G.R. No. 152163. November 18, 2002
SABDULLAH T. MACABAGO, PETITIONER, VS. COMMISSION ON ELECTIONS AND JAMAEL M. SALACOP, RESPONDENTS.
CALLEJO, SR., J.:
by the Municipal Board of Canvassers as the winning candidate for the position
of Municipal Mayor of Saguiran, Lanao del Sur. Petitioner had a lead of 198 votes over his adversary, private
respondent Jamael M. Salacop.
On June 1, 2001, private respondent filed a petition with the
Commission on Elections (COMELEC) against petitioner and the proclaimed
Vice-Mayor and Municipal Councilors, as well as the members of the Municipal
Board of Canvassers, docketed as SPC-01-234, to annul the elections and the
proclamation of candidates in the Municipality of Saguiaran, Lanao del
Sur. Private respondent alleged that
there was a massive substitution of voters, rampant and pervasive
irregularities in voting procedures in Precincts Nos. 19, 20, 28 and 29, and a
failure of the Board of Election Inspectors (BEI) to comply with Sections 28
and 29 of Comelec Resolution No. 3743 and Section 193 of the Omnibus Election
Code, thus rendering the election process in those precincts a sham and a
mockery and the proclamation of the winning candidates a nullity. Private respondent further averred that if
his petition were to be given due course, he would win by a margin of one
hundred ninety-four (194) votes over the votes of petitioner. He thus prayed:
“WHEREFORE, foregoing premises considered, it is most respectfully
prayed of this Honorable Commission that the election results in Precincts 19,
20, 28 and 29 be ordered set aside and considered excluded and the proclamation
of the winning candidates in the said municipality be ANNULLED to reflect the
genuine desire of the majority of the people.All other reliefs, deemed just and equitable under the
circumstances are likewise prayed for.”[1]
In support of his petition, private respondent appended thereto
photocopies of random Voters Registration Records (VRRs) evidencing the fraud
and deceit that allegedly permeated the electoral process, as well as
affidavits tending to prove that serious irregularities were committed in the
conduct of the elections in the subject precincts.[2]
In his answer, petitioner denied the truth of the material
allegations in the petition and averred that it raised a pre-proclamation
controversy. He further alleged that
the grounds relied upon by private respondent would be proper in an election
protest but not in a pre-proclamation controversy.[3]
The COMELEC En Banc
took cognizance of the petition and on February 11, 2002, issued an order
directing the Election Officer of Saguiran, Lanao del Sur, to bring to and
produce before the COMELEC Office in Manila the original VRRs of the questioned
precincts for technical examination:
“WHEREFORE, premises considered, the Commission hereby RESOLVES to
direct Mr. Ibrahim M. Macadato, the Election Officer of Saguiran, Lanao del Sur
to produce the subject original VRR’s of the questioned precincts here in
Manila for the appertaining technical examination.SO ORDERED.”[4]
In the same order, the COMELEC declared that contrary to
petitioner’s claims, the petition did not allege a pre-proclamation
controversy. The Commission
characterized the petition as one for the annulment of the election or
declaration of failure of election in the municipality, a special action
covered by Rule 26 of the COMELEC Rules of Procedure. Accordingly, the COMELEC set aside the docketing of the petition
as a Special Case (SPC) and ordered the redocketing thereof as a Special Action
(SPA). After its examination of the
evidence submitted by petitioner, the COMELEC concluded that there was
convincing proof of massive fraud in the conduct of the elections in the four
(4) precincts that necessitated a technical examination of the original copies
of the VRRs and their comparison with the voters’ signatures and
fingerprints. The COMELEC further noted
that since the lead of Macabago was only 124 votes vis-à-vis the 474 voters of the contested precincts, the outcome of
the petition would adversely affect the result of the elections in the
Municipality. In issuing said Order,
the COMELEC relied on its broad powers under the 1987 Constitution and the
pronouncement of this Court in Pantaleon
Pacis vs. Commission on Elections,[5]
and Tupay
Loong vs. Commission on Elections, et al.[6]
Forthwith, petitioner filed with this Court the instant special
civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure,
as amended, praying for the reversal of the February 11, 2002 order of the
COMELEC En Banc. Petitioner alleged that:
“6.1.
PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT TOOK COGNIZANCE
OF AND PASSED UPON THE PETITION IN SPC NO. 01-234 IN VIOLATION OF SECTION 3,
RULE 3 OF THE COMELEC RULES OF PROCEDURE.6.2.
PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED ITS
ORDER ON FEBRUARY 11, 2002 FOR THE TECHNICAL EXAMINATION OF THE VOTERS
REGISTRATION RECORDS OF THE REGISTERED VOTERS OF PRECINCT NOS. 19, 20, 28 &
29 OF THE MUNICIPALITY OF SAGUIARAN, LANAO DEL SUR.”[7]
The kernel issues posed in the case at bar are (a) whether
petitioner’s recourse to this Court under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, is in order; and (b) whether the COMELEC acted without jurisdiction or committed a grave
abuse of its discretion amounting to excess or lack of jurisdiction in taking
cognizance of the petition of private respondent and in issuing the assailed
Order.
On the first issue, petitioner avers that he was impelled to file
the instant petition without first filing with the COMELEC a motion for a reconsideration
of its order because under the COMELEC Rules of Procedure, a motion for a
reconsideration of an interlocutory order of the COMELEC En Banc is a prohibited pleading, and that the COMELEC acted with
grave abuse of discretion amounting to excess or lack of jurisdiction in
issuing the assailed order. Private
respondent on the other hand insists that under Rule 64 of the 1997 Rules of
Civil Procedure, a special civil action for certiorari filed with this Court is
proper only for the nullification of a final order or resolution of the COMELEC
and not of its interlocutory order or resolution such as the assailed order in
this case.
Section 1, Rule 64, as amended, reads:
“SECTION 1. Scope. – This Rule shall govern the
review of judgments and final orders or resolutions of the Commission on
Elections and the Commission on Audit.”[8]
Under Section 2 of the same Rule, a judgment or final order or
resolution of the COMELEC may be brought by the aggrieved party to this Court
on certiorari under Rule 65, as amended, except as therein provided. We ruled in Elpidio M. Salva, et al. vs.
Hon. Roberto L. Makalintal, et al.[9]
that Rule 64 of the Rules applies only to judgments or final orders of the
COMELEC in the exercise of its quasi-judicial functions. The rule does not apply to interlocutory
orders of the COMELEC in the exercise of its quasi-judicial functions or to its
administrative orders. In this case,
the assailed order of the COMELEC declaring private respondent’s petition to be
one for annulment of the elections or for a declaration of a failure of
elections in the municipality and ordering the production of the original
copies of the VRRs for the technical examination is administrative in nature.[10]
Rule 64, a procedural device for the review of final orders, resolutions or
decision of the COMELEC, does not foreclose recourse to this Court under Rule
65 from administrative orders of said Commission issued in the exercise of its
administrative function.[11]
It bears stressing that under Article VIII, Section 1 of the
Constitution, judicial power is vested in the courts. Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. Judicial power is an antidote to and a safety net against whimsical,
despotic and oppressive exercise of governmental power. The aggrieved party may seek redress
therefrom through the appropriate special civil action provided by the Rules of
Court. As to acts of the COMELEC, the
special civil action may be one for certiorari pursuant to Article IX(A),
Section 7 of the Constitution.
As a general rule, an administrative order of the COMELEC is not
a proper subject of a special civil action for certiorari.[12] But when the COMELEC acts capriciously or
whimsically, with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing such an order, the aggrieved party may seek redress
from this Court via a special civil
action for certiorari under Rule 65 of the Rules.[13]
Private respondent cannot find solace in the pronouncement in Ruperto
Ambil, Jr. vs. Commission on Elections, et al.[14]
because the subject matter of the petition therein was an interlocutory order
of a Division of the COMELEC. This
Court held that the remedy of the aggrieved party was first to file a motion
for a reconsideration of the order with the COMELEC En Banc. The raison d’etre therefor is that under
Rule 3, Section 6(c) of the COMELEC Rules of Procedure, any motion for a
reconsideration of a decision, resolution, order or ruling of a Division of the
COMELEC has to be referred to and resolved by the Commission sitting En Banc. A motion for reconsideration filed with the COMELEC En Banc of an order, ruling or
resolution of a Division thereof is a plain, speedy and adequate remedy
therefrom.
We now resolve the second issue. Irrefragably, the petition before the COMELEC does not pose a
pre-proclamation controversy as defined in Article XX, Section 241 of Republic
Act No. 7166, thus:
“SEC. 241. Definition. – 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.”[15]
Pre-proclamation controversies are properly limited to challenges
directed against the Board of Canvassers and proceedings before said Board
relating to particular election returns to which private respondent should have
made specific verbal objections subsequently reduced to writing. The proceedings are summary in nature; thus,
the reception of evidence aliunde,
e.g. the original copies of the VRRs, is proscribed. In fine, in pre-proclamation proceedings, the COMELEC is not to
look beyond or behind election returns which are on their face regular and
authentic returns.[16]
Issues such as fraud or terrorism attendant to the election process, the
resolution of which would compel or necessitate the COMELEC to pierce the veil
of election returns which appear to be prima
facie regular, on their face, are anathema to a pre-proclamation
controversy. Such issues should be
posed and resolved in a regular election protest.[17]
In his petition with the COMELEC, private respondent alleged that
fraud and irregularities allegedly perpetrated by unscrupulous individuals who
substituted for the registered voters and voted for the latter in the subject
precincts, in conspiracy with the Board of Election Inspectors, or abetted by
the members thereof, attended the electoral process in the subject precincts. The fraud and the irregularities catalogued
by private respondent required the reception of evidence aliunde. As stated earlier,
such grounds are not proper bases for a pre-proclamation controversy but are
appropriate for a regular election contest within the original jurisdiction of
the Regional Trial Court. Indeed, the
Court held in Dimangadap Dipatuan vs.
Commission on Elections, et al.:[18]
“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’ (GAD vs. COMELEC, G.R. No. 78302,
May 26, 1987, 150 SCRA 665).’”
Neither is private respondent’s petition before the COMELEC one for
declaration of a failure of elections in Saguiran, Lanao del Sur. Section 6, Article 1 of R.A. No. 7166
provides when a failure of election occurs –
“SEC. 6. Failure of election. – If, on account of
force majeure, violence, terrorism, fraud, or other analogous causes the
election in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by the law for the closing of the voting, or
after the voting and during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election results in a
failure to elect, and in any of such cases the failure or suspension of
election would affect the result of the election, the Commission shall, on the
basis of verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to
the date of the election not held, suspended or which resulted in a failure to
elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect (Sec. 7, 1978
EC).”[19]
Under Section 5, Article 1 of the aforementioned law, the matter
of the postponement or declaration of failure of election and the calling of a
special election as provided for in Section 6, shall be decided by the COMELEC
sitting En Banc by a majority of its
members:
“SEC. 5. Postponement of election. – The
postponement, declaration of failure of election and the calling of special
elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall
be decided by the Commission sitting en banc by a majority vote of its
members. The causes for the declaration
of a failure of election may occur before or after the casting of votes or on
the day of the election. (Sec. 4, p. 1,
RA 7166).”[20]
Before the COMELEC can grant a verified petition seeking to
declare a failure of election, the concurrence of two (2) conditions must be
established, namely: (a) 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 a failure to elect; (b) the votes cast would affect the result
of the election. The Court declared in Ricardo Canicosa vs. Commission on
Elections, et al.,[21]
that there are only three (3) instances where a failure of election may be
declared, namely:
“x x x (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; (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.”[22]
While fraud is a ground to declare a failure of election, such
fraud must be one that prevents or suspends the holding of an election,
including the preparation and transmission of the election returns. “Failure to elect” must be understood in its
literal sense—which is, nobody emerges as a winner.[23]
The barefaced fact that a candidate has been proclaimed and has assumed office
does not deprive the COMELEC of its authority to annul any canvass and illegal
proclamation.[24]
A petition for the annulment of election is not the same as one involving a
pre-proclamation controversy. In the
fairly recent case of Tomas T. Banaga, Jr. vs. Commission on
Elections, et al.[25]
with a factual backdrop similar to this case, the Court held:
“We have painstakingly examined the petition filed by petitioner
Banaga before the COMELEC. But we found
that petitioner did not allege at all that elections were either not held or
suspended. Neither did he aver that
although there was voting, nobody was elected. On the contrary, he conceded that an election took place for the office
of vice-mayor of Parañaque City, and that private respondent was, in fact,
proclaimed elected to that post. While
petitioner contends that the election was tainted with widespread anomalies, it
must be noted that to warrant a declaration of failure of election the
commission of fraud must be such that it prevented or suspended the holding of
an election, or marred fatally the preparation and transmission, custody and
canvass of the election returns. These
essential facts ought to have been alleged clearly by the petitioner below, but
he did not.”
Private respondent alleged in his petition with the COMELEC En Banc that the elections ensued in the
subject precincts and that petitioner herein emerged as the winner and was in
fact proclaimed as such by the Board of Election Inspectors.
In sum then, the grounds alleged by private respondent in his
petition before the COMELEC are those for a regular election protest and are
not proper in a pre-proclamation controversy; nor is such petition one for
annulment of the elections or for a declaration of failure of elections in the
municipality of Saguiran, Lanao del Sur. The COMELEC should have ordered the dismissal of the petition instead of
issuing the assailed order. The COMELEC
thus committed a grave abuse of its discretion amounting to excess or lack of
jurisdiction in issuing the same. The
error is correctible by the special civil action for certiorari.
PREMISES CONSIDERED, the petition is GRANTED. The assailed order is SET ASIDE. The petition of herein private respondent
with the public respondent is DISMISSED, without prejudice to the filing of a
regular election protest, the period for the filing of which is deemed
suspended by the filing of the petition before the Commission on Elections
which gave rise to the petition at bar.
SO ORDERED.
Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Corona, and Carpio-Morales, JJ., concur.
Bellosillo, Mendoza, Ynares-Santiago, Carpio, and Austria-Martinez,
JJ., on official leave.
Sandoval-Gutierrez, J., in the result.
Azcuna, J., no part.
[1]
Rollo, pp. 28-29.
[2]
Ibid., p. 31.
[3]
Ibid.
[4]
Ibid., p. 33.
[5]
25 SCRA 377 (1968).
[6]
305 SCRA 832 (1999).
[7]
Rollo, pp. 7-8.
[8] Supra.
[9]
340 SCRA 506 (2000).
[10]
Ricardo Canicosa vs. Commission on
Elections, et al., 282 SCRA 512 (1997).
[11]
Corazon L. Cabagnot vs. Commission on
Elections, et al., 260 SCRA 503 (1996).
[12] Tupay Loong vs. Commission on Elections, et al., 305 SCRA 832 (1999).
[13]
Aurora Raymundo vs. PHHC, et al., 114
SCRA 712 (1982).
[14] 344
SCRA 358 (2000).
[15] Supra.
[16] Jesus L. Chu vs. Commission on Elections, et al., 319 SCRA 482 (1999).
[17]
Norodin M. Matalam vs. Commission on
Elections, et al., 271 SCRA 733 (1997).
[18] 185
SCRA 86 (1990).
[19] Supra.
[20] Supra.
[21] 282
SCRA 512 (1997).
[22] Ibid., p. 515.
[23] Jesus O. Typoco, Jr. vs. Commission on Elections, et al., 319 SCRA 498 (1999).
[24] Datu Ampatuan, et al. vs. Commission on Elections, G.R. No. 149803, January 21, 2002.
[25] 336
SCRA 701 (2000).