ABDUL GAFFAR P.M. DIBARATUN, PETITIONER, VS. COMMISSION ON ELECTIONS AND ABDUL CARIM MALA ABUBAKAR, RESPONDENTS.

Dibaratun versus Commission on Elections

The Case

This is a petition for certiorari filed by Abdul Gaffar P.M. Dibaratun against the Commission on Elections and Abdul Carim Mala Abubakar, challenging the resolution of the Commission on Elections sitting en banc which declared a failure of elections in one barangay precinct in Tugaya, Lanao del Sur, annulled Dibaratun's proclamation as Punong Barangay, and ordered him to cease and desist from exercising the powers of that office. The case matters because it draws the boundary lines every reviewee must know: the distinction between a petition to declare a failure of elections under Section 6 of the Omnibus Election Code and a pre-proclamation controversy, the two conditions that must concur before the Commission may declare a failure of elections, and the narrow scope of certiorari against the Commission's factual findings.

Procedural History

Abubakar, a re-electionist candidate for Punong Barangay of Barangay Bagoainguid, filed a verified petition before the Commission on Elections to declare a failure of elections in Precinct No. 6A/7A and to annul the proclamation of Dibaratun. Dibaratun and his co-respondents answered, denying the allegations, contending that since ten voters had actually voted there was no failure of elections, and that the petition was filed out of time. The Commission on Elections en banc, in its resolution of October 17, 2005, gave due course to the petition, annulled the proclamation of Dibaratun, ordered him to cease and desist, and directed that the incumbent Punong Barangay continue in a hold-over capacity pending the special elections. Dibaratun then elevated the matter to the Supreme Court by petition for certiorari, raising grave abuse of discretion amounting to lack or excess of jurisdiction.

Facts

On July 15, 2002, the synchronized barangay and Sangguniang Kabataan elections were held. In Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao del Sur, voting began at the designated polling place. After only ten voters had cast their votes, a commotion erupted. According to Abubakar, the son of candidate Dibaratun entered the polling place carrying three filled-up ballots with Dibaratun's name voted, and when confronted, committed violence that disrupted the casting of votes; the chairman left the ballot box, which was taken by companions of the son, the box was destroyed, and substituted ballots were inserted. Only ten of one hundred fifty-one registered voters were able to vote, and voting was never resumed.

The Board of Election Inspectors, according to Abubakar, nonetheless canvassed the returns and proclaimed Dibaratun on July 16, 2002. Dibaratun denied the allegations and insisted that because ten voters had voted, there was no failure of elections.

Before the Commission, the parties submitted affidavits that agreed on one central fact but disagreed on who caused it: both sides affirmed that voting was suspended before the hour fixed by law because of violence, each blaming the other's camp. The Commission en banc found that the suspension was due to violence caused by undetermined persons, declared a failure of elections, annulled the proclamation, and called for special elections.

Issues

• Whether or not the Commission on Elections en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in declaring a failure of elections in Precinct No. 6A/7A and in annulling the proclamation of the petitioner.
• Whether or not the petition of the private respondent was in the nature of a pre-proclamation controversy under Section 241 of the Omnibus Election Code and therefore had to comply with the procedures therefor.
• Whether or not the petition for declaration of failure of elections was filed out of time under the ten-day period for election contests.
• Whether or not the private respondent's failure to pay docket fees on time may be raised for the first time on appeal.

Applicable Provisions

Section 6 of the Omnibus Election Code provides:

SEC. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.

This is the very provision under which the Commission acted, and its second instance, suspension of voting before the hour fixed by law on account of violence, is the ground the Commission found present.

Section 4 of Republic Act No. 7166 provides:

SEC. 4. Postponement, Failure of Elections and Special Elections.--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.

This confirms that the Commission en banc was the proper body to take cognizance of the petition and to decide it by majority vote.

Section 252 of the Omnibus Election Code provides:

Sec. 252. Election contest for barangay offices. - 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.

This is the ten-day period the petitioner invoked, and the Court measured the petition against it to show that even on that assumption the petition was timely.

Ruling

On the first issue, the Court held that the Commission did not commit grave abuse of discretion. The findings of fact of the Commission en banc are binding on the Court, because the grounds for failure of election, namely force majeure, violence, terrorism, fraud, or other analogous causes, are questions of fact that only the Commission can determine after due notice and hearing. Certiorari against the Commission lies only for grave abuse of discretion amounting to lack or excess of jurisdiction, and the Commission, as the specialized constitutional body with expertise in election law, has findings generally respected as conclusive. The Court agreed that voting was suspended before the hour fixed by law due to violence, with only ten of one hundred fifty-one registered voters able to vote, so the votes not cast would have affected the result. Both conditions for declaring a failure of elections concurred, and when there is a failure of elections the Commission is empowered to annul the elections and call for special elections.

On the second issue, the Court held that the petition was one for declaration of failure of elections under Section 6, not a pre-proclamation controversy under Section 241. The issue before the Commission was whether the evidence supported the allegation that violence suspended the elections before the hour fixed by law, which does not fall under pre-proclamation controversies. A petition to declare a failure of elections is neither a pre-proclamation controversy as classified under the COMELEC Rules of Procedure nor an election case.

On the third issue, the Court held that the ten-day period in Section 252 governs election contests, not petitions for declaration of failure of elections. The provisions on failure of elections do not provide a prescriptive period, and the Commission has discretion whether to take cognizance of such a petition. In any event, the petition was filed on July 26, 2002, within ten days from the proclamation on July 16, 2002, so even if treated as an election contest it was timely.

On the fourth issue, the Court held that the alleged late payment of docket fees was not raised before the Commission and cannot be raised for the first time on appeal.

Doctrine

Before the Commission may act on a verified petition to declare a failure of elections, two conditions must concur: first, no voting took place in the precinct on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and second, the votes not cast would have affected the result of the elections. The cause of such failure could only be force majeure, violence, terrorism, fraud, or other analogous causes, as enumerated in Section 6 of the Omnibus Election Code.

A petition to declare a failure of elections is distinct from a pre-proclamation controversy and from an election contest. It is governed by Section 6 of the Omnibus Election Code and decided by the Commission en banc under Section 4 of Republic Act No. 7166, and the provisions on failure of elections provide no prescriptive period for its filing.

The findings of fact of the Commission en banc on the grounds for failure of election are binding on the Supreme Court, and certiorari against the Commission is confined to grave abuse of discretion amounting to lack or excess of jurisdiction, meaning a capricious and whimsical exercise of judgment equivalent to lack of jurisdiction, so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined.

Disposition

The petition for certiorari was dismissed, and the resolution of the Commission on Elections en banc declaring a failure of elections and annulling the proclamation of Dibaratun was upheld.

Remember This

Memorize the two concurring conditions: no voting or a failure to elect, and votes not cast that would have affected the result, caused only by force majeure, violence, terrorism, fraud, or analogous causes. Examiners use this case to test the distinction between a failure-of-elections petition under Section 6 and a pre-proclamation controversy, and the deference owed to the Commission's factual findings.