BENJAMIN F. ARAO, PETITIONER, VS. COMMISSION ON ELECTIONS AND WARLITO PULMONES, RESPONDENTS.

This petition for certiorari^[1] seeks
to set aside, for having allegedly been issued with grave abuse of discretion
and/or in excess of jurisdiction, the Decision of respondent Commission on
Elections (COMELEC) in EPC No. 88­-1,^[2]
promulgated January 23, 1992, which reconsidered the Resolution of its First
Division of December 11, 1991,^[3]
finding petitioner (protestee therein) “winner of the election protest by
a margin of 378 votes in lieu of the original lead of protestee of 417 votes
over protestant at the time of the former’s proclamation by the City Board of
Canvassers of Pagadian City,” and declaring instead private respondent
(protestant therein) duly elected mayor thereof.

Petitioner Benjamin Arao and private respondent Warlito Pulmones
were candidates for the Office of City Mayor of Pagadian City in the January
18, 1988, local elections. After
canvass, petitioner was shown to have garnered 12,447 votes, while private
respondent, only 12,030 votes^[4], or a
margin of 417 votes in favor of petitioner. Consequently, on January 21, 1988, petitioner was proclaimed City
Mayor-elect of Pagadian City^[5].

On January 28, 1988, private respondent filed his Protest with
COMELEC^[6]
more particularly alleging that “while fraud and anomalies were rampant in
practically all the voting centers of Pagadian City, the violations were
glaringly and notably perpetrated in the following districts and/or precincts,
to wit: (a) [I]n all the three (3)
precints of Kawit District x x x x (b) [I)n Tuburan District x x x particularly
in Precincts 77 and 80 x x x x (c) (I)n Bonifacio District, particularly
Precinct 69 x x x x (d) [I)n Sta. Lucia District, particularly Precinct No. 42
x x x x (e) [I)n all of the seven (7) precincts in Sto. Niño District x x x x
(f) [I)n San Jose District, particularly Precinct No. 32 x x x x (g) [I)n
Precinct No. 33 at San Jose District x x x x (h) [I)n Precinct No. 34 of San
Jose District x x x x (i) [I)n all of the precincts in San Pedro District x x x
x (j) [I)n Precincts 19 and 22 of Gatas District x x x x (k) x x x in all the
precincts in Balangasa District but more notably in Precincts 8 and 11 x x x
x”

On February 8, 1988, petitioner filed his Answer with
Counterprotest^[7]. However, COMELEC (First Division) dismissed
the counterprotest per its Resolution of February 7, 1991, for failure to pay
the required filing fee within the reglementary period^[8].

On February 15, 1988, or after the 10-day period to file an
election protest, private respondent filed an Amended Protest enumerating
therein thirteen (13) precincts which were not previously specified: Precincts 1-A, 4, 6, 9, 17, 20, 21, 30, 31,
35, 36, 50 and 70^[9]. Actually, other precincts, i.e., Precincts
101, 110, 111, 112, 113, 121, 122, 129, 137, 143, 153, 108 and 131, which were
not particularly mentioned in the Petition, were included in the Amended
Protest^[10].

On March 3, 1988, petitioner filed his Protestee’s Comments and
Observations on the Amended Protest, although received by COMELEC only on April
4, 1988.^[11]

On February 7, 1991, COMELEC (First Division) issued the
following Resolution:

“Apparently, the Commission taking into consideration the
comments and observations of protestee, was convinced that the amended protest
was not admissible as the record failed to yield any formal order admitting the
amended protest.”^[12]

On December 11, 1991, COMELEC (First Division) issued a
Resolution par. 4 of which states:

“4. Protestant filed his Amended Protest on February 15, 1988,
although there is nothing on record that shows the same was duly admitted; the
record shows, however, that the Protestee submitted his ‘Comments and
Observations on the Amended Protest’ in a formal document dated March 3, 1988
and received by this Commission on April 4, 1988.”^[13]

In holding that there was nothing on record showing that
Protestant’s Amended Protest was duly admitted, public respondent’s First
Division apparently overlooked its Order of April 7, 1988, which reads:

“For consideration is the Protestee’s Comments and
Observations on the Amended Protest dated March 3, 1988, filed by Counsel for
Protestee praying that the amended protest dated February 15, 1988, filed by
Protestant be denied admission. It
appearing from the records of the case that Protestant’s Amended Protest was
filed in accordance with Sec. 17, Rule X of COMELEC Resolution No. 1996, the
Commission hereby denies the herein Protestee’s Comments and Observations on
the Protestant’s Amended Protest.”

In the Resolution En Banc of this Court dated September 7,
1989, in G.R. No. 88036, where petitioner questioned the “transfer of the
questioned ballot boxes to Cagayan de Oro in view of the serious peace and
order problem in Pagadian City”, it clearly appears that the Amended
Protest was in fact admitted, thus –

“x x x x Besides, the Order of April 7, 1988, admitting the
amended protest was questioned only on May 11, 1989, when the herein petition
was filed, or way beyond the 30-day reglementary period prescribed in Article
IX-A, Section 7, of the Constitution.”

On December 11, 1991, after revision of ballots and hearing,
COMELEC (First Division) promulgated a Resolution the dispositive portion of
which reads:

“WHEREFORE x x x x the Commission (First Division) RESOLVES,
as it hereby RESOLVES, to DISMISS Election Protest Case No. 88-1 and DECLARES
protestee winner of the election protest by a margin of 378 votes in lieu of
the original lead of protestee by 417 votes over protestant at the time of the
former’s proclamation by the City Board of Canvassers of Pagadian City.”^[14]

On December 16, 1991, private respondent filed his Motion for
Reconsideration.^[15]

Petitioner claims that on January 15, 1992, he filed a Memorandum
in Opposition to the Motion for Reconsideration of private respondent^[16]
raising the following points:

(a) examination and
appreciation of ballots should have been confined to 31 protested precincts per
original protest filed January 28, 1988, considering that amended protest was
decreed as “not admissible” in the February 7, 1991, Resolution of
COMELEC (First Division);

(b) examination of ballots
to determine identical handwritings should be limited to Precincts 19, 22, 8
and 11 as alleged in the original protest;

(c) it was contrary to
basic rules for COMELEC to pass upon ballots (in favor of protestee) as
identical with each other when they were not even questioned by protestant,
thus depriving protestee the right to present controverting evidence;

(d) COMELEC failed to consider its records showing that there were
139 assisted illiterate or disabled voters, hence, to invalidate their votes is
technically a disenfranchisement and a subversion of sovereign will;

(e) it is statistically
improbable for a candidate to have utilized 332 groups (persons) to write 723
allots (a ratio of 1 person for 2 ballots);

(f) mathematical
computation of protestant in his motion for reconsideration is erroneous and
self-serving; and,

(g) COMELEC should have
credited 10 more votes for protestee as affirmed/admitted during the revision
of ballots.

However, in his Comment, private respondent Pulmones denies all
these averments of petitioner, and claims that they contain “baseless and
unfounded” allegations which are precisely to be rejected in this
petition.

On January 23, 1992, COMELEC En Banc promulgated its
Decision thus –

“ACCORDINGLY, the Commission En Banc hereby renders
judgment: a. GRANTING Protestant Pulmones’ Motion for Reconsideration; b. DENYING Protestee Arao’s Manifestation for
the dismissal of Protestant’s Motion for Reconsideration; c. AFFIRMING the factual findings of the
Commission (First Division) relative to the examination of the contested
ballots of both Protestant and Protestee; d. DECLARING Protestant Warlito Pulmones as the duly elected Mayor of
Pagadian City in the January 18, 1988 elections with a margin of 516 votes
against Protestee Benjamin F. Arao; and, e. ORDERING Protestee Arao to VACATE his office and surrender the same to
Protestant Pulmones once this decision becomes final and executory.”^[17]

Meanwhile, on February 28, 1992, acting on the motion of
Pulmones, respondent COMELEC granted the issuance of a writ of execution to
enforce its Decision of January 23, 1992.

On March 4, 1992, petitioner filed with Us an urgent motion for
the issuance of a writ of preliminary injunction or a temporary restraining
order against the February 28, 1992, Order of public respondent.

On March 5, 1992, this Court issued a temporary restraining order
as prayed for by petitioner, and required private respondent to comment
thereon.

In his petition, Arao raises five issues which nevertheless may
simply be reduced into whether respondent COMELEC gravely abused its discretion
or exceeded its jurisdiction: (1) when
it examined and invalidated 426 ballots for petitioner in precincts not
included in the original protest but only in the amended protest filed beyond
the ten-day period; (2) when it invalidated 466 ballots for petitioner as
having identical handwritings although protestant did not raise such issues,
nor impugn the validity of the ballots on such ground; and, (3) when it
concluded that certain ballots were with identical handwritings, some marked,
and others stray, and deducting them from the total votes of petitioner without
stating the grounds therefor.

Before resolving these issues, a distinction should at the outset
be drawn between an original action for certiorari, as in this case
brought under Sec. 7, Art. IX-A, 1987 Constitution, and an appeal by certiorari
or petition for review. In the special
civil action for certiorari, the main issue is lack of jurisdiction or
grave abuse of discretion amounting to excess of jurisdiction, while an appeal
by certiorari or petition for review is limited to the consideration of
questions of law. Thus, in the
oft-cited case of Padilla vs. COMELEC,^[18] We
ruled:

“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 (88 SCRA 251), ‘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’ x x x x Moreover, the legislative construction x x x 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 x x x a case decided under the Constitution of 1935, this
Court, speaking through then Chief Justice Concepcion, ruled that ‘this Court cannot
x x x review rulings or findings of fact of the Commission on
Elections’ x x x 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’) x x x x 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 aforementioned rule was reiterated in the cases of Ticzon and
Bashier x x x x Indeed, as early as the year 1938, applying Section 4, Article
VI of the 1935 Constitution x x x this Court held that the Electoral
Commission’s ‘exclusive jurisdiction’ being clear from the language of
the provision, ‘judgment rendered . . . in the exercise of such an
acknowledged power is beyond judicial interference, except . . . ‘upon a
clear showing of such arbitrary and improvident use of the power
as will constitute a denial of due process of law’ x x x x Originally lodged in
the legislature that exclusive function of being the ‘sole judge’ of contests
‘relating to the election, returns and qualifications’ of members of the
legislature was transferred ‘in its totality’ to the Electoral Commission by
the 1935 Constitution. That grant of
power, to use the language of the late Justice Jose P. Laurel, ‘was intended to
be as complete and unimpaired as if it had remained originally in
the legislature . . .’ x x x x These observations remain valid and applicable
to the exercise of that function, as now vested in the respondent Commission by
the 1973 Constitution.”

Earlier, in Sidro v. Commission on Elections,^[19]
it was held –

“x x x x 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. So it has been reiterated time and time
again.”

Although the Padilla case hereinbefore quoted was decided
under the 1973 Constitution, the doctrine therein enunciated is still
applicable under the 1987 Constitution considering that Sec. 11, Art. XII-C of
the 1973 Constitution, invoked therein has been retained in the 1987
Constitution except for the limitation “as may be provided by this Constitution
or by law”. Consequently, unless
it is shown that the Constitution itself or any law modifies the provision that
“x x x any decision, order, or ruling of each Commission^[20]
may be brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof,” and none is pointed to
Us, our interpretation of the pertinent provisions adverted to in both
Constitutions, as well as our adherence thereto, cannot be any less firm and
faithful.

What is certain from the above disquisition is that the
extraordinary power of this Court to pass upon an order or decision of COMELEC
should be exercised restrictively, with care and caution, while giving it the
highest regard and respect due a constitutional body. For, not every abuse of discretion justifies the original action
of certiorari; it must be grave. Nor any denial of due process within its ambit; it must be patent and it
must be substantial. The test therefore
is whether petitioner has demonstrated convincingly that COMELEC has committed
grave abuse of discretion or exceeded its jurisdiction amounting to patent and
substantial denial of due process in issuing the challenged decision. Here, petitioner has utterly failed.

As regards the first issue of petitioner, it appears that the
original Protest of private respondent Pulmones did in fact cover all the
forty-five (45) precincts the COMELEC took cognizance of in resolving EPC No.
88-1. As alleged in par. 5 of his
Protest –

“5. That while fraud and anomalies were rampant in practically
all the voting centers of Pagadian City, the violations were glaringly and
notably perpetrated in the following districts and/or precincts x x x x”

The prayer in the same Protest also confirms that it refers to
forty-five (45) precincts as it seeks the “opening and recounting of votes
cast in all 3 precincts in Kawit District; Precs. 77 and 80 in
Tuburan District; Precs. 77, 42, 58, 80 and 70 all of Pagadian City; Prec. 69
of Bonifacio District; Prec. 42 and all precincts in Sta. Lucia
District; all seven precincts in the District of Sto. Niño;
Precs. 32, 33 and 34, and all precincts of San Jose District; all
the precincts in San Pedro District; Precs. 19 and 32 and all other
precincts in the Gatas district; and Prec. 8 and 11 and all other
precincts of Balangasan District, all of Pagadian City” (underscoring
supplied). Specifically, the precincts
covered are: (a) all precincts of Kawit
(63, 64 and 65; (b) two in Tuburan (77 and 80); (c) one in Bonifacio (69); (d)
all in Sta. Lucia (42 and 50); (e) all in Sto. Niño (11-A, 12, 13-A, 14, 15 and
16); (f) all in San Jose (30, 31, 32, 33, 34, 35 and 36); (g) all in San Pedro
(52, 53, 54, 55, 56, 57, 58, 59, 60, 61 and 62); (h) all in Gatas (17, 18, 19,
20, 21 and 22); (i) all in Balangasan (1-A, 4, 6, 8, 9 and 11); and, (j) Prec.
70 (unspecified district). The sum
total of these precincts is forty-five (45), which tallies with the total
number of precincts contested by protestant, now private respondent.

It may be noted that while protestant did attempt to introduce
new precincts in his Amended Protest filed on February 15, 1988, namely,
Precincts Nos. 101, 111, 112, 113, 121, 122, 129, 137, 143, 153, 108 and 131,
which were not enumerated in the original Protest, these precincts were not
taken into consideration by COMELEC in deciding EPC No. 88-1. Hence, the first issue clearly appears to be
based on a wrong premise.

On the second issue, 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. As held in Yalung v.
Atienza:^[21]

“x x x x Inasmuch as it is not necessary to specify in detail
in the motion of protest in which of the ballots the frauds and irregularities
were committed, such a procedure being well-nigh impossible, and it being
enough to allege in what the fraud and irregularity consisted, and that had it
not been for such anomalies, the result of the election would have been
otherwise, all of which have been alleged in the motion of protest in question,
the court or the commissioners appointed by the same may revise all the
ballots, admitting the valid and legal ones and rejecting the others, with a
view to arriving at the lawfully expressed will of the electors. The institution of popular suffrage is one
of public interest and not a private interest of the candidates, 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 (20 Corpus Juris, 227; underscoring supplied).

“In the case of Lucero vs. De Guzman (45 Phil., 852),
this court stated the following: ‘The
purpose of the legislature in declaring that contests should not be conducted
upon pleadings or by action was to free the courts as far as possible from the
technicalities incident to ordinary proceeding by action and to enable the
courts to administer justice speedily and without complication.’

“The trial court, then, did not err in taking into account in
the revision of the ballots, irregularities not set forth in the motion of
protest.”

With regard to the third issue, the complaint of petitioner
against the alleged omission of COMELEC to state the reasons for its conclusion
that certain ballots were with identical handwritings, some marked and others
stray, does not in any magnitude diminish the straightforward statement of the
public respondent that “it painstakingly examined and appreciated
individually the contested ballots for both protestant and protestee in
accordance with existing norms x x x x”^[22]

Petitioner did not question this alleged irregularity by bringing
the matter to the attention of COMELEC (First Division) immediately after the
promulgation of its Resolution. The
Resolution containing the alleged jurisdictional defect was promulgated on
December 11, 1991. However, it was not
until he filed his petition on February 17, 1992, that petitioner complained
for the first time. Certainly, that
Resolution having been rendered by a division of COMELEC could have been
subject of a motion for reconsideration. Admittedly, petitioner did not take steps to have the matter
reconsidered by public respondent before coming to Us.

Having been declared winner in the Resolution of December 11,
1991, petitioner would not ordinarily be expected to initiate a motion for
reconsideration. Nonetheless, he could
have brought up his objections in his Memorandum in opposition to the
Protestant’s Motion for Reconsideration so that public respondent could have
properly ruled thereon. Consequently,
petitioner may be deemed to have waived his right to question the Resolution
when he failed to act accordingly despite the opportunity so to do. He should not be permitted, in other words,
to remain mute and unaffected in the face of a perceived jurisdictional defect
and, worse, profit from his quiescence, only to grumble in the end when it
turns out to be prejudicial to his interest. As it has been said, “[n]either equity nor the law relieves those
who seek aid in Court merely to avoid the effects of their own negligence x x
x” (Lipscomb v. Talbott, 243 Mo 1, 36 [1912]).

WHEREFORE, finding no abuse of discretion, muchless grave,
patent and substantial, the petition is DENIED.

The temporary restraining order issued by this Court on March 3,
1992, is hereby lifted and set aside.

SO ORDERED.

Narvasa, C.J.,
Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino,
Medialdea, Regalado, Davide, Jr., and
Romero, JJ., concur.

Nocon, J., on leave.

^[1]
Filed pursuant to Sec. 7, Art. IX-A, 1987 Constitution.

^[2]
Annex “I”, Petition, Rollo, pp. 197-203.

^[3]
Annex “F”, Petition, Rollo, pp. 83-162.

^[4]
Erroneously alleged in par. IV.1, Petition, as “12,034”.

^[5]
Annex “F”, Petition, Rollo, pp. 83-162.

^[6]
Annex “A”, Petition; Protest, par. 5; Rollo, pp. 45-­49.

^[7]
Annex “B”, Petition, Rollo, pp. 53-60.

^[8]
Annex “E”, Petition, Rollo, pp. 75-81.

^[9]
Annex “C”, Petition, Rollo, pp. 61-72.

^[10]
Ibid.

^[11]
Resolution, COMELEC (First Division), prom. December 11, 1991, p. 3.

^[12]
Annex “E”, Petition, Rollo, pp. 75-81.

^[13]
Annex “F”, Petition, Rollo, pp. 83-162.

^[14]
Annex “F”, Petition, Rollo, pp. 83-162.

^[15]
Annex “G”, Petition, Rollo, pp. 163-169.

^[16]
Annex “H”, Petition, Rollo, pp. 170-195.

^[17]
Annex “I”, Petition, Rollo, pp. 197-203.

^[18]
G.R. Nos. 68351-52, July 9, 1985; 137 SCRA 424.

^[19]
G.R. No. 64033, July 25, 1983; 123 SCRA 759.

^[20]
Art. IX, 1987 Constitution refers to Constitutional Commissions, namely, the
Civil Service Commission (par. B), the Commission on Elections (par. C) and the
Commission on Audit (par. D).

^[21]
52 Phil. 781 (1929).

^[22]
Resolution, COMELEC (First Division),
of December 11, 1991, p. 8.