AMBROSIO JANAIRO, FRANCISCO MADARCOS, PETITIONERS, VS. COMMISSION ON ELECTIONS, ROMULO LUMAWIG, AND SIMPLICIO EGINA, RESPONDENTS.

In the local election held November 14, 1967 for the offices of Mayor and Vice-Mayor of the municipality
of Caluya,
province of Antique,
the contending candidates were Ambrosio Janeiro and Romulo Lumawig, and Francisco Madarcos and Simplicio Egina, respectively.

On November 24, 1967 the team of Ambrosio
Janairo and Francisco Madarcos
filed a petition for mandamus before this Court, alleging in substance:  that, the re­spondents Romulo
Lumawig and Simplicio Egina obtained a plurality of 23 votes over the petitioners;
that there were eleven election precincts in the entire municipality of Caluya, but in one of them (Precinct No. 10, located in the
island-barrio of Sibay) no election was held and not
a single registered voter was able to cast his vote, 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.

Attached to the petition are copies of telegrams set to the
Commission on Elections in Manila by the municipal treasurer of Caluya, the provincial supervisor for San Jose, Antique and
the COMELEC registrar for Caluya, all advising the
Commission of the occurrence and requesting appropriate instructions.  Petitioner Francisco Madarcos
sent a similar telegram, protesting at the same time the proclamation of his
opponent Simplicio Egina
for the office of Vice-Mayor.

Acting on the telegraphic requests aforementioned, the Commission
on Elections met on November 21, 1967, and resolved:  “to direct the municipal board of
canvassers of Caluya, Antique, to suspend up to
November 27, 1967 (Monday), the canvass to give the party concerned opportunity to go to the proper court for remedy, with the
understanding, however, that if after November
27, 1967 no restraining order from the court is received by this Commission, the
Board shall forthwith proceed to terminate the canvass and proclaim the winning
candidates for local offices in Caluya,
Antique.” Notices of the foregoing resolution were sent to the municipal
treasurer and the chairman of the muni­cipal board of canvassers of Caluya on November
22, 1967.

Alleging further that in
precinct No. 10 of Caluya there are 173 voters (of
whom 146 have complete identifica­tion cards and 27 have cards without their
pictures there­on); that this precinct is a known bailiwick of the
peti­tioners, as shown by the results of the 1963 elections; and that if an
election should be held therein it would alter the results of the election in
the entire municipa­lity, the petitioners pray that this Court direct the respondent
Commission on Elections “to order the continua­tion of the election in
precinct No. 10 of the municipality of Caluya; or in
the alternative to recommend to the President of the Philippines the holding of
a new election in that place; or in the event that a legislation is neces­sary
to hold an election in precinct No. 10, Caluya, to give
sufficient time to the petitioners to seek the necessary legislation to that
effect.” Pending the holding of the election prayed for, the petitioners
ask that the canvass of votes and the proclamation of the respondents be
suspended.

This Court finds the
petition without legal basis and therefore resolves to dismiss it, but
considers the matter to be one of sufficient importance and public interest so
as to require an extended resolution of denial.

The basic issue implicit in the petition concerns the authority
of the Commission on Elections 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 Commission on
Elections to issue such an order.  There
are two provisions in the Revised Election Code which have to do with the
contingency thus envisioned.  One 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 sub-division, the President,
upon recommendation of the Commission on Elections, shall post­pone the
election therein for such time as he may deem necessary.”

The other is Section 21, paragraph c, which states:

“SEC. 21 xxx 
xxx 
xxx  xxx

(c) Whenever the election for a local office fails to take place on
the date fixed by law, or such election results in a failure to elect, the
President shall issue, as soon as practicable, a proclamation calling a special
election to fill said office.”

It should be noted that
in either of the two cases the authority is given to the President:  in the first, to postpone the election upon
recommendation of the Commission on Elections, 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, to issue a proclamation calling a special election
to fill the office concerned.  There is
no law which gives similar authority to the courts or to the Commission on
Elections.  The general judicial power
reposed in the courts by the Constitution does not cover the situation.  As explained in the decision of this Court, penned by Associate
Justice, now Chief Justice, Roberto Concepcion, in the case of Salih Ututalum vs. Commission on Elections and Indanan Anni, G. R. No. L-25349,
December 3, 1965″ … the authority to order the holding of elections …
on any date other than … the dated fixed in our 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…  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
that power.”

In the same decision 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.

With respect to 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 – the same must
likewise be denied for several reasons: 
first, the function of this Court is to adjudicate justiciable
cases, not to make recommenda­tions concerning the powers and functions of the
other departments of the government; second, the petitioner 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 of
Caluya may be considered as a failure of “the
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.

PETITION DISMISSED. 
Let copies of this resolution be furnished the President of the Senate,
the Speaker of the House of Representatives, the Commission on Elections, and
the Secretary of Justice.

Concepcion, Reyes, JBL, Sanchez, Ruiz
Castro, Angeles, and Fernandez, JJ., concur.

 Dizon,
Zaldivar, JJ., did
not took part.