BENJAMIN P. ABELLA AND SILVESTRE T. DE LA CRUZ, PETITIONERS, VS. ADELINA INDAY LARRAZABAL, PROVINCIAL BOARD OF CANVASSERS OF LEYTE AND COMMISSION ON ELECTIONS, RESPONDENTS.

The Court has ordered the
consolidation of G.R. Nos. 87721-30 and G.R. No. 88004 involving the same
parties and the same election in 1988 for the office of provincial governor of Leyte. 
Challenged in these petitions for certiorari are the resolutions of the respondent
Commission on Elections dismissing the pre-proclamation and disqualification
cases filed by the herein petitioners against private respondent Adelina Larrazabal.

Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for
provincial governor of Leyte in the local election held on February
1, 1988.  The private respondent is the wife of Emeterio V. Larrazabal, the
original candidate of the Lakas ng
Bansa-PDP-Laban who was disqualified by the
Commission on Elections on January 18, 1988, for lack of residence.^[1] On January 31, 1988, the day before the election, she filed her
own certificate of candidacy in substitution of her husband.^[2] The following day, at about 9:30 o’clock in the morning, Silvestre de la Cruz, a
registered voter of Tacloban City, filed a petition with the
provincial election supervisor of Leyte to disqualify her for alleged false
statements in her certificate of candidacy regarding her residence.^[3] This was immediately transmitted to the main
office of the Commission on Elections, which could not function, however,
because all but one of its members had not yet been confirmed by the Commission
on Appointments.  De la Cruz then came to
this Court, which issued a temporary restraining order on February 4, 1988,
enjoining the provincial board of canvassers of Leyte
“from proclaiming Adelina Larrazabal
as the winning candidate for the Office of the Governor in the province of Leyte, in the event that she obtains the winning margin of
votes in the canvass of election returns of said province.”^[4] On March 1, 1988, the Commission on Elections having been
fully constituted, we remanded the petition thereto “for appropriate
action, including maintenance or lifting of the Court’s temporary restraining
order of February 4, 1988.”^[5]

In the meantime,
petitioner Abella, after raising various verbal
objections (later duly reduced to writing) during the canvass of the election
returns, seasonably elevated them to the Commission on Elections in ten
separate appeals docketed as SPC Nos. 88-627 to 88-627-I.  Pending resolution of these cases, Abella intervened on March 7, 1988, in the disqualification case, docketed as
SPC No. 88-546, and the following day filed a criminal complaint
with the Law Department of the COMELEC charging the private respondent
with falsification and misrepresentation of her residence in her certificate of
candidacy.

On March 22, 1988,
the public respondent consolidated the pre-proclamation and disqualification
cases with the Second Division.  On February 3, 1989, this Division unanimously upheld
virtually all the challenged rulings of the provincial board of canvassers,
mostly on the ground that the objections raised were merely formal and did not
affect the validity of the returns or the ballots, and ordered the proclamation
of the winner after completion of the canvass.^[6]
On that same date, the disqualification case was also dismissed by a 2-1
decision, and the matter was referred to the Law Department for
“preliminary investigation for possible violation of Section 74 of the
Omnibus Election Code.”^[7]

The motion for reconsideration of the resolution on the pre-proclamation cases was denied by the COMELEC
en banc on April 13, 1989, with no dissenting vote.^[8]
These cases are the subject of G.R. Nos. 87721-30, where we issued on April 18, 1989, another temporary
restraining order to the provincial board of canvassers of Leyte “to CEASE and DESIST from resuming
the canvass of the contested returns and/or from proclaiming private respondent
Adelina Larrazabal Governor
of Leyte.”

The motion for
reconsideration of the resolution on the disqualification case was also denied
by the COMELEC en banc on May 4, 1989, but with three commissioners dissenting.^[9] The dismissal of this case is the subject of
G.R. No. 88004.

Our decision follows.

In G.R. Nos. 87721-30,
the ruling of this Court is that the respondent Commission on Elections
committed no grave abuse of discretion in its decision dated February
3, 1989, and in its en
banc resolution dated April 13, 1989, denying reconsideration.

The petitioner contends
that in refusing to consider the objections raised by him to 26 election
returns (later reduced to 24) before the board of canvassers because the
rulings thereon were not in writing, the COMELEC has effectively and illegally
denied him the right to appeal through no fault of his.

The basis of such refusal
is Section 245 of the Omnibus Election Code providing in part as follows:

Sec. 245.  Contested election returns. – x x x.

x     x      x

Within twenty-four hours from and after the presentation of a
verbal objection, the same shall be submitted in written form to the board of
canvassers.  Thereafter, the board of
canvassers shall take up each contested return, consider the written objections
thereto and summarily rule thereon.  Said
ruling shall be made oral initially and then reduced to writing by the board within
twenty-four hours from the time the oral ruling is made.

Any party adversely affected by an oral ruling on its/his objection
shall immediately state orally whether it/he intends to appeal said
ruling.  The said intent to appeal shall
be stated in the minutes of the canvassing. 
If a party manifests its intent to appeal, the board of canvassers shall
set aside the return and proceed to rule on the other contested returns.  When all the contested returns have been
ruled upon by it, the board of canvassers shall suspend the canvass and shall
make an appropriate report to the
Commission, copy furnished the parties.

It is clear from this provision that the board of canvassers is
under the obligation to make a written
ruling on the formal objections made by any of the parties, who may then appeal
the same to the COMELEC.  It is equally clear that the failure
or refusal of the board of canvassers to discharge this obligation should not
in any way prejudice the objecting party’s right to elevate the matter to the COMELEC for proper review.  Otherwise, all that a board of canvassers
partial to one of the candidates has to do to favor him would be to refuse to
make a written ruling on his opponent’s objections and thereby prevent their
review by the COMELEC.

In the case at bar, however, there does not appear to be any such
prejudice.  The issue is the refusal of
the COMELEC to consider
objections to 24 election returns on which the board of canvassers had not made
a written ruling.  But it would seem
that, strictly speaking, no ruling was necessary, or even proper.  By the petitioners’ own contention “in
all those 24 returns, the Christian name, nickname or maternal surname of
private respondent’s husband was used with her Christian name or nickname
which, as we will show at length infra, did not constitute a valid vote
for private respondent.  If so, the total
1,912 votes in these returns credited for private respondent should be
discounted.”^[10]
This matter was obviously beyond the competence of the board of canvassers to
resolve.  Neither was it cognizable in a
pre-proclamation controversy before the COMELEC as defined in Section 243 of
the Omnibus Election Code.

This provision reads as follows:

Sec. 243.  Issues that may
be raised in pre-proclamation controversy. 
– The following shall be proper issues that may be raised in a
pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material
defects, appear to be tampered with or falsified, or contain discrepancies in
the same returns or in other authentic
copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats,
coercion, or intimidation, or they are obviously manufactured or not authentic;
and

(d) When substitute or fraudulent returns in controverted
polling places were canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.

The inclusion or exclusion in the canvass of certain election
returns where votes allegedly cast for Emeterio Larrazabal were counted for his wife is an issue
appropriate in an election contest and not in a pre-proclamation
controversy.  And it is also immaterial that,
as also contended, the inclusion of such votes would affect the over-all
results of the election and swing it in
his favor.  The accepted rule is
that as long as the returns appear to be authentic and duly accomplished, the
board of canvassers cannot look beyond them to verify allegations of
irregularities in the casting or the counting of the votes.^[11]
These issues cannot be resolved by the board of canvassers.  A long
line of decisions has established the doctrine that the board of canvassers has
only the ministerial task of tallying the votes as reported in the
election returns and cannot exercise the judicial power of deciding an election
contest.^[12]

Pre-proclamation controversies are summary in nature.  According to Section 246 of the Omnibus
Election Code:

Sec. 246.  Summary
proceedings before the Commission.  –
All pre-proclamation controversies shall be heard summarily by the Commission
after due notice and hearing, and its decisions shall be executory
after the lapse of five days from
receipt by the losing party of the decision of the Commission, unless
restrained by the Supreme Court.

And the reason for this rule is obvious.  As we stressed in Alonto
v. COMELEC,^[13]
“the policy of the election law is that pre-proclamation controversies
should be summarily decided, consistent with the law’s desire that the canvass
and proclamation be delayed as little as possible.” That is why such
questions as those involving the appreciation of the votes and the conduct of
the campaign and the balloting, which require more deliberate and necessarily
longer consideration, are left for examination in the corresponding election
protest.

The Court cannot accept the petitioner’s averment that the public
respondent made short shrift of his objections and resolved them arbitrarily,
without considering the evidence submitted. 
We see no such
arbitrariness.  On the contrary, we find
that the questioned resolution of the COMELEC en banc, which unanimously affirmed the unanimous decision of its Second
Division, was based on the facts as assessed by the public respondent in the
light of the applicable election laws and jurisprudence.  The basic decision of the Second Division was
33 pages long and dealt in detail with the specific objections, the rulings of
the board of canvassers, and the action thereon of the COMELEC.^[14]

In Aratuc v. Commission on Elections,^[15]
speaking of the need to preserve the “independence and all the needed
concomitant powers” of the Commission on Elections, Justice Antonio P. Barredo declared that “it is but proper that the Court
should accord the greatest measure of presumption of regularity to its course
of action x x x to the end that it may achieve its designed place
in the democratic fabric of our government.” There is no reason for not applying that policy in the case
before us.

The contention that the dismissal of the pre-proclamation
controversy would render the disqualification case moot and academic is also
untenable.  The two cases are independent
of each other and one may be resolved separately without affecting the other.

The purpose of a
pre-proclamation controversy is to ascertain the winner or winners in the elections on the basis of the
election returns duly authenticated
by the boards of inspectors and admitted by the board of canvassers.  The purpose of a disqualification proceeding
is to prevent the candidate from running or, if elected, from serving, or to prosecute him for
violation of the election laws. 
Obviously, the mere fact that a candidate has been proclaimed elected does not signify
that his disqualification is
deemed condoned and may no longer be the subject of a separate investigation.

In SPC No. 88-546, the petitioners seek to disqualify the private
respondent on the ground that
she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. 
The charge is that she was in fact and under the law a resident of Ormoc City
like her husband, who was disqualified precisely on that account from running for provincial governor of Leyte.

In the course of the hearing on this issue, the private
respondent moved for clarification of the nature of the proceeding and asked
the COMELEC to determine under what law her qualifications were being
challenged.  That determination was
embodied in the decision of the Second Division dated February 3, 1989, and the en banc
resolution dated May 4, 1989,
which are now assailed in G.R. No. 88004.

According to the COMELEC, the proceeding was not intended against
an alleged nuisance candidate under Section 69 of the Election Code as it was
obvious that the private respondent was a serious bona fide candidate,
nor was it a petition for quo warranto under
Section 253 which could be filed only after the proclamation of the
respondent.  Neither could it be
considered a petition to deny due course to the certificate of candidacy under
Section 78 of the Code as this
was not prayed for by the petitioners, besides the fact that the petition was
not filed before the election.  Finally,
it could also not be considered a petition for disqualification under Section
68 of the Code because the private respondent was not being charged with the
commission of any of the election offenses mentioned in that section.  Concluding, the COMELEC held that the subject of the petition, to wit,
misrepresentation in the certificate of candidacy, was actually a violation of
Section 74 and, pursuant to its rules, should be prosecuted as an election
offense under Section 262 of the Code. 
It therefore dismissed SPC No. 88-546 and referred it to its Law
Department for proper action.

The Court holds that the dismissal was improper.  The issue of residence having been squarely
raised before it, it should not have been shunted aside to the Law Department for a round-about investigation of
the private respondent’s qualification through the filing of a criminal
prosecution, if found to be warranted, with resultant
disqualification of the accused in case of conviction.  The
COMELEC should have opted for a
more direct and speedy process available under the law, considering the vital
public interest involved and the necessity of resolving the question at the earliest possible time for the benefit of the inhabitants of Leyte.

In the view of the Court,
the pertinent provision is Section 78 in relation to Section 6 of R.A. No.
6646.

Section 78 provides:

Sec. 78.  Petition to deny due course to or cancel a
certificate of candidacy.  – A verified petition seeking to deny
due course or to cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false.  The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later than
fifteen days before the election.

Section 6 of R.A. 6646 states as follows:

Section 6.  Effect of Disqualification Case.  – Any
candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted.  If for any reason a candidate is not declared
by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or protest
and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.

In rejecting this remedy,
the COMELEC makes much of the fact that the petition was filed on the very day
of the election and not before the election as required by Section 78.  Disregarded, however, is the other more
important fact that the private respondent’s certificate of candidacy was filed
only on January 31, 1988, the day before the election, and that the petition to
disqualify her was filed almost immediately afterwards, in the morning of
election day itself.  Under the
circumstances, petitioner de la Cruz can hardly be faulted for not having filed
his challenge earlier, that is, during the remaining hours before midnight of January 31, 1988.  To
make such an unreasonable
requirement is to make a rather strained reading of the law beyond its obvious
purpose.

Interestingly, as
Commissioner Haydee B. Yorac
observed in her dissenting opinion, the private respondent had all of eighteen
days from her husband’s disqualification to file her own certificate of
candidacy but waited to do so until practically the last day, and a Sunday at
that.  This raises the not untenable
conjecture that the filing was timed precisely to delay until too late the
expected challenge to her claimed residence and to thus foreclose all inquiry
into her credentials.  In fairness, it
may also be assumed that she had good reasons for filing her certificate of
candidacy one day before the election. 
In any event, given the time allowance to file the challenge under
normal circumstances (twenty-five days under Section 78 and five days under
COMELEC Res. No. 1928)^[16] one cannot say that the challenge in this
case, although not filed earlier, was unseasonable.

The above-stressed circumstances should explain the necessity for
continuing the investigation of the private respondent’s challenged
disqualification even after the election notwithstanding that such matter is
usually resolved before the election. 
Independently of these circumstances, such proceedings are allowed by
Section 6 of R.A. 6646 “if for any reason a candidate is not declared by
final judgment before an election to be disqualified x x
x.”

The Court believes that, conformably to law and in the particular interest of the
people of Leyte, the question
of the private respondent’s residence should be resolved by the respondent COMELEC
directly and as soon as possible.  To this end, SPC No. 88-546 should be
recalled from its Law Department and returned to the Second Division for the
resumption of the hearing thereon and the reception of the evidence of the
parties.  This should be done with all
deliberate dispatch so that the delay that has attended the disposition of this
case since the local election held on February 1, 1988 may at last be ended.

Acting on the allegations contained in the petition, and in the
exercise of its discretion, the Court, as earlier related, issued a temporary
restraining order that has held in abeyance the canvass of the contested
election returns and the proclamation by the provincial board of canvassers of
the private respondent as Governor of Leyte.  This order is now referred to the
COMELEC.  Pending the final disposition
of the case, it may maintain or lift the said order under Section 6 of R.A.
6646 on the basis of its own assessment of the evidence against the private
respondent.

WHEREFORE, judgment is hereby rendered as follows:

1. In G.R. Nos. 87721-30, the decision dated February 3, 1989, and the resolution dated April 13, 1989, are AFFIRMED and the
petition is DISMISSED.

2. In G.R. No. 88004, the decision dated February 3, 1989, and the resolution dated May 4, 1989, are REVERSED and SET
ASIDE.  Respondent Commission on
Elections is ORDERED to directly hear and decide SPC Case No. 88-546 under
Section 78 of the Omnibus Election Code, with authority to maintain or lift our
temporary restraining order of April
18, 1989, according to its own assessment of the evidence against the private respondent.

The parties are enjoined to resolve this case with all possible speed, to the end that
the regular Governor of Leyte may be ascertained and installed without further
delay.

SO ORDERED.

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

Sarmiento, J., no part.

^[1]
G.R. No. 88004, Rollo,
pp. 102-104.

^[2]
Ibid., p. 48.

^[3]
Id., pp. 113-118.

^[4]
id., p. 179.

^[5]
id., pp. 182-184.

^[6]
G.R. Nos. 87721-30, Rollo,
pp. 18-50.

^[7]
G.R. No. 88004, Rollo, pp. 26-40.

^[8]
G.R. Nos. 87721-30, Rollo, pp. 51-56.

^[9]
G.R. No. 88004, Rollo,
pp. 47-61; penned by Commissioner Abueg, Jr., with
Commissioners Africa, Rama and Yorac,
dissenting.

^[10]
G.R. Nos. 87721-30, Rollo,
p. 316.

^[11]
Dizon v. Provincial Board of Canvassers, 52
Phil. 47; Nacionalista Party v. Comelec, 85 Phil. 149; Ong v.
Comelec, 22 SCRA 241.

^[12]
City Board of Canvassers v. Moscoso, 118 Phil. 934; Abes v.
Comelec, 21 SCRA 1252; Demafiles v.
Comelec, 21 SCRA 1462; Lucman v. Dimapuro, 33 SCRA 387; Guiao v. Comelec,
137 SCRA 356.

^[13]
22 SCRA 878.

^[14]
G.R. Nos. 87721-30, Rollo,
pp. 18-50.

^[15]
88 SCRA 251.

^[16]
Published in the November
10, 1987 issue of
the Manila Times and the Philippine Daily Inquirer.