BERNARDINO ABES, CARLOS L. ALBERT, ANTONIO C. AMOR, NORBERTO CONDEZ, BENJAMIN GRECIA, LUISA G. ORENDAIN, JOSE ABRENICA, ROSARIO L. PLANAS, PROCESO SEBASTIAN, VIDAL A. TAN, LOREN…

Petitioners’ cry for relief, so their petition avers, is planted
upon the constitutional mandate of free, orderly, and honest elections.^[1]
Specifically, they list a number of repressible acts.  Amongst these are: (1) blank official
registration forms were taken from the office of the Quezon
City Comelec Registrar several weeks before election
day, November 14, 1967; (2) active campaigning within the polling places by Nacionalista leaders or sympathizers of Nacionalista
candidates were allowed; (3) voters
were permitted to vote on mere mimeographed notices of certain Nacionalista candidates; (4) voters were compelled to fill
their official ballots on open tables, desks and in many precincts outside the
polling places; (5) forms of petitions for inclusion proceedings were
obtainable only in the offices  of candidates
of the Nacionalista Party; (6) thousands of voters
were allowed to vote on the strength of inclusion orders issued indiscrimi­nately
by two City Judges on election day; (7) thousands of voters sympathetic to the Nacionalista candidates were allowed to vote beyond the
hours for voting allowed by law; (8) thousands of voters’ I.D. registration
cards of voters sympathetic to non-Nacionalista
candidates were thrown and scattered in the Office of the Nacionalista
candidate for Mayor; (9) voters’ I.D. cards were delivered by partisan leaders
of respondents Nacionalista candidates, and those who
did not signify their preference for Nacionalista
candidates were not given their I.D. cards; (10) the office of the corporation
of which respondent Ismael Mathay,
Jr. is the President was used as a place of registration which is
“unauthorized”; (11) most of the precinct books of voters were not
sealed within the deadline fixed by law; and (12) the resulting effect of
irregularities is that about 51% of the registered voters were disen­franchised.

Petitioners, candidates of the Liberal Party, the Nacionalista Reform Party and the Quezon
City Citizens League for Good Govern­ment, first went to the Commission on
Elections (Comelec). 
Upon the claim that more than 50% of the registered voters were not able
to vote during the elections of November
14, 1967, they prayed for Comelec ‘s
declaration that there was failure of election. 
They pe­titioned for suspension of the canvass and the proclamation of
winning candidates.  They sought
nullification, too, of elections in Quezon
City for city officials and asked that new elections
be held.  Comelec,
in a minute resolution of November
23, 1967, denied the petition, ordered the board of canvassers to
proceed with the canvass but not to proclaim any winning candidate for city
offices and gave petitioners time “to go to the Supreme Court for the
proper remedy.”

Petitioners thus came to this Court on certiorari with a prayer
for preliminary injunction.

Upon the petition and respondents’ returns, the case was heard on
the merits.

We plowed through a maze of allegations in the petition and the
returns and the affidavits and other annexes. 
The whole problem funnels down to the issue of whether Comelec has jurisdiction (1) to order the board of
canvassers to suspend the canvassing and procla­mation of the winning
candidates; (2) to annul the elections in Quezon City; and (3) following
such annulment, to direct the holding of another election.

1. By way of prefatory statement, it may serve our purpose if we
emphasize once again that the board of canvassers is a ministerial body.^[2]  It is enjoined by law to canvass all votes on
election returns submitted to it in due form.^[3]  It has been said, and properly, that 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.”^[4]  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.^[5]

Pertinent rulings of this Court have since defined Comelec ‘s powers in pursuance of its supervisory or
administrative authority over officials charged with specific duties under the
election code.  It is within the
legitimate concerns of Comelec to annul a canvass or
proclamation based on incomplete returns,^[6]
or on incorrect or tampered returns; annul a canvass or proclamation made in an
unauthorized meeting of the board of canvassers either because it lacked a
quorum^[7]
or because the board did not meet at all.^[8]  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.

Petitioners argue that the canvassing should be stopped.  But nothing in the petition herein would indicate
that the returns were falsified after they left the hands of the election
inspectors or that the returns are not genuine. 
The petition stresses the existence of other irregularities.  For us now to give our stamp of approval to
the petition to suspend canvass and proclamation is to stop both Comelec and the board of canvassers: the first, from
performing its constitutional and legal duty to administer the election laws
and supervise elections; and the second, from discharging its legal obligation
to canvass the returns and proclaim the elected candidates.  And worse, to suspend canvassing and
proclamation at this late date may result in a vacuum in office of Quezon City elective officials
after the term of the present incumbents shall have ended on December 31, 1967.  Some such eventuality must be prevented.  Canvassing and proclamation must
proceed.  Because, as Mr. Justice Querube
C. Makalintal correctly observed in City Board
of Canvassers vs. Moscoso L-16365, September 30, 1963, “to enjoin
the city board of canvassers from assessing the returns 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.”

2. Petitioners’ next prayer is for the annulment of the elections
held on November 14, 1967.  Their bases: fraud, terrorism, and other
illegal practices committed before and during the elections.

The primary grant of power to Comelec is found in Section 2, Article X of
the Constitution, thus:

“SEC. 2.  The Commission
on Elections shall 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.  It shall decide, save 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 election inspectors and of other election officials.  All law enforcement agencies and instrumentalities
of the Government, when so required by the Commission, shall act as its
deputies for the purpose of insuring free, orderly, and honest elections.  The decisions, orders, and rulings of the
Commission shall be subject to review by the Supreme Court.”

Nothing in the foregoing constitutional precept will imply
authority for Comelec to annul an election.  So, too, did the Revised Election Code
withhold from Comelec the specific power to annul an
election.

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.  Expressive of this rule is
the following culled from Nacionalista Party
vs. Commission on Elections, 85 Phil. 149, 155-156:

“What are the implications of the power vested in the
Commission to enforce and administer all laws relative to the conduct of
elections and to insure free, orderly, and honest elections? Does it
include the power to annul an election
which may not have been free, orderly,
and honest?

It seems clear from the context of the constitu­tional provision in
question as well as from other pro­visions
already quoted above [Secs. 8 and 166, Revised
Election Code] that such power is preventive only and not curative also; that is to
say, it is intended to prevent
any and all forms of election fraud or violation of the Election Law, but
if it fails to accomplish that purpose,
it is not the Commission on Elections that is charged with the duty to cure or
remedy the resulting evil but some other agencies of
the Government.  We note
from the text that the power to decide questions involving the right to vote is
expressly withheld from the Com­mission although the right to vote is provided
in the Election Law, the enforcement and administration of which is placed in
the exclusive charge of the Com­mission. 
Parallel to the withholding of such power from the Commission is the
vesting in other agencies of the more inclusive power to decide all contests
relating to the election, returns, and qualifications of the members a Congress, namely, the Electoral Tribunal of
the Senate in the case of the senators and the Electoral Tribunal of the House
of Representatives in the case of the members of the latter.  Election contests involving
provincial and municipal officials are entrusted to the courts.  (Sections 172 et seq., Revised
Election Code.) The power to decide elec­tion
contests necessarily includes the power to determine
the validity or nullity of the votes questioned
by either of the contestants.”^[9]

There has been neither deviation nor retreat from the foregoing
pronouncement.

Indeed, in the more recent case of Ututalum
vs. Commission on Elections, L-25349, December 3,
1965, this Court, speaking thru then Associate Justice, now Chief Justice,
Roberto Concepcion, rather than break away from Nacionalista Party vs. Commission
on Elections, bolstered jurisprudence on this point by
reiterating that Comelec’s powers are “essentially executive
(‘enforcement’) and administrative (‘administration’) in nature.”

Not that petitioners are bereft of remedy.  The course to pursue is pointed out to them
in City Board of Canvassers vs. Moscoso, heretofore cited, (L-16365, September 30,
1963) –

“The question of whether or not there had been terrorism,
vote-buying and other irregularities in the 1959 elections in Tacloban City 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.  x x x .”^[10]

The ratiocination advanced that there was failure of election due
to rampancy of terrorism, frauds, and other irregularities, before and during
elections, such that allegedly about 51% of the registered voters were not able
to vote, will not carry the day for petitioners.  For, in the first place, this is grounded
upon bare assertions.  Re­spondents
contest the correctness thereof.  And in
the answer of respondents Amoranto, Mathay and others, they aver that out of 162,457 registered
voters in Quezon City,
100,382 voters actually cast their votes – about 62% of the registered
voters.  But above all, as pointed out in
City Board of Canvassers vs. Moscoso, supra, nullity of an election for
municipal officials should be determined in a petition contesting the election
of municipal officers-elect to be filed before the Court of First Instance.^[11]

3. As unconvincing is petitioners’ prayer that Comelec direct a new election in Quezon City.  We have searched in vain for any
constitutional or legal precept that would grant Comelec
that power.

All that there is in the statute books is Section 8 of the
Revised Election Code, which reads:

“SEC. 8.  Postponement
of Election. – When for any serious cause the holding of an
election should become impossible in any political division or sub­division,
the President, upon recommendation of the Commission on Elections, shall
postpone the election therein for such time as he may deem necessary.”^[12]

This refers to postponement before elections.  This is not a remedy after elections.  Just a few days ago, we were called upon to
rule on a petition (Janairo vs. Commission on
Elections, L-28315, December 8, 1967) praying that this Court direct Comelec to order the holding of an election in a precinct
located in the island-barrio of Sibay, Caluya, Antique, where elections failed to take place on
the date specified by law.  And this,
because “when the persons entrusted by the local COMELEC registrar with
the delivery of the list of regis­tered voters arrived at the island they were
fired upon and had to go back to Caluya, returning to
Sibay only at 6:30 in the evening of the same day, at
which time however the board of election inspectors refused to hold the
election on the ground that it was against the law to do so.” Citing Sections 8 and 21 (c) of the Revised
Election Code, this Court, speaking thru Mr. Justice Makalintal, there held
(citing Ututalum vs. Commission on Elections, supra)
that “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 that power,” and
added that –

“In the same decision [Ututalum vs.
Commission on Elections] this Court not only took note of the failure of the
law to afford redress, either before the Commis­sion on Elections or before the
courts, to persons ad­versely affected by such failure, but recognized its
possible effects upon the very institution of suffrage.  The voters in precincts where no election is
held on the date fixed by law, we said, ‘will in effect . . . be disfranchised, and unscrupulous
politicians would be encouraged to resort to acts of terrorism in areas
favoring their opponents, in order to offset the latter’s advantage therein,
and thus eventually defeat the will of
the majority and undermine the foundation of our democracy.’ It is undeniable
that the situation is fraught with dangerous possibilities.

The remedy, however, lies in Congress.  The hiatus in our election law may be filled
only by legis­lation, not by judicial
fiat.”

4. The petition before this Court in effect seeks to nullify Comelec order of November
23, 1967 heretofore adverted to. 
There was no lack nor excess of jurisdiction.  No grave abuse of discretion was
involved.  Correctly did Comelec decline to direct the Quezon City board of canvassers to
suspend canvass and proclamation.  Comelec is powerless to annul the election.  Nor can
it direct a new election.  We cannot
compel Comelec to act as petitioners prayed for.  Absent Comelec ‘s
legal duty, mandamus will not issue.

For the reasons given, we vote to dismiss the petition.

No costs allowed.

SO ORDERED.

Concepcion, C.J., Dizon,
Makalintal, Bengzon, Zaldivar, Ruiz Castro, and
Angeles, JJ., concur.

Reyes, JBL, J., concurs with
both opinion.

Fernando, J., concurs in a
separate opinion.

^[1]
Section 2, Article X of the Constitution.

^[2]
Nacionalista Party vs. Commission on
Elections, 85 Phil. 149, 157.

^[3]
Sections 160 and 168, Revised Election Code; Nacionalista
Party vs. Commission on Elections, supra; Canton
vs. Commission on Elec­tions, L-25467, April 27, 1967.

^[4]
 29 C.J.S., p. 656.

^[5]
Section 3, Revised Election Code; Cauton vs.
Commission on Elections, supra.

^[6]
Abendante vs. Relato,
94 Phil. 8, 15.

^[7]
Santos vs. Commission on
Elections, L-16413, January 26, 1960.

^[8]
Espino vs. Dumlao, L-22325, December 11, 1967.

^[9]
Emphasis supplied.

^[10]
Emphasis supplied.

^[11]
Section 174, Revised Election Code.

^[12]
Emphasis supplied.

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