., vs. Commission on Elections,
211 SCRA 297 [1992], pp. 170, 484

Lachica vs. Yap, 25 SCRA 140 [1968], pp.
54, 59

Lacson,
Jr. vs. Posadas, 72 SCRA 168 [1976], pp. 3, 14, 164, 486

Lacuna vs. Abes, 24 SCRA 780 [1968], p.
154

Laguda
vs. Commission on Elections, 102 SCRA 857 [1981], p. 393

Lagumbay
vs. Commission on Elections, et al., 122 Phil. 1274 [1966];

16 SCRA 175 [1966], pp. 107, 249, 255, 258, 449

Lakas ng Bayan vs. Commission on
Elections, 82 SCRA 196 [1978], p. 146

Lambonao vs. Tero, 15 SCRA 716 [1965], p.
159

Laodenio vs. Commission on Elections, 276
SCRA 705 [1997], pp. 283, 386

Larena vs. Teves, 61 Phil. 36 [1934], p.
38

Laurel
vs. Regional Trial Court of Manila, Branch 10, 323 SCRA 778 [2000], p. 502

Lava
vs. Hon. Lopez Vito, 73 Phil. 390 [1941], pp. 100, 145

Lawsin
vs. Escalona, 11 SCRA 643 [1964], p. 312

Lazatin vs. Commission on Elections, 134
SCRA 1 [1985], p. 370

Lazatin vs. Commission on Elections, 157
SCRA 337 [1988], pp. 58, 347

Lazatin vs. The House Electoral Tribunal,
et al., 168 SCRA 391, [1988], p. 59

Lerias vs. House of Representatives
Electoral Tribunal,

202
SCRA 808, [1991], pp.  199, 454

Leyva vs. Commission on Elections, 18 SCRA
504 [1966], p. 154

Libanan vs. House of Representatives
Electoral Tribunal,

283
SCRA 520, [1997], pp. 31, 63, 190

Libardos vs. Casar, 234 SCRA 13 [1994], p.
70

Lidasan vs. Commission on Elections, 22
SCRA 975 [1968], p. 372

Ligot vs. Commission on Elections, 31 SCRA
45 [1970], pp. 100, 351, 441, 450

Lim vs. Commission on Elections, 282 SCRA
53 [1997], pp. 398, 405, 427

Lim
vs. Maglanoc, 112 Phil. 1087 [1961]; 2 SCRA 1189 [1961], p. 311

Lindo vs. Commission on Elections, 194
SCRA 25 [1991], p. 443

Lindo vs. Commission on Elections, 274
SCRA 511 [1997], p. 474

Lingad vs. Aguilar, 31 SCRA 82 [1970], p.
450

Lloren vs. Court of Appeals, et al., 125
Phil. 529 [1967]; 19 SCRA 110 [1967],

pp.
202, 214, 226, 228, 239

Lofranco vs. Jimenez, Sr., 22 SCRA 330
[1968], p. 391

Lomugdang vs. Javier, 21 SCRA 402 [1967], pp.
387, 389, 449

Lontoc vs. Pineda, 64 SCRA 681 [1975], pp.
197, 203, 209, 217, 218, 225, 226,

230,
244

Lonzanida vs. Commission on Elections, 311
SCRA 602 [1999], pp. 172, 307

Loong vs. Commission on Elections, 216
SCRA 760 [1992], pp. 37, 167

Loong vs. Commission on Elections, 257
SCRA 1 [1996], pp. 112, 117, 263,

330,
444

Loong vs. Commission on Elections, 305
SCRA 832 [1999], pp. 99, 374

Lopez vs. Roxas, et al., 17 SCRA 756
[1966], p. 44

Loreto vs. Brion, 311 SCRA 694 [1999], p.
485

Loyola vs. Commission on Elections, 270
SCRA 404 [1997], p. 413

Loyola vs. Court of Appeals, 245 SCRA 477
[1995], p. 399

Loyola vs. House of Representatives
Electoral Tribunal, 229 SCRA 90, [1994],

pp. 1,
342, 425

Lozano vs. Yorac, 203 SCRA 256 [1991], p.
467

Lucero vs. Commission on Elections, 234
SCRA 280 [1994], pp. 119, 265, 316

Lucero vs. De Guzman, 45 Phil. 852 [1924],
pp. 181, 183, 188, 219, 221, 227,

237,
248, 309, 414, 477, 489

Lucman vs. Dimaporo, 33 SCRA 387 [1970], pp.
83, 137, 302

Luison vs. Garcia, 103 Phil. 453 [1958], pp.
173, 362

Luna vs. Rodriguez, 36 Phil. 401 [1917], pp.
344, 360, 460

Luna vs. Rodriguez, 39 Phil. 208 [1918], pp.
9, 14, 164, 183, 185, 187

 

M

Macasunding vs. Macalangan, 121 Phil. 554
[1965]; 13 SCRA 577 [1965],

pp.
344, 402

Macias vs. Commission on Elections, 3 SCRA
1 [1961], pp. 134, 135

Macias II vs. Commission on Elections, 182
SCRA 137 [1990], pp. 124, 136,

359,
384

Maddumba vs. Ozaeta, 82 Phil. 345 [1948], p.
160

Malabaguio vs. Commission on Elections,
346 SCRA 699 [2000], pp. 31, 187

Malaluan vs. Commission on Elections, 254
SCRA 397 [1996], pp. 391, 484

Malimit vs. Degamo, 12 SCRA 450 [1964], pp.
363, 407

Maliwanag vs. Herrera, 25 SCRA 175 [1968],
p. 426

Malonzo
vs. Commission on Elections, 269 SCRA 380 [1997], p. 20

Mamayan
ng Zapote I, Bacoor, Cavite vs. Balderian, 265 SCRA 360 [1996], p. 71

Manahan
vs. Bernardo, 283 SCRA 505 [1997], p. 378

Manalo
vs. Sevilla, 24 Phil. 609 [1913], pp. 220, 309, 355, 376, 388, 402, 432

Mandac vs. Samonte, 49 Phil. 284 [1926], pp.
115, 189, 195, 200, 207, 209, 217,

220,
222, 232, 254, 310, 440, 445

Mangca vs. Commission on Elections, 112
SCRA 273 [1982], pp. 336, 480

Mappala vs. Nunez, 240 SCRA 600 [1995], p.
491

Marquez vs. Commission on Elections, 313
SCRA 103 [1999], p. 72

Marquez, Jr., vs. Commission on Elections,
243 SCRA 538 [1995], p. 175

Maruhom vs. Commission on Elections, 331
SCRA 473 [2000], pp. 99, 386,

397,
421, 437

Masangcay vs. Commission on Elections, 6
SCRA 27 [1962], p. 140

Mastura
vs. Commission on Elections, 285 SCRA 493 [1998], p. 125

Matalam
vs. Commission on Elections, 271 SCRA 733 [1997], p. 326

Matanog
vs. Alejandro, 11 SCRA 499 [1964], p. 250, 312

Matas vs. Romero, 114 Phil. 253 [1962] 4
SCRA 313 [1962], pp. 344, 431, 433

Mayor vs. Villacete, 2 SCRA 542 [1961], p.
66

Melendres, Jr., vs. Commission on
Elections, 319 SCRA 262 [1999], p. 412

Mendiola vs. Villa, 15
Phil. 131 [1910], p. 480

Mentang vs. Commission on Elections, 229
SCRA 666 [1994], p. 125

Mercado vs. Board of Election Supervisors of Ibaan, Batangas,
243 SCRA 422,

[1995], pp. 71, 143

Mercado vs. Manzano, 307 SCRA 630 [1999], pp.
35, 390

Miguel vs. Commission on Elections, 335
SCRA 172 [2000], pp. 142, 354, 437, 460

Millare vs. Gironella, 122 SCRA 623
[1983], p. 480

Miralles vs. Gariando, 111 Phil. 1001
[1961]; 2 SCRA 63 [1961], pp. 159, 284, 294

Miranda vs. Abaya, 311 SCRA 617 [1999], pp.
146, 166

Miranda vs. Castillo, 274 SCRA 503 [1997],
p. 411

Miro vs. Commission on Elections, 121 SCRA
466 [1983], p. 353

Mitmug vs. Commission on Elections, 230
SCRA 54 [1994], pp. 112, 353

Mogueis, Jr. vs. Commission on Elections,
104 SCRA 576 [1981], pp. 79, 383

Mohammad vs. Commission on Elections, 320
SCRA 258 [1999], p. 459

Monroy vs. Court of Appeals, 20 SCRA 620
[1967], pp. 102, 162, 164, 371

Monsale vs. Nico, 83 Phil. 758 [1949], p.
163

Montejo vs. Commission on Elections, 242
SCRA 415 [1995], p. 135

Monteza vs. Court of Appeals, 20 SCRA 773
[1967], pp. 203, 215, 216, 219,

236,243,
244, 478

Montiague vs. Buyson Lampa and Legaspi, 61
Phil. 58 [1934], p. 466

Montinola vs. Commission on Elections, 98
Phil. 220 [1956], p. 161

Moraleja vs. Relova, 42 SCRA 10 [1971], pp.
191, 217, 239, 393, 450, 465

Morales vs. De Leon, 48 Phil. 515 [1925], p.
357

Morales vs. Tuguinay, 19 SCRA 338 [1967], p.
466

Morente vs. Filamor and Arce Ignacio, 52
Phil. 289 [1928], p. 461

Moore vs. Commission on Elections, 31 SCRA
60 [1970], p. 301

Moya vs. Del Fierro, 69 Phil. 199 [1939], pp.
2, 6, 194

Municipal Board of Canvassers of Bansud,
Oriental Mindoro vs. Commission

on
Elections, 116 Phil. 307 [1961]; 5 SCRA 1154 [1962], p. 103

Municipal
Council of Las Pinas vs. Judge, CFI of Rizal, 40 Phil. 279 [1919], p. 370

Municipal
Council of Masantol vs. Guevara, etc., 44 Phil. 580 [1923], p. 402

Mutuc
vs. Commission on Elections, 22 SCRA 662 [1968], pp. 108, 124, 287,

299,
382

N

Nacionalista Party vs. Bautista, 85 Phil.
101 [1949], p. 93

Nacionalista Party vs. Commission on
Elections, 85 Phil. 149, [1949], pp. 109,

120,
284

Nacionalista Party vs. De Vera, 85 Phil.
126 [1949], pp. 93, 139

Nalog vs. De Guzman, 126 Phil. 701 [1967];
20 SCRA 338 [1967], pp. 82, 202, 206,

208,
225, 232, 478

Nataño vs. Moya, 7 SCRA 529 [1963], p.
311

National Press Club vs. Commission on
Elections, 207 SCRA 1 [1992], pp. 130,

132

Navarro vs. Commission on Elections, 228
SCRA 596 [1993], p. 374

Navarro
vs. Jimenez, 23 Phil. 557 [1912], pp. 348, 360

Navarro
vs. Tizon, 24 SCRA 374 [1968], p. 315

Navarro vs. Veloso, 23 Phil. 625 [1912], pp.
73, 348, 355

Nazareno vs. Commission on Elections, 279
SCRA 89 [1997], p. 457

Nepomuceno vs. Commission on Elections,
126 SCRA 472 [1983], p. 462

Noble vs. Tuazon and Penoso, 48 Phil. 387
[1915], pp. 348, 465

Nolasco vs. Commission on Elections, 275
SCRA 762 [1997], pp. 141, 175, 489

Nuñez vs. Averia, 57 SCRA 726 [1974], p.
393

Nuval vs. Guray, 52 Phil. 645 [1928], pp.
37, 66, 361

 

O

Ocampo vs. Commission on Elections, 325
SCRA 636 [2000], p. 250, 262, 263, 326

Ocampo vs. Mina and Arejola, 41 Phil. 308
[1920], pp. 75, 349

Occeña vs. Commission on Elections, 127
SCRA 404 [1984], p. 30

Olano vs. Ronquillo, 118 Phil. 205 [1963];
8 SCRA 204 [1963], pp. 103, 125,

292,
294

Olano vs. Tibayan, 53 Phil. 168 [1929], pp.
7, 189, 246

Olfato vs. Commission on Elections, 103
SCRA 741[1981], pp. 181, 319

Olondriz, Jr., vs. Commission on
Elections, 313 SCRA 128 [1999], p. 317

Omar vs. Commission on Elections, 102 SCRA
611 [1981], pp. 84, 100, 265, 328

Ondona vs. Commission on Elections, 27
SCRA 554 [1969], pp. 383, 467

Ong vs. Commission on Elections, 22 SCRA
241 [1968], pp. 287, 435

Ong vs. Commission on Elections, 347 SCRA
681 [2000], pp. 203, 208, 216, 225,

230,
233, 240

Ong vs. Herrera-Martinez, 188 SCRA 830
[1990], p. 492

Ong, Jr. vs. Commission on Elections, 216
SCRA 806 [1992], p. 330

Ong, Jr., vs. Commission on Elections, 221
SCRA 475 [1993], p. 324

Ordillo vs. Commission on Elections, 192
SCRA 100 [1990], p. 29

Orencia vs. Araneta Diaz, 47 Phil. 830
[1925], p. 415

Ortega vs. De Guzman, 19 SCRA 391 [1967], p.
428

Osmeña vs. Commission on Elections, 199
SCRA 750 [1991], p. 16

Osmeña
vs. Commission on Elections, 288 SCRA 447 [1998], pp. 132, 180

Osmeña vs. Hontanosas, 31 SCRA 48 [1970], pp.
58, 79

Ozamiz
vs. Zosa, 34 SCRA 424 [1970], pp. 6, 67

P

Pacis
vs. Commission on Elections, 22 SCRA 539 [1968], pp. 107, 256, 297, 380

Pacis
vs. Commission on Elections, 25 SCRA 377 [1968], p. 108, 256, 301, 315

Padilla vs. Commission on Elections, 137
SCRA 424 [1985], pp. 85, 346, 373

Padilla vs. Commission on Elections, 214
SCRA 735 [1992], p. 19

Pahilan vs. Tabalba, 230 SCRA 205 [1994], p.
408

Pajao vs. Provincial Board of Canvassers
of Leyte, 88 Phil. 588 [1951], pp. 139, 350

Palarca
vs. Arrieta, 124 Phil. 1033 [1966]; 18 SCRA 441 [1966], p. 251

Palomata vs. Villareal, 40 Phil. 641
[1920], p. 471

Pamanian vs. Pilapil, 81 Phil. 212 [1948],
p. 359

Pangarungan vs. Commission on Elections,
216 SCRA 522 [1992], p. 138

Pangilinan vs. Commission on Elections,
228 SCRA 36 [1993], pp. 55, 62, 330

Pangontao vs. Alunan, 116 Phil. 1170
[1962]; 6 SCRA 853 [1962], pp. 206, 214, 216,

231,
241

Papa vs. Municipal Board of Canvassers of
Manila, 47 Phil. 694 [1925], p. 13, 157

Papandayan vs. Commission on Elections,
230 SCRA 469 [1994], p. 468

Paranpan vs. Querubin, 18 SCRA 787 [1966],
p. 391

Paras vs. Commission on Elections, 264
SCRA 49 [1996], pp. 15, 16

Paredes vs. Commission on Elections, 122
SCRA 636 [1983], p. 165

Paredes vs. Commission on Elections, 127
SCRA 653 [1984], p. 85

Pasion vs. Commission on Elections, 109
SCRA 238 [1981], pp. 346, 352, 394

Patoray vs. Commission on Elections, 249
SCRA 440 [1995], p. 280        

Patoray vs. Commission on Elections, 274
SCRA 470 [1997], p. 290

Paulino vs. Cailles, 37 Phil. 825 [1918], pp.
11, 187, 245

Pedido vs. Commission on Elections, 22
SCRA 1403 [1968], pp. 107, 122, 286, 296

Pelayo, Jr., vs. Commission on Elections,
23 SCRA 1374 [1968], p. 292

Peña vs. House of Representatives
Electoral Tribunal, 270 SCRA 340 [1997],

p. 423

Peña vs. Tengco, 21 SCRA 1398 [1967], p.
269

People vs. Basilla, 179 SCRA 87 [1989], p.
126

People vs. Corral, 62 Phil. 945 [1936], pp.
5, 7, 487

People vs. Delgado, 189 SCRA 715 [1990], pp.
86, 102, 498

People vs. Escano, 323 SCRA 754 [2000], p.
491

People vs. Ferrer, 101 Phil. 234 [1957], p.
489

People vs. Golez, 39 SCRA 248 [1971], p.
500

People vs. Golez, 116 SCRA 165 [1982], p.
497

People vs. Inting, 187 SCRA 788[1990], p.
127

People vs. Jaloslos, 324 SCRA 689 [2000], p.
10

People vs. Quebral, 58 O.G. 7399,  p. 486

People vs. Reyes, 247 SCRA 328 [1995], p.
494

People vs. San Juan, 22 SCRA 498 [1968], pp
. 5, 491

Perez vs. Commission on Elections, 134
SCRA 533 [1985], p. 421

Perez vs. Commission on Elections, 317
SCRA 641 [1999], pp. 42, 64, 174, 308

Perez vs. Provincial Board of Nueva Ecija,
113 SCRA 187 [1982], p. 160

Perfecto vs. Gonzales, 128 SCRA 635
[1984], p. 481

Perfecto vs. Sapico, et al., 17 SCRA 968
[1966], pp. 78, 202

Philippine Press Institute vs. Commission
on Elections, 244 SCRA 272 [1995],

p. 131

Pilar vs. Commission on Elections, 245
SCRA 759 [1995], p. 182

Pimentel, Jr. vs. Commission on Elections,
140 SCRA 126 [1985], p. 440

Pimentel, Jr. vs. Commission on Elections,
289 SCRA 586 [1998], pp. 488, 495, 500

Pimentel vs. Honasan, et al., SET Case No.
001-95 [1999], p. 57

Pimping vs. Commission on Elections, 140
SCRA192 [1985], p. 453

PNOC vs. NLRC, 222 SCRA 831 [1993], p.
163

Pobre vs. Quevedo, 52 Phil. 359 [1928], pp.
77, 357

Protacio vs. De Leon, 118 Phil. 1310
{1963]; 9 SCRA 472 [1963], pp. 185, 197, 198,

217,
235, 242, 246, 449

Punzalan
vs. Commission on Elections, 289 SCRA 702 [1998], pp. 186, 458

Puñgutan vs. Abubakar, 43 SCRA 1 [1972], pp.
14, 83, 164

Purisima
vs. Salanga, 122 Phil. 1084 [1965]; 15 SCRA 704 [1965], pp. 14, 121,

252, 313

 

Q

Quilala vs. Commission on Elections, 188
SCRA 502 [1990], pp. 193, 305

 

R

Rafols vs. Court of First Instance and
Fiscal of Cebu, 47 Phil. 736 [1925],

pp. 47,
76, 188

Ramas vs. Commission on Elections, 286
SCRA 189 [1998], p. 476

Ramirez vs. Commission on Elections, 270
SCRA 590 [1997], pp. 274, 281

Ramos vs. Commission on Elections, et al.,
80 Phil. 722 [1948], p. 103, 93

Rasul vs. Commission on Elections, 313
SCRA 18 [1999], p. 56

Rasul vs. Webb, SET Case No. 002-92
[1993], p. 56

Raymundo vs. Gonzales, 80 Phil. 719
[1948], p. 447

Re: COMELEC Resolution No. 2521, 234 SCRA
1 [1994], pp. 80, 98

Recabo, Jr., vs. Commission on Elections,
308 SCRA 793 [1999], p. 281

Reforma vs. De Luna, 104 Phil. 278 [1958],
pp. 223, 394, 448

Regalado, Jr., vs. Court of Appeals, 325
SCRA 516 [2000], pp. 493, 505

Regatcho vs. Cleto, 126 SCRA 342 [1983], pp.
69, 365

Relampagos vs. Cumba, 243 SCRA 690 [1995],
pp. 143, 472

Remata
vs. Javier, 36 Phil. 483 [1917], p. 360

Republic
vs. Corpin, 104 Phil. 40 [1958], p. 362

Republic
vs. De la Rosa, 232 SCRA 785 [1994], pp. 33, 368, 485

Republic
vs. Imperial and Perez, 96 Phil. 770 [1955], p. 94

Respicio
vs. Cusi, Jr., 44 SCRA 392 [1972], p. 316

Reyes vs. Bitong, 57 Phil. 100 [1932], pp.
116, 212

Reyes vs. Commission on Elections, 103
Phil. 940[1958], p. 158

Reyes vs. Commission on Elections, 254
SCRA 514 [1996], p. 174

Reyes vs. Regional Trial Court of Oriental
Mindoro, Branch XXIX,

244
SCRA 41, [1995], pp. 88, 396, 409, 469, 480

Reyes vs. Reyes, 22 SCRA 485 [1968], pp.
364, 379

Rivera vs. Commission on Elections, 199
SCRA 178 [1991], p. 87

Roa, Sr., vs. Imbing, 231 SCRA 57 [1994], p.
409

Robes vs. Commission on Elections, 123
SCRA 193 [1983], pp. 336, 403

Robles vs. Del Rosario, et al., 100 Phil.
886 [1957], pp. 416, 448

Robles vs. House of Representative
Electoral Tribunal, 181 SCRA 780 [1990],

pp. 60,
431

Rodillas vs. Commission on Elections, 245
SCRA 702 [1995], pp. 80, 396, 409

Rodriguez vs. Commission on Elections, 119
SCRA 465 [1982], pp. 14, 479

Rodriguez vs. Commission on Elections, 259
SCRA 296 [1996], p. 176

Roldan vs. Monsanto, 118 Phil. 1328
[1963]; 9 SCRA 489 [1963], pp. 371, 478

Romualdez vs. Regional Trial Court of
Tacloban City, 226 SCRA 408 [1993], p. 40

Romualdez-Marcos vs. Commission on
Elections, 248 SCRA 300 [1995], pp. 40, 62

Roquero vs. Commission on Elections, 289
SCRA 150 [1998], pp. 379, 427

 

S

Sahali vs. Commission on Elections, 324
SCRA 510 [2000], p. 397

Salaysay vs. Castro, et al., 98 Phil. 364
[1956], p. 161

Salcedo, Jr. vs. Commission on Elections,
et. al., 108 Phil. 1164 [1960], p. 120

Salcedo II vs. Commission on Elections,
312 SCRA 447 [1999], p. 168

Saldaña vs. Consunji, 52 Phil. 433 [1928],
pp. 77, 358

Salih vs. Commission on Elections, 279
SCRA 19 [1997], p. 266

Salva vs. Makalintal, 340 SCRA 506 [2000],
p. 89

Salvacion vs. Commission on Elections, 170
SCRA 513 [1989], pp. 142, 276, 337

Salvani vs. Garduño, 52 Phil. 673 [1929], pp.
432, 446

Samad vs. Commission on Elections, 224
SCRA 631 [1993], pp. 173, 306, 347, 367

Samson vs. Estenzo, 106 Phil. 1140 [1960],
p. 310

San Juan vs. Cornejo, 53 Phil. 230 [1929],
pp. 254,  440

Sanchez
vs. Commission on Elections, 114 SCRA 454 [1982], pp. 116, 118, 490

Sanchez vs. Commission on Elections, 153
SCRA 67 [1987], pp. 186, 321

Sanchez vs. Del Rosario, 111 Phil. 733 [1961]; 1 SCRA
1102 [1961], pp. 36, 159,

363, 377

Sanciangco vs. Rono, 137 SCRA 671 [1985], p.
162

Sandoval vs. Commission on Elections, 323
SCRA 403 [2000], pp. 274, 332

Sangki vs. Commission on Elections, 21
SCRA 1392 [1967], pp. 259, 296           

Sanidad vs. Commission on Elections, 181
SCRA 529  [1990], pp. 18, 130, 179

Sanidad
vs. Saguing, 23 SCRA 878 [1968], p. 314

Sanidad vs. Vera, SET Case No. 1 [1947], p.
50

Santiago vs. Ignacio, 52 Phil. 367 [1928],
p. 357

Santos
vs. Commission on Elections, 106 Phil. 877 [1960], p. 293

Santos vs. Commission on Elections, 103
SCRA 628 [1981], pp. 84, 146

Santos vs. Court of First Instance of
Cavite, 49 Phil. 398 [1926], pp. 371, 388, 466

Santos vs. Miranda and Clemente, 35 Phil.
643 [1916], pp. 157, 460

Sarangani vs. Commission on Elections, 334
SCRA 379 [2000], p. 184

Sardea vs. Commission on Elections, 225
SCRA 374 [1993], pp. 87, 111, 143,

254,
339

Sarmiento vs. Commission on Elections, 212
SCRA 307 [1992], pp. 137, 329

Sarmiento vs. Quemado, 115 Phil. 434
[1962]; 5 SCRA 438 [1962], pp. 82, 199, 201,

205,
210, 220, 231, 233, 240, 244

Seares vs. Hernando, 110 SCRA 343 [1981], p.
451

Sebastian vs. Commission on Elections, 327
SCRA 406 [2000], p. 327

Sema vs. Commission on Elections, 347 SCRA
633 [2000], p. 291

Sidro vs. Commission on Elections, 123
SCRA 759 [1983], p. 85

Silverio vs. Castro, 125 Phil. 917 [1967];
19 SCRA 520 [1967], pp. 194, 202, 211,

214,
224, 229, 231, 232, 239, 240, 246, 389

Sinaca vs. Mula, 315 SCRA 266 [1999], pp.
147, 166

Singco vs. Commission on Elections, 101
SCRA 420 [1980], p. 177, 302

Sinsuat vs. Pendatum, 33 SCRA 630 [1970], p.
260

Sison
vs. Commission on Elections, 304 SCRA 170 [1999], pp. 114, 326, 405

Social Weather Station, Inc., et al. vs.
Commission on Elections, 357 SCRA 496

[2001],
p. 133

Solidum
vs. Macalalag, 28 SCRA 200 [1969], p. 123

Soller
vs. Commission on Elections, 339 SCRA 685 [2000], pp. 376, 399, 401, 412

Sotto vs. Commission on Elections, 76
Phil. 516 [1946], pp. 81, 145

Suanes vs. Chief Accountant, 81 Phil. 818
[1948], pp. 51, 58, 59

Subic Bay Metropolitan Authority vs.
Commission on Elections, 262 SCRA 492

[1996],
p. 133

Sumulong vs. Commission on Elections, 70
Phil. 703 {1940], p. 145

Sumulong vs. Commission on Elections, 73
Phil. 288 [1941], pp. 84, 91, 101, 145

Sunga vs. Commission on Elections, 288
SCRA 76 [1998], pp.  418, 504

 

T

Tabada vs. Zandueta and Vergara, 47 Phil.
859 [1925], p. 157

Tagoranao vs. Commission on Elections, 22
SCRA 978 [1968], pp. 191, 351

Tagoranao vs. Court of Appeals, 37 SCRA
490 [1971], pp. 435, 479

Tajanlangit vs. Cazeñas, 115 Phil. 564
[1962]; 5 SCRA 567 [1962], pp. 201, 224,

229,
245

Tan vs. Commission on Elections, 142 SCRA
727 [1986], p. 18

Tan vs. Commission on Elections, 237 SCRA
353 [1994], p. 126

Tañada and Macapagal vs. Cuenco, 103 Phil.
1051 [1957], pp. 53, 58

Tango vs. Alejandro, 119 Phil. 960 [1964];
10 SCRA 682 [1964], pp. 269, 312

Tanseco vs. Arteche, 57 Phil. 227 [1932], pp.
38, 361

Tatlonghari vs. Commission on Elections,
199 SCRA 849 [1991], pp. 1, 271, 305

Taule vs. Santos, 200 SCRA 512 [1991], pp.
8, 70, 142, 347

Tengco vs. Jocson, 43 Phil. 715 [1922], pp.
75, 414

Teves vs. Commission on Elections, 90
Phil. 370 [1951], pp. 9, 156

Ticao vs. Nañawa, 5 SCRA 946 [1962], p.
417

Ticzon vs. Commission on Elections, 103
SCRA 671 [1981], pp. 84, 108, 225

Tiglao vs. Commission on Elections, 31
SCRA 719 [1970], pp. 123, 450

Tiglao vs. Commission on Elections, 43
SCRA 535 [1972], p. 142, 271

Tiongco vs. Porras, 9 SCRA 378 [1963], p.
481

Tolentino vs. Commission on Elections, 41
SCRA 702 [1971], p. 18

Tomarong vs. Lubguban, 269 SCRA 624
[1997], p. 399

Topacio vs. Paredes, 23 Phil. 121 [1912], pp.
73, 75, 348

Torayno,
Sr., vs. Commission on Elections, 337 SCRA 574 [2000], pp. 42, 369

Torres
vs. Commission on Elections, 270 SCRA 583 [1997], p. 279

Torres
vs. Court of First Instance of Capiz and Molo, 52 Phil. 478 [1928], pp. 77,

349, 358

Torres
vs. Ribo, 81 Phil. 44 [1948], p. 283

Trajano vs. Inciso, 125 Phil. 746 [1967];
19 SCRA 340 [1967], pp. 202, 218, 224,

229,
246

Trinidad vs. Commission on Elections, 320
SCRA 836 [1999], pp. 139, 274,

427,
459

Tuburan vs. Bellener, 24 SCRA 941 [1968], pp.
78, 351, 382

 

U

Unda vs. Commission on Elections, 190 SCRA
827 [1990], pp. 342, 418

U.S. vs. Adyuba, 42 Phil. 17 [1921], p.
486

U.S. vs. Cueto, 38 Phil. 935 [1918], pp.
187, 490

U.S. vs. de la Serna and Callet, 12 Phil.
672, p. 490

U.S. vs. de la Torre, 42 Phil. 62 [1921], p.
486

U.S. vs. Magno, 42 Phil. 239 [1921], pp.
488, 490

U.S. vs. Iturrius, 37 Phil. 762 [1918], pp.
3, 488

Usman vs. Commission on Elections, 42 SCRA
667 [1971], pp. 117, 264, 318

Ututalum vs. Commission on Elections, 15
SCRA 465 [1965], pp. 95, 109

Ututalum vs. Commission on Elections, 181
SCRA 335 [1990], p. 277

 

V

Valbuena vs. Tapales and Orayani, 56 Phil.
469 [1932], p. 446

Valencia, Jr., vs. Mabilangan, 105 Phil.
162 [1959], p. 419

Valenzuela vs. Carlos and Lopez De
Jesus,  42 Phil. 428 [1921], pp. 185,
188, 191,

194,
203, 227, 255, 425, 439, 444

Valenzuela vs. Judge, Court of  First Instance of Bulacan, 40 Phil. 163
[1919],

pp.
425, 460

Valles vs. Commission on Elections, 337
SCRA 543 [2000], p. 35

Vda. de Halili vs. Court of Appeals, 83
SCRA 633 [1978], p. 181

Vda. de Mesa  vs. Mencias, 124 Phil. 1187 [1966]; 18 SCRA
533 [1966], pp. 344,

387,
398

Velayo vs. Commission on Elections, 327 SCRA
713 [2000], pp. 262, 336, 340, 469

Velez vs. Varela, 93 Phil. 282 [1953], p.
416

Veloria vs. Commission on Elections, 211
SCRA 907 [1992], p. 467

Veloso vs. Board of Canvassers of Leyte
and Samar, 39 Phil. 886 [1919], pp. 47,

58, 59

Venezuela vs. Commission on Elections, 98
SCRA 790 [1980], p. 352

Verceles vs. Commission on Elections, 214
SCRA 159 [1992], p. 338

Veterans Federation Party vs. Commission
on Elections, 342 SCRA 244 [2000],

p. 148

Villa vs. Llanes, Jr. 120 SCRA 81 [1983], pp.
30, 79

Villacarlos vs. Jimenez, 116 Phil. 1254
[1962]; 6 SCRA 966 [1962], p. 311

Villalon vs. Commission on Elections, 34
SCRA 594 [1970], p. 192

Villanueva v. Commission on Elections, 140
SCRA 352 [1985], pp. 14, 165

Villarosa vs. Guanzon, 116 Phil. 365
[1962]; 6 SCRA 40 [1962], p. 448

Villarosa vs. House of Representatives
Electoral Tribunal, 340 SCRA 396 [2000],

pp.
203, 216, 219

Villaroya vs. Commission on Elections, 155
SCRA 633 [1987], pp. 101, 102, 278

Villavert vs. Fornier, 84 Phil. 756
[1940], p. 204

Villavert vs. Lim, 62 Phil. 178 [1935], pp.
158, 196, 200, 208, 212, 220, 230, 245,

447,
477

Villegas vs. Commission on Elections, 99
SCRA 582 [1980], pp. 345, 352

Viola vs. Court of First Instance of
Camarines Sur,  47 Phil. 849 [1925], pp.
76, 157

Visarra vs. Miraflor, 8 SCRA 1 [1963], p.
94

Vivero vs. Murillo, 52 Phil. 694 [1929], p.
37

 

Y

Yalung vs. Atienza, 52 Phil. 781 [1929], pp.
6, 189, 190, 195, 230

Yason vs. Commission on Elections, 134
SCRA 371 [1985], p. 9

Yñiquez vs. Commission on Elections, 30
SCRA 328 [1969], p. 15

Yra vs. Abaño, 52 Phil. 380 [1928], pp.
14, 37, 43, 164

Yumul vs. Palma, 52 Phil. 412 [1928], p.
427

 

Z

Zaldivar vs. Estenzo, 23 SCRA 533 [1968], p.
98

            Zarate
vs. Commission on Elections, 318 SCRA 608 [1999], p. 354

 

 

 

THE SENATE ELECTORAL TRIBUNAL
by Irene R. Guevarra

Secretary of the Tribunal

 The
authority to judge the election, returns and qualifications of members of the
legislature was first vested in the National Assembly itself, as provided in
Section 7, paragraph 5 of the Act of the United States Congress of 01 July
1902.  This was modified by Section 18,
paragraph 1 of the Act of the United States Congress of 29 August 1916, thus:
“the Senate and House of Representatives, respectively, shall be the sole
judges of the elections, returns and qualifications of their elective members x
x x.”  The jurisdiction granted to each
house was exclusive. One house could not interfere with the judgment of the
other house, nor could the subject matter be taken cognizance of  by the courts.

A
significant change was introduced by the 1935 Constitution.  Section 4, Article VI thereof provided that
there shall be an “Electoral Commission composed of three (3) justices of the
Supreme Court designated by the Chief Justice and six (6) members chosen by the
National Assembly, three (3) of whom shall be nominated by the party having the
largest number of votes, and three (3) by the party having the second largest
number of votes therein. x x x  The
Electoral Commission shall be the sole judge of all contests relating to the election,
returns, and qualifications of all members of the National Assembly.”  Through this provision, the power
traditionally lodged in the legislative body itself was transferred to an
independent, impartial and non-partisan tribunal.1 

On 11
April 1940, the second National Assembly adopted Resolution No. 73, amending
the 1935 Constitution.   Among the
amendments introduced thereto was the creation of a bicameral legislature and
an electoral tribunal for the Senate of the Philippines.   Section 11, Article VI of the 1935
Constitution provided as follows:  “The
Senate x x x shall x x x have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns and qualifications of
(its) members.”

Although
created in 1940, the constitution of the Senate Electoral Tribunal was delayed
by war.  Elections under the 1940
constitutional amendment were held only on 23 April 1946.  The elected Senators assumed office on 25 May
1946, on which date then Supreme Court Chief Justice Manuel Moran transmitted
to the Senate of the Philippines the designation of the following as
Justice-Members of the Senate Electoral Tribunal:

            Justice-Members:        Ricardo 
Paras

                                                Emilio
Y. Hilado

                                                Gregorio
Perfecto

The composition of the Tribunal was completed on 27
May 1946 with the nomination of the following senator-members:

            Majority
:                    Vicente
J. Francisco

                                                Domingo
Imperial

                                                Proceso
E. Sebastian

            Minority:                     Nicolas Buendia

                                                Pedro
Hernaez

                                                Eulogio
Rodriguez

On 07
June 1946, the Tribunal approved the Rules of the Tribunal.  It promulgated its first decision on 19 April
1947 in Case No. 1, entitled “Prospero Sanidad, Vicente dela Cruz and
Servillano de la Cruz, Protestants vs. Ramon Diokno, Jose O. Vera, and Jose A.
Romero, Protestees”,  declaring
Protestant Sanidad and Protestees Vera and Diokno as duly elected
senators.  By this time, the Tribunal
composition had changed thus:

            Hon.
Justice Ricardo Paras                –           Chairman

            Hon.
Justice Emilio Hilado                –           Member

            Hon.
Justice Gregorio Perfecto          –           Member

            Hon.
Senator Mariano Cuenco         –           Member

            Hon.
Senator Vicente J. Francisco    –           Member

            Hon.
Senator Salipada Pendatun       –           Member

            Hon.
Senator Eulogio Rodriguez      –           Member

            Hon.
Senator Alejo Mabanag           –           Member

            Hon. Senator Carlos P. Garcia          –           Member

Then,
as now, three (3) factors usually engender a change in the composition of the
Tribunal:  1) retirement of a
justice-member; 2) expiration of the term of office of the senators-members and
the results of the ensuing senatorial elections; and, 3) change in political
affiliation/committee membership of the senator-members.

The
Senate Electoral Tribunal did not exist under the 1973 Constitution, which
provided for a parliamentary government. 
Jurisdiction over electoral protests against Members of the Batasan
Pambansa was lodged with the Commission on Elections.  The 1987 Constitution returned the power to
the Electoral Tribunal from the Commission on Elections.

Thus,
the present Senate Electoral Tribunal (SET) is a creation of the 1987
Constitution, which provides in its Section 17, Article VI that “the Senate x x
x shall x x x have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns and qualifications of (its)
members.”  As further provided therein,
the SET is composed of nine (9) members, three (3) of whom are Justices of the
Supreme Court designated by the Chief Justice and the remaining six (6) are
Members of the Senate of the Philippines, who are chosen on the basis of
proportional representation from the political parties represented therein.  The senior Justice in the Tribunal is its
Chairman.

At
the beginning of Year 2004, the Tribunal was composed of  the following:

      Hon. Justice Reynato S. Puno                                Chairman

      Hon. Justice Artemio V. Panganiban                     Member

      Hon. Justice Consuelo Ynares-Santiago                 Member

      Hon. Senator Juan M. Flavier                                Member

      Hon. Senator Francis N. Pangilinan                       Member

      Hon. Senator Ramon B. Revilla                             Member

      Hon. Senator Aquilino Q. Pimentel, Jr.                  Member

      Hon. Senator Vicente C. Sotto III                          Member

      Hon.
Senator Rodolfo G. Biazon                           Member

As
first organized in 1987, the Tribunal was chaired by then Senior Associate
Justice Pedro Yap with Justices Andres R. Narvasa and Hugo E. Gutierrez and
Senators Neptali A. Gonzales, Joseph E. Estrada, Teofisto Guingona, Jr., Jose
D. Lina, Jr.,  Mamintal A. J. Tamano and
Victor S. Ziga as members.  Senator
Estrada was subsequently replaced by Senator Juan Ponce Enrile. 

Chairmanship
of the Tribunal has since then passed on to Justices Andres R. Narvasa, Hugo E.
Gutierrez, Isagani A. Cruz, Teodoro Padilla, Florentino P. Feliciano,
Florenz  D. Regalado,  Flerida Ruth P. Romero, Josue N. Bellosillo
and Reynato S. Puno.  Justices of the Supreme
Court who became members of the Tribunal were Justices Edgardo L. Paras,
Carolina Griño-Aquino, Hilario G. Davide, Jr., Jose A. R. Melo, Jose C. Vitug,
Santiago M. Kapunan and Leonardo A. Quisumbing.

Other
senators who served as members of the Tribunal at one time or another during
the period 1987 to 2004 were Senators Nikki M. L. Coseteng, Freddie N. Webb,
Leticia R. Shahani, Alberto G. Romulo, Francisco S. Tatad, Gloria Macapagal
Arroyo, Miriam Defensor Santiago, Blas F. Ople, Raul S. Roco, Robert S.
Jaworski, John H. Osmeña, Franklin M. Drilon, Sergio R. Osmeña III, and Manuel
B. Villar, Jr.

The
Tribunal is assisted by a Secretariat, composed of the Office of the Secretary
and eight (8) service groups, namely: Canvass Board Service, Legal Service,
Information Systems and Judicial Records Management Service, Human Resources
Management Service, General Service, Finance and Budget Service, Accounting
Service and Cash Management Service.  As
of this writing, the Secretary of the Tribunal is Atty. Irene R. Guevarra and
Deputy Secretary is Atty. Jose Midas P. Marquez.  Since 1987, the Tribunal has been holding
office at the Electoral Tribunals Building, COA Compound, Commonwealth Avenue
corner Batasan Road, Quezon City, together with its counterpart, the House of
Representatives Electoral Tribunal.

In
Resolution No. 10, Series of 2002, dated 08 August 2002, the Senate Electoral
Tribunal declared the 11th day of April as its
Foundation Day.  The declaration was made
to accord due recognition to this significant event in the history of the
Tribunal and to establish a tradition of commemorating its creation.

On 11
April 2003, the SET commemorated its 48th Foundation Day with a Dinner-Party at the
Committee Hearing Rooms of the Senate of the Philippines.  Guest of Honor was Her Excellency, President
Gloria Macapagal-Arroyo, who was presented a Plaque of Recognition as the first
woman member of the Tribunal to occupy the highest position of the land.  A Plaque of Loyalty was presented to Senator
Juan M. Flavier for setting a record as the longest serving member of the
Tribunal, and Plaques of Appreciation were presented to the former Chairmen of
the SET, namely:  Chief Justice Pedro L.
Yap, Chief Justice Andres R. Narvasa, Justice Hugo E. Gutierrez, Jr., Justice
Isagani A. Cruz, Justice Teodoro R. Padilla (Posthumous), Justice Florentino P.
Feliciano, Justice Florenz D. Regalado and Justice Flerida Ruth P. Romero. 

The
celebration was proceeded by a Sportsfest held at the Tribunal Offices in
Quezon City.  Awarding of the winners of
the different sports/games played was done during the Celebration.  A photo exhibit was also held at the lobby of
the Senate Committee Rooms.  Expenses
were kept to a minimum as the venue was lent free to the Tribunal.  Music was provided by the Philippine Air
Force Band and additional food (roasted calf) was donated by Sen. Ramon
Revilla.

Since
1987, ten (10) electoral protests had been filed with the Senate Electoral
Tribunal, as follows:

1987 Elections (2):

SET Case No. 001-87 (Augusto Sanches vs. Juan Ponce Enrile and/or
Santanina Rasul)

SET
Case No. 002-87 (Firdausi Abbas, et al. vs. Heherson Alvarez, et al.)

SET
Case No. 001-87 (Sanches vs. Ponce Enrile, et al.) did not prosper because of
the inability of the protestant to make a sufficient showing of his readiness
to shoulder and defray the expenses for collection of the ballot boxes
pertaining to his pilot precincts.  

Instituted
by all the candidates of the Grand Alliance for Democracy (GAD) against all the
winning candidates of the administration party, SET Case No. 002-87 (Abbas, et
al. vs. Alvarez, et al.) was likewise subsequently dismissed, the protestants
having failed to even identify their pilot precincts.

1992 Elections (4):

SET Case No. 001-92 
(John Osmena vs. Freddie Webb)

SET Case No. 002-92 (Santanina Rasul vs. Freddie Webb and Blas
Ople)

SET Case No.
003-92 (Alfredo Bengzon vs. Wigberto Tanada, Francisco Tatad, John                                                Osmena and Agapito Aquino)

Undocketed (Gloria Macapagal vs. Freddie Webb)

Four
(4) electoral protests were filed in connection with the 1992 senatorial elections.  The first was initiated by Sen. John Osmeña
against Sen. Freddie Webb.  Osmeña, who
received the 23rd highest
number of votes among the senatorial candidates and elected to a three-year
term, filed the protest against Freddie Webb, who received the 12th highest number of votes and thus elected to a
six-year term.  Osmeña wanted the votes
for “Osmeña” counted in his favor, instead of 
being treated as stray votes, although there was another candidate named
“Steve Osmeña.”  The protest was
dismissed in June 1993 upon Osmeña’s motion to withdraw.

In
the second electoral case filed in 1992, Senator Santanina Rasul, who won in
the said elections, wanted a recount of the votes cast for senators, using as
basis the copy of the election returns. 
She contended that she was credited with less than the actual number of
votes cast in her favor.  This case was
dismissed in September 1993 for insufficiency in form and substance.  Named protestees were Senators Freddie Webb
and Blas Ople.

Alleging
that the certificates of canvass and the statements of votes did not reflect
the true and actual votes cast for senators, Alfredo Bengzon, who received the
25th highest
number of votes in the senatorial elections, filed a protest against Wigberto
Tanada, Francisco Tatad, John Osmeña and Agapito Aquino, who respectively
placed 21st,  22nd , 23rd and 24th.   He later filed a motion withdrawing the
protest on the ground that the rules governing the protest allow “interminable
delays and open-ended imposition of fees and deposits.”  The case was dismissed on 03 December 1992.

The
incumbent President, Gloria Macapagal filed a motion for extension of time to
file a protest after the 1992 elections. 
She decided to withdraw, however, without filing the said protest.

1995 Elections (1)

SET Case No. 001-95
           (Aquilino Q. Pimentel, Jr. vs.
Gregorio Honasan, Marcelo B. Fernan, Juan Ponce Enrile, Anna Dominique
Coseteng,   Ramon  V. 
Mitra and Rodolfo G. Biazon.)

Although
already formally organized and fully operational since 1987, it can be said
that the SET came to public awareness only in 1995 with the filing of the
so-called “DAGDAG-BAWAS” electoral protest by then senatorial candidate, now
Senator Aquilino Q. Pimentel, Jr.   This
electoral protest was the first case lodged before the Tribunal that required
the collection and examination of the contested ballots and other election
documents and paraphernalia. The Tribunal collected, revised and examined the
ballots and other election documents from the designated pilot areas of Protestant
Pimentel, consisting of 7,659 electoral precincts in twenty (20) provinces,
mostly in Mindanao.

In
August 1997, the Tribunal announced its preliminary findings that based on the
results of the revision and appreciation of the ballots pertaining to the
designated pilot areas of Protestant Pimentel, Dagdag-Bawas indeed marred the
1995 senatorial elections.  In a
resolution subsequently issued on 23 June 1998, the Tribunal cited the areas
where Dagdag-Bawas was committed as well as the type of Dagdag-Bawas
perpetrated.  Protestant Pimentel alleged
five (5) types of Dagdag Bawas allegedly committed in the 1995 senatorial
elections. 

The
Tribunal reported that in Pasig City, Tarlac, Tarlac and Binan, Laguna, the
precinct vote totals were altered by placing the digit “1” at the left side of
the genuine figures when the precinct vote totals were being transferred from
the election returns to the Statement of Votes (SOV) by Precinct during the
municipal or city canvassing, making it appear that the candidate got 100 votes
more than he actually did.   In some
instances, such method resulted in the candidate obtaining more votes than
there were actual voters in the precinct. 

In
Lanao del Norte, Taguig and some municipalities of Sultan Kudarat, the Tribunal
discovered that the total votes of some candidates were simply increased in the
SOV by Precinct by writing a figure higher than the real vote total in the
SOV’s column for “Total”.  It was these
altered totals that were transferred to the Municipal or City Certificates of
Canvass.  In Bataan, Isabela, Pangasinan
and Sultan Kudarat, the votes of some candidates as indicated in the Municipal
Certificates of Canvass were simply discarded and higher but manufactured
figures were transferred to the Statements of Votes by Municipality during the
provincial canvass, giving the favored candidates additional votes by the
thousands per municipality.  The other
electoral fraud uncovered in Sultan Kudarat and Tawi-Tawi was the wholesale
preparation of ballots by one person only.

Notwithstanding
these initial findings, the protest was subsequently dismissed after Protestant
Pimentel filed his candidacy, actively campaigned for, won and eventually
assumed the office of a Senator in the 11th Congress of the Philippines with a term of six
(6) years beginning 30 June 1998.  Such
term of office overlapped with that pertaining to the office being contested in
his electoral protest.  Through these
acts, the Tribunal considered Protestant Pimentel to have abandoned his protest
as well as “his determination to protect and pursue the public interest
involved in the matter of who is the real choice of the electorate.”  The certiorari proceedings questioning the
dismissal of the case filed by Protestant Pimentel before the Supreme Court was
rendered moot by the expiration of the term of the office being contested on 30
June 2001.

1998 Elections (2):

SET
Case No. 001-98            (Roberto M.
Pagdanganan vs. Teresa Aquino-Oreta)

SET
Case No. 002-98       (Edcel C.
Lagman vs. Teofisto Guingona, Jr., Teresa Aquino- Oreta, Roberto Pagdanganan
and Ruben Torres)

Alleging
that massive electoral fraud was perpetrated through “Operation
Dagdag-Lipat-Bawas” and “Operation Bawas” in the senatorial elections of 11 May
1998, Roberto M. Pagdanganan, who obtained the 13th highest number of votes in the senatorial
elections, filed a protest against Teresa Aquino-Oreta, the last among the
proclaimed winning candidates.

On his
part, Edcel C. Lagman, who obtained the 15th highest number of votes questioned the votes
obtained by the candidates who ranked 11th to
14th in
the senatorial race; namely:  Teofisto T.
Guingona, Jr.,  Teresa Aquino Oreta,
Roberto Pagdanganan and Ruben Torres.  He
contested the results in 44 cities and provinces, alleging that massive fraud
was perpetrated in these areas through “Operation Dagdag-Bawas” and “Operation
Palit Forma”, either singly or jointly.

Pending
preparation of the resolutions setting forth the results of revision and
appreciation proceedings in their respective pilot areas, protestants
Pagdanganan and Lagman withdrew their protests to enable the Commission on
Elections to use the ballot boxes involved in their protests for the barangay
elections.  The Tribunal granted their
motions for withdrawal of protests on 02 May 2001.

2001 Elections (1):

SET Case No. 001-01 (Juan Ponce Enrile vs. Ralph Recto and
Gregorio Honasan)

Juan
Ponce Enrile, who obtained the 14th highest number of votes
in the 2001 elections filed a protest against Ralph Recto who obtained the 12th highest number of votes.   Gregorio Honasan who obtained the 13th highest number of votes was impleaded as a
necessary protestee.

Protestant
Enrile withdrew the protest after being informed of the estimated amount of
money needed for the collection, revision and return of the ballots and other
election documents and paraphernalia. 

The
high cost of maintaining and prosecuting a senatorial electoral protest had
been a concern of the Tribunal.  Unlike
in other electoral protests, such as those involving the positions of
Congressman, Governor or Mayor, which cover only the electoral precincts in a
certain congressional district, city or municipality, a senatorial election
protest involves electoral precincts nationwide.  The cost of collection, revision and return
of a ballot box is conservatively estimated in the Revised Rules of the
Tribunal at Five Hundred Pesos (P500.00) for each precinct involved. 

On 12 November 2003, the Tribunal issued
Resolution No. 03-03, recommending in the strongest terms possible the early
enactment of a legislation providing for the assumption by government of the
expenses for the maintenance and prosecution of prima facie electoral
protests pending in the Senate Electoral Tribunal and providing therefor a
Special Fund in an amount of not less then Five Hundred Million Pesos (P500,000,000.00).