Election Law revised

Pre-proclamation Controversy vs.Election Contest Sarangani vs. COMELEC, G.R. No. 155560-62, Nov. 11, 2003 This case involves two rulings of the Provincial Board of Canvassers, signed by only two of its members. The rulings excluded Certificates of Canvass from the municipalities of Wao and Bubong on the ground that they were manufactured and falsified. Consequently, the COMELEC directed an investigation to be conducted on the two members of the Provincial Board of Canvassers for any culpable violation of the election laws which they might have committed by the following acts: (1) their failure to appear on the scheduled hearings/meetings in the instant cases after the suspension of the canvass despite their assurances and legal duty to do so; (2) their having issued the alleged written rulings excluding the COCs from Wao and Bubong without giving the Vice-Chairman the opportunity to participate and take part in the deliberations; and (3) their unprecedented act of deliberating and/or issuing the written rulings by themselves and of clandestinely submitting or turning over the said rulings to the Office of the COMELEC Secretary for promulgation without setting any hearing or giving notice to the Vice-Chairman and/or to the herein parties. The Supreme Court upheld the findings of the COMELEC during its investigation that the alleged tampering and falsification in the Certificates of Canvass were duly accounted for and did not affect the integrity of the ballot. In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issues the resolution on which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy would be a regular election protest and not a pre-proclamation controversy. EN BANC [G.R. No. 135927. June 26, 2000] SULTAN USMAN SARANGANI, SORAIDA M. SARANGANI and HADJI NOR HASSAN, petitioners, vs. COMMISSION ON ELECTIONS and HADJI ABOLAIS R. OMAR, MANAN OSOP and ATTY. NASIB D. YASSIN, respondents. DECISION BUENA, J.: Way back in the 1950’s and during the martial law era, it has been said that even the dead, the birds and the bees voted in Lanao. This petition for certiorari under Rule 65 of the Rules of Court which seeks to nullify the Order issued by the Commission on Elections [COMELEC, for brevity] dated June 29, 1998, finding Padian Torogan in Madalum, Lanao Del Sur as "ghost precinct," is an illustrative case. The facts are as follows: On September 15, 1997, a petition for annulment of several precincts and annulment of book of voters in Madalum, Lanao Del Sur was filed with the COMELEC by, among others, Hadji Oblais R. Omar thru counsel Atty. Nasib D. Yasin, herein private respondents. Among the precincts sought to be annulled was Padian Torogan, subject matter of the present petition for certiorari.[1] On September 18, 1997, the COMELEC, thru the Clerk of the Commission sent telegrams to the respective Board of Election Inspectors (BEI) of the questioned precincts in Madalum, Lanao Del Sur, including Padian Torogan, to file their answer to the petition for abolition of precincts and annulment of book of voters.[2] On October 31, 1997, the incumbent mayor of Madalum, Lanao Del Sur, Usman T. Sarangani, herein petitioner, together with other oppositors who were allegedly barangay chairmen of the twenty- three (23) barangays the "Books of Voters" and precincts of which were sought to be annulled and abolished, respectively, filed an "Answer in Opposition"[3] which included the affidavits of the barangay chairmen of the affected precincts attesting to the fact that the move to annul the book of voters and abolish the questioned election precincts were for the purpose of diminishing the bailiwicks of the incumbent mayor of Madalum, Lanao del Sur.[4] After hearing and submission of formal offer of exhibits and memoranda by the parties, the COMELEC issued an Order[5] dated February 11, 1998, referring the case to its Law Department for appropriate investigation. The COMELEC - Law Department conformably issued a memorandum dated April 29, 1998 directing Atty. Muslemin Tahir, the Provincial Election Supervisor of Marawi City, Lanao del Sur "to conduct a rigorous incisive investigation on the alleged ghost precincts and thereafter submit a report on the investigation conducted."[6] Consequently, Atty. Tahir created a TASK FORCE INVESTIGATION TEAM by virtue of a memorandum dated June 13, 1998 directing Election Officers Casan Macadato, Sacrain Guro and Anuar Datudacula "to conduct ocular inspection on the alleged twelve (12) ghost barangays in the Municipality of Madalum, Lanao Del Sur."[7] On June 18, 1998, an ocular inspection was conducted on the alleged ghost precincts yielding the following results – "At 12:10 pm, the Task Force Investigation Team from the COMELEC accompanied by traditional leaders, political leaders, many concerned residents of this town, a representative from the Lanao del Sur Provincial Statistics Office, Mr. Lacson Abdullah, and a Team from the DILG-ARMM, Lanao del Sur, arrived in the area supposedly Barangay Padian Torogan with these comments and observations: "It appears that in this area there are only two structures: One is a concrete house with no roof, and the other is a wooden structure without walls and roof. This obviously mean that no single human being could possibly reside in these two structures. "Also, it came out that the name Padian-Torogan means a cemetery not a residential place. So this contradicts the records being brought by the COMELEC Team from the Census saying that the area has 45 households with a total population of 285. (Ref. Municipal census Report as of September 1, 1995). "Besides, no less than the Chairman of the COMELEC Investigating Team asked the people around who among them is a resident or a registered voter in the so-called Barangay Padian-Torogan, and no one answered affirmatively. "Then at 12:50 PM, the COMELEC Investigating Team still with the people mentioned above are in Barangay Lumbac to look for the other supposed Barangay named Rakutan, and found this observations. x x x.....x x x.....x x x "By the way, unfortunately, at the peak of this ocular inspection, the Madalum Municipal Chief of Police Mahdi Mindalano, armed with UZI pistolized Machine Gun, arrived at the scene at exactly 12:55 pm boarding an orange Mitsubishi car with four armed bodyguards, the (sic) confronted the Team Leader of the COMELEC Investigating Group and angrily insisted to stop the ocular inspection. "This STACOM Mindalano, in warning a photographer not to take a shot on him, pointed his pistolized Rifle to this man when the photographer positioned his camera to take a picture of him while he is arguing with the investigating leader, Mr. CASAN MACADATO. "Moving camera film and several pictures are added hereto for further information and as exhibits. Also attached hereof are the names and signatures of among the more-or-less one hundred people who observed the conduct of this ocular inspection. (NOTE: This writer, Mr. Khalil Y. Alawi, is a member of the five (5) man Committee from the DILGARMM, Lanao del Sur created in respect to the Memo/Invitation from the COMELEC Provincial Office of Lanao del Sur dated June 15, 1998 signed by Mr. CASAN MACADATO, EO II, Chief Investigation Team. Mr. Macadato designated verbally and in public Mr. ALAWI to be his Secretary during this investigation, and of course, the (sic) with the consent of the DILG Team). "I hereby certify that the foregoing are true and correct to the best of my knowledge. Prepared by: (sgd) Khalil Y. Alawi " The dispositive portion of the COMELEC Order reads: "ACCORDINGLY. Lanao del Sur and transfer him to an area where it will be extremely difficult for him to return to Mandalum and do further damage to effort of the Commission to investigate ghost precincts in said area considering the urgency of said investigation.. the Commission En Banc: (1) resolves to GRANT the request and hereby: (a)... (2) to look into the possibility of involvement of other policement (sic) in Madalum in the aforestated criminal mischief of the Police Station Commander or their possible partisanship.. (1) to immediately relieve and transfer Chief of Police Mahdi Mindalano of Madalum. 1998 reporting the results of the ocular inspection that Padian Torogan and Rakutan were uninhabited. 1998.RECOMMENDS to the PNP Director and the Regional Director of the Philippine National police. the COMELEC issued the assailed Order finding "Padian Torogan as ghost precinct. Lanao del Sur. (c).. (b). and to escort and secure the safety of the COMELEC Investigating Team during the conduct of ocular inspections and investigations. to continue the conduct of ocular inspection and investigation as contained in the original directive of the Law Department dated April 29. 1998... .RECOMMENDS to AFP Regional Command.. to immediately assign sufficient number of men to maintain peace and order in the Municipality of Madalum.DIRECTS the Task Force Investigating Team created pursuant to the Order of the Commission en banc dated February 11. Election Officer Casan Macadato submitted to the Provincial Election Supervisor of COMELEC in Marawi City its 1st Indorsement dated June 19. (2) finds Padian Torogan as ghost precinct and shall be excluded from the special election to be conducted in Madalum. 1998.. Task Force Investigation Team" [8] On the basis of the foregoing.[9] On June 29. DILG Team Submitted by: (sgd) Casan Macadato Election Officer II Chairman. Armed Forces of the Philippines.Member.... 1998. al" alleging that G. considering that G. the remaining ghost precincts in Madalum and to submit its findings to the Commission with dispatch. No. hence its conclusion that there were no inhabitants. No. are conclusive upon this Court. The Law Department of this Commission is hereby directed to implement this order. COMELEC. The petition states that precinct No. the court is not tasked to determine whether the so-called Padian Torogan is a barangay or a mere election precinct. The basic issue to be resolved in this petition is whether or not the respondent COMELEC committed grave abuse of discretion in declaring Padian-Torogan as ghost precinct. there can be no registered voters. On such issue. 134456 also involves a COMELEC decision declaring the precinct corresponding to eight (8) barangays in Madalum.R. 1998 and August 18. It must be noted that under the Omnibus Election Code. al vs. the Court finds that the COMELEC had exerted efforts to investigate the facts and verified that there were no public or private buildings in the said place." (emphasis supplied)[10] On November 3.[13] In designating election precincts. It is not impossible for a certain barangay not to actually have inhabitants considering that people migrate. et. we denied the motion to consolidate. petitioners moved to consolidate this case with G. incumbent Mayor and Vice-Mayor of Madalum filed the instant petition for certiorari and mandamus urging us to nullify the Order issued by the COMELEC. In any case. 1999.R. a fortiori. Lanao del Sur and it was erroneous for the COMELEC to consider PadianTorogan as a ghost precinct. more so.R. Nevertheless. Soraida M. 27A located in Barangay Padian Torogan was the one declared as a ghost precinct by the COMELEC although the assailed Order did not mention any specific precinct but simply declared "Padian Torogan as ghost precinct.(3) Order the Investigating Team. If there were no inhabitants. the determination of whether a certain election precinct actually exists or not and whether the voters registered in said precinct are real voters is a factual matter. the COMELEC usually refers to them by number. in their respective capacity as former Municipal Mayor. 1998. In a resolution[11] issued by this Court on January 19. Sultan Usman Sarangani. thru Macadatu. A barangay may . for having been issued with grave abuse of discretion. it is a timehonored precept that factual findings of the COMELEC based on its own assessments and duly supported by evidence. to immediately resume the investigation. 134456 had already been dismissed in our resolutions of August 4. Lanao del Sur as ghosts precincts. it appears from the records that Padian Torogan is a barangay in Madalum.[12] On a preliminary matter. though not clear. No. Sarangani and Hadji Nor Hassan. SO ORDERED. 134456 entitled "Sultan Sarangani. or the registered voters may have left the place. what was necessarily contemplated by the assailed Order would be the election precinct in the said place. in the absence of a substantiated attack on the validity of the same. there should be at least one precinct per barangay. et.[14] Upon review of the records." To be clear. allowing it to submit partial findings if necessary. Likewise. Under the Local Government Code of 1991. No pronouncement as to costs. and the assailed Order dated June 29.[20] WHEREFORE. Election laws should give effect to. The sacred right of suffrage guaranteed by the Constitution[19] is not tampered when a list of fictitious voters is excluded from an electoral exercise.[17] The assailed order having been issued pursuant to COMELEC’s administrative powers and in the absence of any finding of grave abuse of discretion in declaring a precinct as non-existent. except in Metropolitan Manila area and in cultural communities. said order shall stand. or any other political subdivision. SO ORDERED. 1998 of the Commission on Elections is UPHELD. The COMELEC has broad powers to ascertain the true results of an election by means available to it. The findings of the administrative agency cannot be reversed on appeal or certiorari particularly when no significant facts and circumstances are shown to have been overlooked or disregarded which when considered would have substantially affected the outcome of the case. . such exclusion of non-existent voters all the more protects the validity and credibility of the electoral process as well as the right of suffrage because the "electoral will" would not be rendered nugatory by the inclusion of some ghost votes. rather than frustrate the will of the people. municipality.[15] In the case of a barangay. Judicial interference is unnecessary and uncalled for. the petition is hereby DISMISSED. the abolition of a local government unit (LGU) may be done by Congress in the case of a province. city. it may be done by the Sangguniang Panlalawigan or Sangguniang Panglungsod concerned subject to the mandatory requirement of a plebiscite[16] conducted for the purpose in the political units affected.officially exist on record and the fact that nobody resides in the place does not result in its automatic cessation as a unit of local government. On the contrary. Suffrage is conferred by the Constitution only on citizens who are qualified to vote and are not otherwise disqualified by law.[18] No voter is disenfranchised because no such voter exist. EUSEBIO. Petitioner-Intervenor. Respondents. CHARMIE Q. (4) the non-inclusion of votes for Eusebio in the canvass. and the Advisory dated 10 May 20044 of COMELEC Chairman Benjamin S. The 11 May 2004 Order suspended the proclamation of Eusebio in the event that he would receive the winning number of votes. COMMISSION ON ELECTIONS and VICENTE P. (3) the consideration of votes for Eusebio as stray. DECISION CARPIO. 04-288. (2) the deletion of Eusebio’s name from the certified list of candidates for Pasig City Mayor. LANOT. J.Republic of the Philippines SUPREME COURT Manila EN BANC G. The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National Capital Region (NCR) Regional Director Esmeralda Amora-Ladra ("Director Ladra") from implementing the COMELEC First Division’s 5 May 2004 Resolution. . and (5) the filing of the necessary information against Eusebio by the COMELEC Law Department. BENAVIDES. Abalos ("Chairman Abalos") in SPA No. No.: The Case This is a petition for certiorari1 assailing the Resolution dated 20 August 2004.5 The 5 May 2004 Resolution ordered (1) the disqualification of respondent Vicente P. The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May 2004 Order of the COMELEC En Banc6 and directed the Pasig City Board of Canvassers to proclaim the winning candidate for Pasig City Mayor without prejudice to the final outcome of Eusebio’s disqualification case.R.2 the Resolution dated 21 May 20043 of the Commission on Elections (COMELEC) En Banc. 2006 HENRY P. substituted by MARIO S. Petitioner. RAYMUNDO. vs. 164858 November 16. Eusebio ("Eusebio") as a candidate for Pasig City Mayor in the 10 May 2004 elections. "petitioners"). Petitioners submitted their memorandum10 on 15 April 2004. undersigned respectfully recommends that the instant case be referred to the Law Department for it to conduct a preliminary investigation on the possible violation by the respondent of Sec. (3) causing the publication of a press release predicting his victory. The COMELEC En Banc referred the case to the COMELEC Law Department to determine whether Eusebio actually committed the acts subject of the petition for disqualification. In his Answer filed on 29 March 2004. The case was docketed as SPA (NCR-RED) No. Director Ladra recommended that: WHEREFORE. respondent VICENTE P. Reynaldo dela Paz ("dela Paz"). Director Ladra conducted hearings on 2. and Ram Alan Cruz ("Cruz") (collectively. pursuant to Section 68 (a) and (e) of the Omnibus Election Code. Eusebio further stated that petitioners’ evidence are merely fabricated. while Peralta. 5 and 7 April 2004 where she received the parties’ documentary and testimonial evidence. while Eusebio submitted his memorandum11 on 16 April 2004. C04-008. and Cruz were candidates for Pasig City Councilor in the 10 May 2004 elections.9 Eusebio denied petitioners’ allegations and branded the petition as a harassment case. The Facts On 19 March 2004. Lanot ("Lanot"). Henry P. Consequently. filed a petition for disqualification8 under Sections 68 and 80 of the Omnibus Election Code against Eusebio before the COMELEC. Pasig City for violation of Section 80 of the Omnibus Election Code. 261 (a) of the Omnibus Election Code. (2) uttering defamatory statements against Lanot. Petitioners alleged that Eusebio engaged in an election campaign in various forms on various occasions outside of the designated campaign period. and (5) distributing shoes to schoolchildren in Pasig public schools to induce their parents to vote for him.12 . the 20 August 2004 COMELEC En Banc resolution set aside the 5 May 2004 Resolution of the COMELEC First Division7 and nullified the corresponding order. and Eusebio were candidates for Pasig City Mayor. Lanot. streamers. Director Ladra submitted her findings and recommendations to the COMELEC. undersigned respectfully recommends that the instant petition be GRANTED. such as (1) addressing a large group of people during a medical mission sponsored by the Pasig City government. Vener Obispo ("Obispo").Finally. Roberto Peralta ("Peralta"). The Ruling of the Regional Director On 4 May 2004. EUSEBIO shall be DISQUALIFIED to run for the position of Mayor. posters. dela Paz. and stickers printed with his surname across Pasig City. Yamat. Obispo. in view of the foregoing. (4) installing billboards. Edilberto Yamat ("Yamat"). Further. the Regional Director of NCR. the disqualification of respondent VICENTE P. the COMELEC First Division adopted the findings and recommendation of Director Ladra. The dispositive portion of the resolution read: WHEREFORE. EUSEBIO from being a candidate for mayor of Pasig City in the May 10. or five days before the elections.] 6. or two days before the elections. Chairman Abalos informed the following election officers of the resolution of the COMELEC First Division: Director Ladra. the Board of Election Inspectors of all the precincts comprising the City of Pasig not to count the votes cast for respondent VICENTE EUSEBIO. Marina Gerona. in the event that such votes were recorded in the election returns[. Director Ladra repeated the dispositive portion of the 5 May 2004 resolution in a .] 5. the Election Officers of District I and District II of Pasig City to DELETE and CANCEL the name of respondent VICENTE P. the Law Department through its Director IV. 2004 elections. This Resolution is immediately executory unless restrained by the Commission En Banc. "pertinent election officers"). the City Board of Canvassers of Pasig City not to canvass the votes erroneously cast for the disqualified candidate respondent VICENTE P.The Ruling of the COMELEC In a resolution dated 5 May 2004. Atty. the same being cast for a disqualified candidate and therefore must be considered stray. Romeo Alcazar. Acting Election Officer of the First District of Pasig City. EUSEBIO from the certified list of candidates for the City Offices of Pasig City for the May 10. the Commission (FIRST DIVISION) RESOLVED as it hereby RESOLVES to ORDER: 1. ALIODEN DALAIG to file the necessary information against Vicente P. in view of the foregoing. 3. Atty. 2004 elections. Acting Election Officer of the Second District of Pasig City. 2. EUSEBIO. 4.13 (Emphasis in the original) In a Very Urgent Advisory14 dated 8 May 2004. and all Chairmen and Members of the Board of Election Inspectors and City Board of Canvassers of Pasig City (collectively. Eusebio before the appropriate court. Ms. and the Election Officers of Pasig City to immediately implement the foregoing directives[. Eusebio had 119. Yamat. this Commission RESOLVED. Eusebio filed a motion for reconsideration16 of the resolution of the COMELEC First Division. Peralta. you are hereby ENJOINED from implementing the Resolution promulgated on May 5. UNTIL FURTHER ORDERS OF THE COMMISSION. the Commission En Banc DENIES the motion for suspension of the counting of votes and the canvassing of votes.18 Without waiting for Eusebio’s opposition.693 votes while Lanot had 108. the remaining returns would not affect Eusebio’s lead over Lanot. the COMELEC En Banc partially denied the motion on the same day. On election day itself. dela Paz. the Commission En Banc hereby ORDERS to SUSPEND. Eusebio[. as it hereby RESOLVES. Chairman Abalos enjoined Director Ladra from implementing the COMELEC First Division’s 5 May 2004 resolution due to Eusebio’s motion for reconsideration. Chairman Abalos issued the first of the three questioned COMELEC issuances. The COMELEC En Banc stated its "established policy" to "expedite the canvass of votes and proclamation of winning candidates to ease the post election tension and without prejudice to [its] action in [the] x x x case"20 and resolved to declare Eusebio as Pasig City Mayor. and Cruz filed before the COMELEC En Banc a motion to suspend the counting and canvassing of votes and the proclamation of the winning mayoral candidate for Pasig City. FURTHER.225 registered voters. Thus.941 votes. 2004. to LIFT AND SET ASIDE the order suspending the proclamation of the respondent. in order not to render moot and academic the issues for final disposition by the En Banc and considering that on the basis of the Resolution of the FIRST DIVISION. the COMELEC En Banc issued the second questioned issuance. However. The 10 May 2004 memorandum stated: Considering the pendency of a Motion for Reconsideration timely filed by Respondent.] with the Commission En Banc. the evidence of respondent’s guilt is strong. On 9 May 2004. Eusebio filed his opposition to petitioners’ motion. The order quoted from the motion for advisory opinion of the Pasig City Board of Canvassers which reported that 98% of the total returns of Pasig City had been canvassed and that there were only 32 uncanvassed returns involving 6. the day after the elections. On 21 May 2004. The dispositive portion of the 21 May 2004 Order read: WHEREFORE.17 (Emphasis in the original) On 11 May 2004. petitioners Lanot. the City Board of Canvassers is DIRECTED to complete [the] canvass and immediately .19 (Emphasis in the original) On 12 May 2004. in view of the foregoing. In a memorandum. The dispositive portion of the Order declared: WHEREFORE. the proclamation of respondent in the event he receives the winning number of votes. Vicente P.Memorandum15 which she issued the next day. in the x x x case until further orders from the Commission En Banc. proceed with the proclamation of the winning candidate for Mayor of Pasig City without prejudice to the final outcome of the case entitled.21 (Emphasis in the original) Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the 21 May 2004 Order. 2050 ("Resolution 2050") and this Court’s rulings in Albaña v. ACTED WITH GRAVE ABUSE OF DISCRETION OR LACK OR IN EXCESS OF JURISDICTION 1.22 On 20 August 2004. this case is referred to the Law Department for investigation to finally determine [whether] the acts complained of were in fact committed by respondent Eusebio. et al. "] docketed as SPA No. vs. this petition. whimsically and maliciously ADOPTED and APPLIED Sections 1 and 2 of Rule 2050 to this case. the COMELEC En Banc conducted hearings on Eusebio’s motion for reconsideration of the 5 May 2004 COMELEC First Division resolution. 2004 affirming the recommendation of the Regional Election Director (NCR) to disqualify Respondent. PREMISES CONSIDERED.1âwphi1 On 25 June and 6 July 2004. Lanot. and by annulling the order issued thereunder. The COMELEC En Banc invoked Section 1 of COMELEC Resolution No. a) erroneously. "Henry P. ANNULLED. Accordingly.24 and Sunga v. is hereby SET ASIDE. 2004. Lanot raised the following issues before this Court: A. COMELEC. the COMELEC En Banc promulgated the third questioned issuance. COMELEC25 in justifying the annulment of the order to disqualify Eusebio and the referral of the case to the Law Department for preliminary investigation. WHETHER PUBLIC RESPONDENT COMELEC. Vicente Eusebio[. affirming the recommendation of the Regional Director (NCR) to disqualify herein respondent. Lanot filed a motion to annul Eusebio’s proclamation and to order his proclamation instead.26 (Emphasis in the original) Hence. the COMELEC committed grave abuse of discretion amounting to lack of or excess of jurisdiction. The Issues Lanot alleged that as the COMELEC’s issuances are not supported by substantial evidence and are contrary to law and settled jurisprudence. COMELEC. the resolution promulgated by the First Division dated 8 May 2004 on the above-captioned case. IN ISSUING [ITS] RESOLUTION DATED AUGUST 20. The dispositive portion stated: WHEREFORE. by setting aside the Resolution of Disqualification promulgated by its First Division on May 5.. On 6 August 2004.23 Lonzanida v. and the corresponding ORDER issued thereunder. . 04-288. 2. 3. erroneously and blatantly whimsically grabbed the exclusive adjudicatory power of the Commission En Banc. AUTHORITY OR DISCRETION OR LACK OR IN EXCESS OF JURISDICTION 1. by unilaterally enjoining the implementation of the Order of Respondent’s disqualification despite the condition therein that it could only be restrained by the Commission En Banc. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO WARRANT RESPONDENT EUSEBIO’S DISQUALIFICATION. by lifting and setting aside the Order of suspension of proclamation by winning candidate issued on May 11. by disregarding the Order of disqualification. D. c) erroneously. whimsically and capriciously ARROGATED unto themselves a quasi-judicial legislation. C. B. 2004 1. erroneously and maliciously DISMISSED the electoral aspect of the case and whimsically VIOLATED Resolution 6452 and Section 6 of RA 6646. 2004 AS ALREADY FINAL AND EXECUTED AND IN FAILING TO ORDER THE PROCLAMATION OF PETITIONER. R. 2004. 6646. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC ACTED WITH GRAVE ABUSE OF POWER. 2004. . and d) erroneously and maliciously MISAPPLIED the Albaña and Sunga cases to the case at bar. it erroneously and intentionally and whimsically DISREGARDED the strong evidence of guilt of Respondent to warrant the suspension of his proclamation and erroneously and capriciously VIOLATED Resolution of May 11. E. and whether or not he illegally. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CAPRICIOUSLY DISREGARDING THE RESOLUTION OF MAY 5. it erroneously and whimsically IGNORED and DISREGARDED the inchoate right of petitioner as the winning party.A. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION OR IN EXCESS OR LACK OF JURISDICTION IN ISSUING ITS RESOLUTION DATED MAY 21. it illegally.b) capriciously VIOLATED COMELEC Resolution 6452 and Sec. 6. by referring the case to the Law Department for investigation. Benavides asked whether she could be proclaimed Pasig City Mayor because she is the surviving qualified candidate with the highest number of votes among the remaining candidates. a registered voter and former Mayor of Pasig City. or the Electoral Reforms Law of 1987 ("Electoral Reforms Law of 1987"). It seemed that. the disqualification case would be extinguished by Lanot’s death. WHETHER PETITIONER LANOT CAN BE PROCLAIMED AND ALLOWED TO SIT AS MAYOR-ELECT.. On Raymundo’s substitution. on 27 April 2005. Benavides could still intervene. JR.28 On Benavides’ intervention. Parties to the Present Petition On 13 April 2005. Raymundo ("Raymundo"). Section 6 of Republic Act No. over Eusebio’s objections. and survives. provided that there is a proper substitution or intervention of parties while there is a pending case. the election and proclamation of the winning . that Mario S.b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED DISQUALIFIED WITH FOUR (4) AFFIRMATIVE VOTES OF COMMISSIONERS. JR. an unidentified person shot and killed Lanot in Pasig City. CODILLA. on 25 August 2005. as there was still no final judgment in the proceedings for disqualification. Benavides ("Benavides"). like an endangered specie. is Lanot’s substitute in this case. filed a petition-in-intervention. However. during the pendency of this case. TWO (2) VOTES FROM COMMISSIONERS BORRA AND GARCILLANO WHO VOTED FOR THE DISQUALIFICATION IN THE MAY 5. LABO AND OTHERS APPLY IN THIS CASE. Lanot’s counsel manifested. AND WHETHER THE DOCTRINES IN TOPACIO. any citizen of voting age is competent to continue the action in Lanot’s stead. Also.27 The Ruling of the Court The petition has no merit. a Pasig City mayoral candidate and the third placer in the 10 May 2004 elections. AND SADAIN WHO VOTED TO DISQUALIFY HIM IN THEIR DISSENTING OPINION (ANNEX "A-1") SHOULD REFERRAL OF THE CASE TO THE LAW DEPARTMENT BY RESPONDENT COMELEC BE DECLARED A PATENT NULLITY.29 The case for disqualification exists. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO. The law and the COMELEC rules have clear pronouncements that the electoral aspect of a disqualification case is not rendered inutile by the death of petitioner. 2004 RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM COMMISSIONERS TUAZON. 6646. Charmie Q. F. Although Eusebio was already proclaimed as Pasig City Mayor. allows intervention in proceedings for disqualification even after elections if no final judgment has been rendered. Eusebio filed a motion for reconsideration on 9 May 2004. "[t]his Resolution is immediately executory unless restrained by the Commission En Banc. the COMELEC First Division ordered the pertinent election officials to delete and cancel Eusebio’s name from the certified list of Pasig City mayoral candidates. The COMELEC En Banc’s explanation is apt: Suspension of these proceedings is tantamount to an implementation of the Resolution of the FIRST DIVISION which had not yet become final and executory by reason of the timely filing of a Motion for Reconsideration thereof. Chairman Abalos’ 10 May 2004 memorandum is merely an advisory required by the circumstances at the time. Eusebio was not yet disqualified by final judgment at the time of the elections. Therefore. Hence. Section 6 of the Electoral Reforms Law . The same rationale applies to a petition-inintervention. A disposition that has not yet attained finality cannot be implemented even through indirect means. the COMELEC En Banc subsequently ratified and adopted Chairman Abalos’ 10 May 2004 memorandum when it denied Lanot’s motion to suspend the counting of votes and canvassing of election returns. COMELEC Chairman Abalos issued a memorandum on 10 May 2004 which enjoined the pertinent election officials from implementing the 5 May 2004 resolution.31 Moreover. There is no law or jurisprudence which says that intervention or substitution may only be done prior to the proclamation of the winning candidate. and not to include votes cast in Eusebio’s favor in the canvass of election returns. and there was not enough time to resolve the motion for reconsideration before the elections. especially in light of the 11 May 2004 Resolution of the COMELEC En Banc. where the appropriate electoral tribunal would have jurisdiction." should have prevented Chairman Abalos from acting on his own.30 The exception to the rule of retention of jurisdiction after proclamation applies when the challenged candidate becomes a member of the House of Representatives or of the Senate. not to count votes cast in Eusebio’s favor. A substitution is not barred by prescription because the action was filed on time by the person who died and who is being substituted. COMELEC’s Grave Abuse of Discretion Propriety of Including Eusebio’s Name in the Pasig City Mayoral Candidates and of the Counting of Votes and Canvassing of Election Returns In its 5 May 2004 resolution. In a Resolution dated 11 May 2004. Eusebio filed a motion for reconsideration of the resolution on 9 May 2004.candidate because an outright dismissal will unduly reward the challenged candidate and may even encourage him to employ delaying tactics to impede the resolution of the disqualification case until after he has been proclaimed. Lanot’s claim has no basis. Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory power of the COMELEC En Banc when he issued the 10 May 2004 memorandum. Lanot asserts that the last sentence in the dispositive portion of the COMELEC First Division’s 5 May 2004 Resolution. Propriety of the Lifting of the Suspension of Eusebio’s Proclamation In the same 11 May 2004 Resolution. the COMELEC En Banc set aside the 11 May 2004 order and directed the Pasig City Board of Canvassers to proclaim Eusebio as the winning candidate for Pasig City Mayor. a decision or resolution of a Division in a special action becomes final and executory after the lapse of fifteen days following its promulgation while a decision or resolution of the COMELEC En Banc becomes final and executory after five days from its promulgation unless restrained by this Court. 7128 xxxx NOW THEREFORE. as follows: 1. valid appeal[s] from the rulings of the board in cases where appeal is allowed and the subject appeal will affect the results of the elections. the Commission RESOLVED. as it hereby RESOLVES. Ten days later.of 1987 provides that "[a] candidate who has been declared by final judgment to be disqualified shall not be voted for. b." Under Section 13 of the COMELEC Rules of Procedure. 7129 xxxx . to speed up its canvass and proclamation of all winning candidates except under the following circumstances: a. The COMELEC relied on Resolutions 7128 and 712932 to justify the counting of Eusebio’s votes and quoted from the Resolutions as follows: Resolution No. issuance of an order or resolution suspending the proclamation. and the votes cast for him shall not be counted. x x x x. to adopt certain policies and to direct all Board of Canvassers. the COMELEC En Banc ordered the suspension of Eusebio’s proclamation in the event he would receive the winning number of votes. Resolution No. supported by convincing evidence and/or violative of the canvassing procedure outlined in Resolution No. 10 May 2004. a little less than two months before the 10 May 2004 elections. to refrain from granting motions and petitions seeking to postpone proclamations by the Board of Canvassers and other pleadings with similar purpose unless they are grounded on compelling reasons. Where the inquiry by the Commission results in a finding before election.NOW THEREFORE. as it hereby RESOLVES. Director Ladra conducted hearings on the petition for disqualification on 2. In its 20 August 2004 resolution. after which Eusebio was proclaimed as the winning candidate for Pasig City Mayor. We agree with Eusebio that the COMELEC En Banc did not commit grave abuse of discretion in issuing its 21 May 2004 order. The COMELEC First Division issued a resolution adopting Director Ladra’s recommendations on 5 May 2004.33 However. The COMELEC En Banc invoked Section 1 of Resolution No. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Section 68 of the Omnibus Election Code. the COMELEC En Banc relied heavily on the timing of the filing of the petition. and enjoined her from implementing the 5 May 2004 COMELEC First Division resolution. The petition for disqualification was not yet finally resolved at the time of the elections. 6669. 2050. has RESOLVED. by virtue of the powers vested in it by the Constitution. shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed. 5 and 7 April 2004. filed directly with the Commission before an election in which the respondent is a candidate. Eusebio filed a Motion for Reconsideration on 9 May 2004. the Omnibus Election Code and other elections laws. that the respondent candidate did in fact commit the acts complained.34 Propriety of the Dismissal of the Disqualification Case and of the Referral to the COMELEC Law Department Lanot filed the petition for disqualification on 19 March 2004. . which states: 1. the Commission shall order the disqualification of the respondent candidate from continuing as such candidate. the Commission on Elections. the COMELEC En Banc set aside the COMELEC First Division’s order and referred the case to the COMELEC Law Department. On 20 August 2004. Chairman Abalos issued a memorandum to Director Ladra on election day. Chairman Abalos informed the pertinent election officers of the COMELEC First Division’s resolution through an Advisory dated 8 May 2004. Eusebio’s votes were counted and canvassed. The COMELEC has the discretion to suspend the proclamation of the winning candidate during the pendency of a disqualification case when evidence of his guilt is strong. an order suspending the proclamation of a winning candidate against whom a disqualification case is filed is merely provisional in nature and can be lifted when warranted by the evidence. Director Ladra submitted her findings and recommendations to the COMELEC on 4 May 2004. (Emphasis added) The COMELEC also quoted from Sunga v. Such recourse may be availed of irrespective of whether the respondent has been elected or has lost in the election.35 For his part. The findings of the Law Department then become the basis for disqualifying the erring candidate. wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case. x x x We discern nothing in COMELEC Resolution No. refer the complaint to the Law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for.In case such complaint was not resolved before the election. i. or on motion of any of the parties. the pendency of a case before the Law Department for purposes of preliminary investigation should be considered as continuation of the COMELEC’s deliberations. 2050 in dismissing the disqualification case therein simply because it remained unresolved before the election and. this Court’s ruling in Sunga was further explained in Bagatsing v. no grave abuse of discretion can be imputed to the COMELEC. Eusebio asserts that the COMELEC has the prerogative to refer the disqualification case to its Law Department. 2050 declaring. (Emphasis added) Moreover. referring it to its Law Department for possible criminal prosecution of the respondent for violation of the election . a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners. the prevailing law on the matter is Section 6 of the Electoral Reforms Law of 1987. inquiry or protest and. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election. However. 2050 in its 20 August 2004 resolution. This is totally different from the other two situations contemplated by Resolution No. What the Resolution mandates in such a case is for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained of have in fact been committed by the candidate sought to be disqualified. may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. Any rule or action by the COMELEC should be in accordance with the prevailing law.e. COMELEC. the Commission may motu proprio. Moreover. upon motion of the complainant or any intervenor. and the votes cast for him shall not be counted. Section 6 of the Electoral Reforms Law of 1987 provides: Section 6. the Court or Commission shall continue with the trial and hearing of the action. in lieu thereof. Effect of Disqualification Case. Thus. ordering or directing the dismissal of a disqualification case filed before the election but which remained unresolved after the election. 2050. contrary to the COMELEC En Banc’s reliance on Resolution No.36 thus: The COMELEC in Sunga obviously misapplied Resolution No.. COMELEC to justify its referral of the disqualification case to its Law Department. 38 A criminal conviction shall result in the disqualification of the offender. Notably. 2050. 2050 which directs the dismissal of the disqualification case not resolved before the election. the acts which are grounds for disqualification also constitute a criminal offense or offenses. which necessitates proof beyond reasonable doubt to convict. Proceedings are summary in character and require only clear preponderance of evidence. and vice-versa. files the criminal information before the proper court. there is nothing in paragraph 1 of Resolution No. through its Law Department. An erring candidate may be disqualified even without prior determination of probable cause in a preliminary investigation. wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case. When the disqualification case is filed before the elections. The electoral aspect may proceed independently of the criminal aspect. which determines whether probable cause exists. and the criminal. through its Law Department. the administrative. the question of disqualification is raised before the voting public. it stated that the referral of the complaint for disqualification where the case is filed before election "is totally different from the other two situations contemplated by Resolution No.40 The COMELEC En Banc erred when it ignored the electoral aspect of the disqualification case by setting aside the COMELEC First Division’s resolution and referring the entire case to the COMELEC Law Department for the criminal .39 The two aspects account for the variance of the rules on disposition and resolution of disqualification cases filed before or after an election. xxxx It bears stressing that the Court in Sunga recognized the difference between a disqualification case filed before and after an election when. those who voted for him assume the risk that their votes may be declared stray or invalid.e.37 If there is probable cause. a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners. the 20 August 2004 resolution of the COMELEC En Banc betrayed its misunderstanding of the two aspects of a disqualification case. the COMELEC. Where in the opinion of the COMELEC. which requires only a preponderance of evidence to prove disqualification. i." Indeed. The electoral aspect of a disqualification case determines whether the offender should be disqualified from being a candidate or from holding office.laws. Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable doubt to convict. as earlier mentioned." The referral to the Law Department is discretionary on the part of the COMELEC and in no way may it be interpreted that the COMELEC will dismiss the disqualification case or will no longer continue with the hearing of the same.. which may even include disqualification from holding a future public office. The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for an election offense. It says the COMELEC "may motu prop[r]io or on motion of any of the parties. referral of the case to the Law Department is proper. If the candidate is disqualified after the election. The reason for this is that a disqualification case may have two (2) aspects. refer the complaint to the Law Department of the Commission as an instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. There is no such risk if the petition is filed after the elections. The prosecutor is the COMELEC. Where to file petitions. For x x x local positions including highly-urbanized cities.aspect. xxx PROVIDED. — In the interest of justice and in order to attain speedy disposition of cases. in cases of highly-urbanized cities the filing of petitions for disqualification shall be with the Office of the Regional Election Directors. x x x xxxx . 2004 National and Local Elections. the COMELEC En Banc’s act and Eusebio’s assertions lose sight of the provisions of Resolution No." promulgated on 10 December 2003. 3. Moreover. Petition to disqualify a candidate pursuant to Sec. xxx Sec. Suspension of the Comelec Rules of Procedure. Sec. the Comelec Rules of Procedure or any portion thereof inconsistent herewith is hereby suspended. Motu Proprio Actions and Disposition of Disqualification Cases. The pertinent portions of Resolution 6452 provide: Section 1. 6452 ("Resolution 6452"). 2. 68 of the Omnibus Election Code and disqualify a candidate for lack of qualifications or possessing same grounds for disqualification. "Rules Delegating to COMELEC Field Officials the Hearing and Reception of Evidence of Disqualification Cases Filed in Connection with the May 10. in the National Capital Region. with the Regional Election Director of said region. — The Commission hereby designates its field officials who are members of the Philippine Bar to hear and receive evidence in the following petitions: xxx c. — The petitions shall be filed with the following offices of the Commission: xxx b. Delegation of reception of evidence. v and cc sub-paragraph 6 of the Omnibus Election Code. 5. 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION 1. organization or coalition of political parties against any candidate who. 68 of the Omnibus Election Code shall be filed in ten (10) legible copies with the concerned office mentioned in Sec.d having solicited. or xxx 2. in an action or protest in which he is a party. or 2. 86 and 261. 97 and 104 of the Omnibus Elections Code. e. 3 personally or through a duly authorized representative by any citizen of voting age. 2. The petition to disqualify a candidate pursuant to Sec. is declared by final decision of a competent court guilty of. 83. or if he has been elected. Procedure in filing petitions. or found by the Commission of: 2. 2050 referring the electoral aspect to the .a having given money or other material consideration to influence.e having violated any of Sections 80. xxxx Indeed. 68 of the Omnibus Election Code x x x may be filed any day after the last day [of] filing of certificates of candidacy but not later than the date of proclamation. shall be disqualified from continuing as a candidate. paragraphs d. or duly registered political party. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC.The Regional Election Directors concerned shall hear and receive evidence strictly in accordance with the procedure and timeliness herein provided. 85. Sec. k." Resolution No. 96. what the COMELEC did in its 20 August 2004 resolution was contrary to "the interest of justice and x x x speedy disposition of cases. — For purposes of the preceding section. The verified petition to disqualify a candidate pursuant to Sec. received or made any contribution prohibited under Sections 89. the following procedure shall be observed: xxxx C. from holding the office. induce or corrupt the voters or public officials performing electoral functions. 95. was substantive and legally sound. clearly. RED-NCR. The criminal aspect of the case is an altogether different issue. in view of the grave abuse of discretion committed by the COMELEC En Banc in its 20 August 2004 resolution. I likewise found to be in accord with our very own rules and the jurisprudential doctrines aforestated. 2050 produces the same result as the investigation under Resolution 6452 by the Regional Election Director. Sunga said the reason is obvious: A candidate guilty of election offenses would be undeservedly rewarded. 2004 during the meeting dubbed as "Lingap sa Barangay" in . This. until judgment is rendered thereon. There also appears no doubt in my mind. by the dismissal of the disqualification case against him simply because the investigating body was unable.Law Department is procedurally inconsistent with Resolution 6452 delegating reception of evidence of the electoral aspect to the Regional Election Director. Rightful Pasig City Mayor Eusebio’s Questioned Acts We quote the findings and recommendations of Director Ladra as adopted by the COMELEC First Division: The questioned acts of [Eusebio] are as follows: 1) The speech uttered on February 14. to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. The First Division agreed with the result of the investigation/recommendation. Commissioner Tuason’s dissent underscored the inconsistency between the avowed purpose of Resolution 6452 and the COMELEC En Banc’s 20 August 2004 resolution: x x x [T]he preliminary investigation for purposes of finding sufficient ground for [Eusebio’s] disqualification.e. There could be no rhyme and reason then to dismiss the electoral aspect of the case (i. that such recommendation of the investigating officer. disqualification) and refer the same to the Law Department for preliminary investigation.41 We agree with Lanot that the COMELEC committed grave abuse of discretion when it ordered the dismissal of the disqualification case pending preliminary investigation of the COMELEC Law Department. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law. A review of the COMELEC First Division’s 5 May 2004 resolution on Eusebio’s disqualification is in order. As held in Sunga. has already been accomplished by the RED-NCR prior to the election. for any reason caused upon it. instead of punished. The investigation by the Law Department under Resolution No.. i. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. with the facts of the case clearly distilled in the assailed resolution..e. the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion. xxxx 5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means "Serbisyong Totoo" before the start of the campaign period. Inc. xxxx 4) He paid a political advertisement in the Philippine Free Press in the amount of P193. xxxx .. xxxx 7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the two letters "E" prominently written.00 as published in its issue dated February 7. Rosario. xxxx 6) Posters showing the respondent and his running mate Yoyong Martirez as well those showing the name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the dengue project were posted everywhere even before the start of the campaign period. xxxx 3) He caused to be published in leading newspapers about a survey allegedly done by Survey Specialist. showing him to be leading in the mayoralty race in Pasig City. Pasig City wherein [Eusebio] allegedly asked the people to vote for him and solicited for their support x x x: xxxx 2) Another speech given on March 17.Barangay San Miguel. 2004. Pasig City wherein [Eusebio] again allegedly uttered defamatory statements against co-[candidate] Lanot and campaigned for his (respondent’s) and his group’s candidacy.660. 2004 in ROTC St. 8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the campaign period. xxxx 9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the parents that by way of gratitude, they should vote for him. x x x x (Emphasis in the original)42 Eusebio argues that: (1) Lanot is in estoppel for participating in the proceedings before the COMELEC Law Department; (2) Lanot abandoned the present petition also because of his participation in the proceedings before the COMELEC Law Department; and (3) Lanot is guilty of forum-shopping. These arguments fail for lack of understanding of the two aspects of disqualification cases. The proceedings before the COMELEC Law Department concern the criminal aspect, while the proceedings before this Court concern the electoral aspect, of disqualification cases. The proceedings in one may proceed independently of the other. Eusebio is correct when he asserts that this Court is not a trier of facts. What he overlooks, however, is that this Court may review the factual findings of the COMELEC when there is grave abuse of discretion and a showing of arbitrariness in the COMELEC’s decision, order or resolution.43 We find that the COMELEC committed grave abuse of discretion in issuing its 20 August 2004 resolution. Our review of the factual findings of the COMELEC, as well as the law applicable to this case, shows that there is no basis to disqualify Eusebio. Director Ladra recommended the disqualification of Eusebio "for violation of Section 80 of the Omnibus Election Code." The COMELEC First Division approved Director Ladra’s recommendation and disqualified Eusebio. Section 80 of the Omnibus Election Code provides: SECTION 80. Election campaign or partisan political activity outside campaign period. — It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: Provided, That political parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election. (Emphasis supplied) What Section 80 of the Omnibus Election Code prohibits is "an election campaign or partisan political activity" by a "candidate" "outside" of the campaign period. Section 79 of the same Code defines "candidate," "election campaign" and "partisan political activity" as follows: SECTION 79. Definitions. — As used in this Code: (a) The term "candidate" refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties; (b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election activity. Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article. Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period. The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a "candidate." The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed. Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside" the campaign period. Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day. There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts before the start of the campaign period on 24 March 2004. Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004? Section 11 of RA 8436 provides: SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided. Both sides of the ballots may be used when necessary. For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to Personally. and that identification marks. Okay. the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine. Unless we. magnetic strips. Vice-President. TANJUATCO). 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27. finally. the deadline for filing of the certificate of candidacy for the positions of President. TANJUATCO). bar codes and other technical and security markings. SENATOR GONZALES. would it be the same[. This is clear from the following deliberations of the Bicameral Conference Committee: SENATOR GONZALES. But the moment one files a certificate of candidacy. further. SENATOR GONZALES. unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided. . .] uniform for local and national officials? THE CHAIRMAN (REP. Accredited political parties and deputized citizens’ arms of the Commission may assign watchers in the printing. storage and distribution of official ballots. the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. And you cannot say that the campaign period has not yet began [sic]. he’s already a candidate. THE CHAIRMAN (REP. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Then. how about the campaign period.44 (Emphasis added) Under Section 11 of RA 8436. are provided on the ballot. To prevent the use of fake ballots. . and there are many prohibited acts on the part of candidate. The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct. 1998 elections. That. That.the position for which he/she is running: Provided. Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9. 1998. I would agree to retaining it at the present periods. for purposes of the May 11. . The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. THE ACTING CHAIRMAN (SEN. xxxx SENATOR GONZALES. the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots. Mr. the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version. THE CHAIRMAN (SENATOR FERNAN). THE CHAIRMAN (REP. Thank you. this provision does not intend to change the campaign periods as presently. TANJUATCO). it should be subject to the other prohibition. TANJUATCO).THE CHAIRMAN (REP. So that is election period already. with the manifestations from the Commission on Elections. FERNAN). Again. Mr. Chairman. In other words. SENATOR GONZALES. That’s right. If we don’t provide that the filing of the certificate will not bring about one’s being a candidate. So. No. THE ACTING CHAIRMAN (SEN. THE CHAIRMAN (REP. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate? THE CHAIRMAN (REP. actually. THE CHAIRMAN (REP. TANJUATCO). Because here. TANJUATCO). we can also provide that insofar he is concerned. the law cannot change a fact. election period or his being a candidate will not yet commence. there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy. or rather election periods as presently fixed by existing law. Chairman. If that’s a fact. since the intention of this provision is just to afford the Comelec enough time to print the ballots. election period starts 120 days also. Okay. TANJUATCO). So.45 (Emphasis added) . but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position. But he will still not be considered as a candidate. FERNAN). never intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. We now examine the specific questioned acts of Eusebio whether they violate Section 80 of the Omnibus Election Code. Congress. Eusebio is deemed to have filed his certificate of candidacy on this date for purposes other than the printing of ballots because this is the interpretation of Section 80 of the Omnibus Election Code most favorable to one charged of its violation. Eusebio filed his certificate of candidacy on 29 December 2003. Pasig City wherein [Eusebio] again allegedly uttered defamatory statements against co-[candidate] Lanot and campaigned for his (respondent’s) and his group’s candidacy.47 (Emphasis in the original) The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebio is deemed to . Eusebio became a "candidate" only on 23 March 2004 for purposes other than the printing of ballots. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate. this puts the start of the campaign period on 24 March 2004. 2004 in ROTC St.. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. 2004 during the meeting dubbed as "Lingap sa Barangay" in Barangay San Miguel. the applicable law prior to RA 8436. Rosario. even if constituting election campaigning or partisan political activities. on 23 March 2004." Under Section 3(b) of the Omnibus Election Code. are not covered by Section 80 which punishes only acts outside the campaign period.Thus. Since Section 80 defines a criminal offense. Pasig City wherein [Eusebio] allegedly asked the people to vote for him and solicited for their support x x x: 2) Another speech given on March 17. Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004. the campaign period for local officials commences 45 days before election day. Thus. because of the early deadline of 2 January 2004 for purposes of printing of official ballots. however. Such acts are protected as part of freedom of expression of a citizen before he becomes a candidate for elective public office. under the law prior to RA 8436. Acts committed by Eusebio on or after 24 March 2004.46 its provisions must be construed liberally in favor of one charged of its violation. This also puts the last day for the filing of certificate of candidacy. For the 2004 local elections. We begin with the 14 February 2004 and the 17 March 2004 speeches of Eusebio: 1) The speech uttered on February 14. or during the campaign period. are not punishable under Section 80 of the Omnibus Election Code. posters. xxxx They also presented Certification issued by Mr. 2004 to the effect that the articles in question came from the camp of [Eusebio]. Thus: 5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means "Serbisyong Totoo" before the start of the campaign period. . not being a candidate then. The political advertisement in the Philippine Free Press issue of 7 February 2004 was also made before Eusebio became a candidate on 23 March 2004. News Editor of Manila Bulletin dated 10 March 2004 and Mr. Isaac G. Eusebio. as well as his distribution of free shoes.48 (Emphasis in the original) Eusebio is not liable for this publication which was made before he became a candidate on 23 March 2004. Inc. showing him to be leading in the mayoralty race in Pasig City. is not liable for speeches on 14 February 2004 and 17 March 2004 asking the people to vote for him. xxxx 6) Posters showing the respondent and his running mate Yoyong Martinez as well those showing the name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the dengue project were posted everywhere even before the start of the campaign period. Diego Cagahastian. and streamers.have filed his certificate of candidacy on 23 March 2004 for purposes other than the printing of ballots. all happened also before Eusebio became a candidate on 23 March 2004. stickers.49 (Emphasis in the original) The display of Eusebio’s billboards. 2004. The survey showing Eusebio leading in the mayoralty race was published before Eusebio was deemed to have filed his certificate of candidacy on 23 March 2004.00 as published in its issue dated February 7.660. Editor-in-Chief of Philippine Star dated March 2. Belmonte. Thus: 4) He paid a political advertisement in the Philippine Free Press in the amount of P193. Thus: 3) He caused to be published in leading newspapers about a survey allegedly done by Survey Specialist. However." for purposes of Section 80 of the . 2004 which showed the picture of the respondent delivering his speech before a group of students. 7 & 8. "O" are uncontroverted. Their statement that free shoes were given to the students of Rizal High School was corroborated by the Manila Bulletin issue of February 6. Director Ladra erroneously assumed that Eusebio became a "candidate. they should vote for him. Eusebio became a "candidate. 2004.xxxx Petitioners’ witnesses Alfonso Cordova and Alfredo Lacsamana as well as Hermogenes Garcia stated in their respective affidavits marked as Exhs." for purposes of Section 80. "L" and "L-1" that the pictures were taken on March 3. xxxx 9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the parents that by way of gratitude. xxxx 7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the two letters "E" prominently written. when Eusebio filed his certificate of candidacy on 29 December 2003. xxxx Said streamers were among those captured by the camera of the petitioners’ witnesses Hermogenes Garcia and Nelia Sarmiento before the start of the campaign period. Under Section 11 of RA 8436. Director Ladra applied Section 80 of the Omnibus Election Code against Eusebio precisely because Eusebio committed these acts "outside" of the campaign period. Indeed. Norie Altiche and Myrna Verdillo marked as Exh. the questioned acts attributed to Eusebio all occurred before the start of the campaign period on 24 March 2004. "M" and Flor Montefalcon. The affidavits of Ceferino Tantay marked as Exh. x x x x50 (Emphasis in the original) Based on the findings of Director Ladra. 8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the campaign period. The net result is to make the election offense in Section 80 physically impossible to commit at any time.51 Votes cast in favor of a candidate who obtained the highest number of votes." one who has filed his certificate of candidacy. The disqualification of the elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated because of the disqualification. Effect of Eusebio’s Possible Disqualification As second placer. are presumed to have been cast in the belief that he was qualified. the last day for filing certificates of candidacy. Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability for the questioned acts. unlawful acts applicable to a candidate cannot be committed outside of the campaign period. Eusebio clearly did not violate Section 80 of the Omnibus Election Code which requires the existence of a "candidate. the second placer cannot be declared elected. Benavides. further. unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: x x x Eusebio theorizes that since the questioned acts admittedly took place before the start of the campaign period.to Section 11 of RA 8436. such acts are not "unlawful acts or omissions applicable to a candidate. That. As third placer. under Eusebio’s theory. against whom a petition for disqualification was filed before the election. Even if we assume Eusebio’s disqualification as fact. only on 23 March 2004.1âwphi1 Eusebio points out that Section 11 contains the following proviso: Provided. Eusebio’s theory legalizes election campaigning or partisan political activities before the campaign period even if a person has already filed his certificate of candidacy based on the election periods under existing laws prior to RA 8436. Under Eusebio’s theory." We find no necessity to apply in the present case this proviso in Section 11 of RA 8436. Lanot prayed that he be proclaimed as the rightful Pasig City Mayor in the event of Eusebio’s disqualification. Applying the facts .Omnibus Election Code. By definition. we cannot grant either prayer.52 . Section 11 of RA 8436 punishes unlawful acts applicable to a candidate only if committed during the campaign period. For this reason. on the other hand.as found by Director Ladra and affirmed by the COMELEC First Division . during the commission of the questioned acts. prays that she be proclaimed as the rightful Pasig City Mayor in the event of Eusebio’s disqualification and in view of Lanot’s death. We shall leave this issue for some other case in the future since the present case can be resolved without applying the proviso in Section 11 of RA 8436. On the other hand. the election offense in Section 80 of the Omnibus Election Code cannot be committed during the campaign period. We SET ASIDE the 20 August 2004 Resolution of the Commission En Banc since respondent Vicente P.54 WHEREFORE. Eusebio did not commit any act which would disqualify him as a candidate in the 10 May 2004 elections. First.53 Lanot and Benavides failed to prove that the exception applies in the present case. the one who obtained the highest number of votes is disqualified.The exception to this rule rests on two assumptions. assuming for the sake of argument that Eusebio is disqualified. Thus. We find no grave abuse of discretion in the 10 May 2004 Advisory of Chairman Benjamin S. Abalos and in the 21 May 2004 Order of the Commission on Elections En Banc. Second. SO ORDERED. the rule on succession provides that the duly elected Vice-Mayor of Pasig City shall succeed in Eusebio’s place. we DISMISS the petition. the voters are so fully aware in fact and in law of a candidate’s disqualification to bring such awareness within the realm of notoriety but nonetheless the voters still cast their votes in favor of the ineligible candidate. . Pasig city for violation of section 80 of the omnibus election code. RAYMUNDO. Edilberto Yamat ("Yamat"). Lanot. Henry P. and stickers printed with his surname across Pasig City. the same being cast for a disqualified candidate and therefore must be considered stray. the COMELEC ruled and orders on 5 may 2004. (2) uttering defamatory statements against Lanot. 2004 elections. pursuant to section 68 (a) and (e) of the omnibus election code. the respondent Vicente p. dela Paz. and (5) distributing shoes to schoolchildren in Pasig public schools to induce their parents to vote for him. Eusebio from the certified list of candidates for the city offices of Pasig city for the May 10. Petitioners alleged that Eusebio engaged in an election campaign in various forms on various occasions outside of the designated campaign period. PETITIONER. 2004 elections. The case was docketed as SPA (NCR-RED) No. Eusebio denied petitioners' allegations and branded the petition as a harassment case. atty. Eusebio further stated that petitioners' evidence are merely fabricated. Vener Obispo ("Obispo"). The ruling of the regional director on May 2004. Roberto Peralta ("Peralta").HENRY P. the law department through its director iv. five days before the elections. the disqualification of respondent Vicente p. C04-008. Eusebio . and Ram Alan Cruz ("Cruz") (collectively. RESPONDENTS. PETITIONER-INTERVENOR. streamers. the election officers of district i and district ii of Pasig city to delete and cancel the name of respondent Vicente p. COMMISSION ON ELECTIONS AND VICENTE P. Eusebio from being a candidate for mayor of Pasig city in the May 10. alioden Dalaig to file the necessary information against Vicente p. FACTS: On 19 March 2004. CHARMIE Q. Yamat. SUBSTITUTED BY MARIO S. recommends that the instant petition be granted. "petitioners"). Reynaldo dela Paz ("dela Paz"). and Cruz were candidates for Pasig City Councilor in the 10 May 2004 elections. and the election officers of Pasig city to immediately implement the foregoing directives. and Eusebio were candidates for Pasig City Mayor. Eusebio is disqualified to run for the position of mayor. EUSEBIO. such as (1) addressing a large group of people during a medical mission sponsored by the Pasig City government. VS. BENAVIDES. while Peralta. posters. (4) installing billboards. the board of election inspectors of all the precincts comprising the city of Pasig not to count the votes cast for respondent Vicente Eusebio. Obispo. filed a petition for disqualification under Sections 68 and 80 of the Omnibus Election Code against Eusebio before the COMELEC. Eusebio. Lanot ("Lanot"). in the event that such votes were recorded in the election returns. (3) causing the publication of a press release predicting his victory. LANOT. the regional director of NCR. the city board of canvassers of Pasig city not to canvass the votes erroneously cast for the disqualified candidate respondent Vicente p. Applying the facts . is not liable for speeches on 14 February 2004 and 17 March 2004 asking the people to vote for him." The COMELEC First Division approved Director Ladra's recommendation and disqualified Eusebio Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004.to Section 11 of RA 8436. By definition. Director Ladra recommended the disqualification of Eusebio "for violation of Section 80 of the Omnibus Election Code. Ø What could be the effect if Eusebio will be disqualified from the election. . only on 23 March 2004. Acts committed by Eusebio on or after 24 March 2004. News Editor of Manila Bulletin dated 10 March 2004 and Mr. or during the campaign period. Eusebio became a "candidate. 2004 to the effect that the articles in question came from the camp of [Eusebio]. Diego Cagahastian. are not punishable under Section 80 of the Omnibus Election Code. Editor-in-Chief of Philippine Star dated March 2. the last day for filing certificates of candidacy. Eusebio. unlawful acts applicable to a candidate cannot be committed outside of the campaign period. They also presented Certification issued by Mr. The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebio is deemed to have filed his certificate of candidacy on 23 March 2004 for purposes other than the printing of ballots.as found by Director Ladra and affirmed by the COMELEC First Division . Eusebio clearly did not violate Section 80 of the Omnibus Election Code which requires the existence of a "candidate. Eusebio is not liable for this publication which was made before he became a candidate on 23 March 2004. not being a candidate then. The net result is to make the election offense in Section 80 physically impossible to commit at any time. under Eusebio's theory. the election offense in Section 80 of the Omnibus Election Code cannot be committed during the campaign period." one who has filed his certificate of candidacy. are not covered by Section 80 which punishes only acts outside the campaign period. Belmonte. RULING: There is no basis to disqualify Eusebio. even if constituting election campaigning or partisan political activities. during the commission of the questioned acts. On the other hand. We shall leave this issue for some other case in the future since the present case can be resolved without applying the proviso in Section 11 of RA 8436." for purposes of Section 80 of the Omnibus Election Code. Such acts are protected as part of freedom of expression of a citizen before he becomes a candidate for elective public office. Isaac G. ISSUES: Ø Whether Eusebio actually committed the acts subject of the petition for disqualification.before the appropriate court. we cannot grant either prayer. The disqualification of the elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated because of the disqualification.As second placer. on the other hand. Votes cast in favor of a candidate who obtained the highest number of votes. Lanot prayed that he be proclaimed as the rightful Pasig City Mayor in the event of Eusebio's disqualification. For this reason. It has been set aside the 20 August 2004 Resolution of the Commission En Banc since respondent Vicente P. The court dismissed the petition. Eusebio did not commit any act which would disqualify him as a candidate in the 10 May 2004 elections. prays that she be proclaimed as the rightful Pasig City Mayor in the event of Eusebio's disqualification and in view of Lanot's death. against whom a petition for disqualification was filed before the election. Even if we assume Eusebio's disqualification as fact. Thus. Abalos and in the 21 May 2004 Order of the Commission on Elections En Banc. Second. The exception to this rule rests on two assumptions. . the voters are so fully aware in fact and in law of a candidate's disqualification to bring such awareness within the realm of notoriety but nonetheless the voters still cast their votes in favor of the ineligible candidate. finding no grave abuse of discretion in the 10 May 2004 Advisory of Chairman Benjamin S. the one who obtained the highest number of votes is disqualified. are presumed to have been cast in the belief that he was qualified. As third placer. the rule on succession provides that the duly elected Vice-Mayor of Pasig City shall succeed in Eusebio's place. the second placer cannot be declared elected. Benavides. First. Lanot and Benavides failed to prove that the exception applies in the present case. assuming for the sake of argument that Eusebio is disqualified. vs. on the ground that the latter allegedly caused the disbursement of public funds in the amount of Three Million Three Hundred Seventy-Five Thousand (P3. 1998.R. (d) solicited. 98-319. petitioners. (b) committed acts of terrorism to enhance his candidacy.00) Pesos.375. 1998. petitioners filed with the COMELEC a complaint for disqualification against private respondent. Section 261 (g) (2)[1] of Batas Pambansa Blg. ATIENZA. On May 18. received or made any contribution prohibited under Section 89. The alleged disbursement was intended to be distributed in the form of financial assistance to the public school teachers of the City of Manila who manned the precinct polls in that city during the elections.000. December 15. or excess. ERNESTO M.Any candidate who in an action or protest in which he is a party is declared by final decision of a competent court guilty of. 1999] AMADO S. COMMISSION ON ELECTIONS and JOSE L. (c) spent in his election campaign an amount in excess of that allowed by this Code. 1998. the dispositive portion of which reads: PREMISES CONSIDERED. Ernesto M. of jurisdiction. the COMELEC (First Division)* issued an order suspending the proclamation of private respondent. Bagatsing. or found by the Commission of having (a) given money or other material consideration to influence. 881. The backdrop of the instant case reveals the following antecedent facts: Petitioners Amado S. and JAIME LOPEZ. within the prohibited forty-five-day period before the elections in violation of Article 22. Atienza were candidates for the position of Mayor of Manila in the May 11. 96. BAGATSING. 95. 97 and 104. or (e) violated any Section . AMENDED DE CISION KAPUNAN. No. Maceda and Jaime Lopez and herein private respondent Jose L. otherwise known as the Omnibus Election Code of the Philippines. it appearing that the evidence presented consisting of disbursement voucher and the general payroll evidencing payment to the teachers in the form of financial assistance dated May 5.: In this petition for certiorari petitioners seek to annul and set aside the Resolution dated June 4. 1998 of the Commission on Elections (COMELEC) First Division directing the proclamation of private respondent as Mayor of the City of Manila for having been issued with grave abuse of discretion amounting to lack. 1998 elections. induce or corrupt the voters or public officials performing electoral functions. respondents. in violation of Section 68 of the Omnibus Election Code. . On May 20.EN BANC [G. J. seven (7) days after the elections. 68 Disqualifications. more or less. docketed as SPA No. which provides: SEC. 134047. MACEDA. the complaint shall be referred for preliminary investigation to the Law Department of the Commission. 86 and 261. Any complaint for disqualification based on Section 68 of the Omnibus Election Code. Jr. ratiocinating thusly: The Commission En Banc finds correct respondent's reliance on COMELEC Resolution No. before proclamation. 1971 EC) (underscoring ours). or if he has been elected. However. private respondent filed a Motion for Reconsideration and sought to set aside the afore-quoted order directing the suspension of his proclamation as mayor. filed after the elections against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. from holding the office. Where a similar complaint is filed after the elections but before proclamation of the respondent candidate. the complainant may file a petition for suspension of the proclamation of the respondent with the Court before which the criminal case is . 1998. promulgated by the Commission in order to formulate the rules governing the disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of Republic Act 6646 otherwise known as the Electoral Reform Law of 1987. paragraphs d. 1998. the City Board of Canvassers of Manila is hereby directed to complete the canvassing of election returns of the City of Manila. show a probable cause of commission of election offenses which are grounds for disqualification. If. On June 4. the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court. SO ORDERED. the complaint shall nevertheless. the complaint shall be referred for preliminary investigation to the Law Department. the COMELEC (First Division)* handed down a resolution granting the motion for reconsideration. However. 83. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code. 85. The Executive Director of this Commission is directed to cause the immediate implementation of this Order. e.80. pertinently provides: 2. v and cc. 25. until such time when the petition for disqualification against him shall have been resolved. The Resolution. should he obtain the winning number of votes for the position of City Mayor of Manila. sub-paragraph 6. unless said person has waived hi (sic) statues (sic) as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws (Sec. Atienza. k.[2] On May 21. be dismissed as a disqualification case. 2050 for his cause. but to suspend proclamation of respondent Jose L. and the evidence in support of disqualification is strong. shall be disqualified from continuing as a candidate. had been upheld by the Supreme Court in Lozano vs. when it declared: Resolution No. COMPLETE the CANVASS and PROCLAIM the candidate obtaining the highest number of votes for said position. 2050. 2050 on cases of such nature as the one at bench. Commission on Elections. It is thus. in view of the foregoing. In the afternoon of the same day. that the petition for disqualification was filed after the election but before respondent's proclamation. and proclaimed private respondent as the duly elected Mayor of the City of Manila. 1998. The City Board of Canvassers of Manila is hereby DIRECTED to CONVENE. petitioners filed a Motion to Suspend Immediate Intended Proclamation of Respondent. Considering therefore. the City Board of Canvassers of Manila reconvened at three o’clock in the afternoon of the same day. Hence. The Order of the First Division suspending respondent's proclamation as City Mayor of Manila is SET ASIDE.[5] On June 25. Meanwhile. the former shall necessarily prevail. which include disqualification cases. SO ORDERED. a good law which could govern this case.R. conformably with Resolution No. The COMELEC Rules of Procedure speak of special actions. as between a specific and a general rule. hereby dismisses the same as a disqualification case but refers Petitioners' charges of election offense against respondent to the Law Department for appropriate action. 2050 specifically mandates a definite policy and procedure for disqualification cases. Petitioners' complaints against respondent for violation of the Omnibus Election Code is hereby referred to the Law Department for preliminary investigation. June 4.[4] That same day at around eleven o’clock in the morning. 1991. the Commission En Banc.pending and the said Court may order the suspension of the proclamation. the Commission FIRST DIVISION hereby GRANTS the Motion to lift the order of suspension of respondent's proclamation. 1999.[3] The decretal portion of the resolution reads: WHEREFORE. in general. without waiting for the resolution of their motion for reconsideration pending before . 94628. October 28. The applicability of COMELEC Resolution No. petitioners likewise filed a Motion for Reconsideration and a Second Motion to Suspend Immediate Intended Proclamation of Respondent before COMELEC en banc. G. if the evidence of guilt is strong. 1998 dismissing the petition for disqualification and referring the case to the COMELEC’s Law Department for preliminary investigation.A. WHEREAS. 1998 at the instance of herein petitioners themselves for the reason that they had already filed a petition before this Court docketed as G. No. petitioners filed the instant petition to set aside the June 4. NOW. 1988. Where the inquiry by the Commission results in a finding before election. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Section 68 of the Omnibus Election Code. the Commission en banc: RESOLVED. there is a strongly felt need to lay down a definite policy in the disposition of this specific class of disqualification cases. a number of cases of disqualification filed by virtue of the provisions of Section 68 of the Omnibus Election Code in relation to Section 6 of R. filed directly with the Commission before an election in which the respondent is a candidate.[7] Such being the case.the COMELEC en banc. 6646. No. Comelec. COMELEC Resolution No. WHEREAS. 1998 resolution of the COMELEC's First Division. based on COMELEC Resolution No. otherwise known as the Electoral Reforms Law of 1987: 1. reads: WHEREAS. 2050. 2050. to formulate the following rules governing the disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of R.R. that said motion for reconsideration pending before the COMELEC en banc was denied in its Order of July 2. Petitioners contend that Resolution No. on motion duly seconded. Records reveal. 2050 had already been nullified by the decision of this Court in Sunga vs.[6] The instant petition seeks to strike down as having been issued with grave abuse of discretion COMELEC First Division Resolution dated June 4. the Commission shall order the . adopted on November 3. however. in order to avoid conflicts of opinion in the disposition or disqualification cases contemplated under Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. otherwise known as the Electoral Reforms Law of 1987. shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed. opinions of the members of the Commission on matters of procedure in dealing with cases of this nature and the manner of disposing of the same have not been uniform.A. petitioners argue that the COMELEC should be compelled by mandamus to assume jurisdiction and continue to hear and decide the disqualification case. 134047. there remain pending before the Commission. THEREFORE. Act 6646. 6646. as it hereby resolves. that the respondent candidate did in fact commit the acts complained. However. as laid down in paragraph 2. 2. Where the inquiry results in a finding before the election. However. refer the said complaint to the Law Department of the COMELEC for preliminary investigation. the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court. the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is strong. the complaint shall be referred for preliminary investigation to the Law Department of the Commission. the complaint shall be referred for preliminary investigation to the Law Department. Act No. In case the complaint was not resolved before the election. nevertheless.disqualification of the respondent candidate from continuing as such candidate. be dismissed as a disqualification case. 3. In case such complaint was not resolved before the election. the COMELEC shall order the candidate's disqualification. the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is . before proclamation. the Commission may motu proprio. Where a similar complaint is filed after election but before proclamation of the respondent candidate. refer the complaint to the law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. The Law Department shall terminate the preliminary investigation within thirty (30) days from receipt of the referral and shall submit its study. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. report and recommendation to the Commission en banc within five (5) days from the conclusion of the preliminary investigation. the complaint shall. If it makes a prima facie finding of guilt. it shall submit with such study the Information for filing with the appropriate court. However. or an (sic) motion of any of the parties. as contemplated in paragraph 1. In both cases. If. the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court. 6646 filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. The above-quoted resolution covers two (2) different aspects: First. the complaint shall be dismissed as a disqualification case but shall be referred to the Law Department of the COMELEC for preliminary investigation. Such recourse may be availed of irrespective of whether the respondent has been elected or has lost in the election. or (b) who has already been proclaimed as winner. Second. the COMELEC may motu propio or on motion of any of the parties. a complaint for disqualification filed after the election against a candidate (a) who has not yet been proclaimed as winner. if before proclamation. a complaint for disqualification filed before the election which must be inquired into by the COMELEC for the purpose of determining whether the acts complained of have in fact been committed. e. The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. 1995 elections. upon motion of the complainant or any intervenor. i. There. What the Resolution mandates in such a case is for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained of have in fact been committed by the candidate sought to be disqualified. Moreover. Thus. the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion. in providing for the outright dismissal of the disqualification case which remains unresolved after the election. Silvestre v. and the votes cast for him shall not be counted. the COMELEC shall continue with the trial and hearing of the case. 2050 as interpreted in Silvestre v.[8] Contrary to petitioners' contention. which provides: SEC. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election. Under Section 6 of R. 2050. COMELEC. where the complaint was filed before the election but for any reason. Duavit in effect disallows what RA No. nowhere did the Court strike down COMELEC Resolution No. Thus. Effects of Disqualification Case. 2050 declaring. may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong (italics supplied). Duavit infringes on Sec. 2050 in Sunga. is no longer a good law since it has been nullified in toto by this Court in Sunga v. 6 of RA No. a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners. 6646. This is totally different from the other two situations contemplated by Resolution No. the facts in Sunga fall under the . operating to impose a positive duty which must be enforced.--Any candidate who has been declared by final judgment to be disqualified shall not be voted for. The findings of the Law Department then become the basis for disqualifying the erring candidate. wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case. a candidate is not declared by final judgment before the election to be disqualified and he is voted for and receives the winning number of votes in such election.. the Court or Commission shall continue with the trial and hearing of the action. 6646. Resolution No. upon which the COMELEC anchored its dismissal of the disqualification case. until judgment is rendered thereon. inquiry or protest and. 6646 imperatively requires. Clearly. There..e.strong. the complaint for disqualification was filed prior to the May 8. 2050. we held that: xxx We discern nothing in COMELEC Resolution No. xxx[9] The ruling in Sunga is not applicable to the case at bar. 6. i. Petitioners contend that Resolution No.A. ordering or directing the dismissal of a disqualification case filed before the election but which remained unresolved after the election. The word 'shall' signifies that this requirement of the law is mandatory. 6646. The COMELEC in Sunga obviously misapplied Resolution No. COMELEC erroneously dismissed the disqualification case and referred the matter to the Law Department for preliminary investigation of the criminal aspect of the case. the complaint for disqualification is filed after the election which may be either before or after the proclamation of the respondent candidate.A. by the dismissal of the disqualification case against him simply because the investigating body was unable. the issue of disqualification was not finally resolved before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law. namely: (1) the complaint for disqualification was filed before the election. the administrative. (2) for any reason. 2050 in dismissing the disqualification case therein simply because it remained unresolved before the election and. Instead. The reason for this is that a disqualification case may have two (2) aspects. to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. We do not agree. the COMELEC should have continued with the hearing and decided the case on the merits. the complaint shall be dismissed as a disqualification case and shall be referred for preliminary investigation to the Law Department of the COMELEC.contemplation of Section 6. Where in the opinion of the COMELEC. for any reason caused upon it. refer the complaint to the Law Department of the Commission as an instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. referring it to its Law Department for possible criminal prosecution of the respondent for violation of the election laws. referral of the case to the Law Department is proper. Pursuant to paragraph 2 of Resolution No. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. Under this scenario. invoking Section 6 of R. which necessitates proof beyond reasonable doubt to convict. Notably. It says the COMELEC “may motu propio or on motion of any of the parties. and (3) the candidate sought to be disqualified is voted for and received the winning number of votes. 2050 which directs the dismissal of the disqualification case not resolved before the election. instead of punished.” The referral to the Law Department is discretionary on the part of the COMELEC and in no way may it be interpreted that the COMELEC will dismiss the disqualification case or will no longer continue with the hearing of the same. which requires only a preponderance of evidence to prove disqualification. Petitioners argue that the COMELEC should have proceeded and continued with the trial of SPA No.[10] In sharp contrast. 98-319 and rendered judgment as the law and evidence would warrant. the acts which are grounds for disqualification also constitute a criminal offense or offenses. Consequently. thus: xxx A candidate guilty of election offenses would be undeservedly rewarded. The deleterious effect of the premature and precipitate dismissal was pointed out by this Court. 1998 or seven (7) days after the 1998 elections. 2050. there is nothing in paragraph 1 of Resolution No. in lieu thereof. the complaint for disqualification against private respondent in the case at bar was lodged on May 18. and the criminal. Section 6 explicitly applies only to any candidate who has been declared by final . as earlier mentioned. the former shall necessarily prevail. in general.. it would not have made a distinction between cases filed before and after the election.e. 2050 was passed by reason of the variance in opinions of the members of respondent commission on matters of procedure in dealing with cases of disqualification filed pursuant to Section 68 of the Omnibus Election code in relation to Section 6 of Republic Act No. their votes would be declared stray or invalid votes. With this purpose in mind. 6646 that treats of a situation where the complaint for disqualification is filed after the election. 2050.A. or the Electoral Reforms Law of 1987. wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case. inquiry or protest xxx. the COMELEC decided to lay down a definite policy in the disposition of these disqualification cases. it stated that the referral of the complaint for disqualification where the case is filed before election “is totally different from the other two situations contemplated by Resolution No.” Why there is a difference between a petition for disqualification filed before and after the election proceeds from the fact that before the election. 2050 which provide that any complaint for disqualification based on Section 6 of R. a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation winners.[11] the Court said: xxx Resolution No. and the manner of disposing of the same had not been uniform. 2050 on disqualification cases was in fact upheld by this Court in Lozano vs. The section provides further that “if for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election. but the complaint shall be referred for preliminary investigation to the Law Department of COMELEC. the Court or Commission shall continue with the trial and hearing of the action. the question of disqualification is raised as an issue before the electorate and those who vote for the candidate assume the risk that should said candidate be disqualified after the election. 2050. as between a specific and a general rule. The applicability of Resolution No. Section 6 would not have used the word “before” preceding “an election. xxx xxx xxx Resolution No. Hence. Hence. the commission en banc adopted Resolution No.” Thus. 6646. i. If the intention of the law is for the COMELEC to hear and decide disqualification cases filed after the election. xxx[12] It bears stressing that the Court in Sunga recognized the difference between a disqualification case filed before and after an election when. which include disqualification cases. Such would not be true in the case of one filed after the electorate has already voted.[13] .” There is no provision in R.judgment to be disqualified before an election. the need for implementing rules as embodied in Comelec Resolution No. Yorac.A. The COMELEC Rules of Procedure speak of special actions. 2050 specifically mandates a definite policy and procedure for disqualification cases. 6646 is filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. 1998 is void because it was made “without awaiting for the lapse of the five-day period for the finality of decisions rendered by a division in special actions. absent extraordinary circumstances warranting appropriate action by this Court. they had before the COMELEC en banc a pending motion for reconsideration of the June 4. not only to his damage and prejudice but also to the defeat of the sovereign will of the electorate. Neither did the COMELEC err in not ordering the suspension of private respondent's proclamation. private respondent was legally proclaimed on June 4. there was no order suspending private respondent’s proclamation. There being no temporary restraining . The second paragraph of paragraph 2 of Resolution No. 1998 resolution correctly referred petitioners’ complaint for disqualification to its Law Division for appropriate action. the winning candidate who is sought to be disqualified is entitled to be proclaimed as a matter of law. and for the undue benefit of undeserving third parties. does not justify the suspension of his proclamation after winning in the election. Consequently. and a winning candidate at that. The Court does not look with favor the practice of seeking remedy from this Court without waiting for the resolution of the pending action before the tribunal below. a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions and Special cases. 1999. xxx” We find this contention without merit. the complaint must be dismissed as a disqualification case but shall be referred to the Law Department for preliminary investigation. 1998 resolution of the First Division. In the absence of an order suspending proclamation. as in this case. To hold otherwise would unduly encourage the filing of baseless and malicious petitions for disqualification if only to effect the suspension of the proclamation of the winning candidate. 6646 providing that the proclamation of the candidate sought to be disqualified is suspended only if there is an order of the COMELEC suspending proclamation.[15] Before we end." citing Sec. 1998. 2050 provides that where a complaint is filed after the elections but before proclamation. This is clear from Section 6 of R. the complainant may file a petition for suspension of the proclamation of respondent with the court before which the criminal case is pending and that court may order the suspension of the proclamation if the evidence of guilt is strong. The mere pendency of a disqualification case against a candidate. the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court. a suspension of private respondent's proclamation is not warranted. If before the proclamation. Here. The COMELEC (First Division) in its June 4. This makes a short shrift of established rules of procedure intended for orderly administration of justice.Petitioners further postulate that the proclamation of private respondent on June 4.A. 13 (c) Rule 18 of the COMELEC Rules of procedure providing that “unless a motion for reconsideration is seasonably filed.[14] It appearing that none of the foregoing circumstances obtain herein as there is no prima facie finding of guilt yet. The mere filing of a petition for disqualification is not a ground to suspend the proclamation of the winning candidate. we take note that when petitioners filed the instant petition on June 25. the court rendered a decision in this case which dispositively reads as follows: WHEREFORE. 1999. BAGATSING. the instant petition is hereby DISMISSED. et al. (c) the suspension of proclamation of a winner is not applicable exclusively in criminal cases as it may also be issued in disqualification cases. petitioners filed a motion for reconsideration predicated on the following grounds. 2000. viz (a) section 3. Ernesto M. Bagatsing. [G. On January 3. 134047. is a resolution of this Court dated JUL 4 2000. rule 25 of the 1993 COMELEC Rules of Procedure repealed COMELEC Resolution No. SO ORDERED. Maceda and Jaime Lopez vs. EN BANC Gentlemen: Quoted hereunder. SO ORDERED. 134047 (Amado S.order from this Court. (b) Said Section 3. COMELEC. the instant petition is hereby DISMISSED. (d) an order of suspension was issued by the COMELEC rendering the premature proclamation of respondent void ab inito for having been made before the finality of the questioned resolution. and (e) the circumstances surrounding this . July 4.R. 2000] AMADO S. that body as an instrument of the COMELEC should have continued with its task of determining whether or not there exists probable cause to warrant the criminal prosecution of those who may be liable for the alleged election offenses. No. for your information. Atienza. vs. et al. G. Commission on Elections and Jose L. 2050. The respondent Commission on Elections is hereby directed to RESOLVE with great dispatch the pending incident relative to the preliminary investigation being conducted by its Law Department. WHEREFORE.) On December 15. 6646 and can stand on its own. The respondent Commission on Elections is hereby directed to RESOLVE with great dispatch the pending incident relative to the preliminary investigation being conducted by its Law Department.R. No. rule 25. is separate and distinct from Section 3 of Republic Act No. 1 Rollo. Resolution No. Rule 25 (Section 3) provides the permissive period within which disqualification cases. the COMELEC decided to lay down a definite policy in the disposition of these disqualification cases. Hence. 10. pp. 326. xxx xxx xxx Resolution No. particularly Section 3 thereof. after the last day for filing certificates of candidacy and not later than the date of proclamation. 335. 2 203 SCRA 256. As similarly maintained by the Solicitor General: Rule 25. 2050 was passed by reason of the variance in opinions of the members of respondent commission on matters of procedure in dealing with cases of disqualification filed pursuant to Section 68 of the Omnibus Election Code in relation to Section 6 of Republic Act No. 330. Resolution No. xxx.case justify the filing of the instant petition directly with this Court without waiting for the resolution of the motion for reconsideration before the COMELEC en banc. it cannot be said that Section 3. Resolution No. in general. 3 Comment on the Motion for Reconsideration by the Office of the Solicitor General. in general. the commission en banc adopted Resolution No. . 337 and 340. 2050. 2050 provides how disqualification cases particularly those filed under Section 68 of the Election Code would be handled by the COMELEC. That is. Differently put. or the Electoral Reforms Law of 1987. rather than contradictory to each other. may be filed. Yorac: xxx resolution No. On the other hand. may be filed. 6646. 2050 provides for the disposition of disqualification 1999 citing Lazaro vs. In fact. and the manner of disposing of the same had not been uniform. as between a specific and a general rule. these two provisions are corollary. that is. which include disqualification cases. Rule 25 of the 1993 COMELEC Rules of Procedure repealed COMELEC Resolution No. in general. 2050. 265-267 (1991). 2050 provides the specific procedure as to how disqualification cases filed by virtue of Section 68 of the COMELEC once they are filed before it. With this purpose in mind. provides the period as to when disqualification cases. While Section 3 of Rule 25 prescribes the period to file a petition for disqualification. it provides the particular manner such cases are to be treated. The COMELEC Rules of Procedure speak of special actions. depending on whether they were filed before an election or after the election. This contemplates of an administrative summary proceeding. p. Hence. 2050 specifically mandates a definite policy and procedure for disqualification cases. the former shall necessarily prevail. Contrary to petitioners contention. . petitioners suggest that by simply looking at the chronological dates of their issuance. as members of the COMELEC First Division). 1998. Petitioners. Gorospe and Teresita Dy-Liacco Flores. maintain that private respondent's proclamation on June 4. Gorospe and Commissioner Evalyn I. 1998 5 Signed by COMELEC Chairman Bernardo P. the COMELEC still found it apt and necessary to adopt and promulgate a definite policy and a specific procedure to handle and dispose of the numerous disqualification cases filed before it. The contention is without merit. We find no reason to discuss the other issues raised as they were already resolved in our Decision dated December 15. This means that despite the existence of the identical provisions in the 1988 Rules.Consequently. While it may be true that it's the COMELEC directed the suspension of the proclamation of private respondent in its Order dated May 20. ACCORDINGLY. the governing Rules of Procedure were then Rules of Procedure were the then Rules of Procedure of June 20. 1998 was "premature" and void ab initio because the COMELEC issued an order of suspension of proclamation in its Order dated May 20. Clearly then. 2050. the motion for reconsideration is hereby DENIED with finality. the 1993 Rules were not intended to repeal or abolish Resolution No. 2050 on November 3. 2050. likewise.In further arguing that the Rules of Procedure repealed Resolution No. it is apparent that the "new" Rules issued in 1993 superseded the "old" and "ancient" Resolution promulgated in 1988. the said order was set aside and the motion of herein private respondent to lift the order was set aside and the motion of herein private respondent to lift the order of suspension of his proclamation was granted in the unanimous Resolution dated June 4. 4 Signed by Presiding Commissioner Manolo B. Pardo and Commissioner Manolo B. 1998. there was no order of suspension to speak of at the time of private respondent's proclamation. 1988. 1988which Rule 25 has identical provisions with the present Rules save only for Section 1 thereof which was slightly modified and which section is not disputed in their case. The Solicitor General was correct to observe that at the time of the promulgation of Resolution No. as members of the COMELEC First Division. Fetalino with Commissioner Teresita Dy-Liacco Flores dissenting. 1999. prohibiting certain acts of campaigning in the Sangguniang Kabataan Pederasyon elections.R. Baybay. Branch 14. 1996. On July 3. On August 6. The other candidates were Paul Ian Veloso and Ruphil Bañoc. in representation of his minor child JOSE P. petitioner filed a petition for mandamus in the Regional Trial Court to compel the Board of Election Supervisors to direct the local election committee to proclaim him. respondents. DECISION GONZAGA-REYES. and COMELEC Resolution No. Baybay. III garnered the second highest number of votes. Baybay. No. RENATO BRION. 1996. RODOLFO BUTALID and REYNALDO ATIENZA. July 29. Loreto. 130681. Jose Loreto III ran for president of the Pambayang Federasyon Ng Mga Sangguniang Kabataan. Hence. Jose Loreto. Leyte Chapter. . a pre-election protest against Paul Ian Veloso was lodged before the Board of Election Supervisors composed of respondents herein for violation of DILG Memorandum Circular No.: In this petition for review on certiorari Jose V. 1996 elections. vs. J.EN BANC [G. 96-115. the Board of Election Supervisors promulgated a Resolution disqualifying candidate Paul Ian Veloso and ruled that the elected Vice President of the chapter should assume the office of President. 2834. 1996 for President of the Pambayang Federasyon Ng Mga Sangguniang Kabataan. Leyte in Special Civil Action No. III questions the decision of the Regional Trial Court. LORETO. 1999] JOSE V. Leyte Chapter in the July 5. Petitioner Loreto took his oath of office and discharged the duties and functions of President of the SK Municipal Federation but was unable to collect the salaries pertaining to the office on account of the absence of the required proclamation papers. Leyte Chapter to proclaim him as the winner in the elections of July 5. 1996 elections. LORETO III. The resolution became final and executory. in their capacity as Chairman and Members respectively of the Board of Election Supervisors. Paul Ian Veloso obtained the highest number of votes but his proclamation as winner was suspended as the evidence of his guilt in the pre-election protest was strong. petitioners.B-1302 dismissing his petition for mandamus to compel the chairman and members of the Board of Election Supervisors of the Pambansang Pederasyon Ng Mga Sangguniang Kabataan of Baybay. In the July 5. it was as if he was no candidate at all in the eyes of the law and the effects of the final judgment of disqualification retroacts to the time the case was filed. they should not be treated as stray. When he was disqualified.” Petitioner relies on Section 6 of Republic Act No.A. The question raised in the instant petition is not new. the votes that were obtained by Veloso fall in the category of stray or invalid votes. Petitioner Loreto filed this petition for review on certiorari on an alleged pure question of law. 6646 is it mandated that the protestee be disqualified by final judgment prior to or before the date of election. the fact that the provision mandates that votes cast for a candidate disqualified by final judgment be not counted presupposes that an election has already been held. In his reply. On the contrary.[1] this Court has held that: “The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office.” and claims that in view of the final judgment declaring Paul Ian Veloso’s disqualification. if the votes were cast in the sincere belief that the candidate was alive. Hence. The votes cast for a dead. As early as Geronimo vs. the votes cast in favor of the disqualified winning candidate will still be valid and the second placer does not become the automatic winner. in the absence of a statute which clearly asserts a contrary political and legislative policies on the matter. However. void or . In its Comment. public respondent cites the doctrine laid down in a long line of cases that a second placer cannot be considered the winner in place of a disqualified winning candidate. Leyte in lieu of a disqualified candidate since the petitioner is a mere second placer to the deposed winner. or eligible.The Court a quo dismissed the petition on the ground that petitioner Loreto had lost in the SK Pederasyon elections and the fact that the winning candidate was later on disqualified and his being a second placer did not entitle him to be proclaimed as President. petitioner stresses that nowhere in Section 6 of R. The lone issue is as follows: “Whether or not the trial court was correct in declaring that petitioner was not qualified to assume the presidency of the Sangguniang Kabataan Chapter of Baybay. Public respondent counterargues in its rejoinder that it is immaterial whether the petition for disqualification against a candidate was filed before the elections or after the elections as the subsequent finding that a candidate is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him. Ramos. qualified. 6646 which provides that “any candidate who has been declared by final judgment to be disqualified shall not be voted for and the votes cast for him shall not be counted. disqualified or non-eligible person may not be valid to vote the winner into office or maintain him there. it is absurd to proclaim the totally repudiated candidate as the voters’ choice.[6] The rationale for the rule is explained in Benito vs. COMELEC. COMELEC. Absence of the apparent though ineligible winner among no choices could lead to a shifting of votes to candidates other than the second placer. would not be self-evident. vs.meaningless”[2] The doctrine was reiterated in Labo. the ‘second placer’ could receive just one vote. 137 SCRA 140) and in the cases of Abella vs. should the equation change because of the disqualification of an ineligible candidate. in another shift of the pendulum subscribe to the contention that the runner-up in an election in which the winner has been disqualified is actually the winner among the remaining qualified candidates because this clearly represents a minority view supported only by a scattered number of obscure American state and English court decisions. COMELEC. could receive votes so measly and insignificant in number that the votes they receive would be tantamount to rejection.[10] We find no cogent reason to reexamine or disturb the rule already firmly settled in the above-cited jurisprudence which rejected the contention of petitioner herein that he should be considered the first among qualified candidates. COMELEC. the runner-up in an election cannot be construed to have obtained the majority or plurality of votes cast where an ‘ineligible’ candidate has garnered either a majority or plurality of the votes.[5] The Court in the first cited case succinctly restated the principle as follows: “The rule therefore. even in instances where the votes received by the second placer may not be considered numerically insignificant voters preferences are nonetheless so volatile and unpredictable that the result among qualified candidates. Moreover.[9] thus: “x x x We cannot. Jr. COMELEC. These decisions neglect the possibility that the runner-up though obviously qualified.” The doctrine was last reiterated in the recent case of Reyes vs.[4] and Labo. is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the highest number of votes to be declared elected. vs. . COMELEC. The court a quo correctly held that the second placer lost the elections and was repudiated by either a majority or plurality of voters. COMELEC[7] as follows: “For to allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people’s right to elect officials of their choice. A minority or defeated candidate cannot be deemed elected to the office. In such a case. By any mathematical formulation. Theoretically. To rule otherwise is to impose what is an unclear expression of the voters’ will.[3] (which reversed the earlier ruling in Santos vs. Jr.”[8] and more emphatically in Aquino vs. and that the subsequent finding that he is disqualified should retroact to the date of the elections so as to invalidate the votes cast for him. We find that the court a quo did not err in relying on the doctrine enunciated in the cases cited to support the dismissal of this petition for mandamus and its refusal to declare that petitioner is the winning candidate in the Sangguniang Kabataan elections in Baybay. . the petition is dismissed for lack of merit. WHEREFORE.As regards the contentions of petitioner that the votes cast in favor of Paul Ian Veloso should be treated as stray. SO ORDERED. void or meaningless.[11] wherein it was pointed out that the votes cast for the disqualified candidate are presumed to have been cast in the belief that he is qualified. Leyte. COMELEC. these were squarely rejected in Reyes vs. On June 1. thus rendering the election process in those precincts a sham and a mockery and the proclamation of the winning candidates a nullity. All other reliefs. he would win by a margin of one hundred ninety-four (194) votes over the votes of petitioner.R. MACABAGO. Petitioner had a lead of 198 votes over his adversary. private respondent Jamael M. foregoing premises considered. SALACOP.EN BANC [G. Lanao del Sur. DECISION CALLEJO. private respondent appended thereto photocopies of random Voters Registration Records (VRRs) evidencing the fraud and deceit that allegedly 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. 2002] SABDULLAH T. as well as the members of the Municipal Board of Canvassers. He further alleged that the grounds relied upon by private respondent would be proper in an election protest but not in a pre-proclamation controversy..[3] . COMMISSION ON ELECTIONS and JAMAEL M. Lanao del Sur. it is most respectfully prayed of this Honorable Commission that the election results in Precincts 19.[2] In his answer.: On May 22. J. November 18. respondents. No. 28 and 29 be ordered set aside and considered excluded and the proclamation of the winning candidates in the said municipality be ANNULLED to reflect the genuine desire of the majority of the people. 19.”[1] In support of his petition. petitioner denied the truth of the material allegations in the petition and averred that it raised a pre-proclamation controversy. rampant and pervasive irregularities in voting procedures in Precincts Nos. petitioner Sabdullah T. Salacop. to annul the elections and the proclamation of candidates in the Municipality of Saguiaran. 152163. Private respondent further averred that if his petition were to be given due course. Private respondent alleged that there was a massive substitution of voters. 28 and 29. SR. 2001. 20. 20. Macabago was proclaimed by the Municipal Board of Canvassers as the winning candidate for the position of Municipal Mayor of Saguiran. deemed just and equitable under the circumstances are likewise prayed for. 2001. petitioner. He thus prayed: “WHEREFORE. 3743 and Section 193 of the Omnibus Election Code. and a failure of the Board of Election Inspectors (BEI) to comply with Sections 28 and 29 of Comelec Resolution No. private respondent filed a petition with the Commission on Elections (COMELEC) against petitioner and the proclaimed Vice-Mayor and Municipal Councilors. docketed as SPC-01-234. vs. PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED ITS ORDER . In issuing said Order. The Commission characterized the petition as one for the annulment of the election or declaration of failure of election in the municipality. the COMELEC declared that contrary to petitioner’s claims. 6.2. the outcome of the petition would adversely affect the result of the elections in the Municipality. Petitioner alleged that: “6. 01-234 IN VIOLATION OF SECTION 3.[6] Forthwith. Accordingly. After its examination of the evidence submitted by petitioner. The COMELEC further noted that since the lead of Macabago was only 124 votes vis-à-vis the 474 voters of the contested precincts.The COMELEC En Banc took cognizance of the petition and on February 11. issued an order directing the Election Officer of Saguiran. the Commission hereby RESOLVES to direct Mr. the petition did not allege a pre-proclamation controversy. the COMELEC set aside the docketing of the petition as a Special Case (SPC) and ordered the redocketing thereof as a Special Action (SPA). Lanao del Sur to produce the subject original VRR’s of the questioned precincts here in Manila for the appertaining technical examination. to bring to and produce before the COMELEC Office in Manila the original VRRs of the questioned precincts for technical examination: “WHEREFORE. et al. petitioner filed with this Court the instant special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. 2002. the Election Officer of Saguiran. PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT TOOK COGNIZANCE OF AND PASSED UPON THE PETITION IN SPC NO.1. as amended. the COMELEC relied on its broad powers under the 1987 Constitution and the pronouncement of this Court in Pantaleon Pacis vs.”[4] In the same order. Commission on Elections. 2002 order of the COMELEC En Banc. premises considered. Ibrahim M. Macadato. RULE 3 OF THE COMELEC RULES OF PROCEDURE. a special action covered by Rule 26 of the COMELEC Rules of Procedure. the COMELEC concluded that there was convincing proof of massive fraud in the conduct of the elections in the four (4) precincts that necessitated a technical examination of the original copies of the VRRs and their comparison with the voters’ signatures and fingerprints. Commission on Elections. SO ORDERED. praying for the reversal of the February 11. Lanao del Sur.[5] and Tupay Loong vs. the assailed order of the COMELEC declaring private respondent’s petition to be one for annulment of the elections or for a declaration of a failure of elections in the municipality and ordering the production of the original copies of the VRRs for the technical examination is administrative in nature. Roberto L. 28 & 29 OF THE MUNICIPALITY OF SAGUIARAN. vs. We ruled in Elpidio M. does not foreclose recourse to this Court under Rule 65 from administrative orders of said Commission issued in the exercise of its administrative function. judicial power is vested in the courts. The aggrieved party may seek redress therefrom through the appropriate special civil action provided by the Rules of Court. a judgment or final order or resolution of the COMELEC may be brought by the aggrieved party to this Court on certiorari under Rule 65. et al. Rule 64. 2002 FOR THE TECHNICAL EXAMINATION OF THE VOTERS REGISTRATION RECORDS OF THE REGISTERED VOTERS OF PRECINCT NOS. as amended. despotic and oppressive exercise of governmental power. 19.[11] It bears stressing that under Article VIII.[9] that Rule 64 of the Rules applies only to judgments or final orders of the COMELEC in the exercise of its quasijudicial functions. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. a motion for a reconsideration of an interlocutory order of the COMELEC En Banc is a prohibited pleading.”[7] The kernel issues posed in the case at bar are (a) whether petitioner’s recourse to this Court under Rule 65 of the 1997 Rules of Civil Procedure. 20. reads: “SECTION 1. LANAO DEL SUR. Judicial power is an antidote to and a safety net against whimsical.”[8] Under Section 2 of the same Rule. Hon. In this case. except as therein provided. As to acts of the . Scope. Section 1. Salva.ON FEBRUARY 11. and that the COMELEC acted with grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed order. Makalintal. as amended. Private respondent on the other hand insists that under Rule 64 of the 1997 Rules of Civil Procedure. et al. – This Rule shall govern the review of judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit. is in order. On the first issue. a procedural device for the review of final orders. as amended. petitioner avers that he was impelled to file the instant petition without first filing with the COMELEC a motion for a reconsideration of its order because under the COMELEC Rules of Procedure. resolutions or decision of the COMELEC. The rule does not apply to interlocutory orders of the COMELEC in the exercise of its quasi-judicial functions or to its administrative orders. a special civil action for certiorari filed with this Court is proper only for the nullification of a final order or resolution of the COMELEC and not of its interlocutory order or resolution such as the assailed order in this case. and (b) whether the COMELEC acted without jurisdiction or committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in taking cognizance of the petition of private respondent and in issuing the assailed Order. Section 1 of the Constitution.[10] Rule 64. in conspiracy with the Board of Election Inspectors. on their face. the COMELEC is not to look beyond or behind election returns which are on their face regular and authentic returns. – A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission. Definition. Such issues should be posed and resolved in a regular election protest. Section 241 of Republic Act No. the aggrieved party may seek redress from this Court via a special civil action for certiorari under Rule 65 of the Rules. The fraud and the irregularities catalogued by private respondent required the reception of evidence aliunde. Section 7 of the Constitution.”[15] Pre-proclamation controversies are properly limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. et al.[13] Private respondent cannot find solace in the pronouncement in Ruperto Ambil. such grounds are not proper bases for a pre-proclamation controversy but are appropriate for a . the reception of evidence aliunde. e. any motion for a reconsideration of a decision. thus. the original copies of the VRRs. This Court held that the remedy of the aggrieved party was first to file a motion for a reconsideration of the order with the COMELEC En Banc. in pre-proclamation proceedings. the special civil action may be one for certiorari pursuant to Article IX(A).[14] because the subject matter of the petition therein was an interlocutory order of a Division of the COMELEC. resolution. Irrefragably. As stated earlier. The proceedings are summary in nature. The raison d’etre therefor is that under Rule 3. speedy and adequate remedy therefrom.[17] In his petition with the COMELEC. 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 of an order.[16] Issues such as fraud or terrorism attendant to the election process. Jr. with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such an order.[12] But when the COMELEC acts capriciously or whimsically.g. or abetted by the members thereof. We now resolve the second issue. 7166. is proscribed. ruling or resolution of a Division thereof is a plain. an administrative order of the COMELEC is not a proper subject of a special civil action for certiorari. the petition before the COMELEC does not pose a preproclamation controversy as defined in Article XX. private respondent alleged that fraud and irregularities allegedly perpetrated by unscrupulous individuals who substituted for the registered voters and voted for the latter in the subject precincts. the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular. As a general rule. attended the electoral process in the subject precincts. are anathema to a pre-proclamation controversy. vs. In fine. Section 6(c) of the COMELEC Rules of Procedure. Commission on Elections.COMELEC. thus: “SEC. 241. RA 7166). violence. G.regular election contest within the original jurisdiction of the Regional Trial Court. even if there was voting. would not be a valid basis for a pre-proclamation controversy either. suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect (Sec. et al. Article 1 of the aforementioned law. 1. or other analogous causes the election in any polling place has not been held on the date fixed. vote-buying and terrorism are proper grounds in an election contest but may not as a rule be invoked to declare a failure of election and to disenfranchise the greater number of the electorate through the misdeeds. or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof. COMELEC. such election results in a failure to elect. whenever irregularities. – The postponement. or that the Board of Election Inspectors may have fraudulently conspired in its preparation. 4.A. For. on the basis of verified petition by any interested party and after due notice and hearing. Section 6. declaration of failure of election and the calling of special elections as provided in Sections 5. the matter of the postponement or declaration of failure of election and the calling of a special election as provided for in Section 6. the election nevertheless . the Court held in Dimangadap Dipatuan vs. elections will never be carried out with the resultant disenfranchisement of the innocent voters. (Sec. 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. No. May 26. are asserted. ‘Such irregularities as fraud. for the losers will always cry fraud and terrorism’ (GAD vs. Otherwise. Postponement of election. 7166 provides when a failure of election occurs – “SEC. suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held. fraud.’” Neither is private respondent’s petition before the COMELEC one for declaration of a failure of elections in Saguiran.”[20] Before the COMELEC can grant a verified petition seeking to declare a failure of election. shall be decided by the COMELEC sitting En Banc by a majority of its members: “SEC. the concurrence of two (2) conditions must be established. such as fraud. terrorism. the Commission shall. precisely. p. of only a relative few. Lanao del Sur. 1978 EC). 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. namely: (a) no voting has taken place in the precincts concerned on the date fixed by law or.:[18] “That the padding of the List of Voters may constitute fraud. Commission on Elections. 150 SCRA 665). Indeed. No. the proper course of action is an election protest. 78302. 1987.R. on account of force majeure.”[19] Under Section 5. and in any of such cases the failure or suspension of election would affect the result of the election. Article 1 of R. or had been suspended before the hour fixed by the law for the closing of the voting. 7. call for the holding or continuation of the election not held. 5. Failure of election. – If. 6. fraud. The assailed order is SET ASIDE. fraud. While petitioner contends that the election was tainted with widespread anomalies. “Failure to elect” must be understood in its literal sense—which is. the petition is GRANTED.[23] The barefaced fact that a candidate has been proclaimed and has assumed office does not deprive the COMELEC of its authority to annul any canvass and illegal proclamation. such fraud must be one that prevents or suspends the holding of an election. proclaimed elected to that post. Lanao del Sur. violence. et al. (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.. fraud.”[22] While fraud is a ground to declare a failure of election. vs. Jr. PREMISES CONSIDERED. terrorism. and that private respondent was. terrorism.” Private respondent alleged in his petition with the COMELEC En Banc that the elections ensued in the subject precincts and that petitioner herein emerged as the winner and was in fact proclaimed as such by the Board of Election Inspectors. the Court held: “We have painstakingly examined the petition filed by petitioner Banaga before the COMELEC. or other analogous causes. The COMELEC thus committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the same. custody and canvass of the election returns. Banaga. the grounds alleged by private respondent in his petition before the COMELEC are those for a regular election protest and are not proper in a pre-proclamation controversy. The COMELEC should have ordered the dismissal of the petition instead of issuing the assailed order. Commission on Elections. (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof.[21] that there are only three (3) instances where a failure of election may be declared. et al. nor is such petition one for annulment of the elections or for a declaration of failure of elections in the municipality of Saguiran. in fact.[25] with a factual backdrop similar to this case. On the contrary. terrorism. it must be noted that to warrant a declaration of failure of election the commission of fraud must be such that it prevented or suspended the holding of an election. nobody was elected. Commission on Elections. But we found that petitioner did not allege at all that elections were either not held or suspended.[24] A petition for the annulment of election is not the same as one involving a pre-proclamation controversy.resulted in a failure to elect. In the fairly recent case of Tomas T. such election results in a failure to elect on account of force majeure. The error is correctible by the special civil action for certiorari. The Court declared in Ricardo Canicosa vs. In sum then. Neither did he aver that although there was voting. The . or other analogous causes. but he did not. violence. namely: “x x x (a) the election in any polling place has not been held on the date fixed on account of force majeure. he conceded that an election took place for the office of vice-mayor of Parañaque City. violence. These essential facts ought to have been alleged clearly by the petitioner below. or marred fatally the preparation and transmission. including the preparation and transmission of the election returns. or other analogous causes. (b) the votes cast would affect the result of the election. nobody emerges as a winner. SO ORDERED.petition of herein private respondent with the public respondent is DISMISSED. . the period for the filing of which is deemed suspended by the filing of the petition before the Commission on Elections which gave rise to the petition at bar. without prejudice to the filing of a regular election protest. Pasandalan’s (“Pasandalan” for brevity) petition to declare a failure of election. petitioner. Pasandalan and private respondent Bai Salamona L. 46A. The incident allegedly marred the election results in Precinct Nos.: A petition for declaration of failure of election must specifically allege the essential grounds that would justify the exercise of this extraordinary remedy. 2001 elections. Pasandalan filed a petition[2] before public respondent Commission on Elections (“Comelec” for brevity) seeking to nullify the election results in Barangay Cabasaran (Precinct Nos. July 18. COMMISSION ON ELECTIONS and BAI SALAMONA L. J. all of Lumbayanague. while voting was going on. Barangay Wago (Precinct Nos. PASANDALAN. Lamin (Precinct Nos. Barangay Bualan (Precinct Nos. 47A and 48A). 25A and 26A). Petitioner alleged that on May 14. 150312. 47 and 48A. Lanao del Sur during the May 14. respondents. R. 38A and 39A). On May 23. filled them up with the name of Asum and placed them inside the ballot boxes. 2001. 6A. Barangay Meniros (Precinct Nos. Otherwise. Barangay Deromoyod (Precinct Nos. 29A and 30A). 2002] BAGO P. Asum (“Asum” for brevity) were candidates for mayor in the Municipality of Lumbayanague. 7A and 8A) and Barangay Pantaon (Precinct Nos. 10A. Lanao del Sur. 2001. The BEI members allegedly affixed their initials only during the counting of votes. vs. 2001 dismissing petitioner Bago P. Taking advantage of the confusion. No grave abuse of discretion can be attributed to the Comelec in such a case because the Comelec must exercise with utmost circumspection the power to declare a failure of election to prevent disenfranchising voters and frustrating the electorate’s will. 33A and 34A). The Case Before us is a petition for review on certiorari of the Resolution[1] of the Commission on Elections en banc dated October 12. 11A and 12A). supporters of Asum allegedly took the official ballots. 9A. 24A. DECISION CARPIO. some Cafgu’s stationed near Sultan Gunting Elementary School indiscriminately fired their firearms causing the voters to panic and leave the polling center without casting their votes. the Comelec can dismiss outright the petition for lack of merit. ASUM. 32A. 9A-12A.EN BANC [G. 46A. . No. In Precinct Nos. 24A-26A and 29A-30A. the members of the Board of Election Inspectors (“BEI” for brevity) allegedly failed to sign their initials at the back of several official ballots and to remove the detachable coupons. Pasandalan claims that Asum’s supporters. grabbed the official ballots and filled them up with the name of Asum. and failure of the BEI members to sign at the back of some official ballots and to remove the detachable coupons. Thus. 32A-34A and 38A-39A. On October 12. Asum filed an Answer denying Pasandalan’s allegation that the volley of shots fired on May 14. Second. Asum was sworn into office and assumed the position of municipal mayor of the Lumbayanague. The third instance is understood in its literal sense. 2001. 2001. Third. the gunshots heard during the casting of votes did not suspend the election as the voting continued normally. 2001 disrupted the voting. The Comelec ruled that these allegations are better ventilated in an election contest. 6A-8A. the Comelec dismissed the petition for lack of merit. First. and not at the start of the voting. 2001. that is. firing of guns to frighten the voters. being an extraordinary remedy. this petition. Asum was elected by a plurality of votes. the elections in the questioned precincts were held as scheduled. could be exercised only in three instances: (1) the election is not held. The Comelec considered these affidavits self-serving and insufficient to annul the results of the election. (2) the election is suspended. The authenticity and integrity of the election returns were left undisturbed throughout the preparation. the Comelec issued a Resolution dismissing the petition for lack of merit.In Precinct Nos. transmission. Lanao del Sur. Pasandalan contends that a technical examination of several official ballots from the contested precincts would show that only a few persons wrote the entries. taking advantage of the fistfight between Asum’s nephew and the supporters of candidate Norania Salo. On June 30. Private respondent countered that the gunshots were heard around 2:35 p. custody and canvass of the returns. On June 26. The Comelec dismissed the petition because none of the grounds relied upon by Pasandalan falls under any of the three instances justifying a declaration of failure of election.m. or (3) the election results in a failure to elect. The Comelec did not give credence to Pasandalan’s evidence in support of his allegations of terrorism and fraud since the evidence consisted only of affidavits executed by Pasandalan’s own poll watchers. The Comelec’s Ruling The Comelec ruled that the power to declare a failure of election. Pasandalan alleges fraud and terrorism. nobody was elected.[3] Hence. in that there was massive substitution of voters. . 7166. violence. 3. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN NOT ANNULING THE ELECTION OR DECLARING A FAILURE OF ELECTION IN THE SIXTEEN (16) QUESTIONED PRECINCTS. fraud or other analogous causes the election in any polling place has not been held on the date fixed. terrorism. NULL AND VOID AB INITIO THE PROCLAMATION OF THE PRIVATE RESPONDENT AS THE DULY ELECTED MAYOR OF LUMBAYANAGUE. Section 6 of the Code prescribes the conditions for the exercise of this power. and in any of such cases the failure or suspension of election would affect the result of the election. on the basis of a verified petition by any interested party and after due notice and hearing.” . LANAO DEL SUR IN THE LAST MAY 14. 6.”[5] the Comelec en banc is empowered to declare a failure of election under Section 6 of the Omnibus Election Code (B. suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. 2.”[4] The Court’s Ruling We rule that the petition is without merit. otherwise known as “The Synchronized Elections Law of 1991. The Comelec correctly dismissed the petition for declaration of failure of election because the irregularities alleged in the petition should have been raised in an election protest. or had been suspended before the hour fixed by law for closing of the voting. thus: “SEC. . 01-305 FOR ALLEGED LACK OF MERIT.If. Under Republic Act No. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DISMISSING THE PETITION IN SPA NO. call for the holding or continuation of the election not held. the Commission shall. on account of force majeure. 881). 2001 REGULAR ELECTIONS AND MAY 30. or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof. not in a petition to declare a failure of election.P. Blg. raising the following issues: “1. Failure of Election. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN NOT DECLARING AS ILLEGAL.The Issues Pasandalan now assails the Comelec’s dismissal of his petition. such election results in a failure to elect. 2001 SPECIAL ELECTIONS. The victory of Asum is thus put in serious doubt. transmission. Pasandalan’s allegations do not fall under any of the instances that would justify the declaration of failure of election. These are: “(a) the election in any polling place has not been held on the date fixed on account of force majeure.[10] The fact alone that actual voting took place already militates against Pasandalan’s cause. transmission and canvassing of election returns and the proclamation of the winning candidate took place in due course. paving the way for Asum’s supporters to write the name of Asum on the ballots. At no point was the election in any of the precincts suspended.[8] In the third instance. (b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure. The volley of shots from high-powered firearms allegedly forced the voters to scamper away from the polling place. such election results in a failure to elect on account of force majeure. terrorism. The election was held in the 16 protested precincts as scheduled. fraud or other analogous causes during the preparation. Also. transmission. violence.[11] absent any of the three instances specified by law.Based on the foregoing provision. terrorism. The alleged terrorism was not of such scale and prevalence to prevent the holding of the election or to cause its suspension. Terrorism may not be invoked to declare a failure of election and to disenfranchise the greater number of the electorate through the misdeeds of only a few. fraud or other analogous causes. In fact. The gunfire also frightened Pasandalan’s poll watchers. circumstances attending the preparation. fraud or other analogous causes. or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof. the election is suspended. The heavy firing allegedly suspended or prevented the holding of elections in the contested precincts. violence. Nor was there a failure to elect because of force majeure. the preparation. three instances justify a declaration of failure of election. the casting and counting of votes. resulting in failure to elect. fraud or other analogous causes. We do not agree. . terrorism. Pasandalan’s allegations of terrorism and fraud are not sufficient to warrant a nullification of the election in the absence of any of the three instances justifying a declaration of failure of election.[7] In the first instance. terrorism.”[6] What is common in these three instances is the resulting failure to elect. violence. custody and canvass of the election returns. The term failure to elect means nobody emerged as a winner. [9] Pasandalan asserts that the conditions for the declaration of failure of election are present in this case. no election is held while in the second. custody or canvas of the election returns cause a failure to elect. Courts exercise the power to declare a failure of election with deliberate caution so as not to disenfranchise the electorate. violence. the election is not set aside. There was no allegation. much less proof that the sanctity of the election returns was defiled. custody and canvass thereof. other than his bare allegation and the ‘pretyped’ affidavits of his watchers. Otherwise. Mere affidavits are insufficient. Election Officer of Lumbayanague. transmission. “the voting continued normally. The form and the contents of the affidavits were pre-typed. In an election protest. these two affidavits carry great weight. 1 Lt. On the other hand. His evidence consisted only of affidavits. Factual findings of the Comelec are binding on this Court. This clearly shows that some other person prepared the affidavits and it is doubtful whether the affiants understood the contents . and convincing evidence must substantiate the allegations.[17] In the instant case.[15] The nullification of elections or declaration of failure of elections is an extraordinary remedy. and all the affiants had to do was to fill-up the blank spaces for their names and precinct assignments.To warrant a declaration of failure of election on the ground of fraud. it is apparent that the allegations do not constitute sufficient grounds for the nullification of the election. multiple voting. elections will never end for losers will always cry fraud and terrorism. custody and canvass of the election returns. the following findings of the Comelec in the instant case must be respected: “xxx There was an allegation in the amended petition that while voting was taking place in Sultan Gunting Elementary School. The allegations in the petition must make out a prima facie case for the declaration of failure of election.[18] more so in this case since the affidavits were all executed by Pasandalan’s own poll watchers.” This statement was bolstered by the narrative report of Urangutan Mamailao.[19] Accordingly. Frederick Galang Pa of the 29th Infantry Battalion assigned in Lumbayanague categorically declared in his affidavit that despite the gunshots which were heard at around 2:35 PM when the polls were about to close. Third. xxx A thorough examination of the affidavits reveals that they suffer from both extrinsic and intrinsic invalidity. Pasandalan even failed to substantiate his allegations of terrorism and irregularities.[12] The conditions for the declaration of failure of election are stringent. the authenticity and integrity of the election returns are left undisturbed throughout the preparation. or mar fatally the preparation. the fraud must prevent or suspend the holding of an election. on the conduct of the election in said municipality. and there is only a revision or recount of the ballots cast to determine the real winner. petitioner did not present substantial and convincing evidence to support his claim.[13] The allegations of massive substitution of voters. Taken in the light of the presumption of regularity in the performance of official functions. and other electoral anomalies should be resolved in a proper election protest[14] in the absence of any of the three instances justifying a declaration of failure of election. transmission. However. It is not enough that a verified petition is filed. gunshots were heard causing the voters to scamper for safety and leave the polling center without having cast their votes.[16] The party who seeks the nullification of an election has the burden of proving entitlement to this remedy. The report was spontaneously prepared when the incident happened. threats. v. Cruz. v. terrorism.[23] we reiterated this doctrine. the joint-affidavit of Badjomura Calauto and Macaruog Ampuan states that they were in Barangay Cabasaran during the May 14 election when they saw the men of respondent fill-up the ballots in Precinct Nos. without merit. Commission on Elections. Even at the precinct level. It is highly questionable why different persons have exactly the same observation of different incidents. who examined copies of the election returns of Lakas-NUCD. Typoco claimed that the returns were prepared by only one person based on the report of Francisco S. Even persons confronted with the same occurrence would have different observations of the same incident because human perception is essentially affected by several factors like the senses. violence. Besides.[21] which is also a case of failure of election.”[20] Pasandalan bewails the Comelec’s dismissal of his petition without first conducting a technical examination of the questioned precincts. the affidavits contain inconsistent statements and incredible allegations which bolster the conclusion that they were tailored to suit the needs of the petitioner. Pasandalan failed to attach independent and objective evidence other than the self-serving affidavits of his own poll watchers. personal disposition. The venue of voting for Barangay Cabasaran was Sultan Gunting Central Elementary School while that of Barangay Lamin was Lamin Primary School.[22] we ruled that the Comelec could dismiss outright a petition for nullification of election if it is plainly groundless and the allegations therein could be better ventilated in an election protest. For example. petitioner Typoco buttressed his petition with independent evidence that compelled the Comelec to conduct a technical examination of the questioned returns. this is not the proper forum to challenge illegal voters. Commission on Elections. intimidation and other electoral frauds. on its face. Jr. Failing to avail himself of this remedy. How they were able to witness said incident when they were miles away from where it happened is mystifying. The Comelec is not mandated to conduct a technical examination before it dismisses a petition for nullification of election when the petition is. In Banaga. petitioner cannot now pass the burden to innocent voters by calling for the annulment of the results of a validly held election. 29A-30A of Barangay Lamin. Typoco filed a Motion to Admit Evidence to prove that a substantial number of election returns were manufactured. the Comelec would have discovered massive substitution of voters. etc. mental condition. environment. In the present case.thereof before they signed them. Moreover. Also worth noting is the fact that the contents of the affidavits are identical. Commission on Elections. In Mitmug v. coercion. thus - . Pasandalan claims that had the Comelec made a technical examination of the questioned precincts. In Typoco. petitioner’s watchers are 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. a licensed examiner of questioned documents. resulting in a failure of election. Jr. Pasandalan insists that a technical examination in this case would have been proper as in Typoco. In their absence. the election in this case proceeded as scheduled.“Finally. Pasandalan believes that notwithstanding the fact that actual voting took place in the questioned precincts. Consequently. In Basher. just like in Basher v. hence without merit. Unlike in Basher. Pasandalan argues that the peculiar set of facts in this case do not merely show a failure of election “but the absence of a valid electoral exercise.m. the same must be respected as much as possible. Basher does not apply to this case. we held that the “election” was illegal. 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 show on its face the existence of any of the three instances required by law to declare a failure of election. Public respondent had no recourse but to dismiss the petition.[28] In this case.”[25] Citing Basher. However. we annulled the proclamation of the winning candidate and ordered a special election. . Basher filed a petition for the nullification of election. The petition to declare a failure of election and/or to annul election results must show on its face that the conditions necessary to declare a failure to elect are present.” Clearly.[24] was “illegal. petitioner claims that public respondent gravely abused its discretion when it dismissed his petition motu propio. The electorate was not given sufficient notice that the election would push through after 9 p. Commission on Elections. we overturned the Comelec ruling because the election was unauthorized and invalid. irregular and void. the fact that a verified petition is filed with the Comelec does not necessarily mean that a technical examination or a hearing on the case should be conducted first before the Comelec can act on the petition. Moreover. However. and lasted until the early morning of the following day. The Comelec in this case correctly dismissed the petition. irregular.m. The Comelec ruled against a failure of election because actual voting had taken place. the voting started only at around 9 p. and void. Nor may petitioner now complain of denial of due process. the petition must be denied outright. Thus. We have ruled that there is failure of election only if the will of the electorate is muted and cannot be ascertained. 1997. the will of the electorate is readily discernible. It is only when the election is attended by patent and massive irregularities and illegalities that this Court will annul the election. None of the extreme circumstances that marred the election in Basher is present in this case. Lanao del Sur during the 1997 barangay elections. on this score.”[26] The fact that an election is actually held prevents as a rule a declaration of failure of election. The Comelec can only rule on what was filed before it. the election was reset to August 30. Due to the prevailing tension in the locality. the voting did not comply with the procedure laid down by law and by Comelec rules as to the time and place of voting. of the same day. in accordance with law and Comelec rules. after a series of failed elections in Barangay Maidan. It committed no grave abuse of discretion in dismissing his petition ‘to declare failure of elections and/or for annulment of elections’ for being groundless. Basher is an example of such a case. the fact that a verified petition has been filed does not mean that a hearing on the case should first be held before Comelec can act on it. the election in this case. Pasandalan should have filed an election protest to substantiate his allegations of electoral anomalies. Municipality of Tugaya.[27] If the will of the people is determinable. for his failure to properly file an election protest. the instant petition is DISMISSED. WHEREFORE. . The assailed Resolution of public respondent Comelec is AFFIRMED. SO ORDERED.not a petition to declare a failure of election. Costs against petitioner. with a plurality of 6 votes.Issue: Whether or not the COMELEC committed a grave abuse of discretion inordering the City Board of Canvassers to verify the election returns and that thesubject protest must be filed with the electoral tribunal.Election Laws VILLAROYA vs.After the verification of the election returns Roa was proclaimed. that there is no plausible reason to prohibit anaggrieved candidate from filing an objection regarding the election returns directlybefore the Comelec itself if the election irregularities that vitiate the integrity of theelection returns are not apparent upon their faces. COMELEC ( 155 SCRA 633 ) “Pre-Proclamation Controversy. Due to the protest of the lawyers of Roa. Roa filed a petition in the COMELECcontesting the election claiming fraud. Villaroya garnered 38. the Board of Canvassers furnished her a copy of theStatement of Votes. Petitioner filed inthis Court a petition for certiorari. therefore. deprived the COMELEC of appellate jurisdiction to entertain Roa’spetition for the verification of the election return in question and that the question wasnot proper for a pre-proclamation controversy but in an election contest that shouldbe brought before the house electoral tribunal. falsification and other grounds. duress. Upon aformal request made by Roa. Roa filed with the Board of Canvassers a protest for the error or mistake in the tabulation of the election returns based on such copy. in favor of petitioner Villaroya. arbitrary and was issued without jurisdiction or withgrave abuse of discretion. It must be observed further. Villaroya further alleged that the directfiling of the protest with the COMELEC did not make it a pre-proclamationcontroversy. Procedure”Facts: Petitioner Villaroya and private respondent Roa were among thecongressional candidates in Cagayan de Oro City. prohibition and mandamus with prayer for theissuance of a temporary restraining order or writ of preliminary injunction alleging thatRoa not having filed an objection with the Board of Canvassers during thecanvassing. that the protest or objection filed by Petitioner Bernardita Roa after discovery of the discrepancy in the Statement of Votes was filed seasonably . What is therefore involved is theoriginal jurisdiction of the Comelec rather than its appellate jurisdiction for preciselythe objection is filed not before the Board of Canvassers because the irregularitiesare not apparent upon the face of the election returns.222 votes. that the decision of the COMELEC authorizing such verification by theBoard of Canvassers was illegal. Villaroya was notproclaimed by the Board of Canvassers.196 votes. The Commission en bancrules.Held: No. D. COMELECdirected the Board of Canvassers to reconvene to verify the election.while respondent Roa got a total of 38. which provides that unless it should clearly appear that it has been deliberately put by the voter to serve as identification mark.Antique. section 149 of the Election Code. Cazeñas filed an election protest before the CFI of Antique contesting the result of the elections.TAJANLANGIT vs. Issue: Whether or not the appellate court erred in its appreciation of the ballots. The Court of Appeals affirmed the decision. CAZEÑAS Case Digest TAJANLANGIT vs. Tajanlangit filed this appeal to contest the ruling made by the appellate court with regards to sixteen ballots. 1962 Facts: Petitioner Tajanlangit and respondent Cazeñas were among the candidates for the position of mayor of Dao. the same shall be considered as stray votes which shall not invalidate the whole ballot. It is a well-settled rule in election contest that the marks which shall be considered sufficient to invalidate the ballot are those which the votes himself deliberately placed in his ballot for the purpose of identifying it thereafter. . The lower court ruled in favor of Cazeñas. in the elections held on November 10. the use of two or more kinds of writing shall be considered innocent and shall not invalidate the ballot. but reduced respondents lead by just one vote. 1959. In the absence of evidence aliunde that names of non-candidates were intended for purposes of identification. Tajanlangit also filed a counter-protest. The municipal board of canvassers declared that Tajanlangit won over Cazeñas by three votes. Held: The use of two kinds of writing appearing in the ballot is a good example of the exemption provided in paragraph 18. CAZEÑAS 5 SCRA 567. but his winning margin was reduced to two votes. 643 - 387 872 For Vice-Mayor Catalino M. 04-247. (Gunsi). Region XII. 15A and 17A. Sinsuat () was a mayoralty candidate in the May 2004 Local Elections in South Upi. The COMELEC denied petitioners’ motions to suspend the reconvening of the Special Board of Canvassers (SBOC) and the proclamation of winning candidates for South Upi. and proclaim the winners for mayor. The SBOC was directed to convene and re-canvass all election returns from all 35 precincts of South Upi. a vice mayoralty candidate. Thus. Sinsuat - 1. annulled the proclamations. Martin Israel C. submitted its report[8] dated with the following results: [For Mayor] Antonio B.[6] On . 04-202. Gunsi Jovito B. . the SBOC was unable to canvass votes from four of the 35 precincts. Clarita Callar. the COMELEC First Division. and proceed with the canvassing. in a Resolution[3] dated . Betita . the COMELEC Second Division. The COMELEC en banc. two candidates for vice-mayor and different sets of members of the Sangguniang Bayan. Maguindanao. on the other hand. the Municipal Board of Canvassers proclaimed as winners. finding that all proclamations were based on incomplete canvass. Meanwhile. Regional Election Director. denied ’s motion for reconsideration[4] and ordered the appointment of the SBOC. Petitioner Datu Israel C. However.[7] The SBOC.954 1.617 1. vice-mayor and members of the Sangguniang Bayan. filed a report on the multiple proclamations in South Upi. In a Resolution[2]dated . the SBOC was also directed to act as Special Board of Election Inspectors for Precincts Nos. 3A. in a resolution dated . Before the elections. the COMELEC en banc denied Gunsi’s motion for reconsideration. three candidates for mayor. Sr. while petitioner Datu Jaberael R. Sinsuat (Jaberael). The facts are undisputed. Gunsi. J. on different dates. Atty. in SPA No. Ariston Ricardo F. 04-202 for the cancellation of the certificate of candidacy for mayor of Antonio B.QUISUMBING. filed a complaint docketed as SPA No. count the ballots therein. Upon canvassing of votes. disqualified Gunsi to run for mayor for not being a registered resident of South Upi.[5] 10A.: This petition for certiorari and prohibition with application for the issuance of a temporary restraining order and/or preliminary prohibitory injunction or status quo order assails the Order[1] dated of the Commission on Elections (COMELEC) in SPC No. Maguindanao. Untal Jaime T. Toriales Zainal S. Omar Sanny M. 859 1. 15A and 47 ballots from Precinct No. Dida Mohamad D. Piang Warlito D.296 1. Campong Roland B. Moendeg Jaberael R. Dizon Alimudin S.155 1. Kamid Adnan K. Karim Gems S. Batitao Vicente F. 17A.041 1. Angit Lencio A.002 1. Insoy Amil B.384 839 1. Calbeno P.290 902 1.046 1.166 2. Sargan Manuel B. Batitao Rene T.364 1. Betita Manuel L.Abdullah A.352 1. Galangan Manuel B. Gunsi Joselito C. Diocolano Francilino B. Quinlat. Sr. Babas Antonio B.356 1. 15A and 17A which would affect the results of the election. Tumambiling Armando B.105 761 508 1. Usman Bienvenido W. Kudteg Ronnie K. Compleza Abogado K. Edzil Linda L.061 19 1. Alvarez Doming L. Tenorio Rodrigo S. It appeared that in 48 ballots from Precinct No. Gunsi Alfredo A. Aron Armando S.477 1. Jr. Fantingan Leo T.307 653 - For Councilors Jose N. Pinuela Raymundo L.609[9] Jaberael questioned 95 ballots from Precincts Nos.481 23 747 1. Sinsuat - 1.868 1. Yap. Erese Florentino M.026 1.229 - 1. Arig Lydia B.026 968 308 1. Rawadin Maria A. In view of .652 214 623 447 1. the name “Jay” or “Sinsuat” written on the space for vice-mayor was “erased” by a single line and beside it was the name “Campong” or “Beds” which is the nickname of respondent Abdullah Campong (Campong).284 1. Bienvenido W. it referred the matter to the Department of Interior and Local Government –ARMM for the implementation of the rules on succession. Vicente B.”[10] In an Order[11] dated July 26. On August 2. Warlito D. WHETHER OR NOT DATU ISRAEL SINSUAT. [SHOULD] BE PROCLAIMED AS THE DULY ELECTED MUNICIPAL MAYOR OF SOUTH UPI. BUT WAS ILLEGALLY ERASED AND TAMPERED IN FAVOR OF ABDULLAH “BEDS” CAMPONG SHOULD BE COUNTED IN FAVOR OF DATU JABERAEL SINSUAT. the COMELEC en banc ordered the SBOC to reconvene and proclaim Campong for vice-mayor. It added that the SBOC had already considered the contested ballots from Precincts Nos. MAGUINDANAO CONSIDERING THAT THE DISQUALIFICATION OF THE CANDIDATE WHO RECEIVED THE HIGHEST NUMBER OF VOTES. MAYORALTY CANDIDATE. Lydia B. Yap. 2005.. Betita and Jaime T. the winning candidate for mayor. Sargan. It ratiocinated that the case before it was not an election protest where election documents may be examined and evidence aliunde may be presented to prove that the contested ballots were written by two persons. SR. VICE MAYORALTY CANDIDATE. and counted them in favor of Campong. 2005. and Erlinda L. It wanted the commission to “ascertain whether or not the Board’s determination of the integrity and validity of the ballots” from said precincts “must be reversed and set aside. Usman. the COMELEC denied the cited motions holding that they were actually motions for reconsideration of an en banc resolution which is not allowed in special cases under Section 1. for councilors. It also held that no candidate shall be proclaimed mayor due to the disqualification of Gunsi. Hence. Maria A. Rule 13 of the 1993 COMELEC Rules of Procedure. (2) Very urgent motion to suspend reconvening of the SBOC. petitioners filed the following: (1) Motion to suspend implementation of order promulgated on July 26. Consequently. the COMELEC suspended the reconvening of the SBOC and required the other parties to comment. 2. Erese. WHETHER OR NOT THE NINETY-FIVE (95) VOTES ORIGINALLY AND OBVIOUSLY CAST FOR DATU JABERAEL SINSUAT. 15A and 17A as valid. Toriales.. AS THE CANDIDATE WHO RECEIVED THE NEXT HIGHEST NUMBER OF VOTES. ANTONIO GUNSI. and (3) Very urgent motion to recall notice to reconvene issued by the SBOC. In its assailed order dated August 16.this. 2005. Aron. 2005. Pinuela. Sr. the SBOC suggested that the commission check these ballots which it counted in favor of Campong. BECAME FINAL AND . this petition where petitioners raise the following issues: 1. Rodrigo S. Instead. EXECUTORY PRIOR TO THE PROCLAMATION OF ANY WINNING CANDIDATE. Respondent Campong claims that the case is now moot and academic as the order sought to be annulled had become final and executory. we find that no grave abuse of discretion was committed by the respondent COMELEC. he argues that he already took his oath as vice-mayor and assumed his office on August 25.[13] He argues that the appreciation of the contested ballots and election documents is best left to the trial court hearing the election protest. Thereafter. They also maintain that the COMELEC should have inspected and examined the contested ballots and made a definite ruling thereon. 2005. On the second issue.[14] A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with . 200[5] ORDER IS PROPER OR REVERSIBLE.[12] Simply. They also aver that Gunsi’s disqualification became final and executory before the proclamation of any winning candidate. They aver that had the 95 contested ballots been counted in favor of Jaberael. Branch XIV. 3. He also contends that petitioners are guilty of forum-shopping considering Jaberael also filed an election protest. the latter would have won the elections with 1. THE PRIMORDIAL CONSIDERATION IS WHETHER OR NOT THE AUGUST 16. he succeeded as mayor in view of Gunsi’s disqualification. Note that this petition stemmed from a pre-proclamation controversy where the proclamations of Israel and Jaberael were annulled due to an incomplete canvass. petitioners contend that the COMELEC gravely abused its discretion when it did not consider the contested ballots as votes for Jaberael despite the SBOC’s recommendation. now pending in the Regional Trial Court of Cotabato City. Further. 2005-19. the issues in this case are: (1) Did the COMELEC gravely abuse its discretion when it did not count the contested ballots in favor of Jaberael? (2) Should petitioner Israel be proclaimed mayor? On the first issue. Considering the circumstances in this case.257 votes. petitioners claim that the COMELEC should have proclaimed Israel as the duly elected mayor since Gunsi’s votes should have been considered stray votes.324 votes since Campong would only have 1. docketed as Case No. 15A and 17A. receipt.[22] While this rule admits exceptions. Well-settled is the rule that issues relative to the appreciation of ballots cannot be raised in a pre-proclamation controversy. Jaberael filed an election protest[23] with the trial court assailing the results in all 35 precincts of South Upi including the 95 contested ballots from Precincts Nos. but the 95 ballots reflected in the returns of Precincts Nos. the winning candidates must be proclaimed. not the election returns.the Commission.[17] Appreciation of ballots is the task of the board of election inspectors. the COMELEC en banc’s decision directing the proclamation of the winning candidates becomes final and executory after five days from promulgation unless restrained by the Supreme Court. 235. Jaberael challenged. But the losing party may still file an election contest within ten (10) days following the date of proclamation. custody and appreciation of election returns. the action ceases to be a pre-proclamation controversy.[21] As a rule. Upon such proclamation. such election protest amounts to his abandonment of the pre-proclamation controversy. 15A and 17A.[19] Moreover. Records reveal that. the inspection of voluminous documents. or any matter raised under Sections 233. all questions relative thereto will have to be decided in the case itself and not in another proceeding to prevent confusion and conflict of authority. the filing of an election protest (1) precludes the subsequent filing of a pre-proclamation controversy or (2) amounts to the abandonment of one earlier filed. . the parties may litigate all the legal and factual issues raised by them in as much detail as they may deem necessary or appropriate. and questions related thereto are proper only in election protests. thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. circumstances of this case do not warrant their application. and 236 of the Omnibus Election Code in relation to the preparation. not the board of canvassers.[20] Since this Court did not issue a restraining order.[18] In a regular election protest. indeed.[16] In this case.[15] The proceedings are summary in nature in that there is no room for the presentation of evidence aliunde. and for meticulous technical examinations which take up considerable time. Hence. The reason for this rule is that once the competent tribunal has acquired jurisdiction of an election protest. 234. transmission. WHEREFORE. Permanent Vacancies in the Office of the Governor. a permanent vacancy arises when an elective local official fills a higher vacant office. [25] The facts warranting the exception do not obtain in this case. The subsequent finding of the COMELEC en banc that Gunsi is ineligible cannot retroact to the date of elections so as to invalidate the votes cast for him. Thus. fails to qualify. and (2) the electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. when the electorate voted Gunsi for mayor on May 10. refuses to assume office. The complaint for disqualification of Gunsi was filed before the elections but the COMELEC en banc disqualified him subsequent to the election. and Vice-Mayor. he was not notoriously known by the public to be ineligible to run for mayor. SECTION 44. the proclaimed vicemayor shall then succeed him as mayor. .[24] This rule admits an exception.[26] At the time. 2004. . The Court cannot adhere to petitioner Israel’s contention that the votes cast in favor of Gunsi are stray votes.—If a permanent vacancy occurs in the office of the governor or mayor. the rules on succession under the Local Government Code shall apply. or is otherwise permanently incapacitated to discharge the functions of his office. xxxx For purposes of this Chapter. without . x x x x[28] (Emphasis added) Considering Gunsi failed to qualify as mayor of South Upi. namely: (1) the one who obtained the highest number of votes is disqualified. But this exception is predicated on the concurrence of two requisites. voluntarily resigns. ViceGovernor. the petition is DISMISSED for lack of merit. is removed from office. Mayor. it was under the belief that he was qualified.On the second issue. There is no presumption that the electorate agreed to the invalidation of their votes as stray votes in case of Gunsi’s disqualification. . the vice-governor or vice-mayor concerned shall become the governor or mayor. thus. dies.[27] Conformably then. should petitioner Israel be proclaimed mayor? It is now settled doctrine that the COMELEC cannot proclaim as winner the candidate who obtains the second highest number of votes in case the winning candidate is ineligible or disqualified. Branch XIV. No pronouncement as to costs. The order dated of the Commission on Elections in SPC No. 04-247 is hereby AFFIRMED. . SO ORDERED.prejudice to the election protest filed in the Regional Trial Court of Cotabato City.