AGUEDO F. AGBAYANI, PETITIONER, VS. THE COMMISSION ON ELECTIONS AND RAFAEL M. COLET, RESPONDENTS.

The petitioner is questioning the Order issued by the respondent Commission
on Elections on December 13, 1988,
dismissing his pre-proclamation cases against private respondent Rafael M.
Colet (SPC Nos. 88-309, 88-445 and 88-485) and its Resolution dated February 23, 1989, denying his motion
for reconsideration.

The grounds for the dismissal were:  a) that the petitioner had abandoned the said
cases with his filing of an election protest on October 5, 1988; and b) that the pre-proclamation
controversy was no longer viable because the private respondent had already
been proclaimed Governor of Pangasinan.

The Order was issued by a 2-1 vote in the First Division^[1]
of the COMELEC and the Resolution sustaining it by a 4-3 vote of the COMELEC en
banc.^[2]

The majority of the First Division and later in the COMELEC en
banc held that the election protest filed by the petitioner, although
denominated ad cautelam, was a regular protest that made the
pre-proclamation controversy moot and academic, thus:

It must be remembered that petitioner has in fact opted to pursue
his case in a regular election protest. 
With the filing of the petition though captioned ex abundante
ad cautelam, the Clerk of
Court of this Commission, issued the corresponding
summons requiring protestee to file his answer. 
Thus, on October 25, 1988, protestee filed his responsive answer with
counter-protest.  On November
2, 1988, petitioner
filed his reply and Answer Ad Cautelam.  Evident
therefore, is petitioner’s intention to abandon his pre-proclamation
controversy cases before this Commission.

The Court does not agree. 
We find that the petitioner’s real intention in filing the election
protest ad cautelam was merely to insure the preservation of all
the ballot boxes used in the January 18, 1988 local elections in the province
of Pangasinan.  Under COMELEC Res. No. 2035
dated September 7, 1988, all such ballot boxes would be made available for the
then forthcoming barangay elections as long as they were not involved in any
pre-proclamation controversy, election protest, or official investigation.  As the above-mentioned cases involved only
nine precincts, it was only prudent for the petitioner to file his protest ad
cautelam in case the pre-proclamation controversy was ultimately
dismissed and it became necessary for him to activate his protest.  The protest would involve all the precincts
in the province.  If he had not taken
this precaution, all the other ballot boxes would have been emptied and their
contents would have been burned and forever lost.

It was not the fault of the petitioner if the COMELEC decided to
give due course to the protest right away even if it was ad cautelam.  The protest was at that time only tentative,
awaiting the disposition of the pre-proclamation controversy.  The petitioner did file a reply to the
private respondent’s answer with counter-protest, but it was only to prevent
any declaration that he had by his inaction waived the right to file responsive
pleadings.  Such a reply did not make the
pre-proclamation controversy moot and academic.

Most indicative of the petitioner’s intention is the express
reservation he made in the protest ad cautelam itself, where he
clearly stated:

As additional precautionary measure, the protestant herein is filing
this protest ad cautela (m), without withdrawing his petitions in said
pre-proclamation controversy, in order to exempt from the provisions of
Section 1 of Resolution No. 2035 the precincts hereinafter specified.  (Emphasis supplied)

On the second ground, the rule is indeed that the proclamation of
the winning candidate makes the pre-proclamation controversy no longer viable, as the issues raised therein may be
more closely examined and better resolved in an election protest.  However, this is true only where the
proclamation is based on a complete canvass, as we have held in a number of cases.^[3]
Where it is claimed that certain
returns should have been omitted because they were manufactured and other
returns cannot be included because they have been irretrievably lost (thus
raising the question of whether a special election should be called in the
precincts affected), the pre-proclamation controversy should still be continued
despite the proclamation of the supposed winner.  Indeed, the COMELEC may in such pre-proclamation proceedings
determine if the proclamation should be annulled.

This is precisely the issue involved in the SPC Nos. 88-309,
88-445 and 88-485, and it remains unresolved to date.  To contend that the pre-proclamation
controversy should be dismissed on the simplistic justification that the
private respondent is already in office is to beg the question.  The pre-proclamation controversy was
introduced in our election laws precisely to discontinue the practice of
hastening the proclamation and delaying the protest, to defeat the truly
expressed will of the electorate.

In the recent case of Duremdes v. Commission on Elections,^[4]
the proclamation of the petitioner as Vice-Governor of Iloilo did not prevent
the Commission on Elections from continuing with the pre-proclamation case
against him and later annulling his proclamation.  As the Court observed:

Moreover, DUREMDES’ proclamation was made on the basis of an
official canvass of the votes cast in 2,377 precincts only (Annex “N,” Petition), when there were actually 2,487
precincts.  The votes in 110 precincts,
therefore, were not included, which is exactly the number of 110 election
returns questioned by PEÑAFLORIDA. 
Further, DUREMDES was certified to have garnered 157,361 votes (ibid.),
which number represents the non-contested votes only, and clearly excludes the
totality of the “contested/deferred votes” of the candidates concerned.

DUREMDES’ proclamation having been based on an incomplete canvass,
no grave abuse of discretion can be ascribed to the COMELEC for directing the
Provincial Board of Canvassers of Iloilo “to immediately reconvene and to
include in the canvass of votes for Vice-Governor the questioned/contested
returns.” All the votes cast in an election must be considered because to
disregard returns is in effect to disenfranchise the voters (Mutuc vs. COMELEC,
L-28517, February 21, 1968, 22 SCRA 662). 
A canvass can not be reflective of the true vote of the electorate
unless all returns are considered and none is omitted (Datu Sinsuat vs.
Pendatun, L-31501, June 30, 1970, 33 SCRA 630).

Earlier, in Aguam v. Commission on Elections,^[5]
the Court ruled on the same question
thus:

The great breadth of the constitutional and statutory powers
granted Comelec has brought to the fore judicial pronouncements which have long
become guidelines.  Time and again, this
Court has given its imprimatur on the principle that Comelec is with authority
to annul any canvass and proclamation which was illegally made.  The fact that a candidate proclaimed has
assumed office, we have said, is no bar to the exercise of such power.  It of course may not be availed of where
there has been a valid
proclamation.  Since private respondent’s
petition before the Comelec is precisely directed at the annulment of the
canvass and proclamation, we perceive that inquiry into this issue is within
the area allocated by the Constitution and law to Comelec.

x x x

We have but to reiterate the oft-cited rule that the validity of a
proclamation may be challenged even
after the irregularly proclaimed candidate has assumed office.

x x x

It is indeed true that after proclamation the usual remedy of any party aggrieved in an election is to be found in an election protest.  But that is so only on the assumption that
there has been a valid proclamation.  Where as in the case at bar the proclamation itself is illegal, the assumption of office cannot in any
way affect the basic issues.

This Court dismissed G.R. Nos. 84435-37 (Agbayani v. Commission
on Elections), on January 19, 1989, because the orders appealed from were
merely interlocutory and there were certain factual matters that had yet to be
resolved by the COMELEC in the pending pre-proclamation controversy.  The pre-proclamation controversy itself was
not dismissed.  On the contrary, the
resolution clearly stated that there were “issues which, besides being mainly
factual, (were) still under the consideration of and subject to final
resolution of the Commission on Elections,” in the said cases.  The dismissal of the pre-proclamation
controversy has, however, rendered such final resolution impossible.

Considering the summary nature of the pre-proclamation
controversy, we see no reason why the above-mentioned cases cannot be speedily
resolved on the basis of the
evidence and the arguments already submitted by the parties.  These must have been thoroughly examined by
now by the COMELEC.  And if more evidence
is to be adduced, this should
not take too much more time; at least the COMELEC should see to it that it does
not.  The COMELEC must be especially wary
of dilatory tactics that may further postpone the final resolution of this
contest.  The Court cannot stress too
strongly the need for an early resolution of the pending cases to ultimately
determine the winner in the gubernatorial election or, if an election protest
is inevitable, to pave the way for it as soon as possible.

The petitioner has correctly pointed out that the Order of the
First Division of the COMELEC dismissing the pre-proclamation controversy and
the Resolution of the COMELEC en banc denying the motion for
reconsideration were both penned by Commissioner Abueg, in
violation of its rule that –

x x x No member shall be the “ponente” of an en banc
decision, resolution or a motion to reconsider a decision/resolution written by
him in a Division.^[6]

This is still another reason why the challenged acts must be
reversed.  The Commission on Elections
should be the first to respect and obey its own rules, if only to provide the
proper example to those appearing before it and to avoid all suspicion of bias
or arbitrariness in its proceedings.

It is not proper to make rash assumptions or unfounded
conclusions in the case before us because of the slight margin of the private
respondent over the protestant.  That
margin is only 356 in a province
which has 838,426 registered voters in 3,145 electoral precincts.  This is certainly less than what might be
called a categorical choice.  The
“touch-and-go” character of the race makes it especially urgent to ascertain
the winner in the election and resolve once and for all this divisive issue
that has been festering for more than two years in the province
of Pangasinan.

As it is possible that this issue may be definitely decided in
the pre-proclamation controversy alone, this proceeding should not have been
dismissed at all.  And even if it be
argued that an election protest would inevitably follow anyway, the procedure
prescribed by the law must still be followed.

WHEREFORE, the Order dated December 13, 1988, and the Resolution dated February 23, 1989 are SET ASIDE and
SPC Nos. 88-309, 88-445 and 88-485 are REINSTATED.  The Commission on Elections is hereby ORDERED
to resolve these cases with all purposeful dispatch, avoiding all needless
delay that will prevent the early ascertainment of the true results of the
election for the office of Provincial Governor of Pangasinan.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Medialdea, and Regalado, JJ., concur.

Cortes and Griño-Aquino,
JJ., on leave.

^[1]
Rollo, pp. 111-116; penned by Commissioner Abueg, Jr.,
with Commissioner Africa concurring and Commissioner Rama dissenting.

^[2]
Rollo, pp. 213-216; penned by Commissioner Abueg, Jr., with Chairman
Davide, Commissioners Africa and Flores concurring, and Commissioners Yorac,
Rama and Dimaampao dissenting.

^[3]
Aguam v. Comelec, 23 SCRA 883; Mutuc v.
Comelec, 22 SCRA 662; Demafiles v. Comelec, 21 SCRA 1461.

^[4]
G.R. Nos. 86362-63, October 27, 1989.

^[5]
23 SCRA 883.

^[6]
Section 1, Rule 4, Comelec Rules of Procedure.