G.R. No.

78302 Grand Alliance of Democray vs Comelec WALA was not enough to call for annulling the result, when the electors long before the date of
election. had full opportunity to decide for whom to vote.

Construction of Election Laws

DECISION
[G.R. No. 52817. November 21, 1984.]

HERMILANDO C. ALCALA, ROSENDO C. ANGELES, ABNER S. BRIONES, FAUSTINO V. FERNANDO, C.J.:

MAGADIA, ADORACION J. MIRANDILLA, ROLANDO M. DE RAMOS, JOVITO E. TALABONG
and CLARO Y. TALAGA, Petitioners, v. THE HONORABLE COMMISSION ON ELECTIONS,
MARIO L. TAGARAO, RUBEN PALILLO, ROMEO CARMONA, ANTONIO CUEVAS, A novel question is raised in this certiorari proceeding to review the resolution of
GODOFREDO FALLER, NESTOR GUINTO, MEYNARDO MANGUBAT, VICENTE ORESTE, respondent Commission on Elections of January 19, 1980, the dispositive portion of which
GODOFREDO VILLASEÑOR and CESAR ZABALLERO, Respondents. reads as follows: "Considering that Mario L. Tagarao was the official candidate of KBL upon
the nomination signed by the President of the Philippines and Chairman, Central Committee
Jose C. Flores, Jr., for Petitioners. dated December 31, 1979, the Commission RESOLVED to recognize and give due course to
his nominees from Vice-Mayor and the eight members of the Sangguniang Panglungsod." 1
The Solicitor General for respondent COMELEC. It is whether such determination as to who were the official candidates of the Kilusang
Bagong Lipunan (hereinafter referred to as the KBL) should bet set aside, there being
Silvestre L. Tagarao for Private Respondents. another set of nominees for such positions presumably from the same party, with the
election having been thereafter held and respondents having been elected and proclaimed.
As will be shown, under the controlling facts, the answer must be in the negative.
SYLLABUS
On January 2 and 4, 1980, both respondent Mario L. Tagarao, as the then incumbent Mayor
in Lucena City, and then Governor Anacleto C. Alcala of Quezon submitted to respondent
1. CONSTITUTIONAL LAW; ELECTIONS; PETITION TO ANNUL RESULT OF THE ELECTIONS; Commission on Elections their respective lists of candidates. 2 Respondent Commission tried
ASSAILED RESOLUTION OF THE COMELEC NOT A SUFFICIENT GROUND TO DISREGARD AN to verify which list should form the slate of KBL candidates, but without success . 3 Since it
ELECTION DULY HELD. — As admitted in the petition itself, on election day, "in the certified was its duty to have printed the certified list of candidates for each city, province,
list of candidates for local election in Lucena City which was issued by the respondent municipality and municipal district, it had to act, resulting in the aforesaid resolution, private
Commission on Elections in all voting centers, petitioners were listed as independent respondents as the KBL candidates and petitioners as independents. 4 The KBL was notified
candidates and the respondents as official candidates of the KBL." It cannot be plausibly of such resolution, which was given wide publicity in Lucena City. 5 On election day, such
argued then that the voters were misled. They exercised their right to vote freely and certified list of candidates was posted at various election centers. 6 The election returns
intelligently. They chose the candidates, who in their opinion could best represent them, were canvassed, with respondent Tagarao obtaining 26,563 votes as against his opponent,
whether they were carrying the KBL banner or not. How can it be plausibly argued then that Euclides Abcede, who obtained 11,459 votes. He is not a petitioner in this case.chanrobles
the result of such election should be ignored just because the Commission on Elections virtual lawlibrary
could have erred in listing private respondents as the KBL candidates?
The claim of petitioners is that their nomination as KBL candidates for such positions was
2. ID.; ID.; ID.; ID.; CASE AT BAR. — The situation herein presented calls to mind the principle duly authorized, both by the President of the Philippines, Ferdinand E. Marcos, as Chairman
that rules and regulations for the conduct of election while mandatory before the voting of the KBL, and Secretary General of the KBL, Deputy Prime Minister Jose Roño. They were
may be held only directory after the election is held. So it was clearly set forth in the leading surprised, therefore, when on the date of the election, the petitioners nominated for the
Lino Luna case, 39 Phil. 208. Again even assuming that the Commission on Elections erred, it
municipal positions were listed in the certified list of candidates as independent candidates assuming that the Commission on Elections erred, it was not enough to call for annulling the
and respondents as official candidates. 7 result, when the electors long before the date of election, had full opportunity to decide for
whom to vote.
Petitioners contend that there was grave abuse of discretion on the part of respondent
Commission. They pray that the votes in favor of respondents be credited in favor of 3. Viewed objectively and rationally, respondent Commission could not be indicted for
petitioners so that they could be declared the winners. It is quite obvious that the burden of arbitrariness in reaching the assailed decision. Respondent Tagarao was duly authorized to
persuasion to be borne by them was quite heavy. As will be shown, they were not able to make the nomination as the KBL Mayor of Lucena City. It is true the then Governor Alcala
sustain it. There were certain material facts not alleged in their pleading — matters clarified had been similarly authorized earlier to submit another list of candidates of the KBL for the
in the Comments considered as the answers. 8 When they are considered and the proper same positions. Under the circumstances, it was not unreasonable for respondent
law applied, it is quite obvious that the petition must fail. Commission to assume that Alcala’s nominees had already been superseded by the
nominees submitted by respondent Tagarao. On the above facts, there is justification for
1. As of the first week of January, 1980 then, the electorate of Lucena City already knew that this submission in the Comment of the Office of the Solicitor General: "Governor Alcala’s
there were two groups of candidates composed of petitioners and respondents competing authority to nominate KBL candidates in the City of Lucena proceeded from two sources: (1)
for the positions of Vice-Mayor and members of the Sanggunian, both carrying the KBL the letter of the President of the KBL dated December 27, 1979 (this, however, withheld
banner. The campaign period was on. The voters had the opportunity to make the choice. from Gov. Alcala the authority to nominate the candidate for the position of Mayor); and (2)
Whatever doubt that existed as to who were the KBL candidates was dispelled by the the letter of the Secretary-General of the KBL dated December 30, 1979. Apparently, the
resolution of January 19, 1980. As admitted in the petition itself, on election day, January 30, scope of the authority issued to Gov. Alcala was expanded by the Secretary-General of the
1980, "in the certified list of candidates for local election in Lucena City which was issued by KBL to include the candidate for the position of mayor of Lucena City. It was thus pursuant
the respondent Honorable Commission on Elections [and] in all voting centers, [petitioners] to this second authority that Governor Alcala nominated Euclides Abcede and all the
were listed as independent candidates and the respondents as official candidates of the petitioners as KBL candidates for mayor, vice-mayor, and Sangguniang Panglungsod
[KBL.]" 9 It cannot be plausibly argued then that they were misled. They exercised their right members of Lucena City, respectively. On December 31, 1979, however, the President of the
to vote freely and intelligently. They chose the candidates, who in their opinion could best KBL submitted to the respondent COMELEC a list of nominees of all KBL official candidates
represent them, whether they were carrying the KBL banner or not. How can it be plausibly for the positions of provincial governors and city mayors." 12 All that respondent
argued then that the result of such election should be ignored just because the Commission Commission did, after vainly trying to have the KBL office in Manila to inform it as to who
on Elections could have erred in listing private respondents as the KBL candidates? In the should be its official candidates, was to hold that respondent Tagarao as City Mayor, the
canvass of the election returns it was shown that private respondent Tagarao obtained positions being offices of Lucena City, should be sustained. Moreover, respondent
26,563 votes as against the 11,459 votes of candidates Euclides Abcede, who was not even Commission was not repudiated by the KBL or any of its leaders.chanrobles.com.ph : virtual
named petitioner. As for the position of Vice-Mayor, respondent Palillo received 23,756 law library
votes as against the 11,230 votes of Alcala. The result of the voting for members of the
Sangguniang Panglungsod is quite revealing. Independent candidate Flotilda C. Villariba, the WHEREFORE, the petition is dismissed. No costs.
one last named in Alcala’s nominees, obtained more votes than three KBL candidates. 10
One KBL candidate, A. Cuevas, failed to get elected. It thus clearly appears that the election Makasiar, Aquino, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., De la
was duly held and the people’s will had been clearly manifested. Why then should it be Fuente and Cuevas, JJ., concur.
disregarded. Respondents had been duly proclaimed and are presumably discharging their
official functions. Whatever be the remedy that could have been availed of by petitioners, Teehankee and Abad Santos, JJ., took no part.
this is not it.

2. The situation herein presented calls to mind the principle that rules and regulations for
the conduct of election while mandatory before the voting may be held only directory after
the election is held. So it was clearly set forth in the leading Lino Luna case. 11 Again even
 independent candidates.6 For this reason, private respondent charged petitioner with
violation of Section 15, COMELEC Resolution No. 9518 which disallows the substitution of an
Construction of Election Laws independent candidate. He argued that petitioner’s declaration that she was a member of
the political party, Lakas-CMD, was intended to deceive the electorate that she was
qualified to substitute her husband. Additionally, private respondent claimed that “[t]he
G.R. No. 215995 false representation of the [petitioner] that she is qualified for public office consisted of a
deliberate attempt to mislead, misinform, or hide a fact that would otherwise render a
VICE-MAYOR MARCELINA S. ENGLE, Petitioner, candidate ineligible.”7
vs.
COMMISSION ON ELECTIONS EN BANC and WINSTON B. MENZON, Respondents. In petitioner’s Verified Answer,8 she countered that: (1) the ground relied upon in private
respondent’s petition was not the ground contemplated by Section 1, Rule 23 of COMELEC
DECISION Resolution No. 9523; (2) the COMELEC did not issue an official declaration that petitioner’s
husband was an independent candidate; and (3) James L. Engle’s CONA was signed by an
LEONARDO-DE CASTRO, J.: authorized person acting on behalf of LAKAS-CMD.

Challenged in this petition for certiorari and prohibition under Rule 64 in relation to Rule 65 With regard to her first counter-argument, petitioner posited that, under Section 1, Rule 23
of the 1997 Rules of Civil Procedure is the Resolution1 of the Commission on Elections of COMELEC Resolution No. 9523, the exclusive ground for denial or cancellation of a COC is
(COMELEC) En Banc dated January 20, 2015 which upheld the Resolution2 of the COMELEC the falsity of a material representation contained therein that is required by law. Private
Second Division dated July 5, 2013, denying due course to and/or cancelling petitioner's respondent’s assertion that petitioner’s statement in her COC regarding her affiliation with a
certificate of candidacy; annulling her proclamation as the duly-elected Vice-Mayor of political party was such a false representation is “absurd” considering that her CONA was
Babatngon, Leyte; and proclaiming private respondent in her stead. signed by Senator Ramon “Bong” Revilla, Jr. and Mr. Raul L. Lambino, President and Senior
Deputy Secretary-General of Lakas-CMD, respectively. Assuming the veracity of private
Petitioner and private respondent vied for the position of Vice-Mayor of the Municipality of respondent’s allegations, his contention that petitioner is disqualified to run as a substitute
Babatngon, Province of Leyte in the May 13, 2013 Automated Synchronized National, Local is not a proper subject of a petition to deny due course or to cancel a COC. The qualification
and ARMM Regional Elections (the May 13, 2013 Elections, for brevity). Petitioner’s late or disqualification of a candidate is allegedly covered by Sections 12, 68, 69 and 78 of the
husband, James L. Engle, was originally a candidate for said contested position; however, he Omnibus Election Code. In petitioner’s view, the petition to cancel her COC is dismissible
died of cardiogenic shock on February 2, 2013.3 Due to this development, petitioner filed according to the second paragraph of Section 1 of COMELEC Resolution No. 9523 which
her certificate of candidacy4 on February 22, 2013 as a substitute candidate for her provides that “[a] petition to Deny Due Course to or Cancel Certificate of Candidacy invoking
deceased spouse. grounds other than those stated above or grounds for disqualification, or combining
grounds for a separate remedy, shall be summarily dismissed.”
In response, private respondent filed, on February 25, 2013, a Petition to Deny Due Course
and/or Cancel the Certificate of Candidacy5 (COC) of petitioner arguing in the main that the As for petitioner’s counter-arguments on the substantive issues, she contended that there
latter misrepresented that she is qualified to substitute her husband, who was declared an was no official declaration from the COMELEC that her deceased husband was an
independent candidate by the COMELEC. It would appear that James L. Engle’s Certificate of independent candidate. Private respondent’s reliance on a mere print out of the COMELEC
Nomination and Acceptance (CONA) was signed by Lakas Christian Muslim Democrats website listing her husband as an independent candidate was misplaced as the same cannot
(Lakas-CMD) Leyte Chapter President, Ferdinand Martin G. Romualdez (Romualdez). be considered authoritative as opposed to official documents that showed James L. Engle’s
However, Lakas-CMD failed to submit to the COMELEC Law Department the authorization of nomination by Lakas-CMD and his acceptance of said nomination to run for the position of
Romualdez to sign the CONAs of Lakas-CMD candidates in Babatngon as prescribed by Vice-Mayor of Babatngon, Leyte under the banner of Lakas-CMD. Moreover, petitioner
Section 6(3) of COMELEC Resolution No. 9518. Thus, the COMELEC Law Department stressed that Romualdez was authorized to sign James L. Engle’s CONA. She attached to her
considered all Lakas-CMD candidates whose CONAs were signed by Romualdez as Verified Answer a copy of the Authority to Sign Certificates of Nomination and Acceptance
dated September 11, 2012 which was signed by Ramon “Bong” Revilla, Jr. (National
President) and Jose S. Aquino II (Secretary-General) of Lakas-CMD in favor of Romualdez. Despite the foregoing finding, the COMELEC Second Division nonetheless found sufficient
basis to cancel petitioner’s COC on the ground that she could not have validly substituted
The petition to deny due course or cancel petitioner’s COC was still pending with the her husband, who was deemed an independent candidate for failure of Lakas-CMD to
COMELEC Second Division when the May 13, 2013 Elections were held. James L. Engle’s submit to the COMELEC Law Department Romualdez’s authority to sign CONAs for and on
name remained on the ballot. On May 15, 2013, the Municipal Board of Canvassers issued a behalf of the party on or before October 1, 2012 in violation of Section 6 (3) of COMELEC
certificate of canvass of votes and proclamation of winning candidates for Babatngon Mayor Resolution No. 9518. The COMELEC Second Division noted that the purported authorization
and Vice-Mayor9 wherein petitioner was declared as the duly-elected Vice-Mayor of of Romualdez to sign CONAs for Lakas-CMD candidates in Leyte was belatedly submitted in
Babatngon, Leyte. Petitioner was credited with the Six Thousand Six Hundred Fifty Seven connection with the proceedings on the petition to deny due course to, or cancel
(6,657) votes cast for her husband as against private respondent’s Three Thousand Five petitioner’s COC.
Hundred Fifteen (3,515) votes.10
Finally, on the point on who should be declared the winning candidate for the position of
It was only on July 5, 2013 did the COMELEC Second Division promulgate the assailed Vice-Mayor of Babatngon, the COMELEC Second Division held that private respondent, the
Resolution which denied due course to and cancelled petitioner’s COC resulting in the second placer, should be declared the winner in line with jurisprudence stating that if the
annulment of petitioner’s previous proclamation as duly-elected Vice-Mayor of Babatngon, COC of the winning candidate is void ab initio then the votes of the disqualified or ineligible
Leyte and the declaration of private respondent as winner of the contested position. The candidate should be considered stray.
dispositive portion of the July 5, 2013 Resolution is reproduced here:
Aggrieved, petitioner moved for reconsideration of the aforementioned ruling of the
WHEREFORE, premises considered, this Commission hereby RESOLVES to DENY DUE COMELEC Second Division with the COMELEC En Banc. However, the latter tribunal denied
COURSE to and/or CANCEL the Certificate of Candidacy filed by Respondent MARCELINA S. petitioner’s plea in the assailed January 20, 2015 Resolution, the dispositive portion of which
ENGLE for the position of Vice-Mayor of Babatngon, Leyte, for the 13 May 2013 National reads:
and Local Elections. Moreover, Respondent MARCELINA S. ENGLE’s proclamation as the
duly-elected Vice-Mayor of Babatngon, Leyte is hereby ANNULLED. Accordingly: WHEREFORE, premises considered, the Motion for Reconsideration is DENIED for LACK OF
MERIT. The Resolution of the Commission (Second Division) is AFFIRMED.12
1. The Executive Director is ordered to constitute a Special Municipal Board of Canvassers
for the municipality of Babatngon, Leyte; and Appealing now to this Court for relief, petitioner offers the following arguments in support
of her petition:
2. The Special Municipal Board of Canvassers is ordered to immediately notify the parties,
reconvene and proclaim Petitioner WINSTON B. MENZON as the duly-elected Vice-Mayor of I
Babatngon, Leyte.
PUBLIC RESPONDENT COMELEC EN BANC AND ITS SECOND DIVISION ACTED WITH GRAVE
Let the Executive Director implement this Resolution.11 ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
GRANTED THE PETITION FILED BY MENZON DESPITE ITS FINDING THAT ENGLE DID NOT
According to the COMELEC Second Division, the substitution of petitioner as a candidate in COMMIT ANY MATERIAL MISREPRESENTATION IN HER CERTIFICATE OF CANDIDACY.
place of her deceased husband for the position of Vice-Mayor of Babatngon, Leyte was not a
material misrepresentation which may be a ground for cancellation of her COC under II
Section 78, in relation to Section 74, of the Omnibus Election Code (OEC). Citing
jurisprudence, the COMELEC Second Division ruled that the false representation PUBLIC RESPONDENT COMELEC EN BANC AND ITS SECOND DIVISION ACTED WITH GRAVE
contemplated under the law refers to a material fact affecting a candidate’s qualification for ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
office such as citizenship or residence. GRANTED THE PETITION FILED BY MENZON EVEN THOUGH NO LEGAL GROUND EXISTS TO
DENY DUE COURSE TO OR CANCEL ENGLE’S CERTIFICATE OF CANDIDACY GIVEN THE OVERWHELMING AND PROMINENT NUMBER OF VOTES OBTAINED BY ENGLE DURING THE
ABSENCE OF MATERIAL MISREPRESENTATION IN THIS CASE. RECENTLY CONCLUDED MAY 13, 2013 NATIONAL AND LOCAL ELECTIONS.

III VIII

PUBLIC RESPONDENT COMELEC EN BANC AND ITS SECOND DIVISION ACTED WITH GRAVE PUBLIC RESPONDENT COMELEC EN BANC AND ITS SECOND DIVISION ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DENIED ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
DUE COURSE TO AND CANCELLED PETITIONER’S CERTIFICATE OF CANDIDACY EVEN THOUGH ORDERED THE PROCLAMATION OF MENZON, THE CANDIDATE WHO OBTAINED THE SECOND
THE PETITION FILED BY MENZON IS CLEARLY THE WRONG LEGAL REMEDY TO ASSAIL THE HIGHEST NUMBER OF VOTES, FOR THE POSITION OF VICE-MAYOR OF BABATNGON,
SUPPOSED INVALIDITY OF PETITIONER’S SUBSTITUTION THUS VIOLATING ENGLE’S LEYTE.13
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.
During the pendency of this petition, the COMELEC En Banc issued on February 3, 2015 a
IV Writ of Execution14 in SPA Case No. 13-232 (DC) (F) in response to a motion filed by private
respondent which set the stage for the immediate implementation of the assailed COMELEC
PUBLIC RESPONDENT COMELEC EN BANC AND ITS SECOND DIVISION ACTED WITH GRAVE Resolutions which are the subject matter of this case.
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
DECLARED THAT ROMUALDEZ HAS NO AUTHORITY TO SIGN THE CONA OF LAKAS-CMD’s On February 26, 2015, the COMELEC filed its Comment15 wherein it raised the following
CANDIDATES IN LEYTE. counter-arguments:

V I.

PUBLIC RESPONDENT COMELEC EN BANC AND ITS SECOND DIVISION ACTED WITH GRAVE THE NAME AND SPECIMEN SIGNATURES OF THE PARTY OFFICIAL AUTHORIZED TO SIGN THE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CONA SHOULD BE TRANSMITTED TO THE COMELEC WITHIN THE PERIOD PROVIDED IN
GRANTED THE PETITION FILED BY MENZON AND PENALIZED THE PETITIONER FOR AN RESOLUTION NO. [9518].
OMISSION DONE BY ANOTHER PARTY AS THIS RUN CONTRARY TO THE PRINCIPLE OF RES
INTER ALIOS ACTA. II.

VI POLITICAL PARTIES AND THE CANDIDATES THEMSELVES KNEW OF RESOLUTION NO. 9518 AS
IT WAS THE GUIDELINES PROMULGATED FOR THE CONDUCT OF THE MAY 2013 NATIONAL
PUBLIC RESPONDENT COMELEC EN BANC AND ITS SECOND DIVISION ACTED WITH GRAVE AND LOCAL ELECTIONS.
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
DECLARED THAT PETITIONER ENGLE CANNOT VALIDLY SUBSTITUTE HER DECEASED III.
HUSBAND, JAMES L. ENGLE, AS THE LAKAS-CMD CANDIDATE FOR THE POSITION OF
VICEMAYOR OF BABATNGON, LEYTE. OTHER CANDIDATES WERE SIMILARLY DEEMED INDEPENDENT CANDIDATES FOR FAILURE
TO COMPLY WITH RESOLUTION NO. 9518.
VII
IV.
PUBLIC RESPONDENT COMELEC EN BANC AND ITS SECOND DIVISION ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT THE PROSCRIPTION AGAINST THE SUBSTITUTION OF AN INDEPENDENT CANDIDATE WHO
DISREGARDED AND BYPASSED THE WILL OF THE ELECTORATE BY IGNORING THE DIES PRIOR TO THE ELECTION IS A LEGAL PRINCIPLE.
 II
V.
WHETHER OR NOT PETITIONER CAN VALIDLY SUBSTITUTE HER HUSBAND JAMES L. ENGLE
PETITIONER COULD NOT BE VOTED FOR IN THE MAY 2013 NATIONAL AND LOCAL AFTER HIS UNEXPECTED DEMISE
ELECTIONS.
III
VI.
WHETHER OR NOT PRIVATE RESPONDENT CAN BE VALIDLY PROCLAIMED AS VICE-MAYOR
PETITIONER WAS NOT DENIED DUE PROCESS WHEN HER COC WAS CANCELLED BY THE OF BABATNGON, LEYTE DESPITE HAVING PLACED ONLY SECOND IN THE MAY 13, 2013
COMELEC. ELECTIONS

VII. We grant the petition.

NO GRAVE ABUSE OF DISCRETION WAS COMMITTED BY COMELEC IN CANCELLING Under Section 78 of the OEC, a petition to deny due course to, or cancel a COC may be filed
PETITIONER’S COC.16 on the exclusive ground of false material representation in said COC. For reference, we
quote the full provision here:
Private respondent likewise filed his Comment/Opposition17 on March 17, 2015. In his
pleading, private respondent identified the following issues that should be resolved in this Section 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified
case: 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
I. Whether or not petitioner Engle can validly substitute for her late husband James Engle required under Section 74 hereof is false. The petition may be filed at any time not later
who was an independent candidate for Vice-Mayor of Babatngon, Leyte; 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.
II. Whether or not private respondent (sic) the Commission En Banc erred in ordering the
proclamation of private respondent Menzon as the candidate who obtained the second Section 74 of the OEC in turn enumerates the items that should be stated in a COC, to wit:
highest number of votes, for the position of Vice-Mayor of Babatngon, Leyte;
Section 74. Contents of certificate of candidacy. - The certificate of candidacy shall state that
III. Whether or not the Commission En Banc erred in granting private respondent’s Petition the person filing it is announcing his candidacy for the office stated therein and that he is
in the absence of a finding of material misrepresentation of this case; [and] eligible for said office; if for Member of the Batasang Pambansa, the province, including its
component cities, highly urbanized city or district or sector which he seeks to represent; the
IV. Whether or not petitioner’s prayer for issuance of temporary restraining order and/or political party to which he belongs; civil status; his date of birth; residence; his post office
status quo ante order and/or preliminary injunction is meritorious.18 address for all election purposes; his profession or occupation; that he will support and
defend the Constitution of the Philippines and will maintain true faith and allegiance
From the parties’ submissions, it is apparent that this case rests upon the resolution of the thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly
following core issues: constituted authorities; that he is not a permanent resident or immigrant to a foreign
country; that the obligation imposed by his oath is assumed voluntarily, without mental
I reservation or purpose of evasion; and that the facts stated in the certificate of candidacy
are true to the best of his knowledge.
WHETHER OR NOT PETITIONER’S COC WAS VALIDLY CANCELLED BY THE COMELEC
Unless a candidate has officially changed his name through a court approved proceeding, a representation, the court has interpreted this phrase in a line of decisions applying Section
[candidate] shall use in a certificate of candidacy the name by which he has been baptized, 78 of [B.P. 881].
or if has not been baptized in any church or religion, the name registered in the office of the
local civil registrar or any other name allowed under the provisions of existing law or, in the xxxx
case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage:
Provided, That when there are two or more candidates for an office with the same name Therefore, it may be concluded that the material misrepresentation contemplated by
and surname, each candidate, upon being made aware or such fact, shall state his paternal Section 78 of the Code refer[s] to qualifications for elective office.1avvphi1 This conclusion is
and maternal surname, except the incumbent who may continue to use the name and strengthened by the fact that the consequences imposed upon a candidate guilty of having
surname stated in his certificate of candidacy when he was elected. He may also include one made a false representation in [the] certificate of candidacy are grave to prevent the
nickname or stage name by which he is generally or popularly known in the locality. candidate from running or, if elected, from serving, or to prosecute him for violation of the
election laws. It could not have been the intention of the law to deprive a person of such a
The person filing a certificate of candidacy shall also affix his latest photograph, passport basic and substantive political right to be voted for a public office upon just any innocuous
size; a statement in duplicate containing his bio-data and program of government not mistake.19
exceeding one hundred words, if he so desires.
Undeniably, private respondent failed to demonstrate that petitioner made a false
Based on the letter of the foregoing provisions, we agree with the COMELEC Second Division statement regarding her qualifications or concealed any disqualification for the office to
finding, implicitly affirmed by the COMELEC En Banc, that there was no false material which she sought to be elected in her COC to warrant its cancellation under Section 78.
representation in petitioner’s COC under Section 78, in relation to Section 74, of the OEC.
The records also show that when petitioner’s husband filed his certificate of candidacy on
We quote with approval the following disquisition in the COMELEC Second Division’s October 4, 2012 with the Office of the Election Officer in Babatngon, Leyte he clearly
Resolution dated July 5, 2013: indicated therein that he was a nominee of Lakas-CMD and attached thereto not only the
CONA signed by Romualdez but also the Authority to Sign Certificates of Nomination and
The false representation which is a ground for a denial of due course to and/or cancellation Acceptance dated September 12, 2012 in favor of Romualdez signed by Lakas-CMD
of a candidate’s COC refers to a material fact relating to the candidate’s qualification for President Revilla and Lakas-CMD Secretary-General Aquino. In Sinaca v. Mula,20 we held:
office such as one’s citizenship or residence. Thus, citing Salcedo II v. COMELEC and Lluz v.
COMELEC, the Supreme Court, in the case of [Ugdoracion], Jr. v. COMELEC, et al., ruled as A certificate of candidacy is in the nature of a formal manifestation to the whole world of
follows: the candidate's political creed or lack of political creed. It is a statement of a person seeking
to run for a public office certifying that he announces his candidacy for the office mentioned
In case there is a material misrepresentation in the certificate of candidacy, the Comelec is and that he is eligible for the office, the name of the political party to which he belongs, if he
authorized to deny due course to or cancel such certificate upon the filing of a petition by belongs to any, and his post-office address for all election purposes being as well stated.
any person pursuant to Section 78. x x x.
Verily, it was publicly known that James L. Engle was a member of Lakas-CMD. As far as the
xxxx party and his wife were concerned, James L. Engle, as a member of Lakas-CMD, may be
substituted as a candidate upon his death. There was no evidence on record that the party
As stated in the law, in order to justify the cancellation of the certificate of candidacy under or petitioner had notice or knowledge of the COMELEC’s classification of James L. Engle as
Section 78, it is essential that the false representation mentioned therein pertain[s] to a an independent candidate prior to February 22, 2013 when petitioner filed her COC as a
material matter for the sanction imposed by this provision would affect the substantive substitute for her deceased husband. The only document in the record indicating that Lakas-
rights of a candidate the right to run for the elective post for which he filed the certificate of CMD had been notified of James L. Engle’s designation as an independent candidate is the
candidacy. Although the law does not specify what would be considered as a material Letter dated March 21, 2013 sent by the COMELEC Law Department to Romualdez21 stating
that James L. Engle was declared an independent candidate due to the failure of Lakas-CMD
to submit the authority of Romualdez to sign James L. Engle’s CONA to the Law Department Certificate of Candidacy. The CONA shall also be stamped received in the same manner as
as required under Section 6(3) of COMELEC Resolution No. 9518 and in view thereof the Certificate of Candidacy.
petitioner’s COC as her husband’s substitute was denied due course.
The CONA, sample form attached, shall be duly signed and attested to under oath, either by
First, the COMELEC Law Department’s “ruling” was issued only after the filing of petitioner’s the Party President, Chairman, Secretary-General or any other duly authorized officer of the
COC. Second, with respect to the denial of due course to James L. Engle’s COC as a nominee nominating party and shall bear the acceptance of the nominee as shown by his signature in
of Lakas-CMD and to petitioner’s COC as his substitute, the COMELEC Law Department’s the space provided therein.
letter is not binding and at most, recommendatory. It is settled in jurisprudence that the
denial of due course or cancellation of one’s COC is not within the administrative powers of For this purpose, all duly registered political parties or coalition of political parties shall, not
the COMELEC, but rather calls for the exercise of its quasi-judicial functions.22 We have also later than October 1, 2012, submit to the Law Department, the names and specimen
previously held that the COMELEC, in the exercise of its adjudicatory or quasi-judicial signatures of the authorized signatories of their official party nominations.
powers, is mandated by the Constitution to hear and decide such cases first by Division and,
upon motion for reconsideration, by the En Banc.23 In resolving cases to deny due course to No duly registered political party or coalition of political parties shall be allowed to nominate
or cancel certificates of candidacy, the COMELEC cannot merely rely on the more than the number of candidates required to be voted for in a particular elective
recommendations of its Law Department but must conduct due proceedings through one of position; otherwise, in such a situation, all of the nominations shall be denied due course by
its divisions.24 Returning to the case at bar, the COMELEC Second Division only formally the Commission. (Emphases supplied.)
ruled on the status of James L. Engle as an independent candidate and the invalidity of
petitioner’s substitution on July 5, 2013, months after the May 13, 2013 Elections. The Commission stressed that the belated filing of Romualdez’s authority to sign James L.
Engle’s COC only in connection with the proceedings for cancellation of petitioner’s own
Under these premises, the COMELEC correctly did not cancel petitioner’s COC on the ground COC is fatal to petitioner’s cause in view of the categorical directive in the above provision
of false material representation as there was none. that said authority must be submitted to its Law Department on or before October 1, 2012.

This brings us to the second issue. Despite finding that there was no false material This Court recognizes that the COMELEC is empowered by law to prescribe such rules so as
representation in petitioner’s COC, the COMELEC nonetheless cancelled the same on the to make efficacious and successful the conduct of elections.27 However, it is a long standing
ground of invalidity of petitioner’s substitution for her husband as candidate for Vice-Mayor principle in jurisprudence that rules and regulations for the conduct of elections are
of Babatngon, Leyte. The COMELEC anchored its action on the fact that Romualdez’s mandatory before the election, but when they are sought to be enforced after the election
authority to sign James L. Engle’s CONA was belatedly submitted and thus, the latter should they are held to be directory only, if that is possible, especially where, if they are held to be
be considered an independent candidate who cannot be substituted under Section 7725 of mandatory, innocent voters will be deprived of their votes without any fault on their part.28
the OEC and Section 15 of COMELEC Resolution No. 9518.26 Over time, we have qualified this doctrine to refer only to matters of form and cannot be
applied to the substantial qualifications of candidates. This was discussed at length in Mitra
It is on this point that the Court sees fit to overturn the COMELEC’s disposition of the v. Commission on Elections,29 thus:
present case.
We have applied in past cases the principle that the manifest will of the people as expressed
The COMELEC relies heavily on Section 6 of COMELEC Resolution No. 9518, which reads: through the ballot must be given fullest effect; in case of doubt, political laws must be
interpreted to give life and spirit to the popular mandate. Thus, we have held that while
Section 6. Filing of Certificate of Nomination and Acceptance of Official Candidates of a provisions relating to certificates of candidacy are in mandatory terms, it is an established
Political Party / Coalition of Political Parties. - The Certificate of Nomination and Acceptance rule of interpretation as regards election laws, that mandatory provisions, requiring certain
(CONA) of the official candidates of the duly registered political party or coalition of political steps before elections, will be construed as directory after the elections, to give effect to the
parties shall be, in five (5) legible copies, attached to and filed simultaneously with the will of the people.
Quite recently, however, we warned against a blanket and unqualified reading and that she may validly substitute her husband. That belief was not contradicted by any official
application of this ruling, as it may carry dangerous significance to the rule of law and the or formal ruling by the COMELEC prior to the elections.
integrity of our elections. For one, such blanket/unqualified reading may provide a way
around the law that effectively negates election requirements aimed at providing the We held in Rulloda v. Commission on Elections31 that:
electorate with the basic information for an informed choice about a candidate’s eligibility
and fitness for office. Short of adopting a clear cut standard, we thus made the following Technicalities and procedural niceties in election cases should not be made to stand in the
clarification: way of the true will of the electorate. Laws governing election contests must be liberally
construed to the end that the will of the people in the choice of public officials may not be
We distinguish our ruling in this case from others that we have made in the past by the defeated by mere technical objections.
clarification that COC defects beyond matters of form and that involve material
misrepresentations cannot avail of the benefit of our ruling that COC mandatory Election contests involve public interest, and technicalities and procedural barriers must
requirements before elections are considered merely directory after the people shall have yield if they constitute an obstacle to the determination of the true will of the electorate in
spoken. A mandatory and material election law requirement involves more than the will of the choice of their elective officials. The Court frowns upon any interpretation of the law
the people in any given locality. Where a material COC misrepresentation under oath is that would hinder in any way not only the free and intelligent casting of the votes in an
made, thereby violating both our election and criminal laws, we are faced as well with an election but also the correct ascertainment of the results.
assault on the will of the people of the Philippines as expressed in our laws. In a choice
between provisions on material qualifications of elected officials, on the one hand, and the We had the occasion to rule in Sinaca that “an election in which the voters have fully, fairly,
will of the electorate in any given locality, on the other, we believe and so hold that we and honestly expressed their will is not invalid even though an improper method is followed
cannot choose the electorate will. in the nomination of candidates.”32 In the same case, we proceeded to enumerate
examples of formal defects in a COC that may be treated with liberality once the electorate
Earlier, Frivaldo v. COMELEC provided the following test: has spoken in an election, to wit:

[T]his Court has repeatedly stressed the importance of giving effect to the sovereign will in It has been held that the provisions of the election law regarding certificates of candidacy,
order to ensure the survival of our democracy. In any action involving the possibility of a such as signing and swearing on the same, as well as the information required to be stated
reversal of the popular electoral choice, this Court must exert utmost effort to resolve the therein, are considered mandatory prior to the elections. Thereafter, they are regarded as
issues in a manner that would give effect to the will of the majority, for it is merely sound merely directory. With respect to election laws, it is an established rule of interpretation
public policy to cause elective offices to be filled by those who are the choice of the that mandatory provisions requiring certain steps before election will be construed as
majority. To successfully challenge a winning candidate's qualifications, the petitioner must directory after the elections, to give effect to the will of the electorate. Thus, even if the
clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and certificate of candidacy was not duly signed or if it does not contain the required data, the
legal principles that overriding such ineligibility and thereby giving effect to the apparent proclamation of the candidate as winner may not be nullified on such ground. The defects in
will of the people would ultimately create greater prejudice to the very democratic the certificate should have been questioned before the election; they may not be
institutions and juristic traditions that our Constitution and laws so zealously protect and questioned after the election without invalidating the will of the electorate, which should
promote. (Citations omitted, underscoring supplied.) not be done. In Guzman v. Board of Canvassers, the Court held that the “will of the people
cannot be frustrated by a technicality that the certificate of candidacy had not been
As may be recalled, petitioner’s deceased husband’s name remained on the ballot properly sworn to. This legal provision is mandatory and non-compliance therewith before
notwithstanding his death even before the campaign period for the local elections began on the election would be fatal to the status of the candidate before the [election], but after the
March 29, 2013.30 Yet, he received almost twice the number of votes as the second placer, people have expressed their will, the result of the election cannot be defeated by the fact
private respondent, in a decisive victory. Since the people of Babatngon, Leyte could not that the candidate has not sworn to his certificate of candidacy.”33
have possibly meant to waste their votes on a deceased candidate, we conclude that
petitioner was the undisputed choice of the electorate as Vice-Mayor on the apparent belief
Applying these jurisprudential precedents, we find that the late submission of Romualdez’s The COMELEC En Banc in its Resolution dated January 20, 2015 asserted that it cannot
authority to sign the CONA of James L. Engle to the COMELEC was a mere technicality that ignore Lakas-CMD's non-compliance with Section 6 of COMELEC Resolution No. 9518 since
cannot be used to defeat the will of the electorate in a fair and honest election. the COMELEC En Banc issued Minute Resolution No. 12-1133 dated December 11, 2012
applying said provision strictly against the Liberal Party in the case of its local candidates for
The Court has likewise ruled in the past that non-compliance with formal requirements laid Camiguin who were similarly declared independent candidates for failure to submit the
down in election laws when not used as a means for fraudulent practice will be considered a authority to sign CONAs before October 1, 2012. While we laud the COMELEC's attempt to
harmless irregularity.34 Allowing the belated submission of Romualdez’s authority to sign apply the rule equally among the political parties, it has only itself to blame for the present
CONAs will not result in the situation proscribed by Section 77 of the OEC – that an situation. It bears stressing here that election rules regarding formal matters are deemed
independent candidate will be invalidly substituted. In the case at bar, neither the COMELEC mandatory before the elections and only directory after the elections. In the case of the
nor private respondent contended that James L. Engle was not in fact a bona fide member Liberal Party candidates in Camiguin, the COMELEC En Banc rendered a formal ruling on
of Lakas-CMD. The record is bereft of any allegation that the authority in favor of Romualdez their status as independent candidates, months before the election, such that the Liberal
was inexistent, forged or in any way defective. The only issue was that it was not submitted Party was officially notified that its candidates in Camiguin can no longer be substituted in
within the prescribed deadline. Nonetheless, said authority was submitted as early as the event of their death, withdrawal or disqualification. Thus, the mandatory application of
October 4, 2012 to the local election officer and subsequently to the COMELEC itself in the the rules was justified. In petitioner's case, no official pronouncement was made by the
course of the proceedings on private respondent’s petition to deny due course to, or cancel COMELEC regarding her husband's status as an independent candidate and the validity of
petitioner’s COC, thereby putting election officials on notice that such authority exists even her filing a COC as his substitute until July 5, 2013, long after the elections were held.
before the conduct of the May 13, 2013 Elections. Indeed, it behooved the COMELEC to similarly resolve petitioner's case prior to the elections
had it wanted to treat all political parties equally.
We distinguish this case from Federico v. Commission on Elections,35 wherein we strictly
applied election rules on substitution, particularly the deadline to file certificates of In light of the foregoing discussion that petitioner may validly substitute her husband in the
candidacy for substitutes of candidates who voluntarily withdraw from the electoral race. In May 13, 2013 Elections, it is no longer necessary to resolve the third issue on whether the
Federico, a liberal interpretation of the rule would have led to a violation of the clear policy COMELEC properly proclaimed private respondent, the second-placer in the vice-mayoral
that no substitution for a voluntarily withdrawing candidate can be made beyond the race of Babatngon, in place of petitioner, as well as the rest of the issues raised in the
mandated deadline. In the case at bar, the intention behind setting a deadline for the filing pleadings.
by political parties of an authority to sign CONAs was to give the COMELEC reasonable
opportunity to determine who are members of political parties and who are independent WHEREFORE, premises considered, the petition is GRANTED. The assailed Resolution dated
candidates. This is so the COMELEC may prevent a violation of Section 77 of the OEC which July 5, 2013 of the COMELEC Second Division and the Resolution dated January 20, 2015 of
reserves the right to field a substitute candidate to duly registered political parties. A the COMELEC En Banc in SPA 13-232 (DC) (F) are REVERSED and SET ASIDE. Petitioner
relaxation of the rules in the present case would not result in the evil sought to be Marcelina S. Engle is declared the duly-elected Vice-Mayor of Babatngon, Leyte during the
prevented. On the contrary, it is the strict application of the rules that would lead to the May 13, 2013 Elections.
iniquitous situation that a candidate who was in fact a member of a political party would be
considered an independent, thus infringing the right of the nominating political party to SO ORDERED.
replace him in the event of death, withdrawal or disqualification pursuant to election laws.
Construction of Election Laws
To be sure, we have held that a political party has the right to identify who its members
are.36 From the evidence it can be concluded that James L. Engle was not an independent
candidate but indeed a nominee of Lakas-CMD and he may be validly substituted by his G.R. Nos. 111624-25 March 9, 1995
wife, who was nominated by the same political party, in light of his unexpected demise prior
to the elections. ALFONSO C. BINCE, JR., petitioner,
vs.
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF PANGASINAN, Twenty-one (21) days after the canvass of the COCs for the nine (9) municipalities was
MUNICIPAL BOARDS OF CANVASSERS OF TAYUG AND SAN MANUEL, PANGASINAN AND completed on May 20, 1992, private respondent Micu together with the Municipal Boards
EMILIANO MICU, respondents. of Canvassers (MBCs) of Tayug and San Manuel filed with the PBC petitions for correction of
the Statements of Votes (SOVs) earlier prepared for alledged manifest errors committed in
the computation thereof.
KAPUNAN, J.:
In view of the motion of herein petitioner to implement the Resolution of June 6, 1992
Petitioner Alfonso C. Bince, Jr. and private respondent Emiliano S. Micu were among the which was alleged to have become final, the PBC, on June 18, 1992, credited in favor of the
candidates in the synchronized elections of May 11, 1992 for a seat in the Sanguniang petitioner and private respondent the votes for each as indicated in the said resolution and
Panlalawigan of the Province of Pangasinan allotted to its Sixth Legislative District. on the basis of the COCs for San Quintin and the other nine (9) municipalities, petitioner had
a total of 27,370 votes while the private respondent had 27,369 votes. Petitioner who w on
Ten (10) municipalities, including San Quintin, Tayug and San Manuel, comprise the said by a margin of 1 vote was not, however, proclaimed winner because of the absence of
district. authority from the COMELEC.

During the canvassing of the Certificates of Canvass (COC's) for these ten (10) municipalities Accordingly, petitioner filed a formal motion for such authority.
by respondent Provincial Board of Canvassers (PBC) on May 20, 1992, private respondent
Micu objected to the inclusion of the COC for San Quintin on the ground that it contained On June 29, 1992, the COMELEC en banc promulgated a Supplemental Order3 directing the
false statements. Accordingly, the COCs for the remaining nine (9) municipalities were PBC "to reconvene, continue with the provincial canvass and proclaim the winning
included in the canvass. On May 21, 1992, the PBC rules against the objection of private candidates for Sangguniang Panlalawigan for the Province of Pangasinan, and other
respondent.1 From the said ruling, private respondent Micu appealed to the Commission on candidates for provincial offices who have not been proclaimed4 as of that date.
Elections (COMELEC), which docketed the case as SPC No. 92-208.
In the meantime, on June 24, 1992, the PBC, acting on the petitions for correction of the
On June 6, 1992, the COMELEC en banc promulgated a resolution which reads: SOVs of Tayug and San Manuel filed by private respondent and the MBCs of the said
municipalities, rules "to allow the Municipal Boards of Canvassers of the municipalities of
Acting on the appeal filed by petitioner-appellant Atty. Emiliano S. Micu to the ruling of the Tayug and San Manuel, Pangasinan to correct the Statement of Votes and Certificates of
Provincial Board of Canvassers of Pangasinan, dated May 21, 1992, the Commission en banc Canvass and on the basis of the corrected documents, the Board (PBC) will continue the
tabulated the votes obtained by candidates Atty. Emiliano S. Micu and Atty. Alfonso C. Bince canvass and thereafter proclaim the winning candidate.5
for the position of Sangguniang Panlalawigan member of the province of Pangasinan, using
as basis thereof the statement of votes by precinct submitted by the municipality of San On June 25, 1992, petitioner Bince appealed from the above ruling allowing the correction
Quintin, Pangasinan, as (sic) a result of said examination, the Commission rules, as follows: alleging that the PBC had no jurisdiction to entertain the petition. The appeal was docketed
as SPC No. 92-384.
1. That the actual number of votes obtained by candidate Alfonso C. Bince in the
municipality of San Quintin, Pangasinan is 1,055 votes whereas petitioner/appellant Atty. On July 8, 1992, private respondent Micu filed before the COMELEC an urgent motion for
Emiliano S. Micu obtained 1,535 votes for the same municipality. the issuance of an order directing the PBC to reconvene and proceed with the canvass. He
alleged that the promulgation of COMELEC Resolution No. 2489 on June 29, 1992 affirmed
Accordingly, the Provincial Board of Canvassers for the province of Pangasinan is directed to the ruling of the PBC dated June 24, 1992. Similarly, petitioner Bince filed an urgent petition
CREDIT in favor of petitioner/appellant Atty. Emiliano S. Micu with 1,535 votes and to cite Atty. Felimon Asperin and Supt. Primo. A. Mina, Chairman and Member, respectively,
candidate Alfonso C. Bince with 1,055 votes in the municipality of San Quintin, Pangasinan.2 of the PBC, for Contempt with alternative prayer for proclamation as winner and Injunction
with prayer for the issuance of Temporary Restraining Order (TRO).
On July 9, 1992, the PBC Chairman, Atty. Felimon Asperin, filed a petition with the COMELEC
seeking a "definitive ruling and a clear directive or order as to who of the two (2) contending 3. To DIRECT the Provincial Board of Canvassers to recovene immediately and proclaim the
parties should be proclaimed"6 averring that "there were corrections already made in a winning candidate for the second position of the Provincial Board, 6th District of
separate sheet of paper of the Statements of Votes and Certificates of Canvass of Tayug and Pangasinan, on the basis of the completed and corrected Certificates of Canvass submitted
San Manuel, Pangasinan which corrections if to be considered by the Board in its canvass by the Municipal Boards of Canvassers of all the municipalities in the 6th District of
and proclamation, candidate Emiliano will win by 72 votes. On the other hand, if these Pangasinan, in accordance with law.9
corrections will not be considered, candidate Alfonso Bince, Jr. will win by one (1) vote.7 On
even date, the COMELEC promulgated its resolution, the dispositive portion of which reads: Consequently, petitioner filed a special civil action for certiorari before this Court seeking to
set aside the foregoing resolution of the COMELEC, contending that the same was
(1) To RECONVENE immediately and complete the canvass of the Certificates of Votes, as promulgated without prior notice and hearing with respect to SPC No. 92-208 and SPC No.
corrected, of the municipalities comprising the 6th District of Pangasinan; 92-384. The case was docketed as G.R. No. 106291.

(2) To PROCLAIM the winning candidate for Member of the provincial Board, 6th District of On February 9, 1993, the Court en banc 10 granted the petition ratiocinating that:
Pangasinan, on the basis of the completed and corrected Certificates of Canvass, aforesaid;
in accordance with the law, the rules and guidelines on canvassing and proclamation.8 Respondent COMELEC acted without jurisdiction or with grave abuse of discretion in
annulling the petitioner's proclamation without the requisite due notice and hearing,
As directed therein, the PBC on July 21, 1992, by a vote of 2-1 with its Chairman Atty. thereby depriving the latter of due process. Moreover, there was no valid correction of the
Felimon Asperin dissenting, proclaimed candidate Bince as the duly elected member of the SOVs and COCs for the municipalities of Tayug and San Manuel to warrant the annullment of
Sangguniang Panlalawigan of Pangasinan. Assailing the proclamation of Bince, private the petitioner's proclamation.
respondent Micu filed an Urgent Motion for Contempt and to Annul Proclamation and
Amended Urgent Petition for Contempt and Annul Proclamation on July 22 and 29, 1992, 1. Petitioner had been proclaimed, had taken his oath of office and had assumed the
respectively, alleging that the PBC defied the directive of the COMELEC in its resolution of position of the second elected member of the Sangguniang Panlalawigan of the Province of
July 9, 1992. Acting thereon, the COMELEC promulgated a resolution on July 29, 1992, the Pangasinan for its Sixth Legislative District. Such proclamation enjoys the presumption of
decretal portion of which reads: regularly and validity. The ruling of the majority of the PBC to proclaim the petitioner is
based on its interpretation of the 9 July 1992 Resolution of respondent COMELEC which
The Commission RESOLVED, as it hereby RESOLVES: does not expressly single out the corrected COCs of Tayug and San Manuel; since, as of that
time, the only corrected COC which existed was that for San Quintin, which was made by the
1. To direct Prosecutor Jose Antonio Guillermo and Supt. Primo Mina, vice-chairman and PBC on 18 June 1992, the majority of the PBC cannot be faulted for ruling the way it did. the
secretayr, respectively, of the Provincial Board of Canvassers of Pangasinan, to show cause 9 July 1992 Resolution (Rollo, p. 51) merely directed it:
why they should not be declared in contempt of defying and disobeying the Resolution of
this Commission dated 09 July 1992, directing them to RECOVENE immediately and (1) To RECOVENE immediately and complete the canvass of the Certificates of Votes, as
complete the canvass of the Certificates of Votes as corrected, of the Municipal Boards of corrected, of the Municipal Boards of Canvassers of the municipalities comprising the 6th
Canvassers of the Municipalities comprising the 6th District of Pangasinan; and to District of Pangasinan;
PROCLAIM the winning candidate of the Provincial Board, 6th District of Pangasinan, on the
basis of the completed and corrected Certificates of Canvass, aforesaid; instead they (2) To PROCLAIM the winning candidate for Member of the Provincial Board, 6th District of
excluded the corrected Certificated of Canvass of the Municipal Boards of Canvassers of Pangasinan, on the basis of the completed and corrected Certificates of Canvass, aforesaid;
Tayug and San Manuel, Pangasinan; in accordance with the law, the rules and guideline on canvassing and proclamation.
(Emphasis supplied)
2. To ANNUL the proclamation dated 21 July 1992, by the said Provincial Board of
Canvassers (dissented by Chairman Felimon Asperin), of candidate Alfonso Bince;
The PBC thus had every reason to believe that the phrase "completed and corrected" COCs reference to such would be clearly unfounded. While it may be true that on 24 June 1992,
could only refer to the nine 99) COCs for the nine municipalities, canvass for which was the PBC, acting on simultaneous petitions to correct the SOVs and COCs for Tayug and San
completed on 21 May 1992, and that of San Quintin, respectively. Verily, the above Manuel ordered the MBCs for these two (2) municipalities to make the appropriate
resolution is vague and ambiguous. corrections in the said SOVs and their corresponding COCs, none of said Boards convened to
the members of actually implement the order. Such failure could have been due to the
Petitioner cannot be deprived of his office without due process of law. Although public appeal seasonably interposed by the petitioner to the COMELEC or the fact that said
office is not property under Section 1 of the Bill of Rights of the Constitution (Article III, 1987 members simply chose not to act thereon. As already adverted to the so-called "corrected"
Constitution), and one cannot acquire a vested right to public office (CRUZ, I.A., Statements of Votes and Certificates of Canvass consist of sheets of paper signed by the
Constitutional Law, 1991 ed., 101), it is, nevertheless, a protected right (BERNAS J., The respective Election Registrars of Tayug (Annex "F-l" of Comment of private respondent;
Constitution of the Republic of the Philippines, vol. I, 1987 ed., 40, citing Segovia vs. Noel, 47 Annex "A" of Consolidated Reply of petitioner) and San Manuel (Annex "F-2, Id.; Annex "B",
Phil. 543 [1925] and Borja vs. Agoncillo, 46 Phil. 432 [1924]). Due process in proceedings Id.). These are not valid corrections because the Election Registrars, as Chairmen of the
before the respondent COMELEC, exercising its quasi-judicial functions, requires due notice MBCs cannot, by themselves, act for their Section 225 of the respective Board. Section 225
and hearing, among others. Thus, although the COMELEC possesses, in appropriate cases, of the Omnibus Election Code (B.P. Blg. 881) provides that "[A] majority vote of all the
the power to annul or suspend the proclamation of any candidate (Section 248, Omnibus members of the board of canvassers shall be necessary to render a decision." That majority
Election Code [B.P. Blg. 881]), We had ruled in Farinas vs. Commission on Elections (G.R. No. means at least two (2) of the three (3) members constituting the Board (Section 20(c) of the
81763, 3 March 1988), Reyes vs. Commission on Elections G.R. No. 81856, 3 March 1988) Electoral Reforms Law of 1987 (R.A. No. 6646) provides that the "municipal board of
and Gallardo vs. Commission on Elections (G.R. No. 85974, 2 May 1989) that the COMELEC is canvassers shall be composed of the election registrar or a representative of the
without power to partially or totally annul a proclamation or suspend the effects of a Commission, as chairman, the municipal treasurer, as vice-chairman, and the most senior
proclamation without notice and hearing. district school supervisor or in his absence a principal of the school district or the
elementary school, as members"). As to why the Election Registrars, in their capacities as
xxx xxx xxx Chairmen, were 7th only ones who prepared the so-called correction sheets, is beyond Us.
There is no showing that the other members of the Boards were no longer available. Since
Furthermore, the said motion to annul proclamation was treated by the respondent they are from the Province of Pangasinan, they could have been easily summoned by the
COMELEC as a Special Case (SPC) because its ruling therein was made in connection with PBC to appear before it and effect the corrections on the Statements of Votes and
SPC No. 92-208 and SPC No. 92-384. Special Cases under the COMELEC RULES OF Certificates of Canvass.
PROCEDURE involve the pre-proclamation controversies (Rule 27 in relation to Section 4(h)l
Rule 1, and Section 4, Rule 7). We have categorically declared in Sarmiento vs. Commission Besides, by no stretch of the imagination can these sheets of paper be considered as the
on Elections (G.R. No. 105628, and companion cases, 6 August 1992) that pursuant to corrected SOVs and COCs. Corrections in a Statement of Vote and a Certificate of Canvass
Section 3, Article IX-C of the 1987 Constitution, . . . the commission en banc does not have could only be accomplished either by inserting the authorized corrections into the SOV and
jurisdiction to hear and decide pre-proclamation cases at the first instance. Such cases COC which were originally prepared and submitted by the MBC or by preparing a new SOV
should first be referred to a division and COC incorporating therein the authorized corrections. Thus, the statement in the 29 July
1992 Resolution of the COMELEC referring to "the Certificates of Canvass of the municipal
Hence, the COMELEC en banc had no jurisdiction to decide on the aforesaid to annul the Boards of Canvassers of Tayug and San Manuel" (Last clause, paragraph 1 of the dispositive
proclamation; consequently, its 29 July 1992 Resolution is motion is null and void. For this portion, Annex "A" of Petition: Rollo 15), is palpably unfounded. The Commission could have
reason too, the COMELEC en banc Resolution of 6 June 1992 in SPC No. 92-2()8 resolving the 7 been misled by Atty. Asperin's ambiguous reference to "corrections already made in
private respondent's appeal from the ruling of the PBC with respect to the COC of San separate sheets of paper of the Statements of Votes and Certificate of Canvass of Tayug and
Quintin is similarly void. San Manuel, Pangasinan" (Quoted in the Resolution of 9 July 1992; Id., 50-51), in his petition
asking the COMELEC to rule on who shall be proclaimed. However, if it only took the trouble
2. It is to be noted, as correctly stressed by the petitioner, that there are no valid corrected to carefully examine what was held out to be as the corrected documents, respondent
Statements of Votes and Certificates of Canvass for Tayug and San Manuel; thus, any COMELEC should not have been misled.
 For being clearly inconsistent with the intention and official stand of respondent COMELEC,
Even if We are to assume for the sake of argument that these sheets of paper constitute private respondent COMELEC private respondent's theory of termination under the second
sufficient corrections, they are, nevertheless, void and of no effect. At the time the Election paragraph of Section 16 of R.A. No. 7166, and the consequent affirmance of the ruling of the
Registrars prepared them — on 6 July 1992 — respondent COMELEC had not yet acted on PBC ordering the correction of the number of votes, must necessarily fail.
the petitioner's appeal (SPC No. 92-384) from the 24 June 1992 ruling of the PBC authorizing
the corrections. Petitioner maintains that until now, his appeal has not been resolved. The The foregoing considered, the proclamation of the private respondent on, 13 August 1992
public respondent, on the other hand, through the Office of the Solicitor General, claims by the Provincial Board of Canvassers of Pangasinan is null and void.
that the same had been:
WHEREFORE, the instant petition is GRANTED. The challenged resolution of the respondent
. . . resolved in the questioned resolution of July 29, 1992, where COMELEC affirmed Commission on Elections of 29 July 1992 and the proclamation of the private respondent on
respondents (sic) Board's correction that petitioner only received 2,415 votes in Tayug and 13 August 1992 as the second Member of the Sangguniang Panlalawigan of the Province of
2,179 in San Manuel (see p. 2, Annex "A", Petition) (Rollo, p. 71) Pangasinan, representing its Sixth Legislative District ANNULLED and SET ASIDE and
respondent Commission on Elections is DIRECTED to resolve the pending incidents
On the same matter, the private respondent asserts that: conformably with the foregoing disquisitions and pronouncements.

This SPC-92-384, is however, deemed terminated and the ruling of the PBC is likewise No costs.
deemed affirmed by virtue of the 2nd par., Sec. 16, R.A. No. 7166, supra and Comelec en
banc Resolution No. 2489, supra, dated June 29, 1992 (Id., 36); SO ORDERED.11

If We follow the respondent COMELEC's contention to its logical conclusion, it was only on On February 23, 1993, private respondent Micu filed an Urgent Omnibus Motion before the
29 July 1992 that SPC No. 92-384 was resolved; consequently, the so-called "correction COMELEC praying that the latter hear and resolve the pending incidents referred to by this
sheets" were still prematurely prepared. In any event, the COMELEC could not have validly Court. Private respondent was obviously referring to SPC No. 92-208 and SPC No. 92-384,
ruled on such appeal in its 29 July 1992 Resolution because the same was promulgated to both cases left unresolved by the COMELEC.
resolve the Urgent Motion For Contempt and to Annul Proclamation filed by the private
respondent. Furthermore, before the resolution of SPC No. 92-384 on the abovementioned Consequently, the First Division of the COMELEC set the cases for hearing on March 8, 1993.
date, no hearing was set or conducted to resolve the pending motion. Therefore, on this During the hearing, both Micu and Bince orally manifested the withdrawal of their
ground alone, the 29 July 1992 Resolution, even if it was meant to resolve the appeal, is a respective appeals. Also withdrawn were the petitions to disqualify Atty. Asperin and to cite
patent nullity for having been issued in gross violation of the requirement of notice and the Board for contempt. The parties agreed to file their respective memoranda/position
hearing mandated by Section 246 of the Omnibus Election Code, in relation to Section 18 of papers by March 15, 1993.
R.A. No. 7166 and Section 6, Rule 27 of the COMELEC Rules of Procedure, and for having
been resolved by the COMELEC en banc at the first instance. The case should have been Petitioner Bince filed his Position Paper on March 12, 1993 arguing that the withdrawal of
referred first to a division pursuant to Section 3, Article IX-C of the 1987 constitution and SPC No. 92-208 affirmed the ruling of the PBC dated May 21, 1992 and even if it were not
Our ruling in Sarmiento vs. Commission on Elections. Moreover, the COMELEC's claim that withdrawn, Section 16 of R.A. 7166 would have worked to terminate the appeal. Bince
the questioned resolution affirmed the correction made by the Board is totally baseless. The likewise asserts that his appeal in SPC No. 92-384 became moot and academic in view of this
PBC did not make any corrections. It merely ordered the Municipal Boards of Canvassers of Court's ruling nullifying the June 24, 1992 order of the PBC granting the petitions for
Tayug and San Manuel to make such corrections. As earlier stated, however, the said MBCs correction of the SOVs and COCs of Tayug and San Manuel aside from being superseded by
did not convene to make these corrections. It was the Chairmen alone who signed the the PBC ruling proclaiming him on July 21, 1992.
sheets of paper purporting to be corrections.
On the other hand, private respondent Micu, in his Position Paper filed on March 15, 1993
postulated that the petitions filed on June 11, 1992 for the correction of the SOVs and COCs
of Tayug and San Manuel under Section 6 of Rule 27 of the Comelec Rules of Procedure, as
well as the ruling of the PBC of June 24, 1992 granting the same were valid so that the Respondent COMELEC did not act without jurisdiction or with grave abuse of discretion in
withdrawal of Bince's appeal in SPC No. 92-384 firmly affirmed the PBC ruling of June 24, annulling the proclamation of petitioner Alfonso Bince, Jr. and in directing the Provincial
1992 allowing the corrections. Board of Canvassers of Pangasinan to order the Municipal Boards of Canvassers of Tayug
and San Manuel to make the necessary corrections in the SOVs and COCs in said
On July 15, 1993, the First Division of the COMELEC promulgated a Resolution, the municipalities and to proclaim the winner in the sixth legislative district of Pangasinan.
dispositive portion of which reads:
At the outset, it is worthy to observe that no error was committed by respondent COMELEC
Viewed from the foregoing considerations, the Commission (First Division) holds that the when it resolved the "pending incidents" of the instant case pursuant to the decision of this
petitioner Alfonso C. Bince Jr. is entitled to sit as member of the Sangguniang Panlalawigan, Court in the aforesaid case of Bince, Jr. v. COMELEC on February 9, 1993 Petitioner's
Sixth District of Pangasinan. contention that his proclamation has long been affirmed and confirmed by this Court in the
aforesaid case is baseless. In Bince, we nullified the proclamation of private respondent
ACCORDINGLY, the Commission (First Division) RESOLVED, as it hereby RESOLVES, to because the same was done without the requisite due notice and hearing, thereby depriving
AFFIRM the proclamation of petitioner Alfonso C. Bince, Jr. by the Provincial Board of the petitioner of his right to due process. In so doing, however, we did not affirm nor
Canvassers of Pangasinan on 21 July 1992 as the duly elected member of the Sangguniang confirm the proclamation of petitioner, hence, our directive to respondent COMELEC to
Panlalawigan of the Sixth District of the Province of Pangasinan.12 resolve the pending incidents of the case so as to ascertain the true and lawful winner of the
said elections. In effect, petitioner's proclamation only enjoyed the presumption of
On July 20, 1993, private respondent Micu filed a Motion for reconsideration of the above- regularity and validity of an official act. It was not categorically declared valid.
quoted resolution.
Neither can the COMELEC be faulted for subsequently annulling the proclamation of
On September 9, 1993, the COMELEC en banc granted the private respondentls motion for petitioner Bince on account of a mathematical error in addition committed by respondent
reconsideration in a resolution which dispositively reads as follows: MBCs in the computation of the votes received by both petitioner and private respondent.

WHEREFORE, premises considered, the Motion for Reconsideration filed by respondent The petitions to correct manifest errors were filed on time, that is, before the petitioner's
Emiliano S. Micu is granted. The Resolution of the Commission First Division is hereby SET proclamation on July 21, 1992. The petition of the MBC of San Manuel was filed on June 4,
ASIDE. The proclamation of petitioner Alfonso Bince, Jr. on July 21, 1992 is hereby declared 1992 while that of still, the MBC of Tayug was filed on June 5, 1992. Still, private
null and void. Accordingly, the Provincial Board of Canvassers is hereby directed to respondent's petition was filed with the MBCs of Tayug and San Manuel on June 10, 1992
reconvene, with proper notices, and to order the Municipal Board of Canvassers of San and June 11, 1992, respectively, definitely well within the period required by Section 6 (now
Manuel and Tayug to make the necessary corrections in the SOVs and COCs in the said Section 7), Rule 27 of the COMELEC Rules of Procedure. Section 6 clearly provides that the
municipalities. Thereafter, the Provincial Board of Canvassers is directed to include the petition for correction may be filed at any time before proclamation of a winner, thus:
results in the said municipalities in its canvass.
Sec. 6. Correction of errors in tabulation or tallying of results by the board of canvassers. —
The PBC is likewise ordered to proclaim the second elected member of the Sangguniang (a) Where it is clearly shown before proclamation that manifest errors were committed in
Panlalawigan of the Sixth Legislative District of Pangasinan. the tabulation or tallying of election returns, or certificates of canvass, during the canvassing
as where (1) a copy of the election returns of one precinct or two or more copies of a
SO ORDERED. 13 certificate of canvass was tabulated more than once, (2) two copies of the election returns
or certificate of canvass were tabulated separately, (3) there had been a mistake in the
This is the resolution assailed in the instant petition for certiorari. adding or copying of the figures into the certificate of canvass or into the statement of
votes, or (4) so-called election returns from non-existent precincts were included in the
We do not find merit in this petition and accordingly rule against petitioner. canvass, the board may, motu propio, or upon verified petition by any candidate, political
party, organization or coalition of political parties, after due notice and hearing, correct the the end that the will of the people in the choice of public officials may not be defeated by
errors committed. mere technical objections (Gardiner v. Romulo, 26 Phil. 521; Galang v. Miranda, 35 Phil. 269;
Jalandoni v. Sarcon, G.R. No.
(b) The order for correction must be in writing and must be promulgated. L-6496, January 27, 1962; Macasunding v. Macalanang, G.R. No.
L-22779, March 31, 1965; Cauton v. Commission on Elections, G.R. No. L-25467, April 27,
(c) Any candidate, political party, organization or coalition of political parties aggrieved by 1967). In an election case the court has an imperative duty to ascertain all means within its
said order may appeal therefrom to the Commission within twenty-four (24) hours from the command who is the real candidate elected by the electorate (Ibasco v. Ilao, G.R. No. L-
promulgation. 17512, December 29, 1960). . . . (Juliano vs. Court of Appeals, supra, pp. 818-819).
(Emphasis ours)
(d) Once an appeal is made, the board of canvassers shall not proclaim the winning
candidates, unless their votes are not affected by the appeal. In the later case of Rodriguez vs. Commission on Elections (119 SCRA 465), this doctrine was
reiterated and the Court went on to state that:
(e) The appeal must implead as respondents all parties who may be adversely affected
thereby. Since the early case of Gardiner v. Romulo (26 Phil. 521), this Court has made it clear that it
frowns upon any interpretation of the law or the rules that would hinder in any way not only
(f) Upon receipt of the appeal, the Clerk of Court concerned shall forthwith issue summons, the free and intelligent casting of the votes in an election but also the correct ascertainment
together with a copy of the appeal, to the respondents. of the results, This bent or disposition continues to the present. (Id., at p. 474).

(g) The Clerk of Court concerned shall immediately set the appeal for hearing. The same principle still holds true today. Technicalities of the legal rules enunciated in the
election laws should not frustrate the determination of the popular will.
(h) The appeal shall be heard an decided by he Commission en banc (Emphasis ours).
Undoubtedly therefore, the only issue that remains unresolved is the allowance of the
The rule is plain and simple. It needs no other interpretation contrary to petitioner's correction of what are purely mathematical and/or mechanical errors in the addition of the
protestation. votes received by both candidates. It does not involve the opening of ballot boxes; neither
does it involve the examination and/or appreciation of ballots. The correction sought by
Assuming for the sake of argument that the petition was filed out of time, this incident private respondent and respondent MBCs of Tayug and San Manuel is correction of manifest
alone will not thwart the proper determination and resolution of the instant case on mistakes in mathematical addition. Certainly, this only calls for a mere clerical act of
substantial grounds. Adherence to a technicality that would put a stamp of validity on a reflecting the true and correct votes received by the candidates by the MBCs involved. In
palpably void proclamation, with the inevitable result of frustrating the people's will cannot this case, the manifest errors sought to be corrected involve the proper and diligent addition
be countenanced. In Benito v. COMELEC, 14 categorically declared that: of the votes in the municipalities of Tayug and San Manuel, Pangasinan.

. . . Adjudication of cases on substantive merits and not on technicalities has been In Tayug, the total votes received by petitioner Bince was erroneously recorded as 2,486
consistently observed by this Court. In the case of Juliano vs. Court of Appeals (20 SCRA 808) when it should only have been 2,415. Petitioner Bince, in effect, was credited by 71 votes
cited in Duremdes vs. Commission on Elections (178 SCRA 746), this Court had the occasion more.
to declare that:
In San Manuel, petitioner Bince received 2,179 votes but was credited with 6 votes more,
Well-settled is the doctrine that election contests involve public interest, and technicalities hence, the SOV reflected the total number of votes as 2,185. On the other hand, the same
and procedural barriers should not be allowed to stand if they constitute an obstacle to the SOV indicated that private respondent Micu garnered 2,892 votes but he actually received
determination of the true will of the electorate in the choice of their elective officials. And only 2,888, hence was credited in excess of 4 votes.
also settled is the rule that laws governing election contests must be liberally construed to
Consequently, by margin of 72 votes, private respondent indisputably won the challenged
seat in the Sangguniang Panlalawigan of the sixth district of Pangasinan. Petitioner's
proclamation and assumption into public office was therefore flawed from the beginning,
the same having been based on a faulty tabulation. Hence, respondent COMELEC did not
commit grave abuse of discretion in setting aside the illegal proclamation.

As a parting note, we reiterate' our concern with respect to insignificant disputes plaguing
this Court. Trifles such as the one at issue should not, as much as possible, reach this Court,
clog its docket, demand precious judicial time and waste valuable taxpayers' money, if they
can be settled below without prejudice to any party or to the ends of justice.

WHEREFORE, the instant petition is hereby DISMISSED with costs against petitioner.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug, Mendoza and Francisco, JJ., concur.
Notice of the Election Subsequently, the armed followers of the mayor pointed their guns at her military escorts,
who responded in a like manner towards the former. The parties were then pacified at the
G.R. No. 139028 April 12, 2000 PNP headquarters. With the arrival of additional troops, the election officer proceeded to
Maidan to conduct the election starting at 9:00 p.m. until the early morning of the following
HADJI RASUL BATADOR BASHER, petitioner, day. The holding of the election at that particular time was allegedly announced "over the
vs. mosque." 4
COMMISSION ON ELECTIONS and ABULKAIR AMPATUA, respondents.
The tally sheet for the said "election" showed the following results: private respondent —
250 votes; petitioner — 15 votes; and Baulo Abdul Razul, a third candidate — 10 votes.5
PANGANIBAN, J.: Private respondent was proclaimed winner.

An election must be held at the place, date and time prescribed by law. Likewise, its Petitioner then filed a Petition before the Comelec praying that the election be declared a
suspension or postponement must comply requirements. Otherwise, it is irregular and void. failure. Alleging that no election was conducted in place and at the time prescribed by law,
petitioner narrated that there was a dispute that day (August 30, 1997) among the
The Case candidates regarding the venue of the election in the lone voting precinct of the barangay.
In order to avoid bloodshed, they ultimately agreed that no election would be conducted.
Petitioner 1 assails before us the June 8, 1999 Resolution of the Commission on Elections Accordingly, the election officer turned over for safekeeping the ballot box containing
(Comelec) 2 in SPA Case No. 97-276 which dismissed a Petition to Declare a Failure of election paraphernalia to the acting station commander (OIC) of the Philippine National
Election and to Call Special Election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Police (PNP). The following day, petitioner and the third candidate were surprised to learn
Sur. The assailed Resolution disposed as follows: that the election officer had directed the Board of Election Tellers to conduct the election
and to fill up the election returns and certificates of canvass on the night of August 30, 1997
In view of the foregoing considerations, We he[re]by hold that the special elections in at the residence of the former mayor. Petitioner also stated that no announcement to hold
Barangay Maidan, Tugaya Lanao del Sur on August 30, 1997 did not fail. The result thereof the election at the former mayor's house that night was ever made. 6
must therefore be accorded respect.
As earlier stated, the Comelec dismissed the Petition. Hence, this recourse to this Court. 7
WHEREFORE, premises considered, the Commission En Banc RESOLVES to DISMISS the
petition for lack of merit. 3 Ruling of the Comelec

The Facts The Comelec ruled against a failure of election because the two conditions laid down in
Mitmug v. Comelec 8 were not established. It held that the "election was conducted on the
Petitioner Hadji Rasul Batador Basher and Private Respondent Abulkair Ampatua were both scheduled date. The precinct functioned. Actual voting took place, and it resulted not in a
candidates for the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur failure to elect." 9
during the May 12, 1997 barangay election. The election was declared a failure and a special
one was set for June 12, 1997. Again the election failed and was reset to August 30, 1997. In justifying the balloting at the dead of night, the poll body cited Section 22, Article IV of
Comelec Resolution 2971, which provided in part that "[i]f at three o'clock, there are still
According to the Comelec, the voting started only around 9:00 p.m. on August 30, 1997 voters within thirty meters in front of the polling place who have no cast their votes, the
because the prevailing tension in the said locality. Election Officer Diana Datu-Imam voting shall continue to allow said voters to cast their votes without interruption. . . ." The
reported that she was allegedly advised by some religious leaders not to proceed with the Comelec then went on to state that "experience had shown that even when there is a long
election because "it might trigger bloodshed." She also claimed the town mayor, "being too delay in the commencement of the voting, voters continue to stay within the area of the
hysterical, yelled and threatened me to declare [a] failure of election in Maidan." polling place." 10
 First, the place where the voting was conducted was illegal. Section 42 of the Omnibus
Issue Election Code provides that "[t]he chairman of the board of election tellers shall designate
the public school or any other public building within the barangay to be used as polling place
Petitioner submits the following questions for the consideration of the Court: in case the barangay has one election precinct . . .. " Petitioner, citing an Affidavit 13
supposedly executed by the members of the Board of Election Tellers (BET) for Barangay
1. Whether or not the election held at around 10:00 o'clock in the evening of August 30, Maidan, alleges that the election of officials for said barangay was held at the residence of
1997 after the Acting Election Officer had verbally declared or announced a failure of former Mayor Alang Sagusara Pukunun, which is located at Barangay Pandarianao, instead
election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur is contrary to law, rule of the officially designated polling precinct at Cagayan Elementary School. If this allegation
and jurisprudence; were true, such "election" cannot be valid, as it was not held within the barangay of the
officials who were being elected. On the other hand, it is admitted that there was a public
2. Whether or not the election held at the residence of an Ex-mayor far from the designated school or building in Barangay Maidan — the Cagayan Elementary School, which was the
Polling Place of Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur is legal or valid; earlier validly designated voting center.

3. Whether or not the proclamation of the private respondent as the duly elected Punong While the BET members later repudiated their Affidavit, they could only claim that the
Barangay of Barangay Maidan and the seven (7) Barangay is illegal, null and void ab initio. 11 election was held "in Barangay Maidan." 14 They, however, failed to specify the exact
venue. In fact, to this date, even the respondents have failed to disclose where exactly the
In the main, the crucial question that needs to be addressed is whether the "election" held voting was conducted. This glaring omission definitely raises serious questions on whether
on the date, at the time and in the place other than those officially designated by the law the election was indeed held in a place allowed by law.
and by the Comelec was valid.
Voting Time Was Likewise Irregular
The Court's Ruling
Second, as to the time for voting, the law provides that "[t]he casting of votes shall start at
The Petition is meritorious. seven o'clock in the morning and shall end at three o'clock in the afternoon, except when
there are voters present within thirty meters in front of the polling place who have not yet
Main Issue: cast their votes, in which case the voting shall continue but only to allow said voters to cast
their votes without interruption." 15 Section 22, Article IV of Comelec Resolution No. 2971
Validly of the Special Election also specifies that the voting hours shall start promptly at 7:00 a.m. and end at 3:00 p.m. of
the same day.
Citing Mitmug v. Comelec, 12 the Comelec points our that a failure of election requires the
concurrence of two conditions, namely (1) no voting took place in the precinct or precincts However, the "election" for Barangay Maidan officials was supposed to have been held after
on the date fixed by law, or even if there was voting, the election resulted in a failure to 9:00 p.m. of August 30, 1997 until the wee hours of the following day. Certainly, such
elect; and (2) the votes not cast would have affected the result of the election. It ruled that schedule was not in accordance with law or the Comelec Rules. The Comelec erred in relying
these requirements were not met.1âwphi1.nêt on the second sentence of Section 22, Article IV of Comelec Resolution 2971, which states
that "[i]f at three o'clock [in the afternoon], there are still voters within thirty meters in front
We do not agree. The peculiar set of facts in the present case show not merely a failure of of the polling place who have not cast their votes, the voting shall continue to allow said
election but the absence of a valid electoral exercise. Otherwise stated, the disputed voters to cast their votes without interruption." This sentence presupposes that the election
"election" was illegal, irregular and void. commenced during the official time and is simply continued beyond 3:00 p.m. in order to
accommodate voters who are within thirty meters of the polling place, already waiting for
Election Situs Was Illegal their turn to cast their votes. This is clearly the meaning and intent of the word continue —
"to go on in a specified course of action or condition." 16 The action or condition already
subsists and is allowed to go on. Otherwise, the law should have stated instead that "the Fourth, Datu-Imam did not follow the procedure laid down by law for election
voting may also start even beyond 3:00 p.m. if there are voters within thirty meters in front postponement or suspension or the declaration of a failure of election. She narrated the
of the polling place." circumstances surrounding her declaration as follows: 18

The strained interpretation espoused by the Comelec encourages the conduct of clandestine When I returned to [as]certain the situation in Maidan, the Mayor, being too hysterical,
"elections," for it virtually authorizes the holding of elections beyond normal hours, even at yelled and threatened me to declare [a] failure of elections in Maidan. When I insisted to
midnight when circumstances could be more threatening and conductive to unlawful personally confirm the probable cause of bloodshed (at Maidan), his armed
activities. On a doctrinal basis, such nocturnal electoral practice discourages the people's followers/escorts pointed their guns to me and my escorts. Likewise my military escorts
exercise of their fundamental right of suffrage, by exposing them to the dangers pointed their guns to the mayor and his men "Man to Man". The Datus and religious leaders
concomitant to the dead of night, especially in far-lung barangays constantly threatened pacified us at the PNP Headquarters.
with rebel and military gunfires.
After a couple of hours, the military officers and I agreed to adapt another strategy just to
Election Date Was Invalid pursue with the elections in Maidan [by] hook or by crook. Considering that they forcibly
took away from us the ballot box containing paraphernalia of Maidan, I didn't have any
Third, the Comelec scheduled the special election on August 30, 1997. Any suspension or recourse but give them. I turned-over the ballot box to the Acting Chief of Police, Malik
postponement of an election is governed by Section 2 of RA 6679, 17 which states that Bantuas with proper receipt, taking away from the box the CEF 2 & 2-A, declaring verbally a
"[w]hen for any serious cause such as rebellion, insurrection, violence, terrorism, loss or failure of elections in Maidan just to ease their aggression and so that we could pull-out of
destruction of election paraphernalia, and any analogous causes of such nature that the the place freely.
holding of a free, orderly and honest election should become impossible in any barangay,
the Commission on Election motu proprio or upon sworn petition of ten (10) registered It clearly appears from the very report of Datu-Imam to the Comelec that she did not
voters of a barangay, after summary proceedings of the existence of such grounds, shall conduct any proceeding, summary or otherwise, to find out whether any of the legal
suspend or postpone the election therein to a date reasonably close to the date of the grounds for the suspension or postponement or the declaration of failure of the election
election that is not held or is suspended or postponed, or which resulted in a failure to elect, actually existed in the barangay concerned.
but not later than thirty (30) days after the cessation of the cause for such suspension or
postponement of the election or failure to elect, and in all cases not later than ninety (90) Notice Was Irregular
days from the date of the original election."
Finally and very significantly, the electorate was not given ample notice of the exact
Election Officer Diana Datu-Imam of Tugaya, Lanao del Sur practically postponed the schedule and venue of the election. The election officer herself relates: 19
election in Barangay Maidan from the official original schedule of 7:00 a.m. to 3:00 p.m. of
August 30, 1997 to 10:00 p.m. of August 30, 1997 until the early morning of August 31, When the tension was slightly alleviated, I directed the military personnel to pull-out of the
1997. She attempted to justify her postponement of the election by citing threats of Municipio and withdrew to a nearby Barangay (for safety) where some of the militaries (sic)
violence and bloodshed in the said barangay. Allegedly because of the tension created by were deployed. After planning and coordinating with the Batallion (sic) Commander, we
armed escorts of the municipal mayor and the military, Datu-Imam declared a failure of waited for the additional troups (sic) that arrived at around 8:30 in the evening. At the
election in order "to ease their aggression." However, as election officer, she has no stroke of 9:00 o'clock, we started for Maidan via the national Highway thru the Municipality
authority to declare a failure of election. Indeed, only the Comelec itself has legal authority of Balindong and others thru a short-cut way (sic) eastward of Tugaya. Utilizing the election
to exercise such awesome power. An election officer alone, or even with the agreement of paraphernalia earlier shipped by the Commission as I have requested (sic) and a ballot box
the candidates, cannot validly postpone or suspend the elections. from the PES, we went on with the election (after announcing it over the mosque)
peacefully orderly despite the tiredness (sic) and exhaustion felt by the people the whole
Election Postponement Was Invalid day waiting/expecting for the election as I have assured them earlier (sic). . . .
As can be gleaned easily from the above report, the electorate of Barangay Maidan was not Failure of Election
given due notice that the election would push through after 9:00 p.m. that same day.
Apparently, the election officer's decision to hold the election on the night of August 30, G.R. No. 170365 February 2, 2010
1997 was precipitate. Only after additional military troops had arrived at their site in a
nearby barangay about 8:30 p.m. did the election officers proceed to Barangay Maidan. ABDUL GAFFAR P.M. DIBARATUN, Petitioner,
Arriving at Maidan, they allegedly proceeded to conduct the election "after announcing it vs.
over the mosque." COMMISSION ON ELECTIONS and ABDUL CARIM MALA ABUBAKAR, Respondents.

Such abbreviated announcement "over the mosque" at such late hour did NOT constitute DECISION
sufficient notice to the electorate. Consequently, not the entire electorate or even a
respectable number could have known of the activity and actually participated therein or PERALTA, J.:
voluntarily and discerningly chosen not to have done so.
This is a petition for certiorari1 of the Resolution of the Commission on Elections (COMELEC)
Indeed, the Court in Hassan v. Comelec 20 held that the notice given on the afternoon of the en banc dated October 17, 2005 in SPA No. 02-481, which declared a failure of elections in
election day resetting the election to the following day and transferring its venue was "too Precinct No. 6A/7A, Barangay Bagoainguid, Municipality of Tugaya, Lanao del Sur and
short." We said that "[t]o require the voters to come to the polls on such short notice was annulled the proclamation of petitioner Abdul Gaffar2 P.M. Dibaratun as the duly elected
highly impracticable. . . . It is essential to the validity of the election that the voters have Punong Barangay of Barangay Bagoainguid in the July 15, 2002 Synchronized Barangay and
notice in some form, either actual or constructive, of the time, place and purpose thereof. Sangguniang Kabataan Elections.
21 The time for holding it must be authoritatively designated in advance." 22
The facts are as follows:
In the case at bar, the announcement was made only minutes before the supposed voting. If
one-day notice was held to be insufficient in Hassan, the much shorter notice in the present Respondent Abdulcarim Mala Abubakar,3 a re-electionist candidate for the position of
case should all the more be declared wanting. It should in fact be equated with "no notice." Punong Barangay of Barangay Bagoainguid, Tugaya, Lanao del Sur, filed a petition4 before
the COMELEC to declare a failure of elections in Precinct No. 6A/7A, Barangay Bagoainguid,
In sum, the "election" supposedly held for officials of Barangay Maidan cannot be clothed Tugaya, Lanao del Sur and to annul the proclamation of petitioner Abdul Gaffar P.M.
with any form of validity.1âwphi1 It was clearly unauthorized and invalid. It had no legal leg Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid in the July 15, 2002
to stand on. Not only did the suspension/postponement not comply with the procedure laid Synchronized Barangay and Sangguniang Kabataan Elections.
down by law and the Comelec Rules, neither was there sufficient notice of the time and date
when and the place where it would actually be conducted. It was thus as if no election was In his petition, respondent Abubakar alleged:
held at all. Hence, its results could not determine the winning punong barangay.
xxxx
WHEREFORE, the Petition is hereby GRANTED and the assailed Resolution SET ASIDE. The
proclamation of private respondent as punong barangay is hereby declared VOID. 3. That on July 15, 2002 at around 10:30 o’ clock in the morning, the casting of votes in the
Respondent Comelec is ORDERED to conduct a special election for punong barangay of above named precinct was commenced at its designated Polling Place in Cayagan
Maidan, Tugaya, Lanao del Sur as soon as possible. No pronouncement as to costs. Elementary School and while only ten (10) voters had actually voted, a certain ALIPECRY
ACOP GAFFAR, who is the son of respondent Punong Barangay candidate ABDULGAFFAR
SO ORDERED. DIBARATUN got inside the polling place and was caught in possession of Three (3) filled up
ballots where candidate ABDULGAFFAR DIBARATUN were voted which he wanted to place
or insert inside the ballot box for official (sic).
4. That when said ALIPECRY GAFFAR was confronted by the petitioner’s watcher and other ACCORDINGLY, the proclamation of respondent Abdulgaffar P.M. Dibaratun as the duly
watchers confronted him of said official ballots, he got mad and flared up and committed elected Punong Barangay of Barangay Bagoainguid, Tugaya, Lanao del Sur is hereby
violence which disrupted and stopped the casting of votes and because of the commotion, ANNULLED and he is thus ORDERED to CEASE AND DESIST from exercising the powers and
the chairman left the ballot box which was held by the companions of Alipecry Acop Gaffar responsibilities of the said office. Pending the conduct of the special elections yet to be
and destroyed the said ballot box, took the official ballot contained therein and inserted, scheduled by this Commission and until no Punong Barangay has been duly elected and
placed therein a bundle of substituted ballots. qualified, the incumbent Punong Barangay shall continue to exercise the powers and duties
of such office in a hold-over capacity in accordance with Section 5 of R.A. No. 9164 (An Act
5. That due to the facts adverted to above, the casting of votes was stopped and it was Providing for Synchronized Barangay and Sangguniang Kabataan Elections, Amending
never resumed nor continued. Only Ten (10) voters had actually voted out of One Hundred Republic Act No. 7160, As Amended, Otherwise Known as The ‘Local Government Code of
Fifty One (151) registered voters. 1991,’ and For Other Purposes).

6. That even candidates for Barangay Chairmen and Barangay Kagawad were unable to cast Let the Office of the Deputy Executive Director for Operations (ODEDO), this Commission,
their votes because the casting of votes was illegally disturbed, disrupted, interrupted and furnish a copy of this Resolution to the Provincial Election Supervisor of Lanao del Sur for the
stopped by Alipecry Acop Gaffar despite the presence of numerous registered voters ready implementation of the same upon its finality.6
to cast their votes.
Dibaratun filed this petition, raising the following issues:
xxxx
1) The COMELEC en banc gravely abused its discretion amounting to lack or excess of
9. The Election Officer knowing fully that there was really a failure of election in the said jurisdiction when it unjustly gave due course to the unmeritorious petition of respondent
precinct recommended that a special election be called for the said precinct. Abubakar for the simple reason that it was filed out of time and the validity of the
proclamation of petitioner Dibaratun on July 16, 2002 can no longer be legally assailed after
10. That unknown to the petitioner, the respondent Board of Election Inspectors, in the expiration of ten (10) days.
conspiracy and connivance with respondent – Abdulgaffar Dibaratun, surreptitiously and
clandestinely canvassed the election returns and then illegally proclaimed the respondent 2) Private respondent Abubakar is estopped to assert whatever rights he has in the election
Abdulgaffar Dibaratun and issued Certificate of Canvass of Votes and Proclamation of laws/rules of procedure when he desparately failed to make the proper objections during
Winning Candidates dated July 16, 2002 which was ant[e]dated xerox copy of which is the casting, counting and canvassing of votes, and, therefore, the COMELEC en banc gravely
hereto attached as Annex "C" hereof.5 abused its discretion amounting to lack or excess of jurisdiction when it erroneously heard
and considered the unmeritorious petition of respondent Abubakar.
Respondents therein filed their Answer denying the allegations of herein private
respondent. They contended that as 10 voters had actually voted, there was no failure of 3) Public respondent COMELEC en banc gravely abused its discretion amounting to lack or
elections in the aforementioned precinct. They further contended that the petition was filed excess of jurisdiction when it erroneously declared failure of elections in Precinct No. 6A/7A
out of time. of Barangay Bagoainguid, Tugaya, Lanao del Sur and called for special elections in the said
precinct.7
In the Resolution dated October 17, 2005, the COMELEC en banc granted the petition, the
dispositive portion of which reads: The main issue is whether or not the COMELEC en banc committed grave abuse of discretion
amounting to lack or excess of jurisdiction in declaring a failure of elections in Precinct No.
WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it hereby 6A/7A of Barangay Bagoainguid, Tugaya, Lanao del Sur and in annulling the proclamation of
RESOLVES, to GIVE DUE COURSE to the instant petition. petitioner as the elected Punong Barangay.

The petition is unmeritorious.

 Before the COMELEC can act on a verified petition seeking to declare a failure of elections,
The 1987 Constitution vests in the COMELEC the broad power to enforce all the laws and two conditions must concur: (1) no voting took place in the precinct or precincts on the date
regulations relative to the conduct of elections, as well as the plenary authority to decide all fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2)
questions affecting elections except the question as to the right to vote.8 the votes not cast would have affected the result of the elections.10 The cause of such
failure of election could only be any of the following: force majeure, violence, terrorism,
Section 6 of the Omnibus Election Code provides for the instances when the COMELEC may fraud or other analogous causes.11
declare failure of elections, thus:
The COMELEC en banc based its decision to declare a failure of elections in Precinct No.
SEC. 6. Failure of election. – If, on account of force majeure, violence, terrorism, fraud, or 6A/7A on the second instance stated in Section 6 of the Omnibus Election Code, that is, the
other analogous causes the election in any polling place has not been held on the date fixed, election in any polling place had been suspended before the hour fixed by law for the
or had been suspended before the hour fixed by law for the closing of the voting, or after closing of the voting on account of force majeure, violence, terrorism, fraud or other
the voting and during the preparation and the transmission of the election returns or in the analogous causes.
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 The COMELEC en banc held that in this case, it was undisputed that after only 10 registered
Commission shall, on the basis of a verified petition by any interested party and after due voters cast their votes, the voting was suspended before the hour fixed by law by reason of
notice and hearing, call for the holding or continuation of the election not held, suspended violence. This was supported by the affidavits submitted by both petitioner and private
or which resulted in a failure to elect on a date reasonably close to the date of the election respondent, who only disagreed as to the perpetrator of the violence as each party blamed
not held, suspended or which resulted in a failure to elect but not later than thirty days after the other party.
the cessation of the cause of such postponement or suspension of the election or failure to
elect. In its Resolution, the COMELEC en banc averred:

Sec. 6 of the Omnibus Election Code is reflected in Sec. 2, Rule 26 of the COMELEC Rules of The letter of Mayor Abdul Jabbar Mangawan A.P. Balindong, Municipal Mayor of Tugaya,
Procedure. Lanao Del Sur, addressed to Chairman Benjamin Abalos, Sr., the Joint Affidavit of Norhata M.
Ansari and Sahara T. Guimba, Poll Clerk and Third Member, respectively, of the Board of
In its Resolution, the COMELEC en banc, citing Banaga, Jr. v. Commission on Elections,9 Election Inspectors of Precinct No. 6A/7A of Barangay Bagoainguid and the Joint Affidavit of
enumerated the three instances when a failure of elections may be declared by the PO1 Yahya M. Dirindigun and PO1 Casary C. Modasir all state that it is the petitioner and his
Commission: relatives and followers who started the violence that caused the suspension of the voting.

(1) the election in any polling place has not been held on the date fixed on account of force Meanwhile, the affidavits submitted by the witnesses of the petitioner all state that it is
majeure, violence, terrorism, fraud or other analogous causes; respondent Dibaratun and his followers and relatives who were the cause of the violence
which resulted in the suspension of the election after only ten (10) people managed to
(2) the election in any polling place had been suspended before the hour fixed by law for the vote.12
closing of the voting on account of force majeure, violence, terrorism, fraud or other
analogous causes; or The COMELEC en banc ruled that since both parties agreed that the elections were
suspended before the hour fixed by law due to violence caused by undetermined persons,
(3) after the voting and during the preparation and transmission of the election returns or in there was obviously a failure of elections in the aforementioned precinct.13
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.1avvphi1 The findings of fact of the COMELEC en banc are binding on this Court. The grounds for
failure of election (i.e., force majeure, violence, terrorism, fraud, or other analogous cases)
involve questions of fact, which can only be determined by the COMELEC en banc after due
notice to and hearing of the parties.14 An application for certiorari against actions of the the nature of a pre-proclamation controversy under Sec. 241 of the Omnibus Election Code,
COMELEC is confined to instances of grave abuse of discretion,15 amounting to lack or but failed to comply with the procedures therefor. The issue addressed by the COMELEC en
excess of jurisdiction. The COMELEC, as the administrative agency and specialized banc was whether the evidence submitted supported the allegations in the petition that
constitutional body charged with the enforcement and administration of all laws and violence suspended the elections in Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya,
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and Lanao del Sur, before the hour fixed by law for the closing of the voting on July 15, 2002,
recall, has the expertise in its field so that its findings and conclusions are generally which resulted in failure of elections. The issue does not fall under pre-proclamation
respected by and conclusive on the Court.16 controversies. The issues that may be ventilated in a pre-proclamation controversy are
enumerated in Sec. 243 of the Omnibus Election Code,20 thus:
Thus, the Court agrees with the COMELEC that the elections in Precinct No. 6A/7A were
suspended before the hour fixed by law for the closing of the voting due to violence. Only 10 1. Illegal composition or proceedings of the board of canvassers;
voters were able to cast their votes out of 151 registered voters; hence, the votes not cast
would have affected the result of the elections. The concurrence of these two conditions 2. The canvassed election returns are incomplete, contain material defects, appear to be
caused the COMELEC en banc to declare a failure of elections. When there is failure of tampered with or falsified, or contain discrepancies in the same returns or in other
elections, the COMELEC is empowered to annul the elections and to call for special authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of the Omnibus
elections.17 Public respondent, therefore, did not commit grave abuse of discretion in its Election Code;
resolution of the case.
3. The election returns were prepared under duress, threats, coercion, or intimidation, or
Moreover, petitioner contends that respondent Abubakar’s petition for the declaration of they are obviously manufactured or not authentic; and
failure of elections and to annul the proclamation of petitioner was in the nature of a pre-
proclamation controversy under Sec. 241 of the Omnibus Election Code, but respondent 4. When substitute or fraudulent returns in controverted polling places were canvassed, the
failed to comply with the procedures therefor. Petitioner also contends that the petition results of which materially affected the standing of the aggrieved candidate or
was filed out of time, and that respondent failed to pay the docket fees on time. candidates.21

Petitioner’s arguments lack merit. A petition to declare a failure of elections is neither a pre-proclamation controversy as
classified under Sec. 5 (h), Rule 1 of the Revised COMELEC Rules of Procedure, nor an
Respondent Abubakar’s petition for declaration of failure of elections falls under Sec. 6 of election case.22
the Omnibus Election Code. The allegations in respondent’s petition constitute one of the
instances for the declaration by the COMELEC of failure of elections in Precinct No. 6A/7A. Further, petitioner’s basis for the allegation that private respondent’s petition was filed out
Hence, the COMELEC en banc took cognizance of the petition pursuant to Sec. 4 of Republic of time is Sec. 252 of the Omnibus Election Code,23 covering election contests for barangay
Act No. 7166,18 thus: offices, wherein a petition is filed with the proper municipal or metropolitan trial court
within ten days after the proclamation of the results of the election. Granting that the
SEC. 4. Postponement, Failure of Elections and Special Elections.—The postponement, petition filed was for an election contest, it would have been filed on time, since it was filed
declaration of failure of election and the calling of special elections as provided in Sections on July 26, 2002, which was within the ten-day period from the proclamation of petitioner
5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc on July 16, 2002.
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.19 However, the petition filed by private respondent was not for an election contest under Sec.
252 of the Omnibus Election Code, but for the declaration of failure of elections under
The Court finds the petition for declaration of failure of elections under Section 6 of the Section 6 of the same Code. The Court notes that the provisions on failure of elections in
Omnibus Election Code to be in order, and it was properly disposed of by the COMELEC en Section 6 of the Omnibus Election Code24 and Sec. 2, Rule 26 of the COMELEC Rules of
banc. Hence, petitioner erred in contending that the petition of respondent Abubakar was in Procedure do not provide for a prescriptive period for the filing of a petition for declaration
of failure of elections. It appears that the COMELEC en banc has the discretion whether or circumspection the power to declare a failure of election to prevent disenfranchising voters
not to take cognizance of such petition. In this case, the petition was filed 11 days after the and frustrating the electorate’s will.
scheduled election. In its Resolution, the COMELEC en banc declared that petitioner’s
allegation that the petition was filed out of time was rendered moot and academic by the The Case
fact that the petition was already heard by the Commission and submitted for resolution.25
The COMELEC’s resolution of private respondent’s petition was in keeping with its function Before us is a petition for review on certiorari of the Resolution1 of the Commission on
to ensure the holding of free, orderly, honest, peaceful, and credible elections. Elections en banc dated October 12, 2001 dismissing petitioner Bago P. Pasandalan’s
("Pasandalan" for brevity) petition to declare a failure of election.
Lastly, petitioner’s allegation that private respondent failed to pay the docket fee on time
does not appear to have been raised before the COMELEC; hence, it cannot be raised for the Pasandalan and private respondent Bai Salamona L. Asum ("Asum" for brevity) were
first time on appeal. candidates for mayor in the Municipality of Lumbayanague, Lanao del Sur during the May
14, 2001 elections.
Petitioner’s allegation of grave abuse of discretion by public respondent COMELEC en banc
implies such capricious and whimsical exercise of judgment as is equivalent to lack of On May 23, 2001, Pasandalan filed a petition2 before public respondent Commission on
jurisdiction or, in other words, the exercise of the power in an arbitrary manner by reason of Elections ("Comelec" for brevity) seeking to nullify the election results in Barangay
passion, prejudice, or personal hostility; and it must be so patent or gross as to amount to Cabasaran (Precinct Nos. 9A, 10A, 11A and 12A), Barangay Deromoyod (Precinct Nos. 24A,
an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at 25A and 26A), Lamin (Precinct Nos. 29A and 30A), Barangay Wago (Precinct Nos. 46A, 47A
all in contemplation of law.26 It is not present in this case, as public respondent issued the and 48A), Barangay Meniros (Precinct Nos. 32A, 33A and 34A), Barangay Bualan (Precinct
COMELEC Resolution dated October 17, 2005 based on the evidence on record and the law Nos. 6A, 7A and 8A) and Barangay Pantaon (Precinct Nos. 38A and 39A), all of
on the matter. Lumbayanague, Lanao del Sur.

WHEREFORE, the instant petition for certiorari is hereby DISMISSED. Petitioner alleged that on May 14, 2001, while voting was going on, some Cafgu’s stationed
near Sultan Gunting Elementary School indiscriminately fired their firearms causing the
SO ORDERED. voters to panic and leave the polling center without casting their votes. Taking advantage of
the confusion, supporters of Asum allegedly took the official ballots, filled them up with the
Failure of Election name of Asum and placed them inside the ballot boxes. The incident allegedly marred the
election results in Precinct Nos. 9A-12A, 24A-26A and 29A-30A.
G.R. No. 150312 July 18, 2002
In Precinct Nos. 46A, 47 and 48A, the members of the Board of Election Inspectors ("BEI" for
BAGO P. PASANDALAN, petitioner, brevity) allegedly failed to sign their initials at the back of several official ballots and to
vs. remove the detachable coupons. The BEI members allegedly affixed their initials only during
COMMISSION ON ELECTIONS and BAI SALAMONA L. ASUM, respondents. the counting of votes.

CARPIO, J.: In Precinct Nos. 6A-8A, 32A-34A and 38A-39A, Pasandalan claims that Asum’s supporters,
taking advantage of the fistfight between Asum’s nephew and the supporters of candidate
A petition for declaration of failure of election must specifically allege the essential grounds Norania Salo, grabbed the official ballots and filled them up with the name of Asum.
that would justify the exercise of this extraordinary remedy. Otherwise, the Comelec can
dismiss outright the petition for lack of merit. No grave abuse of discretion can be attributed Pasandalan contends that a technical examination of several official ballots from the
to the Comelec in such a case because the Comelec must exercise with utmost contested precincts would show that only a few persons wrote the entries.
On June 26, 2001, Asum filed an Answer denying Pasandalan’s allegation that the volley of "1. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF
shots fired on May 14, 2001 disrupted the voting. Private respondent countered that the JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DISMISSING THE PETITION IN SPA
gunshots were heard around 2:35 p.m. and not at the start of the voting. On June 30, 2001, NO. 01-305 FOR ALLEGED LACK OF MERIT;
Asum was sworn into office and assumed the position of municipal mayor of the
Lumbayanague, Lanao del Sur. 2. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION IN NOT ANNULING THE ELECTION OR DECLARING A
On October 12, 2001, the Comelec issued a Resolution dismissing the petition for lack of FAILURE OF ELECTION IN THE SIXTEEN (16) QUESTIONED PRECINCTS;
merit.3
3. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS
Hence, this petition. JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN NOT DECLARING AS ILLEGAL, NULL
AND VOID AB INITIO THE PROCLAMATION OF THE PRIVATE RESPONDENT AS THE DULY
The Comelec’s Ruling ELECTED MAYOR OF LUMBAYANAGUE, LANAO DEL SUR IN THE LAST MAY 14, 2001 REGULAR
ELECTIONS AND MAY 30, 2001 SPECIAL ELECTIONS."4
The Comelec ruled that the power to declare a failure of election, being an extraordinary
remedy, could be exercised only in three instances: (1) the election is not held; (2) the The Court’s Ruling
election is suspended; or (3) the election results in a failure to elect. The third instance is
understood in its literal sense, that is, nobody was elected. We rule that the petition is without merit. The Comelec correctly dismissed the petition for
declaration of failure of election because the irregularities alleged in the petition should
The Comelec dismissed the petition because none of the grounds relied upon by Pasandalan have been raised in an election protest, not in a petition to declare a failure of election.
falls under any of the three instances justifying a declaration of failure of election. First, the
elections in the questioned precincts were held as scheduled. Second, the gunshots heard Under Republic Act No. 7166, otherwise known as "The Synchronized Elections Law of
during the casting of votes did not suspend the election as the voting continued normally. 1991,"5 the Comelec en banc is empowered to declare a failure of election under Section 6
Third, Asum was elected by a plurality of votes. of the Omnibus Election Code (B.P. Blg. 881). Section 6 of the Code prescribes the conditions
for the exercise of this power, thus:
The authenticity and integrity of the election returns were left undisturbed throughout the
preparation, transmission, custody and canvass of the returns. Pasandalan alleges fraud and "SEC. 6. Failure of Election. - If, on account of force majeure, violence, terrorism, fraud or
terrorism, in that there was massive substitution of voters, firing of guns to frighten the other analogous causes the election in any polling place has not been held on the date fixed,
voters, and failure of the BEI members to sign at the back of some official ballots and to or had been suspended before the hour fixed by law for closing of the voting, or after the
remove the detachable coupons. The Comelec ruled that these allegations are better voting and during the preparation and the transmission of the election returns or in the
ventilated in an election contest. 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
The Comelec did not give credence to Pasandalan’s evidence in support of his allegations of Commission shall, on the basis of a verified petition by any interested party and after due
terrorism and fraud since the evidence consisted only of affidavits executed by Pasandalan’s notice and hearing, call for the holding or continuation of the election not held, suspended
own poll watchers. The Comelec considered these affidavits self-serving and insufficient to or which resulted in a failure to elect but not later than thirty days after the cessation of the
annul the results of the election. Thus, the Comelec dismissed the petition for lack of merit. cause of such postponement or suspension of the election or failure to elect."

The Issues Based on the foregoing provision, three instances justify a declaration of failure of election.
These are:
Pasandalan now assails the Comelec’s dismissal of his petition, raising the following issues:
"(a) the election in any polling place has not been held on the date fixed on account of force declare a failure of election and to disenfranchise the greater number of the electorate
majeure, violence, terrorism, fraud or other analogous causes; through the misdeeds of only a few,11 absent any of the three instances specified by law.

(b) the election in any polling place has been suspended before the hour fixed by law for the To warrant a declaration of failure of election on the ground of fraud, the fraud must
closing of the voting on account of force majeure, violence, terrorism, fraud or other prevent or suspend the holding of an election, or mar fatally the preparation, transmission,
analogous causes; or custody and canvass of the election returns.12 The conditions for the declaration of failure
of election are stringent. Otherwise, elections will never end for losers will always cry fraud
(c) after the voting and during the preparation and transmission of the election returns or in and terrorism.13
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."6 The allegations of massive substitution of voters, multiple voting, and other electoral
anomalies should be resolved in a proper election protest14 in the absence of any of the
What is common in these three instances is the resulting failure to elect.7 In the first three instances justifying a declaration of failure of election. In an election protest, the
instance, no election is held while in the second, the election is suspended.8 In the third election is not set aside, and there is only a revision or recount of the ballots cast to
instance, circumstances attending the preparation, transmission, custody or canvas of the determine the real winner.15
election returns cause a failure to elect. The term failure to elect means nobody emerged as
a winner. 9 The nullification of elections or declaration of failure of elections is an extraordinary
remedy.16 The party who seeks the nullification of an election has the burden of proving
Pasandalan asserts that the conditions for the declaration of failure of election are present entitlement to this remedy. It is not enough that a verified petition is filed. The allegations in
in this case. The volley of shots from high-powered firearms allegedly forced the voters to the petition must make out a prima facie case for the declaration of failure of election, and
scamper away from the polling place, paving the way for Asum’s supporters to write the convincing evidence must substantiate the allegations.17
name of Asum on the ballots. The gunfire also frightened Pasandalan’s poll watchers. The
heavy firing allegedly suspended or prevented the holding of elections in the contested In the instant case, it is apparent that the allegations do not constitute sufficient grounds for
precincts, resulting in failure to elect. The victory of Asum is thus put in serious doubt. the nullification of the election. Pasandalan even failed to substantiate his allegations of
terrorism and irregularities. His evidence consisted only of affidavits. Mere affidavits are
We do not agree. Pasandalan’s allegations do not fall under any of the instances that would insufficient,18 more so in this case since the affidavits were all executed by Pasandalan’s
justify the declaration of failure of election. The election was held in the 16 protested own poll watchers. Factual findings of the Comelec are binding on this Court .19 Accordingly,
precincts as scheduled. At no point was the election in any of the precincts suspended. Nor the following findings of the Comelec in the instant case must be respected:
was there a failure to elect because of force majeure, violence, terrorism, fraud or other
analogous causes during the preparation, transmission, custody and canvass of the election "xxx There was an allegation in the amended petition that while voting was taking place in
returns. The alleged terrorism was not of such scale and prevalence to prevent the holding Sultan Gunting Elementary School, gunshots were heard causing the voters to scamper for
of the election or to cause its suspension. In fact, the casting and counting of votes, the safety and leave the polling center without having cast their votes. However, other than his
preparation, transmission and canvassing of election returns and the proclamation of the bare allegation and the ‘pre-typed’ affidavits of his watchers, petitioner did not present
winning candidate took place in due course. substantial and convincing evidence to support his claim. On the other hand, 1 Lt. Frederick
Galang Pa of the 29th Infantry Battalion assigned in Lumbayanague categorically declared in
Courts exercise the power to declare a failure of election with deliberate caution so as not his affidavit that despite the gunshots which were heard at around 2:35 PM when the polls
to disenfranchise the electorate.10 The fact alone that actual voting took place already were about to close, "the voting continued normally." This statement was bolstered by the
militates against Pasandalan’s cause. Also, Pasandalan’s allegations of terrorism and fraud narrative report of Urangutan Mamailao, Election Officer of Lumbayanague, on the conduct
are not sufficient to warrant a nullification of the election in the absence of any of the three of the election in said municipality. The report was spontaneously prepared when the
instances justifying a declaration of failure of election. Terrorism may not be invoked to incident happened. Taken in the light of the presumption of regularity in the performance of
official functions, these two affidavits carry great weight. Third, the authenticity and
integrity of the election returns are left undisturbed throughout the preparation, The Comelec is not mandated to conduct a technical examination before it dismisses a
transmission, custody and canvass thereof. There was no allegation, much less proof that petition for nullification of election when the petition is, on its face, without merit. In
the sanctity of the election returns was defiled. Typoco, petitioner Typoco buttressed his petition with independent evidence that
compelled the Comelec to conduct a technical examination of the questioned returns.
xxx Typoco filed a Motion to Admit Evidence to prove that a substantial number of election
returns were manufactured. Typoco claimed that the returns were prepared by only one
A thorough examination of the affidavits reveals that they suffer from both extrinsic and person based on the report of Francisco S. Cruz, a licensed examiner of questioned
intrinsic invalidity. The form and the contents of the affidavits were pre-typed, and all the documents, who examined copies of the election returns of Lakas-NUCD. In the present
affiants had to do was to fill-up the blank spaces for their names and precinct assignments. case, Pasandalan failed to attach independent and objective evidence other than the self-
This clearly shows that some other person prepared the affidavits and it is doubtful whether serving affidavits of his own poll watchers.
the affiants understood the contents thereof before they signed them.
In Mitmug v. Commission on Elections,22 we ruled that the Comelec could dismiss outright a
Also worth noting is the fact that the contents of the affidavits are identical. It is highly petition for nullification of election if it is plainly groundless and the allegations therein
questionable why different persons have exactly the same observation of different could be better ventilated in an election protest. In Banaga, Jr. v. Commission on
incidents. Even persons confronted with the same occurrence would have different Elections,23 we reiterated this doctrine, thus -
observations of the same incident because human perception is essentially affected by
several factors like the senses, mental condition, personal disposition, environment, etc. "Finally, petitioner claims that public respondent gravely abused its discretion when it
dismissed his petition motu propio. However, the fact that a verified petition has been filed
Moreover, the affidavits contain inconsistent statements and incredible allegations which does not mean that a hearing on the case should first be held before Comelec can act on it.
bolster the conclusion that they were tailored to suit the needs of the petitioner. For The petition to declare a failure of election and/or to annul election results must show on its
example, the joint-affidavit of Badjomura Calauto and Macaruog Ampuan states that they face that the conditions necessary to declare a failure to elect are present. In their absence,
were in Barangay Cabasaran during the May 14 election when they saw the men of the petition must be denied outright. Public respondent had no recourse but to dismiss the
respondent fill-up the ballots in Precinct Nos. 29A-30A of Barangay Lamin. The venue of petition. Nor may petitioner now complain of denial of due process, on this score, for his
voting for Barangay Cabasaran was Sultan Gunting Central Elementary School while that of failure to properly file an election protest. The Comelec can only rule on what was filed
Barangay Lamin was Lamin Primary School. How they were able to witness said incident before it. It committed no grave abuse of discretion in dismissing his petition ‘to declare
when they were miles away from where it happened is mystifying. Besides, this is not the failure of elections and/or for annulment of elections’ for being groundless, hence without
proper forum to challenge illegal voters. Even at the precinct level, petitioner’s watchers are merit."
empowered to question any irregularity which they think may have been committed by any
person or to challenge the capacity of any person offering to vote. Failing to avail himself of Clearly, the fact that a verified petition is filed with the Comelec does not necessarily mean
this remedy, petitioner cannot now pass the burden to innocent voters by calling for the that a technical examination or a hearing on the case should be conducted first before the
annulment of the results of a validly held election."20 Comelec can act on the petition. There is no grave abuse of discretion if the Comelec
dismisses the petition even without a technical examination or hearing if the petition fails to
Pasandalan bewails the Comelec’s dismissal of his petition without first conducting a show on its face the existence of any of the three instances required by law to declare a
technical examination of the questioned precincts. Pasandalan claims that had the Comelec failure of election. The Comelec in this case correctly dismissed the petition.
made a technical examination of the questioned precincts, the Comelec would have
discovered massive substitution of voters, terrorism, violence, threats, coercion, Pasandalan believes that notwithstanding the fact that actual voting took place in the
intimidation and other electoral frauds, resulting in a failure of election. Pasandalan insists questioned precincts, the election in this case, just like in Basher v. Commission on
that a technical examination in this case would have been proper as in Typoco, Jr. v. Elections,24 was "illegal, irregular, and void."25 Citing Basher, Pasandalan argues that the
Commission on Elections,21 which is also a case of failure of election. peculiar set of facts in this case do not merely show a failure of election "but the absence of
a valid electoral exercise."26
 COMMISSION ON ELECTIONS and JAMAEL M. SALACOP, respondents.
The fact that an election is actually held prevents as a rule a declaration of failure of
election. It is only when the election is attended by patent and massive irregularities and DECISION
illegalities that this Court will annul the election. Basher is an example of such a case.
CALLEJO, SR., J.:
In Basher, after a series of failed elections in Barangay Maidan, Municipality of Tugaya,
Lanao del Sur during the 1997 barangay elections, the election was reset to August 30, 1997. On May 22, 2001, petitioner Sabdullah T. Macabago was proclaimed by the Municipal Board
Due to the prevailing tension in the locality, the voting started only at around 9 p.m. and of Canvassers as the winning candidate for the position of Municipal Mayor of Saguiran,
lasted until the early morning of the following day. Basher filed a petition for the Lanao del Sur. Petitioner had a lead of 198 votes over his adversary, private respondent
nullification of election. The Comelec ruled against a failure of election because actual Jamael M. Salacop.
voting had taken place. However, we overturned the Comelec ruling because the election
was unauthorized and invalid. The electorate was not given sufficient notice that the On June 1, 2001, private respondent filed a petition with the Commission on Elections
election would push through after 9 p.m. of the same day. Moreover, the voting did not (COMELEC) against petitioner and the proclaimed Vice-Mayor and Municipal Councilors, as
comply with the procedure laid down by law and by Comelec rules as to the time and place well as the members of the Municipal Board of Canvassers, docketed as SPC-01-234, to
of voting. Thus, we held that the "election" was illegal, irregular and void. Consequently, we annul the elections and the proclamation of candidates in the Municipality of Saguiaran,
annulled the proclamation of the winning candidate and ordered a special election. 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
Basher does not apply to this case. Unlike in Basher, the election in this case proceeded as 29, and a failure of the Board of Election Inspectors (BEI) to comply with Sections 28 and 29
scheduled, in accordance with law and Comelec rules. None of the extreme circumstances of Comelec Resolution No. 3743 and Section 193 of the Omnibus Election Code, thus
that marred the election in Basher is present in this case. We have ruled that there is failure rendering the election process in those precincts a sham and a mockery and the
of election only if the will of the electorate is muted and cannot be ascertained.27 If the will proclamation of the winning candidates a nullity. Private respondent further averred that if
of the people is determinable, the same must be respected as much as possible.28 In this his petition were to be given due course, he would win by a margin of one hundred ninety-
case, the will of the electorate is readily discernible. Pasandalan should have filed an four (194) votes over the votes of petitioner. He thus prayed:
election protest to substantiate his allegations of electoral anomalies, not a petition to
declare a failure of election. "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
WHEREFORE, the instant petition is DISMISSED. The assailed Resolution of public set aside and considered excluded and the proclamation of the winning candidates in the
respondent Comelec is AFFIRMED. Costs against petitioner. said municipality be ANNULLED to reflect the genuine desire of the majority of the people.

SO ORDERED. All other reliefs, deemed just and equitable under the circumstances are likewise prayed
for."1
Davide, Jr.*, Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Austria-Martinez, and Corona, JJ., concur. In support of his petition, private respondent appended thereto photocopies of random
Voters Registration Records (VRRs) evidencing the fraud and deceit that allegedly
Failure of Election 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
G.R. No. 152163 November 18, 2002
In his answer, petitioner denied the truth of the material allegations in the petition and
SABDULLAH T. MACABAGO, petitioner, averred that it raised a pre-proclamation controversy. He further alleged that the grounds
vs.
relied upon by private respondent would be proper in an election protest but not in a pre-
proclamation controversy.3 6.2.

The COMELEC En Banc took cognizance of the petition and on February 11, 2002, issued an PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION
order directing the Election Officer of Saguiran, Lanao del Sur, to bring to and produce AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED ITS ORDER ON
before the COMELEC Office in Manila the original VRRs of the questioned precincts for FEBRUARY 11, 2002 FOR THE TECHNICAL EXAMINATION OF THE VOTERS REGISTRATION
technical examination: RECORDS OF THE REGISTERED VOTERS OF PRECINCT NOS. 19, 20, 28 & 29 OF THE
MUNICIPALITY OF SAGUIARAN, LANAO DEL SUR."7
"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 The kernel issues posed in the case at bar are (a) whether petitioner's recourse to this Court
VRR's of the questioned precincts here in Manila for the appertaining technical examination. 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
SO ORDERED."4 amounting to excess or lack of jurisdiction in taking cognizance of the petition of private
respondent and in issuing the assailed Order.
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 On the first issue, petitioner avers that he was impelled to file the instant petition without
one for the annulment of the election or declaration of failure of election in the first filing with the COMELEC a motion for a reconsideration of its order because under the
municipality, a special action covered by Rule 26 of the COMELEC Rules of Procedure. COMELEC Rules of Procedure, a motion for a reconsideration of an interlocutory order of
Accordingly, the COMELEC set aside the docketing of the petition as a Special Case (SPC) and the COMELEC En Banc is a prohibited pleading, and that the COMELEC acted with grave
ordered the redocketing thereof as a Special Action (SPA). After its examination of the abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed order.
evidence submitted by petitioner, the COMELEC concluded that there was convincing proof Private respondent on the other hand insists that under Rule 64 of the 1997 Rules of Civil
of massive fraud in the conduct of the elections in the four (4) precincts that necessitated a Procedure, a special civil action for certiorari filed with this Court is proper only for the
technical examination of the original copies of the VRRs and their comparison with the nullification of a final order or resolution of the COMELEC and not of its interlocutory order
voters' signatures and fingerprints. The COMELEC further noted that since the lead of or resolution such as the assailed order in this case.
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 Section 1, Rule 64, as amended, reads:
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 "SECTION 1. Scope. – This Rule shall govern the review of judgments and final orders or
Elections,5 and Tupay Loong vs. Commission on Elections, et al.6 resolutions of the Commission on Elections and the Commission on Audit."8

Forthwith, petitioner filed with this Court the instant special civil action for certiorari under Under Section 2 of the same Rule, a judgment or final order or resolution of the COMELEC
Rule 65 of the 1997 Rules of Civil Procedure, as amended, praying for the reversal of the may be brought by the aggrieved party to this Court on certiorari under Rule 65, as
February 11, 2002 order of the COMELEC En Banc. Petitioner alleged that: 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
"6.1. 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
PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION administrative orders. In this case, the assailed order of the COMELEC declaring private
AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT TOOK COGNIZANCE OF respondent's petition to be one for annulment of the elections or for a declaration of a
AND PASSED UPON THE PETITION IN SPC NO. 01-234 IN VIOLATION OF SECTION 3, RULE 3 failure of elections in the municipality and ordering the production of the original copies of
OF THE COMELEC RULES OF PROCEDURE. 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 Pre-proclamation controversies are properly limited to challenges directed against the
Commission issued in the exercise of its administrative function.11 Board of Canvassers and proceedings before said Board relating to particular election
returns to which private respondent should have made specific verbal objections
It bears stressing that under Article VIII, Section 1 of the Constitution, judicial power is subsequently reduced to writing. The proceedings are summary in nature; thus, the
vested in the courts. Judicial power includes the duty of the courts of justice to settle actual reception of evidence aliunde, e.g. the original copies of the VRRs, is proscribed. In fine, in
controversies involving rights which are legally demandable and enforceable and to pre-proclamation proceedings, the COMELEC is not to look beyond or behind election
determine whether or not there has been a grave abuse of discretion amounting to lack or returns which are on their face regular and authentic returns.16 Issues such as fraud or
excess of jurisdiction on the part of any branch or instrumentality of the Government. terrorism attendant to the election process, the resolution of which would compel or
Judicial power is an antidote to and a safety net against whimsical, despotic and oppressive necessitate the COMELEC to pierce the veil of election returns which appear to be prima
exercise of governmental power. The aggrieved party may seek redress therefrom through facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues
the appropriate special civil action provided by the Rules of Court. As to acts of the should be posed and resolved in a regular election protest.17
COMELEC, the special civil action may be one for certiorari pursuant to Article IX(A), Section
7 of the Constitution. In his petition with the COMELEC, private respondent alleged that fraud and irregularities
allegedly perpetrated by unscrupulous individuals who substituted for the registered voters
As a general rule, an administrative order of the COMELEC is not a proper subject of a and voted for the latter in the subject precincts, in conspiracy with the Board of Election
special civil action for certiorari.12 But when the COMELEC acts capriciously or whimsically, Inspectors, or abetted by the members thereof, attended the electoral process in the
with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such an subject precincts. The fraud and the irregularities catalogued by private respondent
order, the aggrieved party may seek redress from this Court via a special civil action for required the reception of evidence aliunde. As stated earlier, such grounds are not proper
certiorari under Rule 65 of the Rules.13 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
Private respondent cannot find solace in the pronouncement in Ruperto Ambil, Jr. vs. Dimangadap Dipatuan vs. Commission on Elections, et al.:18
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 "That the padding of the List of Voters may constitute fraud, or that the Board of Election
aggrieved party was first to file a motion for a reconsideration of the order with the Inspectors may have fraudulently conspired in its preparation, would not be a valid basis for
COMELEC En Banc. The raison d'etre therefor is that under Rule 3, Section 6(c) of the a pre-proclamation controversy either. For, whenever irregularities, such as fraud, are
COMELEC Rules of Procedure, any motion for a reconsideration of a decision, resolution, asserted, the proper course of action is an election protest.
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 'Such irregularities as fraud, vote-buying and terrorism are proper grounds in an election
of an order, ruling or resolution of a Division thereof is a plain, speedy and adequate remedy contest but may not as a rule be invoked to declare a failure of election and to
therefrom. 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
We now resolve the second issue. Irrefragably, the petition before the COMELEC does not disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism'
pose a pre-proclamation controversy as defined in Article XX, Section 241 of Republic Act (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665).'"
No. 7166, thus:
Neither is private respondent's petition before the COMELEC one for declaration of a failure
"SEC. 241. Definition. – A pre-proclamation controversy refers to any question pertaining to of elections in Saguiran, Lanao del Sur. Section 6, Article 1 of R.A. No. 7166 provides when a
or affecting the proceedings of the board of canvassers which may be raised by any failure of election occurs –
candidate or by any registered political party or coalition of political parties before the
board or directly with the Commission."15
"SEC. 6. Failure of election. – If, on account of force majeure, violence, terrorism, fraud, or election returns. "Failure to elect" must be understood in its literal sense—which is, nobody
other analogous causes the election in any polling place has not been held on the date fixed, emerges as a winner.23 The barefaced fact that a candidate has been proclaimed and has
or had been suspended before the hour fixed by the law for the closing of the voting, or assumed office does not deprive the COMELEC of its authority to annul any canvass and
after the voting and during the preparation and the transmission of the election returns or illegal proclamation.24 A petition for the annulment of election is not the same as one
in the custody or canvass thereof, such election results in a failure to elect, and in any of involving a pre-proclamation controversy. In the fairly recent case of Tomas T. Banaga, Jr. vs.
such cases the failure or suspension of election would affect the result of the election, the Commission on Elections, et al.25 with a factual backdrop similar to this case, the Court
Commission shall, on the basis of verified petition by any interested party and after due held:lawphil.net
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 "We have painstakingly examined the petition filed by petitioner Banaga before the
not held, suspended or which resulted in a failure to elect but not later than thirty days after COMELEC. But we found that petitioner did not allege at all that elections were either not
the cessation of the cause of such postponement or suspension of the election or failure to held or suspended. Neither did he aver that although there was voting, nobody was elected.
elect (Sec. 7, 1978 EC)."19 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.
Under Section 5, Article 1 of the aforementioned law, the matter of the postponement or While petitioner contends that the election was tainted with widespread anomalies, it must
declaration of failure of election and the calling of a special election as provided for in be noted that to warrant a declaration of failure of election the commission of fraud must
Section 6, shall be decided by the COMELEC sitting En Banc by a majority of its members: 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
"SEC. 5. Postponement of election. – The postponement, declaration of failure of election facts ought to have been alleged clearly by the petitioner below, but he did not."
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. Private respondent alleged in his petition with the COMELEC En Banc that the elections
The causes for the declaration of a failure of election may occur before or after the casting ensued in the subject precincts and that petitioner herein emerged as the winner and was in
of votes or on the day of the election. (Sec. 4, p. 1, RA 7166)."20 fact proclaimed as such by the Board of Election Inspectors.

Before the COMELEC can grant a verified petition seeking to declare a failure of election, the In sum then, the grounds alleged by private respondent in his petition before the COMELEC
concurrence of two (2) conditions must be established, namely: (a) no voting has taken are those for a regular election protest and are not proper in a pre-proclamation
place in the precincts concerned on the date fixed by law or, even if there was voting, the controversy; nor is such petition one for annulment of the elections or for a declaration of
election nevertheless resulted in a failure to elect; (b) the votes cast would affect the result failure of elections in the municipality of Saguiran, Lanao del Sur. The COMELEC should have
of the election. The Court declared in Ricardo Canicosa vs. Commission on Elections, et al.,21 ordered the dismissal of the petition instead of issuing the assailed order. The COMELEC
that there are only three (3) instances where a failure of election may be declared, namely: 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.
"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 PREMISES CONSIDERED, the petition is GRANTED. The assailed order is SET ASIDE. The
polling place had been suspended before the hour fixed by law for the closing of the voting petition of herein private respondent with the public respondent is DISMISSED, without
on account of force majeure, violence, terrorism, fraud, or other analogous causes; (c) after prejudice to the filing of a regular election protest, the period for the filing of which is
the voting and during the preparation and transmission of the election returns or in the deemed suspended by the filing of the petition before the Commission on Elections which
custody or canvass thereof, such election results in a failure to elect on account of force gave rise to the petition at bar.
majeure, violence, terrorism, fraud, or other analogous causes."22
SO ORDERED.
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 Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Corona, and Carpio-Morales, JJ., concur.
Bellosillo, Mendoza, Ynares-Santiago, Carpio, and Austria-Martinez JJ., on official leave.
Gutierrez, J., in the result. In the May 14, 2001 elections, Abdusakur Tan and Abdulwahid Sahidulla were candidates for
Azcuna, J., no part. Governor and Vice-Governor, respectively, while Munib Estino and Abraham Burahan were
candidates for Congressman of the Second and First District of Sulu, respectively. The other
candidates for Governor and Vice-Governor were Yusop Jikiri and Abdel Anni. The
candidates for the position of members of the Sangguniang Panlalawigan of the First District
of Sulu were Den Rasher Salim, Talib Hayudini, Rizal Tingkahan and Barlie Nahudan, while
those for the Second District were Abraham Daud, Lukman Omar, Onnih Ahmad and
Failure of Election Basaron Burahan.

On May 17, 2001, Abdusakur Tan, Abdulwahid Sahidulla and Abraham Burahan (Abdusakur
G.R. Nos. 148575-76 December 10, 2003 Tan, et al. for brevity) filed with the COMELEC (public respondent) a petition to "declare
failure of elections in all the precincts in the Municipality of Luuk," Province of Sulu , which
ABDUSAKUR M. TAN, ABDULWAHID SAHIDULLA, BRAHAM BURAHAN, petitioners, was docketed as SPA No. 01-257.1 The petitioners prayed that:
vs.
COMMISSION ON ELECTIONS, YUSOP H. JIKIRI, ABDEL S. ANNI, DEN RASHER I. SALIM, WHEREFORE, premises considered, it is respectfully prayed that the Honorable Commission
TALIB L. HAYUDINI, RIZAL TINGKAHAN, BARLIE NAHUDAN, ABRAHAM DAUD, LUKMAN DECLARE a FAILURE of ELECTIONS in all the precincts in the Municipality of Luuk, Sulu where
OMAR, ONNIH AHMAD and BASARON M. BURAHAN, respondents. no voting was actually held, as the registered voters never did their votes.

x-----------------------x The petitioners further pray that pending final resolution of this petition that an order be
immediately issued directing the Municipal Board of Canvassers of Luuk, Sulu as well as the
G.R. Nos. 152882-83 Provincial Board of Canvassers of Sulu to suspend and desist from continuing with, the
CANVASSING of the election returns and/or certificate of canvass.
YUSOP JIKIRI, ABDEL ANNI, ABRAHAM DAUD, LUKMAN OMAR, ONNIH AHMAD, BASARON
BURAHAN, DEN RASHER SALIM, TALIB HAYUDINI, RIZAL TINGKAHAN, and BARLIE NAHUDAN, Other relief consistent with law, justice and equity are also prayed for.2
petitioners,
vs. The following day, the petitioners filed a petition to declare failure of elections and/or to
COMMISSION ON ELECTIONS, ABDUSAKUR TAN, ABDULWAHID SAHIDULLA, MUNIB ESTINO annul the elections or the election results in the Municipalities of Parang and Indanan,
and ABRAHAM BURAHAN, respondents. Province of Sulu, which was docketed as SPA No. 01-265.3 The petitioners prayed that:

DECISION WHEREFORE, petitioners respectfully pray that this petition be granted and that an Order be
issued:
CALLEJO, SR., J.:
1. Annulling and setting aside the elections and/or the election results in the May 14, 2001
Before us are two consolidated petitions filed under Rule 65 of the Rules of Court, as elections in the municipalities of Indanan and Parang, Sulu, and declaring a failure of
amended, assailing the Orders of the Commission on Elections En Banc dated June 28, 2001, elections therein;
October 3, 2001 and April 17, 2002 in SPA No. 01-257 and SPA No. 01-265 for having been
issued with grave abuse of discretion amounting to lack or excess of jurisdiction. 2. Suspending the canvassing and the proclamation of any and all alleged "winning"
candidates in the municipalities of Indanan and Parang, Sulu;
The factual antecedents insofar as pertinent to the instant petitions are as follows:
3. Calling for immediate special elections in the aforesaid areas where failure of elections The petitioners in SPA No. 01-265 prayed that:
transpired;
WHEREFORE, petitioners respectfully pray that this petition be granted and that an Order be
4. Such other reliefs as may be just and equitable are likewise prayed.4 issued:

No respondents were impleaded in both petitions. The public respondent took cognizance 1. Annulling and setting aside the elections and/or the election results in the May 14, 2001
of and assumed jurisdiction over the petitions. elections in the municipalities of Indanan and Parang, Sulu and declaring a failure of
elections therein;
On May 19, 2001, the petitioners therein filed "an urgent reiterating motion to suspend
proclamation."5 Acting on the said motion, the public respondent issued an order 2. Calling for immediate special elections in the aforesaid areas where failure of election
suspending the proclamation of the winning candidates, viz.: transpired.

Acting on the Petition filed on May 17, 2001 in the above-captioned case, including the 3. Such other reliefs as may be just and equitable are likewise prayed.11
reiterating motion of May 19, 2001, and finding the same to be sufficient to warrant the
issuance of a preliminary summary action, so as not to render academic, the petition in the On June 11 and 18, 2001, the respondents filed their respective answers to the aforesaid
above case, let there be issued to the Provincial Board of Canvassers of Sulu an amended petitions questioning in the main the jurisdiction of the COMELEC En Banc to act
Order/directive for the suspension of proclamation of the winning candidates for all elective on the said amended petitions and the propriety of the recourse of the petitioners in view of
provincial positions, until further order/s from this Commission.6 their valid, lawful and existing proclamation as the winners.12 The petitioners in turn filed
an urgent motion to annul the proclamation of the respondents as the winners. The
However, the Provincial Board of Canvassers (PBC) was not served with a copy of the order respondents opposed the motion, contending that such motion was appropriate only in pre-
of the public respondent. On May 23, 2001, Yusop Jikiri, Abdel Anni, Abraham Daud, Lukman proclamation controversies.
Omar, Onnih Ahmad, Basaron Burahan, Den Rasher Salim, Talib Hayudini, Rizal Tingkahan
and Barlie Nahudan were proclaimed as the winning candidates for Governor, Vice- On June 20, 2001, the COMELEC En Banc issued an order annulling the May 23, 2001
Governor and Board Members.7 proclamation of the respondents on its finding that the proclamation by the PBC of the
winning candidates was a defiance of its Order of May 19, 2001. The public respondent
On May 30, 2001, the petitioners therein filed their Amended Petitions in SPA Nos. 01-2578 forthwith set the amended petitions for hearing.13 In the meantime, the respondents filed a
and 01-2659 impleading for the first time the winning candidates, Yusop Jikiri, et al., as party motion for the recall of the June 20, 2001 Order of the COMELEC on the ground that the
respondents. The petitioners in SPA No. 01-257 prayed that: petitions before it were merely petitions to declare a failure of election and do not involve a
pre-proclamation controversy. However, the COMELEC failed to immediately resolve the
WHEREFORE, premises considered, it is respectfully prayed that the Honorable Commission pending incidents. In the meantime, the petitioners pre-marked their evidence. The
DECLARE a FAILURE OF ELECTION in all the precincts in the Municipality of Luuk, Sulu where respondents reserved the right to pre-mark their evidence before the Clerk of Court of the
no voting was actually held as the registered voters never did cast their votes. COMELEC without prejudice to the resolution of the pending motions.

Petitioners further pray that pending final resolution of this petition that an order be On June 28, 2001, after due hearing, the COMELEC issued an order recalling and setting
immediately issued directing the Municipal Board of Canvassers of Luuk, Sulu as well as the aside its June 20, 2001 Order, and affirming the May 23, 2001 proclamation of the
Provincial Board of Canvassers of Sulu to suspend, and desist from continuing with, the respondents. The order states inter alia that:
CANVASSING of the election returns and/or certificate of canvass.
After due consideration and there being no valid pre-proclamation issues pending before
Other relief consistent with law, justice, and equity are also prayed for.10 the Commission involving the elective provincial officials of the Province of Sulu, and
considering further our ruling in SPA 01-323 and SPA 01-244 involving the elective provincial
officials of the Province of Maguindanao, the Commission RESOLVES, as it is hereby
RESOLVED, to recall its June 20, 2001 Order annulling the proclamation of the elective 2. To require petitioner to defray the expenses for the transportation to the main office of
provincial officials of the Province of Sulu. said election documents; and to advance to the Election Officers concerned the necessary
amount for said transportation of documents;
The defiance by the PBC of the order of suspension of the Commission, though a valid
concern, cannot and should not deter the proclamation of the provincial officials of Sulu 3. Parties are entitled to watchers during the transport of these documents at their own
after the result of the provincial canvassing showed that they were the winning candidates. expense until duly received by the Election Records and Statistics Department, this
Commission.
WHEREFORE, premises considered, the June 20, 2001 Order of this Commission is hereby
recalled and set aside and the proclamation of the private respondents on May 23, 2001 is 4. To direct the Voters Identification Division to conduct technical examination of said
hereby AFFIRMED. documents and to make a report thereon to the Commission En Banc within fifteen (15)
days;
This ORDER is without prejudice to the administrative case referred by the Commission to
the Law Department against the PBC of Sulu. This ORDER is likewise without prejudice to a 5. Let the Deputy Executive Director for Operations implement this Order.
full resolution of the main petition to declare failure of elections in the municipalities of
Luuk, Indanan and Parang.14 Furnish copy of this Order to the Election Records and Statistics Department, this
Commission.16
Aggrieved, the petitioners filed on July 11, 2001 with this Court a petition for certiorari,
prohibition and mandamus docketed as G.R. Nos. 148575-76 with prayer for the issuance of On October 12, 2001, the respondents filed with the COMELEC an omnibus motion to
a writ of injunction and/or temporary restraining order and/or status quo ante order, resolve the issue of jurisdiction with a prayer to recall and/or suspend implementation of
assailing the aforequoted June 28, 2001 Order of the public respondent; and submitting for the Order dated October 3, 2001."17 The respondents contended that based on the
the Court’s resolution the following threshold issue: documentary evidence, there was no failure of election; the proper remedy of the
petitioners was for them to file election protest cases and not petitions to declare a failure
The threshold issue in this petition is the determination of whether the Comelec has the of election in view of their valid, lawful and existing proclamation as the winning candidates
power to issue an order suspending proclamation as a preliminary relief in a petition for confirmed no less by the COMELEC. The respondents alleged that the petitions before it
declaration of failure of election and/or annulment of election results. being regular election protest cases disguised as petitions to declare a failure of election
should be heard by a division of the COMELEC and not by the COMELEC En Banc as provided
Corollary thereto, did respondent Comelec gravely abuse its discretion when it issued its for in Section 3, Article IX-C of the Constitution. The respondents, likewise, argued that to
June 28, 2001 Questioned Order recalling, and effectively reconsidering, the suspension of direct the technical examination of voluminous documents would be repugnant to the
proclamation it had previously promulgated?15 summary nature of the cases before it and violative of Section 6, Rule 26 of the COMELEC
Rules of Procedure which states that a petition for declaration of failure of elections is
In the meantime, acting on a series of motions filed by the petitioners, the COMELEC issued summary.
an Order dated October 3, 2001 directing the technical examination of the voters
registration records in the Municipalities of Parang, Indanan and Luuk, thus: On April 17, 2002, the COMELEC issued an order declaring that it had jurisdiction over the
amended petitions conformably with Section 4 of Republic Act No. 7166; and denying the
1. To direct the Election Officers of the Municipalities of Luuk, Indanan and Parang, Sulu to omnibus motion of the respondents, thus:
produce before the Commission the pertinent VOTERS REGISTRATION RECORDS showing
the thumbmarks and signatures of voters affixed during their registration and during the WHEREFORE, premises considered, the Omnibus Motion and the Motion to Suspend the
voting in the May 14, 2001 elections (CE Form No. 1) within ten (10) days from receipt Implementation of the October 3, 2001 Order of the Commission en banc is DENIED for lack
hereof, to be deposited at the Election Records and Statistics Department; of merit.
 HENCE, THERE WAS NO FAILURE OF ELECTION. THE REMEDY OF PRIVATE RESPONDENTS IS
The Commission en banc orders the Voters Identification Division to continue the technical AN ELECTION PROTEST.
examination of the Voters Registration Records of Luuk, Parang and Indanan, Sulu as
authorized in the October 3, 2001 en banc Order.18 (e) THE QUESTIONED ORDER WOULD EVEN ALLOW THE PIERCING OF THE VEIL OF ELECTION
RETURNS SINCE TECHNICAL EXAMINATION OF ELECTION DOCUMENTS COULD BE ALLOWED
The COMELEC ruled that based on the allegations of the amended petitions, there was no IN ALL KINDS OF PETITIONS WHICH COULD NOW BE DISGUISED AS ONE FOR FAILURE OF
valid and legitimate elections held or conducted in the three municipalities. It, likewise, ELECTION.20
ruled that it had the authority to order a technical examination of the VRR’s in a petition to
declare a failure of election citing the ruling of this Court in Loong v. Commission on On March 4, 2003, the Court granted the motion of the petitioners in G.R. Nos. 152882-83
Elections.19 Hence, on April 29, 2002, the respondents therein filed with this Court a for the issuance of a temporary restraining order directing the COMELEC to cease and desist
petition for certiorari docketed as G.R. Nos. 152882-83 with prayer for the issuance of a from implementing its questioned Orders dated October 3, 2001 and April 17, 2002 and
temporary restraining order and/or writ of preliminary injunction, praying for the from further proceeding thereon.
nullification of the public respondent’s Orders dated October 3, 2001 and April 17, 2002 and
for the dismissal of SPA Nos. 01-257 and 01-265 for lack of jurisdiction. They argued that: On April 29, 2003, the Court ordered the consolidation of G.R. Nos. 148575-76 and G.R. Nos.
152882-83 since both petitions arose from a common set of facts and raised similar issues.
(a) ON JUNE 28, 2001, THE COMELEC ITSELF AFFIRMED THE MAY 23, 2001 PROCLAMATION
OF THE PETITIONERS AS THE DULY ELECTED PROVINCIAL ELECTIVE OFFICIALS OF THE For convenience, the Court shall delve into and resolve the issues in both petitions
PROVINCE OF SULU IN THE MAY 14, 2001 ELECTIONS. THEREFORE, IT IS A VALID AND simultaneously and will refer to Yusop Jikiri, Abdel Anni, Abraham Daud, Lukman Omar,
EXISTING PROCLAMATION. SUCH PROCLAMATION PRESUPPOSES THAT AN ELECTION HAS Onnih Ahmad, Basaron Burahan, Den Rasher Salim, Talib Hayudini, Rizal Tingkahan, and
BEEN CONDUCTED. THUS, ANY ALLEGED IRREGULARITIES IN THE POLLS ARE MATTERS OF Barlie Nahudan as the petitioners; and, Abdusakur M. Tan, Abdulwahid Sahidulla, and
ELECTION PROTEST. Abraham Burahan as the respondents, without reference to the docket numbers of the
petitions respectively filed in this Court.
(b) PETITIONERS HAVE ALREADY ASSUMED AND ARE ALREADY EXERCISING THEIR DUTIES
AND FUNCTIONS AS ELECTIVE PROVINCIAL OFFICIALS SINCE JUNE 30, 2001. HENCE, THE The threshold issues for resolution are (1) whether the COMELEC En Banc, now public
REMEDY OF THE LOSING CANDIDATES IS AN ELECTION PROTEST. respondent, is vested with jurisdiction to take cognizance of and resolve the amended
petitions before it; (2) whether the public respondent acted with grave abuse of its
(c) ONCE PROCLAMATION IS MADE, THE PROPRIETY OF FAILURE OF ELECTION ENDS AND discretion amounting to excess or lack of jurisdiction in issuing its Orders dated June 28,
THE REALM OF ELECTION PROTEST BEGINS. THIS IS SO BECAUSE THE DIVIDING LINE 2001, October 3, 2001, and April 17, 2002.
BETWEEN PETITION TO DECLARE FAILURE OF ELECTION AND ELECTION PROTEST IS
PROCLAMATION. AND HERE, THE PROCLAMATION IS VALID. IT WAS AFFIRMED BY THE On the first issue, the petitioners aver that the respondents were proscribed from filing their
COMELEC EN BANC AFTER A HEARING WHERE ALL THE PARTIES WERE GIVEN THE amended petition for a declaration of failure of elections and/or for the annulment of
OPPORTUNITY TO BE HEARD. elections under Section 6, Republic Act No. 7166 for the reason that the petitioners had
already been proclaimed the winning candidates. They contend that a petition for
(d) THERE BEING VALID AND EXISTING PROCLAMATION AND SUCH PROCLAMATION HAVING declaration of failure of elections or for the annulment of an election can no longer be filed
BEEN AFFIRMED, THERE WAS NO FAILURE OF ELECTION AS WINNERS HAD EMERGED. IN and prosecuted after the winning candidates had already been proclaimed by the PBC. They
TYPOCO V. COMELEC, 319 SCRA 498 and BORJA V. COMELEC, 260 SCRA 604, IT WAS HELD aver that the proper recourse of the respondents was to file election protest cases against
THAT FAILURE OF ELECTION SHOULD LITERALLY MEAN "THAT NOBODY EMERGED AS A the petitioners as the winning candidates. The petitioners also assert that the proceedings in
WINNER." IN THE INSTANT CASE, WINNERS HAD EMERGED IN VIEW OF THE VALID AND an election protest are not summary in nature and should be ventilated in a full-blown
EXISTING PROCLAMATION OF THE PETITIONERS, AFFIRMED BY THE COMELEC ITSELF. hearing. The petitioners argue that the amended petitions of the respondents are election
protest cases over which the COMELEC assumes jurisdiction in the exercise of its quasi-
judicial powers and should be referred for hearing and resolution to a Division of the after the voting and during the preparation and the transmission of the election returns or
COMELEC as mandated by Section 3, Article IX-C of the Constitution and Section 250 of the in the custody or canvass thereof, such election results in a failure to elect, and in any of
Omnibus Election Code. 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
The respondents, for their part, aver that the public respondent took cognizance of the notice and hearing, call for the holding or continuation of the election not held, suspended
amended petitions under Section 4, Rep. Act No. 7166 in its administrative capacity and not or which resulted in a failure to elect on a date reasonably close to the date of the election
as a quasi-judicial body. They also contend that the acts/omissions alleged in the amended not held, suspended or which resulted in a failure to elect but not later than thirty days after
petitions are proper subjects for a petition for a declaration of a failure of election or for the the cessation of the cause of such postponement or suspension of the election or failure to
annulment of the elections. They assert that in a petition for a declaration of failure of elect.
election, the public respondent does not exercise quasi-judicial functions because it does
not adjudicate any conflicting or adverse claims of the contending parties as there are no The long-standing rule is that the nature of an action and the jurisdiction of the tribunal are
rights to speak of under which adverse claims to such rights are made. They argue that in determined by law and the allegations in the petitions regardless of whether or not the
taking cognizance of the amended petitions, the public respondent was merely performing petitioners are entitled to the relief sought.25 The caption of the petitions are not
its duties as an administrative body tasked to ensure clean, honest, orderly and peaceful determinative of the nature thereof. In their amended petitions before the public
elections. The said respondents cited the ruling of the Court in Loong v. COMELEC.21 respondent, the respondents herein Abdusakur Tan, et al., the petitioners therein,
substantially alleged that the respondents therein who are the petitioners in this case were
The Office of the Solicitor General (OSG) is of the view that a petition to declare a failure of the duly proclaimed winning candidates; that the elections in the Municipalities of Luuk,
election may be maintained even when a winner had already been proclaimed. The OSG Parang and Indanan, Province of Sulu, were marred by massive substitution of voters, fraud,
cited the ruling of this Court in Soliva v. COMELEC.22 The public respondent is mandated in terrorism and other anomalies, impelling them to file their petitions pursuant to Section 4 of
the exercise of its administrative powers under Section 2(3), Article IX of the Constitution, to Rep. Act No. 7166 in relation to Section 6, Omnibus Election Code, and reiterated in Section
investigate allegations of fraud, terrorism, violence and other analogous causes of actions 2, Rule 2626 of the 1993 COMELEC Rules of Procedure, as amended. But Section 6 of the
for annulment of election results or declaration of a failure of election as the Omnibus Omnibus Election Code lays down three instances where a failure of election may be
Election Code denominates. It also submits that the public respondent is mandated to declared, namely, (1) the election in any polling place has not been held on the date fixed on
conduct an investigation as to the veracity of the allegations of the respondents of fraud, account of force majeure, violence, terrorism, fraud or other analogous causes; (2) the
terrorism, harassment and intimidation to ensure the conduct of free and impartial election in any polling place has been suspended before the hour fixed by law for the closing
elections. of the voting on account of force majeure, violence, terrorism, fraud or other analogous
causes; or (3) after the voting and during the preparation and transmission of the election
We agree with the petitioners. 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 cases. In all
The amended petitions filed by the respondents herein are election protest cases over instances there must have been a failure to elect. This is obvious in the first two scenarios,
which the public respondent has original exclusive jurisdiction under Section 2(2), Article IX where the election was not held and where the election was suspended. As to the third
of the Constitution. The public respondent assumed jurisdiction over the amended petitions scenario, the preparation and the transmission of the election returns, which give rise to the
in the exercise of its quasi-judicial powers.23 Section 4,24 Rep. Act No. 7166 provides that consequence of failure to elect, must as aforesaid be literally interpreted to mean that
the COMELEC sitting en banc by a majority vote of its members may decide, among others, "nobody emerged as a winner."27
the declaration of failure of election and the calling of special elections as provided in
Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides that: Hence, before the COMELEC can act on a verified petition seeking to declare a failure of
elections, two conditions must concur, namely, (1) no voting took place in the precinct or
Section 6. Failure of Elections. -- If, on account of force majeure, violence, terrorism, fraud precincts on the date fixed by law, or even if there was voting, the election resulted in a
or other analogous causes the election in any polling place has not been held on the date failure to elect; and (2) the votes not cast would have affected the result of the election.
fixed, or had been suspended before the hour fixed by law for the closing of the voting, or
Note that the cause of such failure of election could only be any of the following: force fraud no election was actually held or that there was suspension of election or even if there
majeure, violence, terrorism, fraud or other analogous causes.28 was election held, nobody emerged as a winner. On the contrary, it is apparent that there
was an actual election. What petitioners are saying is that it was not a valid and legitimate
In these cases, elections were held in the questioned municipalities. In fact, the very reason elections. The issue is still pending determination of the COMELEC and the present petition
why the respondents filed their amended petitions before the COMELEC on May 30, 2001 before this Honorable Court is therefore premature. This Court has made a pronouncement
was to implead the petitioners as the respondents therein who had been proclaimed as the in Bagatsing v. COMELEC, 320 SCRA 817 [1999] that it does not look with favor on the
winning candidates; hence, were indispensable parties to the petitions. In resolving the practice of seeking remedy from the Supreme Court without waiting for the resolution of
amended petitions, the public respondent will have to rule on the validity of the the pending action before the tribunal below, absent extraordinary circumstances
proclamation of the petitioners and their right to hold office and perform the duties warranting appropriate action by this Court.29
appurtenant thereto. The alleged fraud and irregularities, granting arguendo that they
indeed marred the elections, did not prevent or suspend the holding of the elections in the Moreover, the proclamation of the petitioners enjoys the presumption of regularity and
aforementioned municipalities including the preparation and transmission of the election validity.30 To destroy the presumption, the respondents must convincingly show that the
returns. Indeed, these returns were duly canvassed by the respective municipal boards of petitioners’ victory was procured through extra-legal means. This they tried to do by alleging
canvassers which prepared the corresponding certificates of canvass which were in turn matters in their petitions which they believed constituted grounds for a declaration of
canvassed by the Provincial Board of Canvassers of Sulu which, after such canvass, failure of election, such as massive substitution of voters, fraud, terrorism,
proclaimed the petitioners herein as the winning candidates in the May 14, 2001 elections. disenfranchisement of voters, and other anomalies. The attendance of the alleged fraud and
In fine, elections had been conducted and winners had been already proclaimed. Even the irregularities in the elections as catalogued by the respondents, however, constitute merely
public respondent, no less, through the Office of the Solicitor General, stated in its comment the causes or events which may give rise to the grounds to declare failure of elections,
on the petition in G.R. Nos. 148575-76 that the amended petitions of the respondents did namely, (a) no election held on the designated election date; (b) suspension of election
not state a valid cause of action for a declaration of a failure of election and were before the hour fixed by law for the closing of voting; and (c) election in any polling place
prematurely filed in this Court: resulted in a failure to elect. But as aforesaid, the grounds cited by the respondents do not
fall under any of the instances under Section 6 of Rep. Act No. 7166, the winning candidates
… After all the grounds relied upon by the petitioners in their petitions to declare a failure of having been proclaimed by the PBC. While fraud is a ground to declare a failure of election,
election, to wit: (1) voters were driven away through force and intimidation; (2) persons the commission of fraud must be such that it prevented or suspended the holding of an
other than registered voters filled up the official ballots; (3) flying voters were transported; election, including the preparation and transmission of the election returns.31 It behooved
(4) voters were allowed to vote more than once; (5) watchers of the petitioners were not the public respondent to dismiss the amended petitions:
allowed to exercise their rights and perform their duties; do not seem to clearly sustain a
declaration of a failure of election. It has been consistently held that there are only three (3) … In the fairly recent case of Tomas T. Banaga, Jr. v. Commission on Elections, et al. with a
instances where a failure of election may be declared, namely: (a) the election in any polling factual backdrop similar to this case, the Court held:
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 We have painstakingly examined the petition filed by petitioner Banaga before the
before the hour fixed by law for the closing of the voting on account of force majeure, COMELEC. But we found that petitioner did not allege at all that elections were either not
violence, terrorism, fraud or other analogous causes; (c) after the voting and during the held or suspended. Neither did he aver that although there was voting, nobody was elected.
preparation and transmission of the election returns or on the custody or canvass thereof, On the contrary, he conceded that an election took place for the office of vice-mayor of
such election results in a failure to elect on account of force majeure, violence, terrorism, Parañaque City, and that private respondent was, in fact, proclaimed elected to that post.
fraud, or other analogous causes (Typoco, Jr. vs. COMELEC, 319 SCRA 498 [1999]). 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
In their two petitions, petitioners made no specific allegation as to the presence of any of be such that it prevented or suspended the holding of an election, or marred fatally the
the three above-mentioned circumstances. They merely enumerated the various acts of preparation and transmission, custody and canvass of the election returns. These essential
alleged terrorism and fraud. There was no allegation that due to said acts of terrorism and facts ought to have been alleged clearly by the petitioner below, but he did not.
 to ventilate the veracity of the alleged election fraud and irregularities of the election in the
Private respondent alleged in his petition with the COMELEC En Banc that the elections subject precincts with the consequent determination and declaration of the real winners in
ensued in the subject precincts and that petitioner herein emerged as the winner and was in the elections. The recall by the public respondent of its June 20, 2001 Order is justified by
fact proclaimed as such by the Board of Election Inspectors. case law. Thus, the public respondent may suspend or annul a proclamation only in three
instances, including pre-proclamation controversies, but not in a petition for a declaration of
In sum then, the grounds alleged by the private respondent in his petition before the failure of an election. As held by us in Dagloc v. COMELEC,35 thus:
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 The filing of pre-proclamation controversies under §248 of the Omnibus Election Code,
failure of elections in the municipality of Saguiaran, Lanao del Sur. The COMELEC should however, is not the only ground for the suspension of proclamation. Two other instances
have ordered the dismissal of the petition instead of issuing the assailed order. The are provided in R.A. No. 6646, known as "The Electoral Reforms Law of 1987," viz.: (1) Under
COMELEC thus committed a grave abuse of its discretion amounting to excess or lack of §6 of the statute, the COMELEC may, upon motion of the complainant in an action for
jurisdiction in issuing the same. The error is correctible by the special civil action for disqualification, suspend the proclamation of the winning candidate if the evidence of his
certiorari.32 guilt is strong, and (2) under §7 thereof, the COMELEC may likewise suspend the
proclamation of the winning candidate if there is ground for denying or canceling his
Reliance by the respondents of the ruling of this Court in Soliva v. COMELEC33 is misplaced. certificate of candidacy.…36
In that case, the Court ruled that the petition to declare a failure of election filed with the
public respondent was proper despite the proclamation of the winning candidates because Anent the validity of the Order of the public respondent dated June 28, 2001, the
the grounds alleged in the petitions and proved during trial were that the counting of the respondents aver that the public respondent committed a grave abuse of its discretion in
votes and the canvassing of the election returns were attended by fraud, intimidation, recalling its order annulling the proclamation of the petitioners as the winning candidates.
terrors and harassment. In this case, there was no allegation of fraud, terror, intimidation The respondents insist that the public respondent is empowered to annul a proclamation of
and harassment in the counting of votes and the canvassing of election returns. the winning candidates or to suspend such proclamation. The OSG, for its part, agreed that
the public respondent is vested with authority to suspend the proclamation of the winning
Accordingly, the public respondent’s subsequent October 3, 2001 and April 17, 2002 candidates or to annul such proclamation but contend that the public respondent may in
Resolutions allowing the technical examination of the voters registration records for the the exercise of its discretion allow such proclamation or set aside its order annulling the
Municipalities of Parang, Indanan and Luuk were actions tainted with grave abuse of proclamation of the winning candidates, ratiocinating that:
discretion amounting to excess or lack of jurisdiction correctible by a cert writ.
The question now is whether the COMELEC can validly recall or set aside an earlier order to
We are not saying that the public respondent is precluded at all times from allowing the suspend proclamation issued as preliminary relief in a petition for declaration of failure of
technical examination of the voters registration records. In Loong v. COMELEC, we held that election and/or annulment of election results.
"the COMELEC is duty-bound to investigate allegations of fraud, terrorism, violence and
other analogous causes in actions for annulment of election results or for declaration of While we agree with the petitioner that the COMELEC can suspend the proclamation
failure of elections, as the Omnibus election Code denominates the same. Thus, the public pending the resolution of the petition to declare a failure of election, the same order,
respondent, in the case of actions for annulment of election results or declaration of failure however, is merely provisional in nature and can be lifted when the evidence so warrants. In
of elections, may conduct a technical examination of election documents and compare and Nolasco v. COMELEC, 275 SCRA 762 [1997], it is said to be akin to a temporary restraining
analyze voters’ signatures and fingerprints in order to determine whether or not the order which a court can issue ex-parte under exigent circumstances.
elections had indeed been free, honest and clean."34 However, the exercise of this
authority presupposes that the petition has properly been acted upon on account of the The petitioner would like to impress upon the court that the COMELEC merely recalled its
existence of any of the grounds provided under Section 6 of the Omnibus Election Code. earlier order of suspension of proclamation without any motion for reconsideration. Such is
Where, as in this case, elections had been held and winners had been duly proclaimed, the not correct. During the hearing on June 28, 2001, when the parties pre-marked their
proper recourse of the respondents should have been to file regular election protest cases respective evidence, the respondents also raised the motion and prayer to recall and/or lift
the June 20, 2001 Order.1âwphi1 The parties then agreed to have the matter immediately nullifying the proclamation of herein petitioners as the winning candidates in the May 11,
considered by the COMELEC in view of the proximity of the June 30, 2001 termination of the 1998 local election. The petition also seeks to enjoin and prohibit respondent COMELEC
term of office of the (then) incumbent elective officials of the Province of Sulu.37 from enforcing and implementing the aforesaid resolution.

We agree with the OSG. The respondents failed to show that the public respondent The factual antecedents from which the present petition proceeds are as follows:
committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in
issuing its June 28, 2001 Order. Herein petitioners and private respondents vied for the local posts in RTR during the local
elections of May 11, 1998. Petitioners belonged to the Lakas-NUCD party while private
IN LIGHT OF ALL THE FOREGOING, the petitions in G.R. Nos. 148575-76 are DISMISSED. The respondents ran under the Laban ng Makabayan Masang Pilipino (LAMMP) banner.1
Order of the COMELEC dated June 28, 2001 is AFFIRMED.
On May 12, 1998, all the LAKAS candidates (herein petitioners) were proclaimed as the
The petitions in G.R. Nos. 152882-83 are GRANTED. The Orders of the COMELEC dated winning candidates. Six days after, or on May 18, 1998, respondent Alexander Bacquial filed
October 3, 2001 and April 17, 2002 are SET ASIDE, and the COMELEC is directed to dismiss a petition to declare a failure of election due to alleged "massive fraud, terrorism, ballot
SPA No. 01-257 and SPA No. 01-265. No costs. switching, stuffing of ballots in the ballot boxes, delivery of ballot boxes by respondent
Soliva, his wife and men from several precincts to the supposed canvassing area, failure of
SO ORDERED. the counting of votes in the precincts or polling places upon instructions of respondent
Soliva and other anomalies or irregularities, not to mention the alleged attempt of one of
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Soliva’s men later on identified as Eliseo Baludio to assasinate Mr. Bacquial when he was
Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur. about to cast his vote in Precinct 17-A in San Antonio, RTR in the early morning of May 11,
Failure of Election 1998."2 The petition was later amended to include the other co-candidates of respondent
Bacquial in the LAMMP party.

G.R. No. 141723 April 20, 2001 In support of their allegations, herein private respondents (petitioners before the COMELEC)
presented the sworn statements of witnesses Nestor Fuentes, Faustino Abatayo, Eddie Roa,
NILO D. SOLIVA, ROGELIO B. DOCE, HERNANITA M. BACQUIAL, ULYSSES B. SUCATRE, Max C. Ponce, Danilo Taculayan, Alejandre Martinez, Enecito Salas and the joint affidavit of
ANTONIO D. DURON, EDUARDO HINUNANGAN, MONICA P. LASALA, CARLOS E. Alejandre Martinez, Eddie Roa, Max Ponce, Danilo Taculayan, Rudy Alima, Warlito Mandag
MARTINEZ, and ROSIANA L. POPADERA, petitioners, and Apolinario Pesitas who all attested to particular incidents involving alleged irregularities
vs. in certain polling precincts.
COMMISSION ON ELECTIONS, ALEXANDER C. BACQUIAL, ISMAEL O. TITO, FAUSTINO A.
ABATAYO, DAVID P. ALEJO, MAMERTO L. BACON, CESAR C. OSA, PRUDENCIO L. Private respondents also submitted in evidence the Order of the Provincial Election
PABILLORE, ARMANDO S. PANGADLIN, ENICETO U. SALAS, and QUINTIN A. SAY-AO, Supervisor, Atty. Roland Edayan, dated May 12, 1998, directing Col. Felix P. Ayaay, the
respondents. Provincial Director of the Philippine National Police, to investigate reports of grave threats,
intimidation and coercion directed against the supporters of mayoralty candidate
KAPUNAN, J.: respondent Bacquial. Copies of several election returns which did not bear the signatures of
the LAMMP pollwatchers were likewise presented to prove that such watchers were not
Before us is a petition for certiorari and prohibition under Rule 65 of the Rules of Court with allowed inside the municipal gymnasium where the canvassing of votes was conducted.
a prayer for the issuance of a writ of preliminary injunction and/or temporary restraining
order to nullify and set aside the resolution of public respondent Commission on Elections Petitioners, on the other hand, denied that violence, terrorism, fraud and other similar
(COMELEC) dated February 11, 2000 in Comelec SPA No. 98-324, declaring a failure of causes attended the conduct of the election. To disprove private respondents’ allegations,
election in the entire municipality of Remedios T. Romualdez (RTR), Agusan del Norte and they appended photocopies of the Minutes of Voting and Counting of Votes in Precinct Nos.
17-A and 16-A. They insisted that the LAMMP pollwatchers signed the election returns; that
the Board of Election Inspectors (BEI) announced the results of the counting and Meanwhile, let the Law Department investigate the alleged irregularities herein and
accomplished the election returns in their respective precincts; and that these elections determine the extent of the culpability of each of the respondents and file the appropriate
returns were thereafter submitted to the Municipal Board of Canvassers (MBC). charge or charges against them as the evidence so warrants.

Petitioners also alleged that at six o’clock in the evening of May 11, 1998, the MBC SO ORDERED.3
convened and around one-thirty in the morning of May 12, 1998, the canvass of election
returns started. After all election returns from the thirty-three (33) electoral precincts had Hence, the present petition, attributing grave abuse of discretion amounting to lack of, or in
been canvassed, the MBC proclaimed the winners. excess of, jurisdiction to respondent COMELEC for the following reasons:

Mr. Tago M. Mangontra, who was impleaded before the COMELEC in his capacity as 5.1
Chairman of the MBC, maintained that a public counting was had in all the thirty-three (33)
precincts although the venue of the counting was transferred to the multi-purpose RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK,
gymnasium of the municipality. He admitted having received a letter-protest calling for the OR IN EXCESS, OF JURISDICTION WHEN, WITHOUT ANY FORMAL PROCEEDINGS AND ABSENT
suspension of the canvassing due to failure of election but claimed that there was no ANY FORMAL PRESENTATION OF EVIDENCE AND WITNESSES, IT DECLARED A FAILURE OF
evidence to substantiate the allegations; and that the grounds alleged in the letter-protest ELECTION IN REMEDIOS T. ROMUALDEZ ONLY ON FEBRUARY 11, 2000, OVER ONE (1) YEAR
were proper in a pre-proclamation controversy and, therefore, not within the competence AND EIGHT (8) MONTHS AFTER THE MAY 11, 1998 ELECTIONS.
and jurisdiction of the MBC. Mangontra denied having told a certain Ms. Faith Tanguilan
that the canvassing of votes for the local posts were finished ahead of those of the national TWENTY (20) LONG MONTHS AFTER THE MAY 11, 1998 ELECTION.4
candidates. He likewise averred that all the candidates and their respective representatives
were duly notified of the canvassing and that the proclamation was concluded without any In sum, the issue posed for resolution by this Court is whether or not the COMELEC erred in
objection from the parties’ representatives. declaring a failure of election in the entire municipality of RTR.

After the arguments were heard on June 16, 1998, the parties agreed to submit the case for The Solicitor General, on his part, maintains that the declaration of a failure of election was
resolution five (5) days thereafter, with or without their respective memoranda. proper under the circumstances because (1) the counting of ballots and the canvass of the
returns were fraught with fraud as the transfer of counting from the polling precincts to the
On February 11, 2000, the COMELEC rendered the assailed resolution declaring a failure of multi-purpose gymnasium was irregular and without authority of the COMELEC and the
election in the municipality of RTR, holding thus: conformity of the private respondents or their representatives; (2) the proclamation of
petitioners was irregular as the Certificate of Proclamation was signed by the MBC on May
WHEREFORE, premises considered, this petition is GRANTED. A failure of election is hereby 12, 1998 while the tabulation of the votes, verification and preparation of the Statement of
declared in the Municipality of Remedios T. Romualdez, Agusan del Norte and the Votes, Certificate of Canvass and the proclamation of the winning candidates for President
proclamation of the private respondents as the winning candidates during the May 11, 1998 down to the local officials were finished only on May 14, 1998; and (3) the election was
elections is declared null and void. marred by threats, violence, intimidation, coercion, and harassment as attested to in the
sworn statements attached to the memorandum of private respondents.
Consequently, let a special election be held thereat on a date fixed by the Commission en
banc thru a separate resolution as soon as the funds for the purpose shall have been We dismiss the petition.
released.
The 1987 Constitution vested upon the COMELEC the broad power to enforce all the laws
Let a copy of this Resolution be furnished the Secretary of the Department of Interior and and regulations relative to the conduct of elections as well as the plenary authority to
Local Government and the Governor of Agusan del Norte.
decide all questions affecting elections except the question as to the right to vote.5 Section made from an erroneous estimation of the evidence presented, they are conclusive and
4 of Republic Act 7166, or the Synchronized Elections Law of 1991, states: should not be disturbed. The COMELEC, as the administrative agency and specialized
constitutional body charged with the enforcement and administration of all laws and
Section. 4. Postponement, Failure of Elections and Special Elections. – The postponement, regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
declaration of failure of elections and the calling of special elections as provided in Sections recall, has more than enough expertise in its field that its findings and conclusions are
5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc generally respected and even given finality.8
by a majority vote of its members. xxx
It is not controverted by the petitioners that the counting of the votes was transferred from
Section 6 of the Omnibus Election Code also provides: the polling places to the multi-purpose gymnasium without the knowledge and permission
of herein private respondents or their representatives and that the counting of the votes
Section. 6. Failure of Election. – If, on account of force majeure, violence, terrorism, fraud, and the canvassing of the election returns were done without the latter’s presence. Thus,
or other analogous causes the election in any polling place has not been held on the date the COMELEC was correct in finding that:
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 The counting by the BEI and the canvassing by the MBC were done without the accredited
in the custody or canvass thereof, such election results in a failure to elect, and in any of watchers or duly authorized representatives of the petitioners thus making the election
such cases the failure or suspension of election would affect the result of the election, the returns and the statements of votes not worthy of faith and credit and not reliable
Commission shall, on the basis of a verified petition by any interested party and after due documents to gauge the fair and true expression of the popular will.
notice and hearing, call for the holding or continuation 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 The rights of watchers as embodied in our election laws are not ineffectual rights. They are
cause of such postponement or suspension of the election or failure to elect. part and parcel of the measures to protect the sanctity of the sovereign will.

In Mitmug v. Commission on Elections,6 we held that before the COMELEC can act on a To cite a few of these rights:
verified petition for the declaration of a failure of election, two conditions must first concur:
(1) that no voting has taken place on the date fixed by law or even if there was, the election witness and inform themselves of the proceedings of the board;
results in a failure to elect, and (2) the votes not cast would affect the result of the election. take note of what they may see or hear;
take photographs of the proceedings and incidents, if any, during the counting of votes, as
Section 6 of the Omnibus Election Code contemplates three instances when the COMELEC well as the election returns, tally board and ballot boxes;
may declare a failure of election and call for the holding of a special election. First, when the file a protest against any irregularity or violation of law which they believe have been
election in any polling place has not been held on the date fixed on account of force committed by the board or by any of its members or by any person;
majeure, violence, terrorism, fraud or other analogous cases. Second, when the election in obtain from the board a certificate as to the filing of such protest and/or of the resolution
any polling place had been suspended before the hour fixed by law for the closing of the thereon;
voting. And third, after the voting and during the preparation and the transmission of the read the ballots after it shall have been read by the chairman, as well as the election returns
election returns or in the custody or canvass thereof, such election results in a failure to after it shall have been completed and signed by the members of the board without
elect.7 touching said election documents; and
be furnished, upon request, with a certificate of votes casts for the candidates, duly signed
We agree with the findings of the COMELEC that there was a failure of election in the and thumbmarked by the chairman and all members of the board.9
municipality of RTR, as the counting of the votes and the canvassing of the election returns It is likewise not denied that the transfer of the counting from the polling places to the
was clearly attended by fraud, intimidation, terrorism and harassment. Findings of fact of multi-purpose gymnasium was without the authority of the COMELEC as required by law.
administrative bodies charged with a specific field of expertise are afforded great weight The irregularity of the transfer of venue was highlighted by the fact that the same was not
and respect by the courts, and in the absence of substantial showing that such findings are recorded by the Board of Election Inspectors (BEI). The COMELEC learned of said transfer
only from the answer of Mr. Mangontra to the petition10 filed with the COMELEC by the Unless otherwise ordered by the Commission, the board shall not adjourn, postpone or
herein-private respondents. Truth to tell, the Commission’s authority was never sought to delay the counting.
effect the transfer of venue. Thus, we accord respect its finding on this matter:
Section 40. Transfer of counting of votes to safer place. – If on account of imminent danger
Apparently, when the venue for the counting was transferred without notice to or conforme of violence, terrorism, disorder or similar causes, it becomes necessary to transfer the
by the petitioners or their duly authorized representatives or accredited watchers and more counting of votes to a safer place, the Board may effect such transfer to the nearest safe
so, when the counting by the Board of Election Inspectors and the canvassing by the barangay or school building within the municipality by unanimous approval of the board and
Municipal Board of Canvassers were both conducted without their presence, their aforesaid concurred by the majority of he watchers present. This fact shall be recorded in the Minutes
rights were violated. This therefore put the integrity of the ballots to serious doubt. It is not of Voting and Counting of Votes, and all the members of the board and the watchers shall
surprising therefore when, as pointed out by both public and private respondents, not one manifest their approval and concurrence by affixing their signatures therein.
of the election returns was objected to during the canvassing. Experience taught us that
more often than not, representatives of parties, specially those for the losing candidates, In effecting the transfer, the board shall ensure the safety and integrity of all election
have the inclination to object to the conclusion of election returns during the canvassing. documents and paraphernalia. The PNP and/or the AFP in the area in consultation with the
This is an admitted reality in this jurisdiction. With the scenario being painted to us by the election officer shall provide adequate security and transport facilities to the members of
respondents, we are constrained to conclude that the same was a result of the absence of the board and the election documents and paraphernalia during the transfer and counting
the petitioners or their representatives during the canvassing for as alleged by the of votes.
petitioners, they were forcibly barred from witnessing the proceedings. And the Minutes of
Voting and Counting of Votes which private respondents attached as annexes "1" and "2" to The preceding provisions are related to, and are in consonance with, Section 18 of R.A. No.
their answer to the amended petition bolster our findings. Where not one of the LAMMP 6646, The Electoral Reforms law of 1989, which reads:
poll watchers signed in the space provided therefor in Precinct 17-A while the two watchers
for precinct 16-A, namely, Homer Sajulan and Apolinario Pecitas, Although they had Section 18. Transfer of Counting of Votes to Safer Place. – If on account of imminent danger
purportedly affixed their names and signatures therein, the same appear to have been of violence, terrorism, disorder or similar causes it becomes necessary to transfer the
prepared by one and the same person only as can be inferred from the handwriting or counting of votes to a safer place, the board of inspectors may effect such transfer by
penmanship which interestingly, is also similar to the penmanship of and the pen used by unanimous approval of the board and concurrence by the majority of the watchers present.
the one who wrote the names of those illiterate and/or physically disabled voters in the This fact shall be recorded in the minutes of the voting and the members of the board and
space likewise provided therefor. Besides, only these two watchers left at 10:00 while there the watchers shall manifest their approval or concurrence by affixing their signatures
is no indication that the others also left at the same time. therein. The Commission shall issue rules and guidelines on the matter to secure the safety
of the members of the board, the watchers, and all election documents and
What is more glaring is the absence of the signature and thumbmark of the petitioners’ paraphernalia.1âwphi1.nêt
assigned poll watchers on the election returns from the different precincts which they
submitted as their Exhs. "M" to "M-14", inclusive. As shown thereon, not one of the names All these provisions emphasize the need to safeguard the popular will, hence, the counting
listed in Annex "2" of private respondents’ memorandum which is the list of the official poll of votes must be done openly and publicly with all the parties represented therein.
watchers of the LAMMP Party was present during the time that the same was prepared.11
Also, petitioners were irregularly proclaimed winners on May 12, 1998 as shown in the
Sections 39 and 40 of the COMELEC Resolution No. 2971, entitled "The General Instructions Certificate of Proclamation which was signed by the members of the MBC on the same day.
of the Board of Election Inspectors on the Casting and Counting of Votes for the May 11, The Minutes of Canvass reveal that the MBC finished reading the election returns only on
1998 Elections" were clearly violated and they read as follows: May 13, 1998 at eight o’clock in the evening after which their proceedings were terminated
on May 14,1998.
Section 39. Counting of votes to be public and without interruption. – After the voting is
finished, the board shall count the votes cast and ascertain the results in the polling place. The pertinent portions of the Minutes of Canvass reveal the following:
 canvassed the election returns for local and national candidates separately but at one time
xxx in immediate succession in the following order, viz: first, the votes for candidates for
national positions; second, the votes for the party-list, and; third, the votes for candidates
At the Sangguniang Bayan Session Hall of Remedios R. Romualdez, Agusan del Norte on May for local positions. Candidates and representatives of political parties having been duly
11, 1998 at 6:00 o’clock in the evening the Municipal Board of Canvassers was called for notified, the Board proceeded with the canvass and proclamation, as no election returns
order by the Chairman, Mrs. Charlita B. Furinas was requested to lead the opening prayer. It had been contested or objected to during the canvass.13
was followed by an oath-takin by all the members of the Board and their support Staff.
How then could there have been a valid proclamation on May 12, 1998 when the reading of
There being no election return to canvass, the Chairman declared a recess and to resume at the votes was finished only on May 13, 1998?
10:00 P.M. or at any time the Board will receive as election return to canvass.
To be sure, the sworn statements14 attached to the Memorandum of private respondents
At 1:30 A.M. of May 12, 1998 the first election return in Precinct No. 2-A-1 was received and which attest to the fact that the May 11, 1998 election in RTR was marred with intimidation,
the Chairman immediately called for the resumption of the Canvass. terrorism and harassment was corroborated by the Order dated May 12, 1998 issued by
Provincial Election Supervisor Atty. Roland G. Edayan addressed to Col. Felix P. Ayaay, PNP
xxx xxx xxx Provincial Director which reads:

The reading of election returns was exactly finished at 8:00 P.M. of May 13, 1998. The Board ORDER
and the supporting staff proceed with the tabulation of results and the typing of the
Certificate of Canvass and the Proclamation of the winning candidates. xxx xxx xxx xxx

After the typing, the Board with the assistance of the support Staff took through the review There are reports reaching my office that in yesterday’s elections many people, especially
of the tallies [and] the totals of the votes obtained by each candidates (sic) from President the supporters of mayoralty candidate Alexander C. Bacquial, were prevented from voting in
down to the Local Positions. Verification was made until the Board signed and thumbmarked several barangays of the municipality of Remedies T. Romualdez allegedly because of grave
all the documents particularly the Statements of Votes, the Certificate of Canvass, the treats, intimidations, and coercions coming from armed men belonging to the political
Certificate of Proclamation of winning candidates, paper seal, etc. opponents of mayoralty candidate Bacquial.

The Municipal Board of Canvassers finished the words at exactly 2:00 A.M. of May 14, 1998. In this connection, you are hereby ordered to conduct the necessary investigation of said
The Vice-Chairman moved for the adjournment of the meeting and if was duly seconded incident and to submit to me your findings and recommendations thereon as early as
and approved by the Chairman. possible.

xxx12 Compliance herewith is hereby enjoined.15

The irregular proclamation of the petitioners on May 12, 1998 was made more apparent by Significantly, herein petitioners did not submit any counter affidavits to rebut the sworn
the answer of Mr. Mangontra to the petition filed with the COMELEC by the private statements submitted by the witnesses for private respondents.
respondents, thus:
In sum, the election held at RTR on May 11, 1998 cannot be accorded regularity and validity
Herein respondent likewise ADMITS the allegations in said paragraph 6 of the petition that a as the massive and pervasive acts of fraud, terrorism, intimidation and harassment were
certain MS. FAITH TRANQUILAN appeared before him in the evening of May 13, 1998, but committed on such day. While it may be true that election did take place, the irregularities
with the qualification that undersigned respondent did not inform her that the canvassing that marred the counting of votes and the canvassing of the election returns resulted in a
for local candidates was made ahead and was already finished, for the Board never failure to elect. And when there is a failure of election, the COMELEC is empowered to annul
the election and to call a special election.16 Thus, we find that the COMELEC did not commit 1. he requested Acting Election Officer Taha Casidar (Casidar) to adopt the Project of
grave abuse of discretion in issuing the assailed resolution. Precincts with six (6) clustered voting centers which he (petitioner) recommended, after
consultation with political parties, but over his (petitioner’s) vehement opposition, "Military
WHEREFORE, premises considered, the instant petition for certiorari is hereby DISMISSED COMELEC Deputy" Col. Felix Castro, Jr. disregarded the plan without consulting both parties
and the status quo ante order issued by this Court lifted. and the voters concerned;

SO ORDERED. 2. in Precincts 1A-13A, Philippine National Police personnel bearing high-powered firearms
were seen escorting persons who are not voters therein;
Davide, Jr., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Gutierrez, JJ., concur. 3. in Precincts 9A-10A, ballot boxes were missing during the period of casting of votes;

Failure of Election 4. in Precincts 14A-15A, the wife of vice-mayoralty candidate Pundaracab Ander forcibly
took possession of the Book of Voters and acted as Board of Election Inspectors and
conducted the voting by herself;
G.R. No. 149666 December 19, 2003
5. in Precincts 20A-27A and 46A-49A, the casting of votes was stopped early because non-
SANGCAD S. BAO, petitioner, registrants and flying voters insisted on voting, thus causing fighting and shooting among
vs. voters;
COMMISSION ON ELECTIONS, ATTY. RAY SUMALIPAO, COL. FELIX CASTRO, JR., MUNICIPAL
BOARD OF CANVASSERS OF BUTIG, LANAO DEL SUR, DIMNATANG L. PANSAR, GORIGAO 6. in Precincts 28A-29A, all the registered voters were not able to cast their votes because
LANGCO, and RASMIA U. SALIC ROMATO, respondents. the ballot boxes were brought to the second floor of the school building and when the boxes
were brought down, the ballots and the Book of Voters were already filled up and
DECISION thumbmarked by non-voters;

CARPIO-MORALES, J.: 7. in Precincts 1A-21A and 42A-43A, voting was closed at 3:30 p.m., but was illegally
reopened; and
Petitioner Sangcad S. Bao sought re-election as mayor of Butig, Lanao del Sur in the May 14,
2001 elections. 8. in Precincts 64A-65A, official ballots issued to voters were forcibly filled up by one person.

Aside from petitioner, the other candidates for mayor were Gorigao Langco (Langco), Petitioner later filed on May 29, 2001 an "Additional Submission"2 containing Casidar’s
Dimnatang L. Pansar (Pansar), and Rasmia U. Salic Romato (Romato). "Narrative Report on the Conduct of [the] May 14, 2001 National and Local Elections in the
Municipality of Butig, Lanao del Sur"3 reading verbatim:
On May 25, 2001, petitioner filed before the COMELEC a "Very Urgent Petition for
Suspension of Counting of Votes by [the] B[oard of] E[lection] I[nspectors], Canvass of xxx
Election Returns and Proclamation of Winners by [the Municipal Board of Canvassers], and
Declaration of Failure of Election in Butig, Lanao del Sur,"1 naming Pansar, COMELEC 1. Per my instruction, the BEIs immediately started the election.
Provincial Election Supervisor Atty. Ray Sumalipao, and "COMELEC Deputy" Col. Felix Castro,
Jr. as respondents. The petition, which was docketed as SPA Case No. 01-336, alleged that: 2. while the election was going on, at around 2 pm, several bombings occurred almost in the
area where the election was held which caused commotion.
3. due to the incident and fear, the BEIs assigned in some other precincts locked their ballot
boxes and brought them to the Municipal Hall while others continued the casting of votes 9. there was no justification for the military to serve in the election;
[until] the last hour.
10. the casting of votes in Precincts 1A-17A, 28A-32A and 59A-69A was closed around 2:30
4. . . . the electors and some other candidates were forcing and/or convincing me to open p.m. but was again reopened until around 6:00 p.m.; and
the ballot boxes brought to the Municipal Hall to continue the election which I refused as it
was already too late. 11. the counting of votes was manned by Philippine Army soldiers known to favor mayoralty
candidate Pansar.
5. . . . due to intimidation and force shown or displayed by some of the supporters and
candidates themselves, I failed to decide on time as it will endanger my life and other The COMELEC En Banc, without giving due course to the petition and the petition-in-
civilians in the area. intervention, resolved on June 14, 2001:

xxx 1. to admit the Petition-in-Intervention filed by Langco on June 8, 2001;

On June 4, 2001, petitioner filed a "Very Urgent Motion to Defer Canvass of Election Returns 2. to direct the Municipal Board of Canvassers of Butig to hold in abeyance the proclamation
and Suspend Proclamation,"4 reiterating the arguments in his previous petition. of the respondent until lifted by the Commission;

On June 8, 2001, Langco (petitioner-intervenor), filed a petition-in-intervention5 adopting 3. to direct the Clerk of the Commission to issue summons requiring the respondents to file
the allegations of petitioner and further alleging the occurrence of other irregularities during their answers to the petition and petition-in-intervention and to set for hearing the instant
the conduct of the elections, to wit: case immediately in order to hear from the parties and determine whether the suspension
will stay or has to be lifted; and
1. watchers were not allowed to escort the ballot boxes and witness the distribution of
ballots; 4. to direct the Deputy Executive Director for Operations to implement this order with
dispatch.6
2. a member of the Philippine Army was putting inside the ballot box official ballots already
filled up; The COMELEC En Banc conducted a hearing on June 28, 2001 during which all the parties
were represented by counsels, after which it issued the following order, quoted verbatim:
3. around 11:20 a.m., there were simultaneous explosions causing the voters to scamper
away which resulted to low voter turn-out; At today’s hearing parties were respectively represented by counsels.

4. the casting of votes was stopped at 1:30 p.m.; Counsel for intervenor-oppositor Rashmina Salic [Ro]mat[o] manifested that they filed a
petition in intervention in this case as his client was not impleaded although was proclaimed
5. the clustering made by the COMELEC based on the convenience and safety of the voters also as mayor.
was not followed;
Counsel for respondent Dimnatang L. Pansar manifested that his client the impleaded
6. the casting of votes was done in public as there were no voting booths; respondent who was also proclaimed did not receive any summons in this case.

7. there was illegal transfer of polling places; Considering the foregoing, the motion to intervene is granted. Respondents are hereby
given three (3) days from today to file answer, after which this case shall be deemed
8. there was massive substitution of voters; submitted for resolution.7
 This Court holds in the negative.
As noted in the above-quoted June 28, 2001 Resolution of the COMELEC En Banc, Romato
who had in the meantime been proclaimed (on June 10, 2001)8 as mayor, as was Pansar (on Section 6 of the Omnibus Election Code provides:
June 16, 2001),9 manifested that he filed a petition-in-intervention.
Section 6. Failure of Election. - If, on account of force majeure, violence, terrorism, fraud, or
By the questioned Resolution of August 13, 2001, the COMELEC En Banc dismissed the other analogous causes the election in any polling place has not been held on the date fixed,
petition and Langco’s petition-in-intervention, the dispositive portion of which reads: 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
WHEREFORE, premises considered, the Very Urgent Petition and Petition in Intervention are custody or canvass thereof, such election results in failure to elect, and in any of such cases
DISMISSED for LACK OF MERIT. 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
The Very Urgent Motion to Defer Canvass of Election Returns and Suspend Proclamation is hearing, call for the holding or continuation of the election not held, suspended or which
likewise DENIED for the same reason. 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
Hence, the present petition for certiorari under Rule 64 of the 1997 Revised Rules of Court cessation of the cause of such postponement or suspension of the election or failure to
raising the issue of: elect.

WHETHER OR NOT RESPONDENT COMMISSION ON ELECTIONS ILLEGALLY OR ARBITRARILY In Mitmug v. COMELEC,17 this Court held that before the COMELEC can act on a verified
RESOLVED TO DENY THE PETITION OF BAO AND INTERVENOR LANGCO AND ROMATO, THAT petition seeking to declare a failure of election, two (2) conditions must concur: first, no
THEIR ‘ALLEGATIONS’ AND ‘EVIDENCES’ ATTACHED TO THEIR PLEADINGS ARE INSUFFICIENT voting has taken place in the precinct or precincts on the date fixed by law or, even if there
TO DECLARE FAILURE OF ELECTION.10 (Underscoring omitted) was voting, the election nevertheless results in failure to elect; and second, the votes not
cast would affect the result of the election.1âwphi1
Petitioner contends that SPA No. 01-336 being a contentious case, the COMELEC acts as a
quasi-judicial tribunal and thus falls under the term "court"; that the questioned resolution And in Typoco v. COMELEC ,18 this Court held:
failed to express clearly and distinctly the facts and the law on which it is based in
contravention of Article VII of the 1987 Constitution;11 that contrary to the findings of the Clearly then, there are only three instances where a failure of election may be declared,
COMELEC, the two (2) conditions set forth in Mitmug v. COMELEC12 to declare a failure of namely: (a) the election in any polling place has not been held on the date fixed on account
election was present in the instant case; and that the serious and massive election of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in
irregularities in thirty out of forty precincts in Butig were more than sufficient to affect the any polling place had been suspended before the hour fixed by law for the closing of the
election results as they disenfranchised more than 70% of the registered voters.13 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
Petitioner further contends that even if there was voting, the election nevertheless resulted the custody or canvass thereof, such election results in failure to elect on account of force
in failure to elect;14 that the COMELEC erred in not giving credence to the official Narrative rnajeure, violence, terrorism, fraud, or other analogous causes. In all instances there must
Report of Casidar which contained facts affecting the validity of the elections;15 and that in have been a failure to elect; this is obvious in the first scenario, where the election was not
failing to conduct summary hearing for the reception of evidence, the COMELEC violated the held and second where the election was suspended. As to the third scenario, the
Omnibus Election Code and its own rules.16 preparation and transmission of election returns which give rise to the consequence of
failure to elect must as aforesaid be literally interpreted to mean that nobody emerged as
The issue in the main is whether the COMELEC committed grave abuse of discretion in not winner.
declaring a failure of election.
In the present case, the allegations-bases of both the petition and Langco’s petition-in- Three (3) days from today, we will consider this submitted for resolution.
intervention before the COMELEC are mostly grounds for an election contest, not for a
declaration of failure of election. While there are allegations which may be grounds for Atty. Aspiras
failure of election, they are supported by mere affidavits and the narrative report of the
election officer. That petitioner and petitioner-intervenor were not able to present Yes, your Honor, we will furnish already after this hearing, copy of the amended petition to
substantial evidence in support of their allegations should not be blamed on the COMELEC, the respondent your Honor.
for during the June 28, 2001 hearing, Atty. Jose Ventura Aspiras, collaborating counsel for
petitioner, on being informed that respondent Pansar had not yet received the summons to Comm. Javier
necessitate the resetting of the hearing, made a "request," which was granted, that said
respondent should just file "an answer or memorandum to abbreviate the proceedings," Okay, next case.
and did not object to the COMELEC’s pronouncement to consider the petition submitted for
resolution after the filing of the answer or memorandum. xxx19 (Emphasis and underscoring supplied)

xxx Under the circumstances, petitioner and petitioner-intervenor are deemed to have waived
their right to present further evidence to substantiate their petition.
Comm. Javier
Since, as the following portion of the assailed COMELEC resolution states, both petitioner
In the meantime, we will have to reset this case because it appears that the service of and petitioner-intervenor failed to discharge the burden of proving their allegations, the
summons has not been done into the respondent, so, it would appear that this Commission COMELEC did not commit grave abuse of discretion:
would not have any jurisdiction yet because you appeared here already, your appearance,
you are submitting to the jurisdiction of the Commission, so, in that case, we will request the Thus, there can be no other recourse for this Commission than to deny the petition. General
petitioner to submit a copy to the respondent and give him time to answer, three (3) days to allegations, without sufficient evidentiary support, do not warrant a declaration of a failure
answer, okay. of elections. Election results are the expression of the will of the people whose welfare and
interests must immediately be served by those upon whom the people have placed their
Atty. Aspiras trust. Peripherally but not trivially, elections need be consummated with dispatch because
the losers or even those just lagging behind in the counting, more often than not, file all
May we just request that what we (sic) file would be an answer/ memorandum to kinds of protests and complaints and objections that delay the election process and threaten
abbreviate the proceedings. to deny the people their representation in government.20

Comm. Javier WHEREFORE, the instant petition is DISMISSED for lack of merit.

Okay, answer together with memorandum in three (3) days, you have to submit SO ORDERED.
simultaneous memorandum.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Atty. Aspiras Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Yes, your Honor. Failure of Election

Comm. Javier
G.R. No. 160428 July 21, 2004
HADJI RASUL BATABOR, petitioner, Bewailing the outcome of the election, petitioner filed with the COMELEC a petition to
vs. declare a failure of election in Precincts 3A, 4A and 5A of Barangay Maidan , docketed as SPA
COMISSION ON ELECTIONS, BARANGAY BOARD OF CANVASSERS, BOARD OF ELECTION No. 02-295 (Brgy.). The petition alleges that during the election, the voting started at around
INSPECTORS OF PRECINCTS NOS. 3A, 4A and 5A, BARANGAY MAIDAN, TUGAYA, LANAO 8:30 o’clock in the morning. It was temporarily suspended during the lunch break and was
DEL SUR, and MOCASIM ABANGON BATONDIANG, respondents. to resume at 1:00 o’clock in the afternoon of that day. But after lunch, the Chairwoman of
the Board of Election Inspectors (BEI) of Precincts 3A, 4A and 5A suddenly tore all the
unused official ballots. Thus, the voting was not continued. The BEI then padlocked the
DECISION ballot boxes. At that time, petitioner was not present. Despite the note of Election Officer
Taha Casidar directing the BEI to resume the voting, the latter did not allow the remaining
voters to vote. Thus, petitioner’s relatives and followers, numbering more than 100, were
SANDOVAL-GUTIERREZ, J.: not able to cast their votes.

The power to declare a failure of elections should be exercised with utmost care and only In his comment, private respondent averred that petitioner’s allegations are not supported
under circumstances which demonstrate beyond doubt that the disregard of the law has by substantial evidence. It was petitioner who padlocked the ballot boxes as shown by the
been so fundamental or so persistent and continuous that it is impossible to distinguish affidavit of Comini Manalastas. During the counting of votes, petitioner’s wife, daughter and
what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever; son actually witnessed the same. Besides, petitioner’s allegations can be properly ventilated
or that the great body of voters have been prevented by violence, intimidation and threats in an election protest because the issues raised are not grounds for declaration of a failure
from exercising their franchise. There is failure of elections only when the will of the of election.
electorate has been muted and cannot be ascertained. If the will of the people is
determinable, the same must as far as possible be respected.1 On October 9, 2003, the COMELEC En Banc issued the assailed Resolution3 denying the
petition.
Before us is a petition for certiorari2 with application for a temporary restraining order and
writ of preliminary injunction, assailing the Commission on Elections (COMELEC) En Banc’s Petitioner now contends in his petition for certiorari before us that the COMELEC committed
Resolution dated October 9, 2003 in SPA No. 02-295 (Brgy.). In this Resolution, the COMELEC grave abuse of discretion amounting to lack or excess of jurisdiction in denying his petition
denied Hadji Rasul Batabor’s petition seeking: (a) the declaration of failure of election in in SPA No. 02-295 (BRGY.). He reiterates his allegations in his petition filed with the
Precincts 3A, 4A and 5A of Barangay Maidan, Tugaya, Lanao del Sur; (b) the annulment of COMELEC showing there was failure of election.
the proclamation that Mocasin Abangon Batondiang is the duly elected Punong Barangay of
Barangay Maidan; and (c) the holding of a special election in the questioned precincts. The Solicitor General, in his comment on the instant petition, vehemently disputes
petitioner’s allegations and prays that the petition be dismissed for lack of merit.
In the synchronized July 15, 2002 Barangay and Sangguniang Kabataan Elections, Hadji Rasul
Batabor, petitioner, and Mocasim Abangon Batondiang, private respondent, ran as opposing We dismiss the petition.
candidates for the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur.
It was petitioner’s re-election bid being then the incumbent Punong Barangay. The power to declare a failure of election is vested exclusively upon the COMELEC.4 Section
6 of the Omnibus Election Code5 provides:
The result of the election shows that private respondent won as Punong Barangay,
garnering 123 votes, as against petitioner’s 94 votes, or a difference of 29 votes. "Section 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
In due time, private respondent was proclaimed the duly elected Punong Barangay of fixed, or had been suspended before the hour fixed by law for the closing of the voting, or
Barangay Maidan. 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 such the number of registered voters who actually voted is clearly not an indication of a failure of
cases the failure or suspension of election would affect the result of the election, the elections.
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 "We cannot also help but notice that the instant petition seeks to declare a failure of
or which resulted in a failure to elect on a date reasonably close to the date of the election elections and to annul solely the proclamation of respondent Batondiang, the elected
not held, suspended or which resulted in a failure to elect but not later than thirty days after punong barangay. The prayer for annulment of proclamation does not extend to all the
the cessation of the cause of such postponement or suspension of the election or failure to elected and proclaimed candidates in Barangay Maidan, Tugaya, Lanao del Sur. The
elect." Commission may not, on the ground of failure of elections, annul the proclamation of one
candidate only, and thereafter call a special election therefor, because failure of elections
Explaining the above provisions, we held in Benito vs. Commission on Elections6 that these necessarily affects all the elective positions in the place where there has been a failure of
two (2) conditions must exist before a failure of election may be declared: (1) no voting has elections. To hold otherwise will be discriminatory and violative of the equal protection of
been held in any precinct or precincts due to fraud, force majeure, violence or terrorism; the laws (See Loong vs. COMELEC, 305 SCRA 832 [1999]).
and (2) the votes not cast therein are sufficient to affect the results of the election. The
cause of such failure may arise before or after the casting of votes or on the day of the "As pronounced by the Supreme Court in Mitmug vs. Commission on Elections (230 SCRA 54
election. [1994]), allegations of fraud and other election irregularities are better ventilated in an
election contest:
The familiar rule, as applied to this case, is that grave abuse of discretion exists when the
questioned act of the COMELEC was exercised capriciously and whimsically as is equivalent ‘x x x, the question of whether there have been terrorism and other irregularities is better
to lack or in excess of jurisdiction. Such exercise of judgment must be done in an arbitrary or ventilated in an election contest. These irregularities may not as a rule be invoked to declare
despotic manner by reason of passion or personal hostility, and it must be so patent and a failure of election and to disenfranchise the electorate through the misdeeds of a relative
gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty few. Otherwise, elections will never be carried out with the resultant disenfranchisement of
enjoined or to act at all in contemplation of law.7 It is not sufficient that the COMELEC, in innocent voters as losers will always cry fraud and terrorism.
the exercise of its power, abused its discretion; such abuse must be grave.8
‘There can be failure of election in a political unit only if the will of the majority has been
We find that the COMELEC did not commit any grave abuse of discretion in dismissing defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect.
petitioner’s petition alleging a failure of election. While the alleged 100 votes of petitioner’s After all, there is no provision in our election laws which requires that a majority of
relatives and supporters, if cast during the election, are sufficient to affect its result, registered voters must cast their votes. All the law requires is that a winning candidate must
however, he failed to prove that the voting did not take place in precincts 3A, 4A and 5A. As be elected by a plurality of valid votes, regardless of the actual number of ballots cast. Thus,
found by the COMELEC, the Statement of Votes and the Certificate of Canvass of Votes show even if less than 25% of the electorate in the questioned precincts cast their votes, the same
that out of the 316 registered voters in the questioned precincts, at least 220 actually voted. must still be respected. There is prima facie showing that private respondent was elected
This simply shows that there was no failure of election in the subject precincts. Moreover, through a plurality of valid votes of a valid constituency.’"9
petitioner’s allegation that the voting was not resumed after lunch break, preventing 100 of
his relatives and followers to vote, is better ventilated in an election contest. The COMELEC, We reiterate our ruling in Benito vs. COMELEC10 that there is failure of elections only when
in its assailed Resolution, held: the will of the electorate has been muted and cannot be ascertained. In the case at bar, this
incident is not present.
"In the first place, the petitioner failed to show with certainty that the voting did not push
through in the questioned precincts. In fact, the Statement of Votes by Precincts show that In sum, we find no reason to disturb the assailed Resolution of the COMELEC.
out of the three hundred sixteen (316) registered voters in the questioned precincts, two
hundred twenty (220) or 69.62% of the registered voters actually voted. This high turnout in WHEREFORE, the instant petition is DISMISSED for lack of merit.
SO ORDERED. evidence to prove the manufacturing and/or spurious character of the questioned returns
which were allegedly prepared in group by only one person and which will materially affect
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, the results of the election for the position of Governor.
Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario, JJ., concur.
Corona, J., on leave. In the meantime, on June 10, 1998, TYPOCO and OCO filed with the COMELEC En Banc a
separate petition for Annulment of Election or Election Results and/or Declaration of Failure
of Elections in several precincts, docketed as SPA No. 98-413, subject of the instant petition.
Failure of Election The petition alleged that massive fraud and irregularities attended the preparation of the
election returns considering that upon technical examination, 305 election returns were
G.R. No. 136191 November 29, 1999 found to have been prepared in group by one person.

JESUS O. TYPOCO, JR., petitioner, On July 15, 1998, the COMELEC En Banc issued an Order directing the Voters Identification
vs. Division of the Commission's Election Records and Statistics Department (ERSD) to examine
COMMISSION ON ELECTIONS (COMELEC) EN BANC, and JESUS EMMANUEL PIMENTEL, the COMELEC copies of the 305 election returns questioned by TYPOCO.
respondents.
On August 12, 1998, the COMELEC's ERSD Voters Identification Division submitted its
Questioned Document Report to the COMELEC En Banc on the results of its technical
GONZAGA-REYES, J.: examination of the questioned election returns. The report disclosed, among others, that
the "handwritten entries on 278 COMELEC copies of election returns particularly under the
Before us is a petition for certiorari and prohibition to annul and set aside the resolution of columns Congressman/Governor/Vice-Governor/Nickname or Stage Name, were written by
the Commission on Elections (COMELEC) En Banc dated October 12, 1998 which dismissed one and the same person in groups." 1
herein petitioner Jesus Typoco, Jr.'s (TYPOCO) petition for Annulment of Election or Election
Results and/or Declaration of Failure of Elections docketed as SPA No. 98-413. On August 31, 1998, the COMELEC En Banc issued the resolution denying petitioner's
motion for reconsideration in SPC No. 98-133 on the ground that an election protest is the
The factual antecedents insofar as pertinent to the instant petition are as follows: proper remedy.

TYPOCO and private respondent Jesus Pimentel (PIMENTEL) were both candidates for the TYPOCO then filed a petition for certiorari and prohibition under Rule 65 with prayer for the
position of Governor in Camarines Norte during the May 11, 1998 elections. On May 22, issuance of a temporary restraining order and/or writ of preliminary injunction assailing the
1998, TYPOCO together with Winifredo Oco (OCO), a candidate for the position of Order dated June 4, 1998 and the Resolution dated August 31, 1998, respectively issued in
Congressman of the Lone District of Camarines Norte filed a Joint Appeal before the SPC No. 98-133 by the COMELEC (Second Division) and the COMELEC En Banc. 2 In a
COMELEC docketed as SPC-No. 98-133. TYPOCO and OCO questioned therein the ruling of resolution dated September 22, 1998, this Court dismissed the petition finding no grave
the Provincial Board of Canvassers of Camarines Norte which included in the canvass of abuse of discretion on the part of respondent COMELEC in issuing the aforesaid assailed
votes the Certificate of Canvass of the Municipality of Labo, Camarines Norte. TYPOCO also orders. TYPOCO's motion for reconsideration was likewise denied by this Court with finality
filed a Motion to Admit Evidence to Prove That a Substantial Number of Election Returns on September 29, 1998.
Were Manufactured as They Were Prepared by One Person based on the report of one
Francisco S. Cruz, a Licensed Examiner of Questioned Document, who examined copies of On October 12, 1998, the COMELEC En Banc promulgated a resolution in SPA 98-413,
election returns of the LAKAS-NUCD. dismissing TYPOCO's petition for the Declaration of Failure of Elections and/or Annulment of
Elections in Camarines Norte for lack of merit, thus:
On June 4, 1998, COMELEC (Second Division) issued an Order dismissing the Joint Appeal.
Thereafter, TYPOCO filed a Motion for Reconsideration reiterating his motion to admit
The grounds cited by petitioners do not fall under any of the instances enumerated in Sec. 6 Hence, uniformity in the handwritten entries in the election returns emanating from
of the Omnibus Election Code. different electoral precincts, as in this case speaks only of one thing — THE ELECTION
RETURNS WERE FABRICATED OR TAMPERED WITH.
In Mitmug vs. Commission on Elections, 230 SCRA 54, the Supreme Court ruled that before
the Comelec can act on a verified petition seeking to declare a failure of elections, at least Here, the COMELEC itself, through its own Voters' Identification Department, certified that
two (2) conditions must concur: (a) no voting has taken place in the precincts on the date out of the 305 election returns in the 12 municipalities of Camarines Norte, 278 or 91.14%
fixed by law, or even if there was voting, the election nevertheless resulted in failure to thereof were found to have been written by one person which fact lucidly speaks of
elect; and (b) the votes that were not cast would affect the result of the election. From the "massive fraud" in the preparation of election returns.
allegations of the petition in the instant cases, it is clear that an election took place and that
it did not result in a failure to elect. In fact, by separate resolution, the Commission has 15. Precisely, massive fraud committed after the voting and during the preparation of the
authorized the provincial board of canvassers to proclaim the winning candidates and this as election returns resulting in a failure to elect, is a ground for annulment of election under
been implemented. Section 6 of the Omnibus Election Code. As such therefore, the case at bar falls within the
jurisdiction of COMELEC.
WHEREFORE, the Commission hereby DISMISSES the petition in each of the above cases, for
lack of merit. 3 xxx xxx xxx

Hence, the instant petition on the grounds that the COMELEC En Banc gravely abused its 18. At any rate, there is merit to petitioner's claim that the votes in the subject election
discretion as follows: 1. in holding that the grounds cited by TYPOCO do not fall under any of returns, if correctly appreciated, will materially affect the results of the election for
the instances enumerated in Section 6 of the Omnibus Election Code; 2. in refusing to annul Governor, i.e.,
the election or the election results or to declare a failure of election despite the fact that
massive fraud and irregularities attended the preparation of the election returns; 3. in failing TYPOCO PIMENTEL
to proclaim TYPOCO as the winning candidate for Governor; 4. in failing to annul the
proclamation of PIMENTEL which is null and void from the beginning; 5. in ruling that an Votes per PBC Canvass 53,454 64,358
election protest is the proper remedy and not an annulment of the election or election
results and/or declaration of failure of elections. 4 Less: Votes obtained from

Simply stated, did the COMELEC commit grave abuse of discretion in not declaring a failure Fraudulent Returns 11,253 27,060
of elections for the position of Governor in Camarines Norte in the May 11, 1998 elections?
Difference 42,201 37,325
In a Manifestation and Motion (In Lieu of Comment) filed by the Office of the Solicitor
General (OSG), the latter joins TYPOCO's prayer for affirmative relief. The OSG explains thus: Vote Lead of Petitioner 4,876 5

13. The petition a quo (SPA No. 98-413) specifically prayed for annulment of election returns The authority of the COMELEC to declare a failure of elections is derived from Section 4 of
and/or election results in the protested precincts where massive fraud and irregularities Republic Act No. 7166, otherwise known as, "The Synchronized Elections Law of 1991,
were allegedly committed in the preparation of the election returns which, upon technical "which provides that the COMELEC sitting En Banc by a majority vote of its members may
examination of their authentic copies, were found to have been prepared in groups by one decide, among others, the declaration of failure of election and the calling of special
person (Petition, Annex A, p. 2). elections as provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn,
provides as follows:
14. On this score, it should be stressed that election returns are prepared separately and
independently by the Board of Election Inspectors assigned in each and every precinct.
Sec. 6. Failure of election. — If, on account of force majeure, violence, terrorism, fraud or causes. 9 In all instances there must have been failure to elect; this is obvious in the first
other analogous causes the election in any polling place has not been held on the date fixed scenario where the election was not held and the second where the election was
or had been suspended before the hour fixed by the law for the closing of the voting, or suspended. As to the third scenario, the preparation and transmission of the election
after the voting and during the preparation and the transmission of the election returns or returns which give rise to the consequence of failure to elect must as aforesaid be literally
in the custody or canvass thereof, such election results in a failure to elect, and in any of interpreted to mean that nobody emerged as a winner.
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 None of these circumstances is present in the case at bar. While the OSG joins TYPOCO in
notice and hearing, call for the holding or continuation of the election not held, suspended pinpointing anomalies in the preparation of the election returns due to the uniformity of the
or which resulted in a failure to elect on a date reasonably close to the date of the election handwriting in the same, implying that fraud was committed at that stage, the fact is that
not held, suspended or which resulted in a failure to elect but not later than thirty days after the casting and counting of votes proceeded up to the proclamation of the winning
the cessation of the cause of such postponement or suspension of the election or failure to candidate thus precluding the declaration of a failure of election. While fraud is a ground to
elect. declare a failure of election, the commission of fraud must be such that it prevented or
suspended the holding of an election including the preparation and transmission of the
The same provision is reiterated under Section 2, Rule 26 of the Revised COMELEC Rules. election returns. 10

Based on the foregoing laws, the instant petition must fail because the allegations therein It can thus readily be seen that the ground invoked by TYPOCO is not proper in a declaration
do not justify a declaration of failure of election. of failure of election. TYPOCO's relief was for COMELEC to order a recount of the votes cast,
on account of the falsified election returns, which is properly the subject of an election
The COMELEC correctly pointed out that in the case of Mitmug vs. Commission on Elections contest. 11
6, this Court held that before COMELEC can act on a verified petition seeking to declare a
failure of election, two (2) conditions must concur: first, no voting has taken place in the The COMELEC, therefore, had no choice but to dismiss TYPOCO's petition in accordance with
precincts concerned on the date fixed by law or, even if there was voting, the election clear provisions of the law and jurisprudence.
nevertheless resulted in a failure to elect; and second, the votes cast would affect the result
of the election. In Loong vs. Commission on Elections 7, this Court added that the cause of WHEREFORE, finding no grave abuse of discretion committed by public respondent
such failure of election should have been any of the following: force majeure, violence, Commission on Elections, the petition is DISMISSED and its Resolution En Banc of October
terrorism, fraud of other analogous cases. Further, in Borja, Jr. vs. Commission on Elections 12, 1998 dismissing the petition before it on the ground that the allegations therein do not
8, we stated that: justify a declaration of failure of election is AFFIRMED.

The COMELEC can call for the holding or continuation of election by reason of failure of SO ORDERED.
election only when the election is not held, is suspended or results in a failure to elect. The
latter phrase, in turn, must be understood in its literal sense, which is "nobody was elected." Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Purisima, Buena, Ynares-Santiago and De Leon, Jr., JJ., concur.
Clearly then, there are only three (3) instances where a failure of election may be declared,
namely: (a) the election in any polling place has not been held on the date fixed on account Pardo, J., took no part.
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 an account of force
majeure, violence, terrorism, fraud, or other analogous
Failure of Election 3. Petitioner, through counsel, raised written objections to the inclusion in the canvass of
election returns which were either tampered with, altered or falsified, or otherwise not
authentic;
[G.R. No. 134096. March 3, 1999.]
4. According to the minutes of the City Board of Canvassers, there were precincts with
JOSEPH PETER S. SISON, Petitioner, v. COMMISSION ON ELECTIONS, Respondents. missing election returns;

DECISION 5. Several election returns with no data on the number of votes cast for vice mayoralty
position;

ROMERO, J.: 6. Highly suspicious persons sneaking in some election returns and documents into the
canvassing area;

Before this Court is a petition for certiorari under Rule 65 of the Revised Rules of Court 7. Concerned citizen found minutes of the counting, keys, locks and metal seal in the
which impugns the Resolution 1 of public respondent Commission on Elections (COMELEC) COMELEC area for disposal as trash;
dated June 22, 1998 that dismissed petitioner Joseph Peter S. Sison’s earlier petition 2 in
SPC No. 98-134, entitled "In the Matter of the Petition to Suspend the Canvassing of Votes 8. Board of Election Inspectors have volunteered information that they placed the copy of
and/or Proclamation in Quezon City and to Declare a Failure of Elections." the election returns meant for the City Board of Canvassers in the ballot boxes deposited
chanroblesvirtuallawlibrary with the City Treasurer allegedly due to fatigue and lack of sleep;

It appears that while the election returns were being canvassed by the Quezon City Board of 9. Ballot boxes were never in the custody of the COMELEC and neither the parties nor their
Canvassers but before the winning candidates were proclaimed, petitioner commenced suit watchers were allowed to enter the restricted area where these boxes passed through on
before the COMELEC by filing a petition seeking to suspend the canvassing of votes and/or the way to the basement of the City Hall where they were supposedly kept; and
proclamation in Quezon City and to declare a failure of elections. The said petition was
supposedly filed pursuant to Section 6 3 of the Omnibus Election Code (Batas Pambansa Blg. 10. In the election in Barangay New Era, there was a clear patters of voting which would
881, as amended) on the ground of "massive and orchestrated fraud and acts analogous show that the election returns were manufactured and that no actual voting by duly
thereto which occurred after the voting and during the preparation of election returns and qualified voters took place therein.
in the custody or canvass thereof, which resulted in a failure to elect." 4
While the petition was pending before the COMELEC, the City Board of Canvassers
In support of his allegation of massive and orchestrated fraud, petitioner cited specific proclaimed the winners of the elections in Quezon City, including the winning candidate for
instances which are summarized and set forth below:chanrob1es virtual 1aw library the post of vice mayor. On June 22, 1998, the COMELEC promulgated its challenged
resolution dismissing the petition before it on the ground (1) that the allegations therein
1. The Board of Canvassers announced that election returns with no inner seal would be were not supported by sufficient evidence, and (2) the grounds recited were not among the
included in the canvass; pre-proclamation issues set fourth in Section 17 of Republic Act No. 7166. 5

2. Board of Election Inspectors brought home copies of election returns meant for the City Hence this petition.
Board of Canvassers;
Alleging that COMELEC overstepped the limits of reasonable exercise of discretion in
dismissing SPC No. 98-134, petitioner argues in the main that the electoral body failed to
afford him basic due process, that is, the right to a hearing and presentation of evidence
before ruling on his petition. He then proceeded to argue that the election returns reason underlying the delimitation both of substantive ground and procedure is the policy of
themselves, as well as the minutes of the canvassing committee of the City Board of the election law that pre-proclamation controversies should be summarily decided,
Canvassers were, by themselves, sufficient evidence to support the petition. consistent with the law’s desire that the canvass and proclamation be delayed as little as
possible. 12 That is why such questions which require more deliberate and necessarily
Upon a meticulous study of the parties’ arguments together with the pertinent statutory longer consideration, are left for examination in the corresponding election protest. 13
provisions and jurisprudence, this Court is of the opinion that there is no compelling reason
why we should withhold our imprimatur from the questioned resolution. However, with the proclamation of the winning candidate for the position contested, the
question of whether the petition raised issues proper for a pre-proclamation controversy is
At the outset, we notice that petitioner exhibits an ambivalent stand as to what exactly is already of no consequence since the well-entrench rule in such situation is that a pre-
the nature of the remedy he availed of at the time he initiated proceedings before the proclamation case before the COMELEC is no longer viable, the more appropriate remedies
COMELEC in SPC No. 98-134. At the start, he anchors his initiatory petition under Section 6 6 being a regular election protest or a petition for quo warranto. 14 We have carefully
of the Omnibus Election Code regarding failure of elections but he later builds his case as a reviewed all recognized exceptions 15 to the foregoing rule but found nothing that could
pre-proclamation controversy which is covered by Sections 241-248 of the Omnibus Election possibly apply to the instant case based on the recitations of the petition. What is more, in
Code, as amended by R.A. No. 7166. 7 In this respect, the rule is, what conjointly determine paragraph 3 of the COMELEC’s Omnibus Resolution No. 3049 (Omnibus Resolution on
the nature of a pleading are the allegations therein made in good faith, the stage of the Pending Cases) dated June 29, 1998, it is clearly stated therein that "All other pre-
proceeding at which it is filed, and the primary objective of the party filing the same. proclamation cases . . . shall be deemed terminated pursuant to Section 16, R. A. 7166. 16
(Emphasis supplied). Section 16 which is referred to in the aforecited omnibus resolution
In any case, petitioner nonetheless cannot succeed in either of the remedies he opted to refers to the termination of pre-proclamation cases when the term of office involved has
pursue. Recently, in Matalam v. Commission on Elections, 8 we have already declared that a already begun, which is precisely what obtains here. We are, of course aware that petitioner
pre-proclamation controversy is not the same as an action for annulment of election results cites the said omnibus resolution in maintaining that his petition is one of those cases which
or declaration of failure of elections, founded as they are on different grounds. should have remained active pursuant to paragraph 4 thereof. That exception, however
operates only when what is involved is not a pre-proclamation controversy such as petition
Under the pertinent codal provision of the Omnibus Election Code, there are only three (3) for disqualification, failure of elections or analogous cases. But as we have earlier declared,
instances where a failure of elections may be declared, namely: (a) the election in any his petition, though, assuming to seek a declaration of failure of elections, is actually a case
polling place has not been held on the date fixed on account of force majeure, violence, of pre-proclamation controversy and, hence, not falling within the ambit of the exception. In
terrorism, fraud, or other analogous causes; (b) the election in any polling place had been any case, that omnibus resolution would not have been applied in the first place because
suspended before the hour fixed by law for the closing of the voting on account of force that was issued posterior to the date when the herein challenge resolution was
majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and promulgated which is June 22, 1998. There was no provision that such omnibus resolution
during the preparation and transmission of the election returns or in the custody or canvass should have retroactive effect.chanrobles.com:cralaw:red
thereof, such election result in a failure to elect on account of force majeure, violence,
terrorism , fraud, or other analogous causes. 9 (Emphasis supplied) We have painstakingly Finally, as to petitioner’s claim that he was deprived of his right to due process in that he
examined petitioner’s petition before the COMELEC but found nothing therein that could was not allowed to present his evidence before the COMELEC to support his petition, the
support an action for declaration of failure of elections. He never alleged at all that elections same must likewise fail.
were either not held or suspended. Furthermore, petitioner’s claim of failure to elect stood
as a bare conclusion bereft of any substantive support to describe just exactly how the First, we note that his citation of Section 242 of the Omnibus Election Code as basis for his
failure to elect came about. right to present his evidence is misplaced. The phrase "after due notice" refers only to a
situation where the COMELEC decides and, in fact, takes steps to either partially or totally
With respect to pre-proclamation controversy, it is well to note that the scope of pre- suspend or annul the proclamation of any candidate-elect. Verba legis non est recedendum.
proclamation controversy is only limited to the issues enumerated under Section 243 10 of From the words of the statute there should be no departure. The statutory provision cannot
the Omnibus Election Code, and the enumeration therein is restrictive and exclusive. 11 The
be expanded to embrace any other situation not contemplated therein such as the one at Ballot Implies Secrecy
bar where the COMELEC is not taking any step to suspend or annul a proclamation.
G.R. No. 133486           January 28, 2000
Second, presentation of evidence before the COMELEC is not at all indispensable in order to
satisfy the demands of due process. Under the amendment introduced by R.A. No. 7166, ABS-CBN BROADCASTING CORPORATION, petitioner,
particularly Section 18 thereof, all that is required now is that the COMELEC shall dispose of vs.
pre-proclamation controversies "on the basis of the records and evidence elevated to it by COMMISSION ON ELECTIONS, respondent.
the board of canvassers." This is but in keeping with the policy of the law that cases of this
nature should be summarily decided and the will of the electorate as reflected on the PANGANIBAN, J.:
election returns be determined as speedily as possible. What exactly those records and
The holding of exit polls and the dissemination of their results through mass media
evidence are upon which the COMELEC based its resolution and how they have been
constitute an essential part of the freedoms of speech and of the press. Hence, the
appreciated in respect of their sufficiency, are beyond this Court’s scrutiny. But we have Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and
reason to believe, owing to the presumption of regularity of performance of official duty and credible elections. Quite the contrary, exit polls — properly conducted and publicized —
the precept that factual findings of the COMELEC based on its assessments and duly can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored
supported by gathered evidence, are conclusive upon the court, that the COMELEC did countermeasures may be prescribed by the Comelec so as to minimize or suppress the
arrive at its conclusion with due regard to the available evidence before it. That this is so incidental problems in the conduct of exit polls, without transgressing in any manner the
can, in fact, be gleaned from petitioner’s own allegation and admission in his petition that fundamental rights of our people.
"the election returns themselves as well as the minutes of the Canvassing Committees and
the City Board of Canvassers . . . are in the possession of the COMELEC." 17 He even cites The Case and the Facts
paragraph (g), Section 20 of the Omnibus Election Code to validate such allegation. Hence, it
is not really correct to say that the COMELEC acted without evidentiary basis at all or that Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing
petitioner was deprived of his right to due process. Commission on Elections (Comelec) en banc Resolution No. 98-1419 dated April 21,
1 

1998. In the said Resolution, the poll body

WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of jurisdiction
RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or
on the part of public respondent Commission on Elections (COMELEC), the instant petition is
any other groups, its agents or representatives from conducting such exit survey
hereby DISMISSED. Consequently, the resolution of COMELEC in SPC No. 98-134 dated June and to authorize the Honorable Chairman to issue the same.
22, 1998 is AFFIRMED.
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable
No costs. source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during
SO ORDERED.chanrobles law library : red the elections for national officials particularly for President and Vice President, results of
which shall be [broadcast] immediately." The electoral body believed that such project
2 

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Quisumbing, Purisima, Buena might conflict with the official Comelec count, as well as the unofficial quick count of the
and Gonzaga-Reyes, JJ., concur. National Movement for Free Elections (Namfrel). It also noted that it had not authorized
or deputized Petitioner ABS-CBN to undertake the exit survey.
Vitug, J., on official business abroad.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by
petitioner. We directed the Comelec to cease and desist, until further orders, from
Panganiban, J., is on leave. implementing the assailed Resolution or the restraining order issued pursuant thereto, if
any. In fact, the exit polls were actually conducted and reported by media without any
Pardo, J., took no part. difficulty or problem.
The Issues This Court, however, has ruled in the past that this procedural requirement may be
glossed over to prevent a miscarriage of justice, when the issue involves the principle of
8 

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with social justice or the protection of labor, when the decision or resolution sought to be set
9 

grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only
10 

the issuance of a restraining order enjoining the petitioner or any [other group], its agents adequate and speedy remedy available. 11

or representatives from conducting exit polls during the . . . May 11 elections."3

The instant Petition assails a Resolution issued by the Comelec en banc on April 21,
In his Memorandum, the solicitor general, in seeking to dismiss the Petition, brings up
4  1998, only twenty (20) days before the election itself. Besides, the petitioner got hold of a
additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough
seek a reconsideration of the assailed Comelec Resolution. opportunity to move for a reconsideration and to obtain a swift resolution in time or the
May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves
The Court's Ruling transcendental constitutional issues. Direct resort to this Court through a special civil
action for certiorari is therefore justified.
The Petition is meritorious.
5 

Main Issue:
Procedural Issues:
Validity of Conducting Exit Polls
Mootness and Prematurity
An exit poll is a species of electoral survey conducted by qualified individuals or groups
of individuals for the purpose of determining the probable result of an election by
The solicitor general contends that the petition is moot and academic, because the May
confidentially asking randomly selected voters whom they have voted for, immediately
11, 1998 election has already been held and done with. Allegedly, there is no longer any
after they have officially cast their ballots. The results of the survey are announced to the
actual controversy before us.
public, usually through the mass media, to give an advance overview of how, in the
opinion of the polling individuals or organizations, the electorate voted. In our electoral
The issue is not totally moot. While the assailed Resolution referred specifically to the history, exit polls had not been resorted to until the recent May 11, 1998 elections.
May 11, 1998 election, its implications on the people's fundamental freedom of
expression transcend the past election. The holding of periodic elections is a basic
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible
feature of our democratic government. By its very nature, exit polling is tied up with
member of the mass media, committed to report balanced election-related data,
elections. To set aside the resolution of the issue now will only postpone a task that
including "the exclusive results of Social Weather Station (SWS) surveys conducted in
could well crop up again in future elections.6

fifteen administrative regions."

In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also
It argues that the holding of exit polls and the nationwide reporting their results are valid
has the duty to formulate guiding and controlling constitutional principles, precepts,
exercises of the freedoms of speech and of the press. It submits that, in precipitately and
doctrines, or rules. It has the symbolic function of educating bench and bar on the extent
unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely
of protection given by constitutional guarantees." Since the fundamental freedoms of
7 

abused its discretion and grossly violated the petitioner's constitutional rights.
speech and of the press are being invoked here, we have resolved to settle, for the
guidance of posterity, whether they likewise protect the holding of exit polls and the
dissemination of data derived therefrom. Public respondent, on the other hand, vehemently denies that, in issuing the assailed
Resolution, it gravely abused its discretion. It insists that the issuance thereof was
"pursuant to its constitutional and statutory powers to promote a clean, honest, orderly
The solicitor general further contends that the Petition should be dismissed for
and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy
petitioner's failure to exhaust available remedies before the issuing forum, specifically the
and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly
filing of a motion for reconsideration.
confuse and influence the voters," and that the surveys were designed "to condition the
minds of people and cause confusion as to who are the winners and the [losers] in the Justice Oliver Wendell Holmes, we stress that the freedom encompasses the thought
19 

election," which in turn may result in "violence and anarchy." we hate, no less than the thought we agree with.

Public respondent further argues that "exit surveys indirectly violate the constitutional Limitations
principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the
contents of ballots," in violation of Section 2, Article V of the Constitution; and relevant
12 
The realities of life in a complex society, however, preclude an absolute exercise of the
provisions of the Omnibus Election Code. It submits that the constitutionally protected
13 
freedoms of speech and of the press. Such freedoms could not remain unfettered and
freedoms invoked by petitioner "are not immune to regulation by the State in the unrestrained at all times and under all circumstances. They are not immune to regulation
20 

legitimate exercise of its police power," such as in the present case. by the State in the exercise of its police power. While the liberty to think is absolute, the
21 

power to express such thought in words and deeds has limitations.

The solicitor general, in support of the public respondent, adds that the exit polls pose a
"clear and present danger of destroying the credibility and integrity of the electoral In Cabansag v. Fernandez this Court had occasion to discuss two theoretical test in
22 

process," considering that they are not supervised by any government agency and can in determining the validity of restrictions to such freedoms, as follows:
general be manipulated easily. He insists that these polls would sow confusion among
the voters and would undermine the official tabulation of votes conducted by the These are the "clear and present danger" rule and the "dangerous tendency"
Commission, as well as the quick count undertaken by the Namfrel. rule. The first, as interpreted in a number of cases, means that the evil
consequence of the comment or utterance must be "extremely serious and the
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can degree of imminence extremely high" before the utterance can be punished. The
thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally danger to be guarded against is the "substantive evil" sought to be
ban exit polls? In answering this question, we need to review quickly our jurisprudence prevented. . . . 23

on the freedoms of speech and of the press.

The "dangerous tendency" rule, on the other hand, . . . may be epitomized as
Nature and Scope of Freedoms of Speech and of the Press follows: if the words uttered create a dangerous tendency which the state has a
right to prevent, then such words are punishable. It is not necessary that some
The freedom of expression is a fundamental principle of our democratic government. It definite or immediate acts of force, violence, or unlawfulness be advocated. It is
"is a 'preferred' right and, therefore, stands on a higher level than substantive economic sufficient that such acts be advocated in general terms. Nor is it necessary that
or other liberties. . . . [T]his must be so because the lessons of history, both political and the language used be reasonably calculated to incite persons to acts of force,
legal, illustrate that freedom of thought and speech is the indispensable condition of violence, or unlawfulness. It is sufficient if the natural tendency and probable
nearly every other form of freedom." 14
effect of the utterance be to bring about the substantive evil which the legislative
body seeks to prevent. 24

Our Constitution clearly mandates that no law shall be passed abridging the freedom of
speech or of the press. In the landmark case Gonzales v. Comelec, this Court
15  16 
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did
enunciated that at the very least, free speech and a free press consist of the liberty to in its earlier decisions in Primicias v. Fugoso and American Bible Society v. City of
25 

discuss publicly and truthfully any matter of public interest without prior restraint. Manila; as well as in later ones, Vera v. Arca, Navarro v. Villegas, Imbong
26  27  28 

v. Ferrer, Blo Umpar Adiong v. Comelec and, more recently, in Iglesia ni Cristo
29  30 

The freedom of expression is a means of assuring individual self-fulfillment, of attaining v. MTRCB. In setting the standard or test for the "clear and present danger" doctrine, the
31 

the truth, of securing participation by the people in social and political decision-making, Court echoed the words of Justice Holmes: "The question in every case is whether the
and of maintaining the balance between stability and change. It represents a profound
17  words used are used in such circumstances and are of such a nature as to create a clear
commitment to the principle that debates on public issues should be uninhibited, robust, and present danger that they will bring about the substantive evils that Congress has a
and wide open. It means more than the right to approve existing political beliefs or
18  right to prevent. It is a question of proximity and degree." 32

economic arrangements, to lend support to official measures, or to take refuge in the

existing climate of opinion on any of public consequence. And paraphrasing the eminent A limitation on the freedom of expression may be justified only by a danger of such
substantive character that the state has a right to prevent. Unlike in the "dangerous
tendency" doctrine, the danger must not only be clear but also present. "Present" refers These freedoms have additional importance, because exit polls generate important
to the time element; the danger must not only be probable but very likely to be research data which may be used to study influencing factors and trends in voting
inevitable. The evil sought to be avoided must be so substantive as to justify a clamp
33 
behavior. An absolute prohibition would thus be unreasonably restrictive, because it
over one's mouth or a restraint of a writing instrument.
34
effectively prevents the use of exit poll data not only for election-day projections, but also
for long-term research. 43

Justification for a Restriction

Comelec Ban on Exit Polling
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any
restriction is treated an exemption. The power to exercise prior restraint is not to be In the case at bar, the Comelec justifies its assailed Resolution as having been issued
presumed; rather the presumption is against its validity. And it is respondent's burden to
35 
pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and
overthrow such presumption. Any act that restrains speech should be greeted with peaceful election. While admitting that "the conduct of an exit poll and the broadcast of
furrowed brows, so it has been said.
36 
the results thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom
may be curtailed if the exercise thereof creates a clear and present danger to the
To justify a restriction, the promotion of a substantial government interest must be clearly community or it has a dangerous tendency." It then contends that "an exit poll has the
shown. Thus:
37  tendency to sow confusion considering the randomness of selecting interviewees, which
further make[s] the exit poll highly unreliable. The probability that the results of such exit
A government regulation is sufficiently justified if it is within the constitutional poll may not be in harmony with the official count made by the Comelec . . . is ever
power of the government, if it furthers an important or substantial government present. In other words, the exit poll has a clear and present danger of destroying the
interest; if the governmental interest is unrelated to the suppression of free credibility and integrity of the electoral process."
expression; and if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest.
38 Such arguments are purely speculative and clearly untenable. First, by the very nature of
a survey, the interviewees or participants are selected at random, so that the results will
Hence, even though the government's purposes are legitimate and substantial, they as much as possible be representative or reflective of the general sentiment or view of
cannot be pursued by means that broadly stifle fundamental personal liberties, when the the community or group polled. Second, the survey result is not meant to replace or be at
end can be more narrowly achieved. 39 par with the official Comelec count. It consists merely of the opinion of the polling group
as to who the electorate in general has probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake here are the credibility and the
The freedoms of speech and of the press should all the more be upheld when what is
integrity of the elections, which are exercises that are separate and independent from the
sought to be curtailed is the dissemination of information meant. to add meaning to the
exit polls. The holding and the reporting of the results of exit polls cannot undermine
equally vital right of suffrage. We cannot support any ruling or order "the effect of which
40 

those of the elections, since the former is only part of the latter. If at all, the outcome of
would be to nullify so vital a constitutional right as free speech." When faced with
41 

one can only be indicative of the other.

borderline situations in which the freedom of a candidate or a party to speak or the
freedom of the electorate to know is invoked against actions allegedly made to assure
clean and free elections, this Court shall lean in favor of freedom. For in the ultimate The Comelec's concern with the possible noncommunicative effect of exit polls —
analysis, the freedom of the citizen and the State's power to regulate should not be disorder and confusion in the voting centers — does not justify a total ban on them.
antagonistic. There can be no free and honest elections if, in the efforts to maintain them, Undoubtedly, the assailed Comelec Resolution is too broad, since its application is
the freedom to speak and the right to know are unduly curtailed. 42 without qualification as to whether the polling is disruptive or not. Concededly, the
44 

Omnibus Election Code prohibits disruptive behavior around the voting centers. There is
45 

no showing, however, that exit polls or the means to interview voters cause chaos in
True, the government has a stake in protecting the fundamental right to vote by providing
voting centers. Neither has any evidence been presented proving that the presence of
voting places that are safe and accessible. It has the duty to secure the secrecy of the
exit poll reporters near an election precinct tends to create disorder or confuse the
ballot and to preserve the sanctity and the integrity of the electoral process. However, in
voters.
order to justify a restriction of the people's freedoms of speech and of the press, the
state's responsibility of ensuring orderly voting must far outweigh them.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their rights of the media and the electorate. Quite the contrary, instead of disrupting elections,
use for any purpose. The valuable information and ideas that could be derived from exit polls — properly conducted and publicized — can be vital tools for the holding of
them, based on the voters' answer to the survey questions will forever remain unknown honest, orderly, peaceful and credible elections; and for the elimination of election-fixing,
and unexplored. Unless the ban is restrained, candidates, researchers, social scientists fraud and other electoral ills.
and the electorate in general would be deprived of studies on the impact of current
events and of election-day and other factors on voters' choices. 1âwphi1.nêt
Violation of Ballot Secrecy

In Daily Herald Co. v. Munro, the US Supreme Court held that a statute, one of the
46 
The contention of public respondent that exit polls indirectly transgress the sanctity and
purposes of which was to prevent the broadcasting of early returns, was unconstitutional the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access
because such purpose was impermissible, and the statute was neither narrowly tailored to the ballots cast by the voters. The ballot system of voting is not at issue here.
to advance a state interest nor the least restrictive alternative. Furthermore, the general
interest of the State in insulating voters from outside influences is insufficient to justify The reason behind the principle of ballot secrecy is to avoid vote buying through voter
speech regulation. Just as curtailing election-day broadcasts and newspaper editorials identification. Thus, voters are prohibited from exhibiting the contents of their official
for the reason that they might indirectly affect the voters' choices is impermissible, so is ballots to other persons, from making copies thereof, or from putting distinguishing marks
impermissible, so is regulating speech via an exit poll restriction. 47
thereon so as to be identified. Also proscribed is finding out the contents of the ballots
cast by particular voters or disclosing those of disabled or illiterate voters who have been
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not assisted. Clearly, what is forbidden is the association of voters with their respective
leave open any alternative channel of communication to gather the type of information votes, for the purpose of assuring that the votes have been cast in accordance with the
obtained through exit polling. On the other hand, there are other valid and reasonable instructions of a third party. This result cannot, however, be achieved merely through the
ways and means to achieve the Comelec end of avoiding or minimizing disorder and voters' verbal and confidential disclosure to a pollster of whom they have voted for.
confusion that may be brought about by exit surveys.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
For instance, a specific limited area for conducting exit polls may be designated. Only revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may
professional survey groups may be allowed to conduct the same. Pollsters may be kept also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may
at a reasonable distance from the voting center. They may be required to explain to be prescribed by the Comelec, so as to minimize or suppress incidental problems in the
voters that the latter may refuse interviewed, and that the interview is not part of the conduct of exit polls, without transgressing the fundamental rights of our people.
official balloting process. The pollsters may further be required to wear distinctive
clothing that would show they are not election officials. Additionally, they may be
48 
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued
required to undertake an information campaign on the nature of the exercise and the by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-
results to be obtained therefrom. These measures, together with a general prohibition of 1419 issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET
disruptive behavior, could ensure a clean, safe and orderly election. ASIDE. No costs.

For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) SO ORDERED.
communities are randomly selected in each province; (2) residences to be polled in such
communities are also chosen at random; (3) only individuals who have already voted, as
shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no
cameras of any sort; (5) the poll results are released to the public only on the day after
the elections. These precautions, together with the possible measures earlier stated,
49 

may be undertaken to abate the Comelec's fear, without consequently and unjustifiably
stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing
disruption is outweighed by the drastic abridgment of the constitutionally guaranteed