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G.R. No. 145802. April 4, 2001.] DOMINADOR T. BELAC, petitioner, vs. COMMISSION ON ELECTIONS and ROMMEL DIASEN, respondents.

Brillantes Navarro Jumamil Arcilla Escolin & Martinez Law Offices for petitioner. The Solicitor General for public respondent. Rainer D. Sarol for private respondent. SYNOPSIS In his petition for a pre-proclamation controversy, respondent alleged that the votes for petitioner were padded through "Operation Dagdag"; and the election returns for him were tampered, falsified and manufactured. He however, did not say that the alleged irregularities appear on the face of the election returns. DETACa As held in previous cases, COMELEC, as a rule in pre-proclamation controversies, is restricted to an examination of the election returns and is without jurisdiction to go beyond or behind them to verify election irregularities. The Supreme Court held that COMELEC, in the case, committed grave abuse of discretion when it concluded that there were serious irregularities, tampering and falsification of the questioned election returns because it looked beyond the face of the documents, contrary to established jurisprudence. SYLLABUS 1. POLITICAL LAW; ELECTION LAWS; PRE-PROCLAMATION CONTROVERSY; IRREGULARITIES MUST APPEAR ON THE FACE OF ELECTION RETURNS. In Matalam vs. COMELEC, this Court held that "in a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an examination of the election returns and is without jurisdiction to go beyond or behind them and investigate election irregularities. Indeed, in the case of Loong vs. COMELEC, the Court, through Mr. Justice Regino Hermosisima, Jr., declared that "the prevailing doctrine in this jurisdiction . . . is that as long as the returns appear to be authentic and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting or the counting of the votes." caDTSE 2. ID.; ID.; ID.; ID.; POLICY TO RESOLVE PRE-PROCLAMATION CONTROVERSIES IN SUMMARY PROCEEDINGS. The policy consideration underlying the delimitation both of substantive ground and procedure is the policy to determine as quickly as possible the result of the election on the basis of the canvass. Thus, in the case of Dipatuan vs. Commission on Elections, we categorically ruled that in a preproclamation controversy, COMELEC is not to look beyond or behind election returns which are on their face regular and authentic returns. . . . By their very nature, and

given the obvious public interest in the speedy determination of the results of elections, pre-proclamation controversies are to be resolved in summary proceedings without the need to present evidence aliunde and certainly without having to go through voluminous documents and subjecting them to meticulous technical examinations which take up considerable time. 3. ID.; ID.; ELECTION PROTEST; COMELEC VERIFIES IRREGULARITIES BY PIERCING THE VEIL OF ELECTION RETURNS. A party seeking to raise issues resolution of which would, compel or necessitate COMELEC to pierce the veil of election returns which appear prima facie regular on their face, has his proper remedy in a regular election protest. cDCIHT DECISION SANDOVAL-GUTIERREZ, J p: This is a petition for certiorari and prohibition with prayer for a temporary restraining order and preliminary injunction, assailing the Resolutions dated February 22, 2000 and November 16, 2000 of the Commission on Elections (COMELEC) en banc in SPC No. 98-170. SAcCIH The facts as shown by the records are: Rommel Diasen of the LAMMP and Dominador Belac of the LAKAS-NUCD were candidates for governor in the province of Kalinga during the May 11, 1998 national and local elections. On May 14, 1998, the Provincial Board of Canvassers started to canvass the results of the election. On May 15, 1998, when the Certificate of Canvass and Statement of Votes for the municipality of Pinukpuk were scheduled for canvassing, Diasen objected to the inclusion of the election returns of 42 precincts in the said municipality. On May 19, 1998, Diasen also questioned the inclusion of the election returns of 28 precincts of the town of Tinglayan. Within twenty-four (24) hours therefrom, Diasen filed with the Kalinga Provincial Board of Canvassers a petition for exclusion of the Certificates of Canvass and Statements of Votes for Pinukpuk and Tinglayan, alleging in the main that: 1. The Certificates of Canvass and Statements of Votes were not prepared by the Board of Election Inspectors as the same were not signed by the respective watchers for the candidates' political parties. 2. There were discrepancies in the tally of votes. The official LAMMP copies of the official returns have a lesser number of votes than those appearing in the Statements of Votes for the said municipalities.

However, the Provincial Board of Canvassers proceeded to include in its canvass the results as stated in the election returns for Pinukpuk. On Diasen's objection to the inclusion of the election returns for Tinglayan, the Board ruled that it will only issue a certificate of correction since the discrepancies were caused by mere error in indicating the entries. On May 19, 1998, the Provincial Board of Canvassers proclaimed Belac as the duly elected governor for the province of Kalinga. On May 21, 1998, Diasen appealed to the COMELEC (First Division) from the rulings of the Provincial Board of Canvassers. On June 4, 1998, the COMELEC (First Division) issued a Resolution dismissing Diasen's appeal for lack of merit, thus: "Wherefore, premises considered, the appeal is hereby dismissed for lack of merit. The rulings of the Provincial Board of Canvassers on the petition for exclusion of Certificate of Canvass and Statement of Votes are hereby affirmed. The Provincial Board of Canvassers for Kalinga is hereby directed to reconvene and continue with the canvassing with reasonable dispatch and proclaim the winning candidate if the votes from the four precincts of Tinglayan, Kalinga where there was failure of elections would not materially affect the results of the election. "Considering that the records of the case show that additions in the COCs and SOVs of Pinukpuk for the votes of gubernatorial candidate Dominador Belac were made, the Law Department is directed to conduct a preliminary investigation for the commission of an election offense against the members of the Municipal Board of Canvassers of Pinukpuk, Kalinga. "The Law Department is similarly directed to conduct an immediate investigation on the possible commission of electoral fraud as alluded to in the ultimate paragraph before the herein dispositive portion. The Election Officer of Pinukpuk is directed immediately to cause the transfer of the Book of Voters for the 69 precincts of Pinukpuk to the Comelec Main Office [c/o Law Department] for this purpose." On June 19, 1998, Diasen filed a motion for reconsideration of the above Resolution which was elevated to the COMELEC en banc. While the said motion was pending resolution in the COMELEC en banc, the Chairman of the Provincial Board of Canvassers, Atty. Nicasio Aliping, convened the Board by calling the two other members in order to proclaim Belac as the new governor. But the two members declined, so only Atty. Aliping proceeded with Belac's proclamation. On June 28, 1998, Diasen filed with the COMELEC a separate petition (SPC No. 98291) to dispute the proclamation of Belac.

Meanwhile, on February 22, 2000, or almost two years after the filing of Diasen's motion for reconsideration on June 19, 1998, the COMELEC en banc promulgated the first assailed Resolution modifying the ruling of the First Division, thus: "WHEREFORE, premises considered, the resolution of the Commission (First Division) subject of the instant Motion for Reconsideration is hereby modified as follows: "1) The Provincial Board of Canvassers for Kalinga is hereby directed to proceed with the canvassing of votes for the office of the provincial governor deducting from the Certificates of Canvass of the Municipalities of Tinglayan and Pinukpuk the votes reflected on the election returns from the above-excluded precincts and thereafter proclaim the winning candidate for governor; "2) The directive to the Law Department to conduct appropriate investigations is affirmed with the modification, however, that the Board of Election Inspectors concerned for the municipalities of Pinukpuk and Tinglayan, as well as John Does, be likewise investigated for possible collusion in the commission of the election offense and election anomaly, subject of petitioner's case." The above Resolution was penned by Commissioner Manolo Gorospe, concurred in by Commissioners Japal Guiani and Luzviminda Tancangco. Chairman Harriet Demetriou and Commissioner Julio Desamito joined Commissioner Teresita Dyliacco Flores in her dissent. In short, the voting was 3-3. In view of the results of the voting, Belac filed a motion praying that the COMELEC en banc desist from implementing the February 22, 2000 Resolution in favor of Diasen, citing Section 6, Rule 18 of the COMELEC Rules of Procedure. 1 The COMELEC granted the motion in its February 24, 2000 order and set the re-hearing on March 9, 2000. On February 28, 2000, pursuant to the COMELEC en banc's February 22, 2000 Resolution, the Provincial Board of Canvassers proclaimed Diasen as the duly elected governor. On the same date, Diasen took his oath of office as governor of Kalinga Province. On March 9, 2000, after receiving Atty. Aliping's Report on March 3, 2000 on Diasen's proclamation, the COMELEC en banc issued an order: "1. To direct Rommel Diasen to cease and desist from discharging the duties and functions of the Office of the Governor of Kalinga Province until further orders of this Commission during the pendency of this case; "2. To require both parties to comment on the report of Atty. Nicasio M. Aliping, Jr., Regional Election Attorney and Chairman of the Provincial Board of Canvassers of Kalinga, . . ., and to include in said comment why the proceedings of the Provincial Board of Canvassers on February 25, 2000 and the subsequent

proclamation of Atty. Rommel Diasen on 28 February 2000 be declared null and void." Thereafter, the COMELEC en banc re-scheduled the re-hearing of Diasen's motion for reconsideration (in view of the 3-3 voting) set on March 9 to March 23, 2000. The parties agreed to file their respective memoranda. Meanwhile, on October 3, 2000, the COMELEC (Second Division) issued a Resolution in SPC Case No. 98-291 declaring null and void the proclamation of Belac as governor, holding that: "The proclamation of respondent Belac by the PBC Chairman alone-against the votes of the other two members of the PBC is illegal because the Omnibus Election Code (Section 255) provides that a majority vote of all the members of the Board of Canvassers shall be necessary to render a decision." On November 16, 2000, Belac filed his "Manifestation with Formal Motion" claiming that the votes of Commissioners Gorospe and Guiani in the assailed Resolution dated February 22, 2000 should not be considered since they retired on February 15, 2000, or before the promulgation, citing the recently decided case of Ambil vs. Comelec. 2 In this case, the Supreme Court held that "one who is no longer a member of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision." Chairman Demetriou denied Belac's motion. On November 16, 2000, the Commission en banc, now with new members in view of the retirement of Commissioners Manolo Gorospe and Japal Guiani, promulgated the second challenged Resolution, the dispositive portion of which reads: "WHEREFORE, premises considered, the motion for reconsideration is hereby GRANTED. Accordingly, We hereby: "1. AFFIRM the proclamation of Petitioner-Appellant ROMMEL W. DIASEN as the duly elected Governor of Kalinga by Public Respondent Provincial Board of Canvassers of Kalinga; "2. RECALL and LIFT the Order promulgated on March 9, 2000 directing Petitioner-Appellant to cease and desist from performing the duties and functions of the Office of Governor for the province of Kalinga; "3. AFFIRM the directive to the LAW DEPARTMENT to conduct appropriate investigations of the Board of Election Inspectors for the municipalities of Pinukpuk and Tinglayan, as well as John Does, for possible collusion in the commission of election offenses and irregularities, subject in the above-entitled case; and

"4. FURNISH a copy of this Resolution to the Office of the President, the Secretary of Interior and Local Government, the Chairman of the Commission on Audit, and the Secretary of the Sangguniang Panlalawigan of Kalinga Province, for their guidance and information." The above Resolution was concurred in by Commissioners Julio Desamito, Luzviminda Tancangco, Ralph Lantion and Rufino Javier. Commissioner Teresita DyLiaco-Flores again wrote a dissenting opinion, joined by Chairman Demetriou. Hence, this petition by Dominador Belac on the following grounds: "First Ground "Respondent COMELEC committed grave abuse of discretion amounting to lack and/or excess of jurisdiction and in fact implicitly deprived petitioner of DUE PROCESS, when it manifestly, deliberately and utterly FAILED AND REFUSED to act WITH DISPATCH on private respondent's SUMMARY Petition on Pre-Proclamation Controversy; the Supposed Final Resolution on Mere REHEARING promulgated only on November 16, 2000, AFTER MORE THAN 30 MONTHS from the filing of the Petition, clearly violated petitioners' right to due process, to a speedy disposition of cases and an (sic) clearly an act of grave abuse of discretion. IDSETA "Second Ground "The November 16 Questioned Resolution (Annex 'A') was absolutely useless and was indeed superfluous (sic) and totally NULL AND VOID, considering that the same was supposed to be a Final Resolution on a supposed REHEARING under Rule 18, Section 6 of the COMELEC Rules, wrongfully premised on a supposed previous EQUALLY DIVIDED VOTE in the February 22, 2000 Resolution of the COMELEC En Banc, However, legally, procedurally and truthfully there was no such prior Equally Divided Resolution/Vote that would have required a Rehearing, as the COMELEC En Banc patently erred in counting and accepting even the null and void VOTES/signatures of two (2) Commissioners who retired on February 15, 2000 prior to the February 22, 2000 promulgation. "Third Ground "RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT EXCLUDED FROM CANVASS FORTY TWO (42) ELECTION RETURNS FOR PINUKPUK AND TWENTY EIGHT (28) ELECTION RETURNS FOR TINGLAYAN, DESPITE UTTER LACK OF LEGAL AND FACTUAL BASES THEREFOR AND IN GROSS AND WANTON DISREGARD OF LAW AND WELLSETTLED JURISPRUDENCE." Public respondent COMELEC en banc and private respondent Rommel Diasen filed their respective comments on the petition.

Respondent COMELEC, in its comment, states that based on evidence on record, there were serious irregularities, tampering and falsification of the questioned election returns in the contested precincts at Pinukpuk and Tinglayan. On this ground, "although an exception," the COMELEC can rule on the exclusion of the questioned election returns. In his comment, respondent Diasen maintains that petitioner Belac can not be considered the duly elected governor of Kalinga because the respondent COMELEC (Second Division) unanimously declared null and void his proclamation in its resolution promulgated on October 3, 2000. Likewise, petitioner was not deprived of due process considering that he was given the opportunity to be heard and that he actively participated in the proceedings before the COMELEC. And by such active participation, he is estopped from questioning the validity of the votes cast by Commissioners Gorospe and Guiani who retired. The basic issue for our resolution is whether or not respondent COMELEC in a preproclamation case can go beyond the face of the election returns. It may be recalled that when the Provincial Board of Canvassers commenced the canvassing of the Certificates of Canvass and Statements of Votes for Pinukpuk and Tinglayan, respondent Diasen objected to the inclusion of the election returns of several precincts in both municipalities; and that within twenty-four hours therefrom, he filed a formal petition with the Provincial Board of Canvassers for the exclusion of the Certificates of Canvass and Statements of Votes for the said municipalities. Section 241 of the Omnibus Election Code provides that 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, on any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. Section 243 of the Code enumerates the specific issues that may be raised in a preproclamation controversy as follows: "(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates." The above enumeration is restrictive and exclusive. Thus, in Sanchez vs. COMELEC, 3 this Court held: "3. The scope of pre-proclamation controversy is limited to the issues enumerated under sec. 243 of the Omnibus Election Code. The enumeration therein of the issues that may be raised in pre-proclamation controversy, is restrictive and exclusive. In the absence of any clear showing or proof that the election returns canvassed are incomplete or contain material defects (sec. 234), appear to have been tampered with, falsified or prepared under duress (sec. 235) and/or contain discrepancies in the votes credited to any candidate, the difference of which affects the result of the election (sec. 236), which are the only instances where a preproclamation recount may be resorted to, granted the preservation of the integrity of the ballot box and its contents, Sanchez' petition must fail. In his petition with the Provincial Board of Canvassers, respondent Diasen raised the following grounds: "1. The Certificate of Canvass of Votes is falsified.

2. The Certificate of Votes were prepared under duress, threats, coercion or intimidation. 3. The certificate of Canvass of votes is obviously manufactured as the Statement of Votes supporting it is likewise manufactured and falsified. 4. There was a deliberate and massive operation DAGDAG-BAWAS in the Certificate of Canvass and Statement of Votes in Pinukpuk, Kalinga. "1. The votes of Candidate for Governor, Dominador Belac, in Precincts 1A, 2A, 3A, . . . were all padded (OPERATION DAGDAG) or increased in the Statement of Votes per precinct as well as in the Election Returns. "2. The Election Returns in the above-stated precincts cannot be the basis of a proper correction of the votes garnered by Belac because said election returns were likewise tampered with, falsified and manufactured as can be determined from the documents (ELECTION RETURNS) themselves due to the following: "A. The aforesaid election returns were already prepared even before the actual counting of votes as shown by the fact that they were prepared by persons other than the BEIs; (Board of Inspectors) B. The PENCRAFT of the BEIs in the aforesaid precincts differ from the pencraft of those who prepared the election returns;

C. In the aforesaid election returns, the votes of Belac were drastically and obviously increased as can be gleaned from the fact that Belac garnered almost 100% of the registered voters in said precincts; D. That in order to determine the true will of the electorate[s], a RECOUNT of the votes must be ordered." Respondent Diasen's petition pertains to a pre-proclamation controversy. Specifically, it alleges that the votes for petitioner Belac were all padded through "Operation Dagdag"; the election returns for him (Diasen) was tampered, falsified and manufactured; and that the election returns were already prepared even before the counting of votes. He thus prays that the votes must be recounted. Diasen did not say that the alleged irregularities appear on the face of the election returns. Obviously, they came from external sources and, therefore, not manifest on the election returns. In fact, even the Certificates of Canvass and Statements of Votes for Pinukpuk and Tinglayan were in order. The Provincial Board of Canvassers explained that it refused to exclude the Certificate of Canvass of Tinglayan because it was regular on its face and the grounds raised by respondent Diasen are not among those in the list enumerated by law. Nothing therein shows it was manufactured or prepared under duress, threat or intimidation or that it was tampered or falsified. As to the Statement of Votes for Tinglayan, the reason why some election returns were not canvassed was because of ballot snatching in some areas. The incompleteness of the Statement of Votes, therefore, did not vitiate the Certificate of Canvass. With respect to the Certificate of Canvass and Statement of Votes for Pinukpuk, the Board checked the entries therein of the election returns in the presence of the parties' representatives. Having found there were some "Dagdag" for Belac, the Board required the correction of the Statement of Votes and the Certificate of Canvass basing the correction on the figures in the election returns, pursuant to the General Instructions for Boards of Canvassers. It was only after the proper correction was made that the Board included the Certificate of Canvass in the provincial canvass. In Matalam vs. COMELEC, 4 this Court held that "in a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an examination of the election returns and is without jurisdiction to go beyond or behind them and investigate election irregularities. Indeed, in the case of Loong vs. Comelec, 5 the Court, through Mr. Justice Regino Hermosisima, Jr., declared that "the prevailing doctrine in this jurisdiction . . . is that as long as the returns appear to be authentic and duly

accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting or the counting of the votes." Loong cited the earlier ruling of the Court in Dipatuan vs. COMELEC 6 and held: "The policy consideration underlying the delimitation both of substantive ground and procedure is the policy to determine as quickly as possible the result of the election on the basis of the canvass. Thus, in the case of Dipatuan vs. Commission on Elections, we categorically ruled that in a pre-proclamation controversy, COMELEC is not to look beyond or behind election returns which are on their face regular and authentic returns. A party seeking to raise issues resolution of which would, compel or necessitate COMELEC to pierce the veil of election returns which appear prima facie regular on their face, has his proper remedy in a regular election protest. By their very nature, and given the obvious public interest in the speedy determination of the results of elections, pre-proclamation controversies are to be resolved in summary proceedings without the need to present evidence aliunde and certainly without having to go through voluminous documents and subjecting them to meticulous technical examinations which take up considerable time." The above ruling was reiterated in the more recent case of June Genevieve R. Sebastian, et al. vs. COMELEC, et al., 7 this Court stressing that it sees "no reason to depart from this rule." In granting respondent Diasen's motion for reconsideration of the Resolution of its First Division, the COMELEC ruled: ASDTEa "Based on evidence on record, there were serious irregularities, tampering, and falsification of the questioned returns in the said contested precincts in the municipalities of Tingalayan and Pinukpuk, Kalinga province. On these factual findings, We find for their exclusion from canvass, albeit in a pre-proclamation proceedings." xxx xxx xxx

"Upon a re-examination and comparison of the copies for this Commission and for the LAMMP, We find that the same were prepared by a few select persons, assembled in a particular place, and pressured by circumstances attendant during elections. There is a striking likeness and uniformity of the handwriting found in the questioned election returns from the different precincts in the two aforementioned municipalities. We are in awe on the evident likeness of strokes in the handwriting in the entries in the election returns, despite the geographic distance of the two municipalities. There is no inescapable conclusionary finding that could be made other than to declare that the contested election returns as manufactured, and therefore, could not be a basis for a valid Certificates of Canvass and Statement of Votes." (Emphasis supplied).

In concluding that there were serious irregularities, tampering and falsification of the questioned election returns; and that they were manufactured, respondent COMELEC looked beyond the face of the documents, hence, exceeding its authority, contrary to the mandate of Loong, reiterated in Matalam and Sebastian. We thus hold that respondent COMELEC committed grave abuse of discretion when it granted respondent Diasen's motion for reconsideration. At this point, counsel for respondent Diasen must remember that he should have determined carefully the proper legal remedy or recourse for his client, such as an election protest. Needless to state, a procedural flaw, as in this case, causes prejudice to the litigants and impairs the proper administration of justice. We now come on the peripheral issue regarding the votes of Commissioners Gorospe and Guiani in the February 22, 2000 Resolution. They had retired when they participated in the promulgation of the said Resolution. In Jamil vs. Comelec, 8 this Court ruled: ". . . A decision becomes binding only after it is validly promulgated. Consequently, if at the time of the promulgation of a decision or resolution, a judge or a member of the collegiate court who had earlier signed or registered his vote, has vacated his office, his vote is automatically withdrawn or cancelled. "The reason for the rule, which is logically applicable to decisions of constitutional commissions and administrative bodies or agencies, is cogently expressed in the case of Consolidated Bank and Trust Corporation v. Intermediate Appellate Court: xxx xxx xxx

'A decision becomes binding only after it is validly promulgated and not before. As we said only recently in re Emiliano Jurado, 'a decision or resolution of the Court becomes such, for all legal intents and purposes, only from the moment of its promulgation.' According to Chief Justice Moran in the landmark case of Araneta v. Dinglasan: 'Accordingly, one who is no longer a member of this court at the-time a decision is signed and promulgated, cannot validly take part in that decision. As above indicated, the true decision of the Court is the decision signed by the Justices and duly promulgated. Before that decision is so signed and promulgated, there is no decision of the Court to speak of. The vote cast by a member of the Court after the deliberation is always understood to be subject to confirmation at the time he has to sign the decision that is to be promulgated. The vote is of no value if it is not thus confirmed by the Justice casting it. The purpose of this practice is apparent. Members of this Court, even after they have cast their votes, wish to preserve their freedom of action till the last moment when they have to sign the decision, so that they may take full advantage of what they may believe to be the best fruit of their

most mature reflection and deliberation. In consonance with this practice, before a decision is signed and promulgated, all opinions and conclusions stated during and after the deliberation of the Court, remain in the breasts of the Justices, binding upon no one, not even upon the Justices themselves. Of course, they may serve for determining what the opinion of the majority provisionally is and for designating a member to prepare the decision of the Court, but in no way is that decision binding unless and until signed and promulgated. We add that at any time before promulgation, the ponencia may be changed by the ponente. Indeed, if any member of the court who may have already signed it so desires, he may still withdraw his concurrence and register a qualification or dissent as long as the decision has not yet been promulgated. A promulgation signifies that on the date it was made the judge or judges who signed the decision continued to support it. If at the time of the promulgation, a judge or a member of a collegiate court has already vacated his office, his vote is automatically withdrawn. . . .' " The rule has not been modified. In fact in the recently decided case of Ruperto A. Ambil, Jr. vs. Comelec, 9 this Court passed upon a resolution written by Commissioner Guiani himself, holding that the said resolution is null and void ab initio because: "A final decision or resolution becomes binding only after it is promulgated and not before. Accordingly, one who is no longer a member of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision. Much more could he be the ponente of the resolution or decision. The resolution or decision [of the Division] must be signed by a majority of its members and duly promulgated." Upon their retirement, Commissioners Gorospe and Guiani had been stripped of all authority to participate in the promulgation of the February 22, 2000 Resolution. Pursuant to Section 6 of the Comelec Rules of Procedure, earlier quoted, the Resolution dated June 4, 1998 of the First Division is therefore deemed affirmed as the votes of Commissioners Gorospe and Guiani are considered cancelled. Indeed, there was initially no evenly divided vote in the February 22, 2000 Resolution that should have merited a rehearing or the issuance of the challenged Resolution dated November 16, 2000 by the new members of respondent Comelec. On petitioner's contention that there was a long and deliberate delay on the part of public respondent Comelec as previously stated, respondent Diasen's motion for reconsideration of the Resolution of the Comelec First Division was filed with respondent Comelec en banc on June 19, 1998. However, it was only on February 22, 2000, or after almost two (2) years, when the motion was resolved. In view of the equally divided voting, a rehearing was ordered. The parties merely submitted

memoranda. Yet, it was only on November 16, 2000, or after almost nine (9) months from February 22, 2000, when respondent Comelec finally promulgated the other challenged Resolution dated November 16, 2000. Pre-proclamation controversies are mandated by law to be summarily disposed of. 10 Here, the Comelec failed to comply with this mandate. Let it be reminded that preproclamation controversies, by their very nature, are to be resolved in summary proceedings which obviously should be disposed of without any unnecessary delay. WHEREFORE, the petition is hereby given due course and is GRANTED. The challenged Resolutions dated February 22, 2000 and November 16,. 2000 of respondent COMELEC en banc are SET ASIDE, while the Resolution of the COMELEC (First Division) dated June 4, 1998 is AFFIRMED. Respondent COMELEC is directed to forthwith conduct the proclamation of petitioner Dominador Belac in accordance with law. aHESCT SO ORDERED. G.R. Nos. 139573-75. March 7, 2000.] JUNE GENEVIEVE R. SEBASTIAN, and DARIO ROMANO, petitioners, vs. THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF STO. TOMAS, DAVAO DEL NORTE (Jandelie B. Espaola, Liza D. Baco, and Valentin Gador), SALVADOR ROYO, and ERIC ESTELA, respondents. Manalo Puno Jocson & Placido Law Offices for petitioners. The Solicitor General for public respondent. Rodolfo G. Pulanco and J. Melchor V. Quitain for Dr. S. Royo. SYNOPSIS Petitioner June Genevieve R. Sebastian, mayoralty candidate of the Reporma Party in Sto. Tomas, Davao del Norte, during the May 11, 1998 elections, and petitioner Dario Romano, her running mate, filed the instant petition for certiorari seeking the annulment of the Resolution issued by respondent Commission on Elections, in SPC Nos. 98-129, 98-142, and 98-169, on August 24, 1999, allowing the inclusion in the canvass of votes in Sto. Tomas, Davao del Norte, of 25 election returns which they claimed to have been prepared through threats and undue influence. Said resolution reversed an earlier resolution of the COMELEC Second Division excluding the questioned election returns from the canvass of votes. They likewise seek the issuance of a temporary restraining order to enjoin the Municipal Board of Canvassers of Sto. Tomas from continuing with the canvassing of votes and including therein the contested election returns. cDCHaS

Petitioners questioned the COMELEC's alleged failure to consider what they claim to be evidence of undue influence, extreme pressure, threat, and coercion that attended the preparation, transmission, custody and appreciation by the Board of Election Inspectors of the contested election returns. These, according to them, affected the regularity, due execution, and authenticity of the election returns. Petitioners admitted that the alleged fraud, deceit, and intimidation came from external sources, and, therefore, not manifest on the face of the returns. Hence, this justified the examination of circumstances beyond the face of the returns. The Supreme Court, in a long line of cases, has consistently held that a preproclamation controversy is limited to an examination of the election returns on their face. The COMELEC as a general rule need not go beyond the face of the returns and investigate alleged election irregularities. The Court saw no reason to depart from this rule in this petition. To require the COMELEC to examine the circumstances surrounding the preparation of election returns would run counter to the rule that a pre-proclamation controversy should be summarily decided. Moreover, where the resolution of the issues raised would require the COMELEC to "pierce the veil" of election returns that appear prima facie regular, the remedy is a regular election protest. The Court, therefore, dismissed the petition. SYLLABUS 1. ADMINISTRATIVE LAW; ELECTIONS; PRE-PROCLAMATION CONTROVERSY; LIMITED TO AN EXAMINATION OF THE ELECTION RETURNS ON THEIR FACE AND SHOULD BE SUMMARILY DECIDED. We have consistently held that a preproclamation controversy is limited to an examination of the election returns on their face. The COMELEC as a general rule need not go beyond the face of the returns and investigate alleged election irregularities. We see no reason to depart from this rule in this petition. In our view, there is no exceptional circumstance present in this controversy similar to that proved in the Antonio case (32 SCRA 319, 332 [1970]), where the COMELEC as well as the Court found "precipitate canvassing, terrorism, lack of sufficient notice to the Board, and disregard of manifest irregularities in the face of the questioned returns" to justify the summary annulment of the canvass and the annulment of petitioner Antonio's proclamation. Rather, we are guided here by the holding of the Court in the case of Matalam, in Maguindanao, where it is said: ". . . Because what [petitioner] is asking for necessarily postulates a full reception of evidence aliunde and the meticulous examination of voluminous election documents, it is clearly anathema to a preproclamation controversy which, by its very nature, is to be heard summarily and decided on as promptly as possible." To require the COMELEC to examine the circumstances surrounding the preparation of election returns would run counter to the rule that a pre-proclamation controversy should be summarily decided. 2. ID.; ID.; ELECTION PROTEST; PROPER REMEDY WHERE ISSUES RAISED WOULD REQUIRE COMELEC TO PIERCE THE VEIL OF ELECTION RETURNS THAT APPEARS

PRIMA FACIE REGULAR. In Sison v. COMELEC, we ruled that: ". . . The reason underlying the delimitation both of substantive ground and procedure is the policy of the election law that pre-proclamation controversies should be summarily decided, consistent with the law's desire that the canvass and proclamation be delayed as little as possible. That is why such questions which require more deliberate and necessarily longer consideration are left for examination in the corresponding election protest." Where the resolution of the issues raised would require the COMELEC to "pierce the veil" of election returns that appear prima facie regular, the remedy is a regular election protest, ". . . wherein the parties may litigate all the legal and factual issues raised by them in as much detail as they may deem necessary or appropriate." Here, we note favorably the position taken by the Office of the Solicitor General. Petitioners have not demonstrated precisely how the preparation and appreciation of election returns were adversely affected by, as alleged by petitioners, "harassments of petitioners' supporters," "midnight convoys of armed men riding in motorcycles," and "raids by the military in different houses" in Sto. Tomas. We are constrained to agree with the OSG's submission that on the basis of our holding in Salih v. Comelec, 279 SCRA 19, respondent COMELEC herein "could not justifiably exclude said returns on the occasion of a pre-proclamation controversy whose office is limited to incomplete, falsified or materially defective returns which appear as such on their face." 3. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; PETITION FOR CERTIORARI; GRAVE ABUSE OF DISCRETION; NOT COMMITTED BY COMELEC WHEN IT REFUSED PETITIONERS' CALL TO EXCLUDE ASSAILED ELECTION RETURNS IN CASE AT BAR. Nor could we fault public respondents herein for grave abuse of discretion in refusing petitioners' call to exclude election returns they claim as the product of coercion and falsification, even if they appear clean on their face. For respondent COMELEC had conducted hearings on the matter, where petitioners and other parties concerned had submitted affidavits and presented witnesses. The COMELEC found, however, that the evidence presented by petitioners failed to prove convincingly that the assailed returns were tainted by duress. Contrary to petitioners' claim, NAMFREL volunteers and the Poll Watchers in the area attested that the election activities therein were generally peaceful. Even the Board of Election Inspectors themselves swore nobody threatened or coerced them in the performance of their duties, and that the elections in their area were peaceful, honest and orderly. Given these factual circumstances, which could not be deemed evidently self-serving on its part, respondent COMELEC could not have prudently and fairly excluded the assailed returns. The better part of discretion in so delicate a matter is to await the filing of the appropriate action, like a regular election protest, if the petitioners were so minded to pursue the proper remedy, rather than delay the determination of the popular will. CETIDH DECISION QUISUMBING, J p:

Before us is a petition for certiorari seeking the annulment of the Resolution issued by respondent Commission on Elections, in SPC Nos. 98-129, 98-142, and 98-169, on August 24, 1999, allowing the inclusion in the canvass of votes in Sto. Tomas, Davao del Norte, of 25 election returns which petitioners claimed to have been prepared through threats and undue influence. Said resolution reversed an earlier resolution of the COMELEC Second Division excluding the questioned election returns from the canvass of votes. Petitioners likewise seek the issuance of a temporary restraining order to enjoin the Municipal Board of Canvassers of Sto. Tomas from continuing with the canvassing of votes and including therein the contested election returns. Cdpr The antecedent facts are as follows: Petitioner June Genevieve Sebastian was the mayoralty candidate of the Reporma Party in Sto. Tomas, Davao del Norte, during the May 11, 1998 elections. Petitioner Dario Romano was her running mate. Private respondent Salvador Royo was the mayoralty candidate of the Lakas-NUCD-UMDP, while private respondent Eric Estela was his candidate for vice mayor. On election day, as the Municipal Board of Canvassers was preparing to canvass the election returns, petitioners sought the exclusion from the canvass of several election returns from certain precincts in barangays Kimamon, New Katipunan, Lunga-og, Balagunan, Pantaron, and Tibal-og. 1 Petitioners claimed that the election returns from these areas were prepared under "extreme duress, threat, intimidation and political pressure and influence." 2 Petitioners also manifested that four election returns were missing The Municipal Board of Canvassers denied the petition, prompting petitioners to file three separate appeals with the COMELEC, docketed as SPC No. 98-129, SPC No. 98-142, and SPC No. 98-169. The COMELEC First Division dismissed the appeal docketed as SPC No. 98-129 on July 15, 1998. No motion for reconsideration was filed by petitioners as appellants therein, thus, the dismissal became final and executory on July 30, 1998. 3 Meanwhile, the COMELEC Second Division, ruling on the remaining consolidated appeals in a decision promulgated on August 14, 1998, ruled in favor of petitioners and ordered the exclusion of 25 election returns from the canvass of votes in Sto. Tomas. LLphil On August 18, 1998, private respondent Royo filed a motion for reconsideration of said resolution. The COMELEC en banc, as earlier stated, reversed the ruling of the COMELEC Second Division. Hence, this petition, in which petitioners assign the following errors:

THE HONORABLE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISREGARDED THE DOCTRINE ENUNCIATED BY THE HONORABLE SUPREME COURT IN THE LEADING CASE OF ANTONIO vs. COMELEC, G.R. NO. L-31604, APRIL 17, 1970 IN THE DISPOSITION OF THE INSTANT CASE; THE HONORABLE COMMISSION ON ELECTIONS COMMITTED A GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT UNILATERALLY DISREGARDED THE OVERWHELMING EVIDENCE OF COERCION, UNDUE INFLUENCE, EXTREME PRESSURE, THREAT, INTIMIDATION AS WELL AS ALL THE ENVIRONMENTAL CIRCUMSTANCES THAT ATTENDED THE PREPARATION, TRANSMISSION, RECEIPT, CUSTODY AND APPRECIATION OF THE TWENTY-FIVE CONTESTED RETURNS. 4 Petitioners concede that, when the election returns appear to be regular, authentic, and duly accomplished on their face, the COMELEC need not inquire into allegations of irregularities in the casting or counting of votes. 5 However, petitioners question the COMELEC's alleged failure to consider what they claim to be evidence of undue influence, extreme pressure, threat, and coercion that attended the preparation, transmission, custody and appreciation by the Board of Election Inspectors of the contested election returns. These, according to petitioners, affected the regularity, due execution, and authenticity of the election returns. 6 Petitioners also fault the COMELEC for not taking into account the atmosphere prevailing during the elections at Sto. Tomas, which they claim to be similar to the circumstances obtaining in the case of Antonio v. COMELEC, (32 SCRA 319 [1970]). In that case, returns prepared by election inspectors under threats from armed men were excluded from the canvass of votes in Batanes. For its part, the COMELEC pointed out that it could not justifiably exclude from the canvass of votes, in a pre-proclamation controversy, election returns that on their face appear regular. A pre-proclamation controversy is limited to the examination of incomplete, falsified, or materially defective returns, which appear as such on their face. Where the issues raised would require the COMELEC to look beyond the face of the return, the proper remedy is a regular election protest. 7 It is worth noting that petitioners do not claim that the returns themselves are not regular, genuine or authentic. Petitioners admit that the alleged fraud, deceit, and intimidation came from external sources, and, therefore, not manifest on the face of the returns. The alleged fraudulent scheme was designed, according to petitioners, precisely to avoid detection on the face of the returns. 8 What petitioners assert is that the preparation of the returns had been marred by undue influence and intimidation, thus affecting their regularity, due execution and authenticity. Petitioners argue that this justifies the examination of circumstances beyond the face of the returns. prcd

We find this argument untenable. This petition stemmed from a pre-proclamation controversy. In a long line of cases, we have consistently held that a pre-proclamation controversy is limited to an examination of the election returns on their face. 9 The COMELEC as a general rule need not go beyond the face of the returns and investigate alleged election irregularities. 10 We see no reason to depart from this rule in this petition. In our view, there is no exceptional circumstance present in this controversy similar to that proved in the Antonio case, aforecited, where the COMELEC as well as the Court found "precipitate canvassing, terrorism, lack of sufficient notice to the Board, and disregard of manifest irregularities in the face of the questioned returns" 11 to justify the summary annulment of the canvass and the annulment of petitioner Antonio's proclamation. Rather, we are guided here by the holding of the Court in the case of Matalam, in Maguindanao, where it is said: ". . . Because what [petitioner] is asking for necessarily postulates a full reception of evidence aliunde and the meticulous examination of voluminous election documents, it is clearly anathema to a pre-proclamation controversy which, by its very nature, is to be heard summarily and decided on as promptly as possible." 12 To require the COMELEC to examine the circumstances surrounding the preparation of election returns would run counter to the rule that a pre-proclamation controversy should be summarily decided. 13 In Sison v. COMELEC, 14 we ruled that: ". . . The reason underlying the delimination both of substantive ground and procedure is the policy of the election law that pre-proclamation controversies should be summarily decided, consistent with the law's desire that the canvass and proclamation be delayed as little as possible. That is why such questions which require more deliberate and necessarily longer consideration, are left for examination in the corresponding election protest." llcd Where the resolution of the issues raised would require the COMELEC to "pierce the veil" of election returns that appear prima facie regular, the remedy is a regular election protest, 15 ". . . wherein the parties may litigate all the legal and factual issues raised by them in as much detail as they may deem necessary or appropriate." 16 Here, we note favorably the position taken by the Office of the Solicitor General. Petitioners have not demonstrated precisely how the preparation and appreciation of election returns were adversely affected by, as alleged by petitioners, "harassments of petitioners' supporters," "midnight convoys of armed men riding in motorcycles," and "raids by the military in different houses" in Sto. Tomas. We are constrained to agree with the OSG's submission that on the basis of our holding in

Salih v. COMELEC, 279 SCRA 19, respondent COMELEC herein "could not justifiably exclude said returns on the occasion of a pre-proclamation controversy whose office is limited to incomplete, falsified or materially defective returns which appear as such on their face." 17 Nor could we fault public respondents herein for grave abuse of discretion in refusing petitioners' call to exclude election returns they claim as the product of coercion and falsification, even if they appear clean on their face. For respondent COMELEC had conducted hearings on the matter, where petitioners and other parties concerned had submitted affidavits and presented witnesses. The COMELEC found, however, that the evidence presented by petitioners failed to prove convincingly that the assailed returns were tainted by duress. Contrary to petitioners' claim, NAMFREL volunteers and the Poll Watchers in the area attested that the election activities therein were generally peaceful. Even the Board of Election Inspectors themselves swore nobody threatened or coerced them in the performance of their duties, and that the elections in their area were peaceful, honest and orderly. Given these factual circumstances, which could not be deemed evidently self-serving on its part, respondent COMELEC could not have prudently and fairly excluded the assailed returns. The better part of discretion in so delicate a matter is to await the filing of the appropriate action, like a regular election protest, if the petitioners were so minded to pursue the proper remedy, rather than delay the determination of the popular will. LLjur WHEREFORE, the petition is DISMISSED, and the resolution of the COMELEC en banc in SPC No. 98-129, SPC No. 98-142, and SPC No. 98-169 is hereby AFFIRMED. SO ORDERED. G.R. No. 159369. March 3, 2004.] NANCY SORIANO BANDALA, petitioner, vs. COMMISSION ON ELECTIONS, NEW BOARD OF CANVASSERS FOR OROQUIETA CITY and ALEJANDRO G. BERENGUEL, respondents. Alberto C. Agra and Associates for petitioner. The Solicitor General for public respondent. George Erwin M. Garcia for private respondent. SYNOPSIS Petitioner and private respondent were mayoralty candidates in Oroquieta City, Misamis Occidental during the May 14, 2001 national and local elections. During the canvass of the election returns, respondent objected to the inclusion of several election returns but the City Board of Canvassers overturned the objection and included them in its canvass. Subsequently, petitioner was proclaimed the duly

elected mayor of the city. Upon appeal, the Second Division of the Commission on Elections (COMELEC) affirmed the ruling of the City Board of Canvassers holding that the lack of inner seal of an election return does not necessarily mean that the same is spurious. On motion for reconsideration by respondent, the COMELEC en banc reversed the Second Division's resolution. Hence, this petition. aIcSED In granting the petition, the Supreme Court ruled that the lack of inner paper seals in the election returns does not justify their exclusion from the canvassing. Indeed, it is not a proper subject of a pre-proclamation controversy. Assuming that the ground of lack of inner paper seals in election returns is a proper issue in a preproclamation controversy, the COMELEC cannot investigate and receive evidence to determine why those inner paper seals are missing. A pre-proclamation controversy is limited to an examination of the election returns on their face and the COMELEC as a general rule need not go beyond the face of the returns and investigate the alleged election irregularities. Since the lack of inner paper seals in the election returns is not a proper subject of a pre-proclamation controversy, respondent's recourse should have been to file an election protest. Where a party raises issues, the resolution of which would compel the COMELEC to pierce the veil of election returns which appear prima facie regular on their face, his proper remedy is an election protest. In this proceeding, the parties may litigate all the legal and factual issues raised by them in as much detail as they may deem necessary or appropriate. CaTSEA SYLLABUS 1. POLITICAL LAW; ELECTION LAWS; PRE-PROCLAMATION CONTROVERSY; LACK OF INNER SEALS IN THE ELECTION RETURNS, NOT A PROPER SUBJECT THEREOF. The lack of inner paper seals in the election returns does not justify their exclusion from the canvassing. Indeed, it is not a proper subject of a pre-proclamation controversy. 2. ID.; ID.; ID.; LIMITED TO AN EXAMINATION OF THE ELECTION RETURNS ON THEIR FACE. A pre-proclamation controversy is limited to an examination of the election returns on their face and the COMELEC as a general rule need not go beyond the face of the returns and investigate the alleged election irregularities. SDEITC 3. ID.; ID.; ELECTION PROTEST; SHOULD BE AVAILED OF WHERE A PARTY RAISES ISSUES, THE RESOLUTION OF WHICH WOULD COMPEL THE COMELEC TO PIERCE THE VEIL OF ELECTION RETURNS WHICH APPEAR PRIMA FACIE REGULAR ON THEIR FACE. Where a party raises issues, the resolution of which would compel the COMELEC to pierce the veil of election returns which appear prima facie regular on their face, his proper remedy is an election protest. In this proceeding, the parties may litigate all the legal and factual issues raised by them in as much detail as they may deem necessary or appropriate.

DECISION SANDOVAL-GUTIERREZ, J p: Election cases involve not only the adjudication of the private interests of rival candidates, but also the paramount need of dispelling the uncertainty which beclouds the real choice of the electorate with respect to whom shall discharge the prerogatives of the offices within their gift. 1 Thus, election cases are imbued with public interest. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. 2 Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolution 3 dated August 14, 2003 rendered by the Commission on Elections En Banc in SPC No. 01-277, entitled "Alejandro G. Berenguel, Candidate for City Mayor, Oroquieta City vs. Board of Canvassers, Oroquieta City and Nancy Soriano Bandala, Candidate for City Mayor, Oroquieta City." TSEHcA The antecedents of the present petition are as follows: Nancy Soriano Bandala, herein petitioner, and Alejandro G. Berenguel, herein respondent, were mayoralty candidates in Oroquieta City, Misamis Occidental during the May 14, 2001 national and local elections. During the canvass of the election returns conducted by the City Board of Canvassers of Oroquieta City, respondent objected to the inclusion of eighty (80) election returns on the following grounds: (1) that seventy-one (71) election returns were not secured with inner paper seals; (2) that seven (7) election returns do not indicate the party affiliation of the watchers-signatories; and (3) that two (2) election returns have missing pages which contain the list of the local city candidates. In an Omnibus Ruling dated May 19, 2001, the City Board of Canvassers overturned the objection of respondent and included in its canvass the contested election returns. On June 30, 2001, petitioner was proclaimed the duly elected mayor of Oroquieta City. Upon appeal, the Second Division of the Commission on Elections (COMELEC) issued a Resolution dated September 5, 2002 affirming the Omnibus Ruling of the City Board of Canvassers, holding that: Lack of inner seal of an election return does not necessarily mean that the same is spurious and/or was tampered with. Such tampering, or its being spurious must

appear on the face of the election return itself. It is the ministerial function of the board of canvassers to count the results as they appear in the returns which on their face do not reveal any irregularities or falsities. [Cf. Balindong vs. Commission on Elections, 27 SCRA 567] In the canvassing of election returns, the Board of Canvassers, which is an ad hoc body, need not look beyond or behind the returns or do an act which would necessitate the piercing of the returns and the presentation of evidence aliunde. [Cf. Usman vs. Commission on Elections, 42 SCRA 667] Significantly, we observe that what the petitioner has presented were just affidavits mostly executed by his supporters, the nature of which has been ruled by the Supreme Court as self-serving. [Casimiro vs. COMELEC, 170 SCRA 627] We cannot just rely on this kind of evidence because what is at stake is the paramount interest of the electorate. Finally, our General Instructions for the Board of Election Inspectors (BEI) [COMELEC Resolution No. 3742) does not require the indication by the poll watchers of their respective political party/candidate being represented. What the rule instructs is this: "SEC. 45. Preparation of election returns and tally board. The boards shall prepare in their own handwriting the election returns and tally board simultaneously with the counting of votes in their respective polling places. The election returns shall be prepared in seven (7) copies. . . . After all the ballots have been read: a) ...

d) The watchers if any, shall affix their signatures and imprint their thumb marks on the right hand portion of the election returns and the tally board; and xxx xxx xxx"

Clearly, nothing in the afore-quoted rule requires the poll watcher to indicate the party/candidate he represents. 4 Respondent then filed with the COMELEC en banc a motion for reconsideration. On August 14, 2003, the COMELEC en banc promulgated a Resolution reversing and setting aside the Second Division's Resolution. The dispositive portion of which reads: "ACCORDINGLY, the Commission en banc hereby renders judgment to:

1. EXCLUDE the one hundred one (101) election returns found without the inner paper seals enumerated in the Canvassing Report of the City Board of Canvassers of Oroquieta City dated 24 May 2001, from the canvass; 2. NULLIFY the proclamation of Oppositor Nancy Soriano Bandala made on 30 June 2001; 3. CONSTITUTE a New City Board of Canvassers for Oroquieta City composed of Atty. Nelia Aureus as Chairman; Atty. Allen Francis Abaya as Vice-Chairman; and, Atty. Norina Tangaro as member-Secretary; STHAID 4. DIRECT the City Election Officer of Oroquieta City to BRING to the Commission at Manila all the election returns and other election documents subject of and pertaining to the canvass made by the Board and TURN-OVER the same under receipt to the New City Board of Canvassers for Oroquieta City; and, 5. DIRECT the New City Board of Canvassers for Oroquieta City to CONVENE with notice to the parties, upon finality of this Resolution, CANVASS the election returns and, thereafter, PROCLAIM the winning candidate for Mayor of Oroquieta City. 6. The aforenamed BEIs, with the exception of the BEI of Precinct No. 134A of Barangay Dolipos Alto, composed of Catalina J. Bajade as Chairman, Emma J. Aganos as Poll Clerk, and Rosenda P. Baloncio as Third Member and the Chairperson, Margie B. Lamparas of the BEI of Precinct No. 145A1 of Barangay Upper Lamac, are recommended to be charged administratively before the Department of Education. 7. Atty. Francisco G. Pobe is hereby suspended from Office with forfeiture of salary from the promulgation of this resolution until after the elections of 10 May 2004 with stern warning that repetition of the same or similar offense will be dealt with more severely. 8. The Law Department, this Commission, is hereby DIRECTED to file the appertaining information for violation of Section Z(15) and (21), and Section 212, both of the Omnibus Election Code (Batas Pambansa Blg. 881) against these BEIs and Mr. Filoteo C. Alngohuro, Chairman of the City Board of Canvassers of Oroquieta City, there being strong prima facie case against them. SO ORDERED." Hence, this petition for certiorari with prayer for issuance of a temporary restraining order and/or writ of preliminary injunction. On August 27, 2003, we issued a status quo ante order. Petitioner contends that the COMELEC en banc acted with grave abuse of discretion (1) in excluding 101 election returns based on a formal defect of lack of inner paper

seals in the election returns; and (2) in nullifying her proclamation as the winning candidate for mayor of Oroquieta City. The petition is impressed with merit. I May the ground of lack of inner paper seals in the election returns be considered a proper issue in a pre-proclamation controversy? There is a need to emphasize the definition of a pre-proclamation controversy under Section 241 of the Omnibus Election Code, thus: "SEC. 241. Definition. 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, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns." The issues that may be raised in a pre-proclamation controversy are enumerated in Section 243 of the same Code, thus: "SEC. 243. Issues that may be raised in pre-proclamation controversy. The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Section 233, 234, 235 and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates." There being no inner paper seals pasted on 101 election returns coming from numerous polling precincts, the COMELEC en banc then concluded that the election returns in question appear to be obviously falsified and/or manufactured, the results of which certainly affected the standing of respondent. According to the COMELEC en banc, this is an issue (under Sec. 243(b) in the enumeration) that may be raised in a pre-proclamation controversy.

The lack of inner paper seals in the election returns does not justify their exclusion from the canvassing. Indeed, it is not a proper subject of a pre-proclamation controversy. In the Matter of the Petition to Exclude Election Returns contained in Nine (9) Ballot Boxes, Amelita S. Navarro vs. Commission on Elections, 5 we held: "While the aforesaid grounds (lack of inner and outer paper seals and lack of signatures of watchers, among others) may, indeed, involve a violation of the rules governing the preparation and delivery of election returns for canvassing, they do not necessarily affect the authenticity and genuineness of the subject election returns as to warrant their exclusion from the canvassing. The grounds for objection to the election returns made by petitioners are clearly defects in form insufficient to support a conclusion that the election returns were tampered with or spurious." Likewise, in Baterina vs. COMELEC, 6 we ruled: "The grounds raised by petitioners for the exclusion of the election returns from the canvassing, as stated in their 'Appeal Memorandum' before the COMELEC . . . refer to the failure to close the entries with the signatures of the election inspectors; lack of inner and out papers seals; canvassing by the BOARD of copies not intended for it; lack of time and date of petitioners' watchers; and lack of authority of person receiving the election returns. "While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation and delivery of election returns for canvassing, they do not necessarily affect the authenticity and genuineness of the subject election returns as to warrant their exclusion from canvassing. The grounds for objection to the election returns made by petitioners are clearly defects in form insufficient to support a conclusion that the election returns were tampered with or spurious. . . .. On the basis of formal defects alone, such palpable irregularity cannot be said to have been established herein." CIScaA II May the COMELEC look beyond the election returns and receive evidence aliunde in a pre-proclamation controversy? Assuming that the ground of lack of inner paper seals in election returns is a proper issue in a pre-proclamation controversy, the COMELEC cannot investigate and receive evidence to determine why those inner paper seals are missing. A pre-proclamation controversy is limited to an examination of the election returns on their face and the COMELEC as a general rule need not go beyond the face of the returns and investigate the alleged election irregularities. 7

In Matalam vs. Commission on Elections, 8 we stressed that "in a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an examination of the election returns and is without jurisdiction to go beyond or behind them and investigate election irregularities." Thus, the COMELEC acted beyond its jurisdiction when it directed the Provincial Election Supervisor of Misamis Occidental to investigate and receive evidence "to determine once and for all the mystery behind the missing inner paper seal of the subject election returns" or the failure of the Board of Election Inspectors (BEIs) to paste the inner seals of the election returns. III Did the COMELEC commit grave abuse in discretion in nullifying the proclamation of petitioner as mayor of Oroquieta City? In its assailed Resolution, the COMELEC en banc held that the City Board of Canvassers acted without authority when it arbitrarily proclaimed petitioner herein as the duly elected mayor of Oroquieta City, in gross violation of Section 20(i) of Republic Act 7166 which reads: "Section 20. Procedure in Disposition of Contested Election Returns. xxx xxx xxx

(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election." Suffice it to state that the above provision applies only where the objection deals with a pre-proclamation controversy, not where, as in the present case, it raises or deals with no such controversy. 9 It bears reiterating that the lack of inner paper seals in the election returns is not a proper subject of a pre-proclamation controversy. Respondent's recourse should have been to file an election protest. Where a party raises issues, the resolution of which would compel the COMELEC to pierce the veil of election returns which appear prima facie regular on their face, his proper remedy is an election protest. In this proceeding, the parties may litigate all the legal and factual issues raised by them in as much detail as they may deem necessary or appropriate. 10 WHEREFORE, the petition is GRANTED. The challenged Resolution dated August 14, 2003 of the COMELEC en banc in SPC No. 01-277 is REVERSED and SET ASIDE. The Resolution dated September 5, 2002 of the COMELEC Second Division is AFFIRMED. SO ORDERED.

G.R. No. 136282. February 15, 2000.] FRANCISCO D. OCAMPO, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF STA. RITA, PAMPANGA and ARTHUR L. SALALILA, respondents. [G.R. No. 137470. February 15, 2000.] FRANCISCO D. OCAMPO, petitioner, vs. ARTHUR L. SALALILA, respondent. Romulo C. Felizmena for petitioner. The Solicitor General for public respondent. Pete Quirino-Quadra for A. L. Salalila. SYNOPSIS Petitioner and respondent were candidates for mayor in the municipality of Sta. Rita, Province of Pampanga during the May 11, 1998 elections. There were 78 precincts in said municipality. During the canvassing of the election returns, petitioner moved before the Municipal Board of Canvassers (MBC) for the exclusion of the election returns in 8 precincts considering that the turnout of votes was allegedly lopsided against his favor. Finding the contested election returns to be genuine and authentic and without merit, the MBC ordered their inclusion in the canvass of the contested election returns. On May 18, 1998, petitioner went to the COMELEC and filed a formal appeal. The Second Division rendered a resolution giving due course to the appeal and the 8 contested election returns were ordered excluded from the canvass. Likewise, the proclamation made by respondent MBC proclaiming private respondent as duly elected mayor was suspended. However, on November 19, 1998, the COMELEC en banc promulgated the questioned resolution reversing the findings of the Comelec Second Division and confirmed the proclamation of respondent mayor as Mayor of the Municipality of Sta. Rita, Pampanga. EcICDT The Supreme Court found the petition devoid of merit. The Court ruled that in the absence of a strong evidence establishing spuriousness of the returns, the basic rule that the election returns shall be accorded prima facie status as bona fide reports of the results of the count of the votes for canvassing and proclamation purposes must prevail. Moreover, the omitted data are merely formal defects and not so material as to affect the votes the candidates obtained in the election. For as long as the election returns which on their face appear regular and wanting of any physical signs of tampering, alteration or other similar vice, such election returns cannot be unjustifiably excluded. To look beyond or behind these returns is not a proper issue in a pre-proclamation controversy, as in the case at bar. Accordingly, the petition was dismissed for its failure to show grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Comelec.

SYLLABUS 1. POLITICAL LAW; ELECTION LAWS; COMMISSION ON ELECTIONS; ELECTION RETURNS SHALL BE ACCORDED PRIMA FACIE STATUS AS BONA FIDE REPORTS OF THE RESULTS OF THE COUNT OF VOTES FOR CANVASSING AND PROCLAMATION PURPOSES MUST PERFORCE PREVAIL. That the election returns were obviously manufactured must be evident from the face of said documents. In the absence of a strong evidence establishing spuriousness of the returns, the basic rule that the election returns shall be accorded prima facie status as bona fide reports of the results of the count of the votes for canvassing and proclamation purposes must perforce prevail. The COMELEC en banc did not find any signs of alterations or tampering on the election returns nor did the petitioner present any hard evidence of such irregularity. The only thing which we surmise came too close to such a change was the written superimposition made on the family names of the candidates in the election returns of the clustered precincts 93-A and 94-A. This was certainly not an alteration or tampering since the COMELEC en banc found that such superimposition was necessarily done in order to make the names readable. Nonetheless, petitioner failed to deduce evidence to the contrary. The other thing which petitioner considered the returns to be "obviously manufactured" was the fact that petitioner garnered zero (0) votes in three (3) precincts which was allegedly statistically improbable. To this claim, the case of Sanki v. COMELEC is worth reiterating: . . . Indeed, the bare fact that candidates for public office had received zero votes is not enough to make the returns statistically improbable. In the Lagumbay decision itself, Chief Justice Cesar Bengzon, who delivered the majority opinion, did not say that when one candidate receives nothing in an election return, such a circumstance alone will make said return statistically improbable. . . . we can not, with certainty, conclude from the facts before us that the returns questioned were "not true returns of legal votes actually cast, but simply manufactured evidences of an attempt to defeat the popular will. To be sure, it cannot be said here as this Court did intimate in Lagumbay that respondent board of canvassers may legally deny "prima facie recognition to such returns on the ground that they are manifestly fabricated or falsified"; or that "the fraud is so palpable from the return itself (res ipsa loquitur the thing speaks for itself)," such that "there is no reason to accept and give it prima facie value." The factual background of this case suggest that we should not unduly expand the reach of the statistically improbable doctrine carved out of the facts obtaining in Lagumbay. Rather, we should say that respondent board of canvassers sustained by Comelec in refusing to reject canvass of the returns from the disputed precincts, properly performed the functions allocated to it by law. It did well in not overstepping its authority. . . . CEHcSI 2. ID.; ID.; ID.; OMITTED DATA IN THE ELECTION RETURNS ARE MERELY FORMAL DEFECTS AND NOT SO MATERIAL AS TO AFFECT THE VOTES THE CANDIDATES OBTAINED IN THE ELECTION. Anent the objection as to the omitted data in the

election returns, a close reading of Section 234 of the Omnibus Election Code shows that nothing in said provision provides for the exclusion of the election returns. Moreover, such omitted data are merely formal defects and not so material as to affect the votes the candidates obtained in the election. We find the case of Baterina vs. Commission on Elections similar to the case at bar, where the Court elucidated that: [T]he grounds raised by petitioners for the exclusion of the election returns from the canvassing, as stated in their "Appeal Memorandum" before the COMELEC, refer to the failure to close the entries with the signatures of the election inspectors; lack of inner and outer paper seals; canvassing by the BOARD of copies not intended for it; lack of time and date of receipt by the BOARD of election returns; lack of signatures of petitioners' watchers; and lack of authority of the person receiving the election returns. While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation and delivery of election returns for canvassing, they do not necessarily affect the authenticity and genuineness of the subject election returns as to warrant their exclusion from the canvassing. The grounds for objection to the election returns made by petitioner are clearly defects in form insufficient to support a conclusion that the election returns were tampered with or spurious. "A conclusion that an election return is obviously manufactured or false and consequently should be disregarded in the canvass must be approached with extreme caution and only upon the most convincing proof. . . . For as long as the election returns which on their face appear regular and wanting of any physical signs of tampering, alteration or other similar vice, such election returns cannot just be unjustifiably excluded. To look beyond or behind these returns is not a proper issue in a pre-proclamation controversy as in the case at bar. DECISION KAPUNAN, J p: The case before us hinges on the question of whether or not to include in the canvass the contested election returns. The facts are as follows: Francisco D. Ocampo and Arthur L. Salalila were candidates for Mayor in the Municipality of Sta. Rita, Province of Pampanga during the May 11, 1998 elections. There were 78 precincts in said municipality. During the canvassing of the election returns which started on May 12, 1998 and ended on May 14, 1998 petitioner moved for the exclusion of the election returns in 8 precincts from Barangay Basilia considering that the turnout of votes was allegedly lopsided against his favor. The results were as follows:

Precinct No. VOTES RECEIVED BY

OCAMPO 1. 2. 3. 4. 5. 6. 7. 8. 88-A-1 89-A-1

SALALILA 0 0 165 104 3 192

90-A & 90-A-1 92-A 0 152

93-A & 94-A 7 99-A & 100-A 104-A 5 105-A 3 155 115 1

236 7 205

25 votes

1,324 votes

The grounds for the exclusion of the election returns in the aforementioned precincts were: i.e: (1) that the same were obviously manufactured; (2) they were defective for they contained no data on the number of registered votes in the precinct, actual number of votes cast and the number of valid votes cast; and (3) other alleged discrepancies in the data on votes cast and total number of registered voters and excess ballots. 2 Finding the contested election returns to be genuine and authentic and without merit, the Municipal Board of Canvassers (MBC) ruled to order the inclusion in the canvass of the contested election returns. 3 On May 16, 1998, petitioner went to see the Chairman of the MBC at his office to file his Notice of Appeal. Since the latter was not present, petitioner instead filed said notice with Board Members Nelia Salvador and Diosdado L. Amio who, however, refused to accept the same in line with the Board's earlier ruling not to receive anymore the Notice of Appeal. Upon request, a Certification to that effect was issued by Nelia Salvador and Diosdado Amio on the same date. 4 On May 18, 1998, petitioner went to the COMELEC and filed a formal appeal. 5 This was docketed as SPC No. 98-056. On June 29, 1998, the COMELEC Second Division, rendered a Resolution stating the following: xxx xxx xxx

Respondent MBC should have at least suspended its canvass in so far as the questioned or contested election returns were concerned. . . .

In precinct 88-A-1 the election return is lacking in material data as there were no entries as to the number of registered voters in the precinct, the actual number of votes cast and the number of valid votes cast. In such a situation it is incumbent upon the MBC to call the members of the Board of Election Inspectors (BEI) to complete the data which failed to do so. In precinct 89-A-1 there was a discrepancy in the figure of the total number of valid votes cast and the number of votes received by private respondent Salalila. Moreover, two (2) member (sic) of the BEI did not affixed (sic) their thumbmark in the questioned election returns rendering their authenticity doubtful. There is material discrepancy in the election return as it is (sic) states therein that there were 197 voters who actually voted. And also it was also stated therein that there were 22 excess ballots and therefore the number of voters who actually voted will be 219 in excess of the 215 total number of registered voters for the precinct. cdphil In precincts 92-A the return states that there were 153 voters who actually voted and private respondent Salalila received 152 votes while petitioner got zero (0), one (1) vote therefore is clearly missing. In 93-A and 94-A there were an excess of the number of voters who actually voted. The election returns shows that there were 245 voters who actually voted yet there were 27 excess ballots found in the ballot box, but the number of voters in the precinct is only 272, meaning there was a one hundred per cent (100%) turn-out of voters for those precinct but the election return states that there were only 245 who actually voted. In precinct 99-A, 100-A and 104-A there were also no entries on the data of voters and ballots. Again the MBC should have at least called the members of the BEI to complete the data in the election return and explain why they failed to do the same. In precinct 105-A it is obvious that there were discrepancies in the material data in that the total number of registered voters in the precinct is 141 while the total number accordingly of the voters who actually voted is 121 but found out inside the ballot box were 144 valid ballots which obviously in excess of three (3) from the total number of the registered voters for the precinct. But more than the above findings what is significant is that in Precincts 93-A and 94-A there were erasures in the election return which accordingly was made to reflect the correct votes received by petitioner and private respondent. According to the Chairman of BEI, private respondent received 96 votes while, petitioner received 4 votes instead of 97 yet the election returns states that petitioner received only three votes instead of four as claimed but (sic) the Chairman of the BEI. Such erasures manifest (sic) on the election return puts the authenticity of the same in issue and should have been excluded in the canvass. LexLib

While it is true that the Board of Canvassers is essentially a ministerial body and has no power to pass upon questions of whether there are illegal voters or other election frauds. (Dizon v. Provincial Board, 52 Phil 47; Sangki v. Comelec, 21 SCRA 1392), it is also true that in case of patent irregularity in the election returns, such as patent erasures and super-impositions in words and figures on the face of the returns submitted to the board, it is imperative for the board to stop the canvass of such returns so as to allow time for verification. A canvass and proclamation made withstanding such patent defects in the returns which may affect the result of the election, without awaiting remedies, is null and void. (Purisima v. Salonga, 15 SCRA 704). WHEREFORE, the Commission (Second Division) resolves to GIVE DUE COURSE to the appeal and the eight (8) contested election returns are hereby ordered excluded from the canvass for the position of the municipal mayor of Sta. Rita, Pampanga. The proclamation made by respondent MBC on May 14, 1998 proclaiming private respondent as duly elected Mayor of Municipality of Sta. Rita, Pampanga is hereby SUSPENDED. Respondent MBC is hereby directed to re-convene and issue a new certificate of canvass of votes excluding the election returns subject of this appeal and on the basis of which proclaim the winning candidate for Mayor of the Municipality of Sta. Rita, Pampanga. SO ORDERED. 6 On July 3, 1998, private respondent Salalila filed a motion for reconsideration. 7 On November 19, 1998, the COMELEC en banc promulgated the questioned resolution reversing the findings of the COMELEC Second Division. The decretal portion of which states: WHEREFORE, in view of the foregoing, the Resolution promulgated by this Commission (Second Division) on 29 June 1998 is hereby reversed and set aside. The suspension of the effects of the proclamation of the respondent/appellee, ARTHUR L. SALALILA, is hereby lifted. His proclamation as MAYOR of the municipality of Sta. Rita, Pampanga on 14 May 1998 is hereby confirmed. SO ORDERED. 8 Hence, petitioner Ocampo filed the instant petition citing the grave abuse of discretion committed by the COMELEC en banc in reversing the findings of the COMELEC Second Division. A temporary restraining order was also prayed for to enjoin the effects of private respondent Salalila's proclamation as municipal mayor. LLphil

On December 15, 1998, this Court issued a Temporary Restraining Order directing the COMELEC to cease and desist from enforcing its Resolution, dated November 19, 1998 in SPC No. 98-056. Meanwhile, on March 1, 1999, petitioner filed a separate petition before this Court to cite private respondent Salalila for contempt. This was docketed as G.R. No. 137470. In this petition, petitioner claimed that despite the issuance of a Temporary Restraining Order by this Court on December 15, 1998 in G.R. No. 136282, private respondent Salalila continued to act as the Mayor of Sta. Rita, Pampanga. Petitioner would like to impress upon this Court that the returns in the subject precincts (25 votes with zero 0 votes in 3 precincts, as against private respondent Salalila's 1,333 votes) were statistically improbable considering that he was a reelectionist and with assigned watchers therein. Although he admits that the precincts were private respondent Salalila's bailiwick, precedence dictates that every election document coming from a candidate's bailiwick must be carefully scrutinized. Petitioner claims that the election returns did not contain data as required in Section 212 of the Omnibus Election Code which reads: The returns shall also show the date of the election, the polling place, the barangay and the city or municipality in which it was held, the total number of ballots found in the compartment for valid ballots, the total number of valid ballots withdrawn from the compartment for spoiled ballots because they were erroneously placed therein, the total number of excess ballots, the total number of marked or void ballots, and the total number of votes obtained by each candidate, writing out the said number in words and figures and, at the end thereof, the board of election inspectors shall certify that the contents are correct. The returns shall be accomplished in a single sheet of paper, but if this is not possible, additional sheets may be used which shall be prepared in the same manner as the first sheet and likewise certified by the board of election inspectors. cdtai xxx xxx xxx

Petitioner further contends that these data on voters and ballots are just as important as the data on votes credited to the candidate on the same election returns. The absence such data without any explanation or correction on the part of the Board of Election Inspectors who prepared those election documents renders them invalid. Violations of Sections 234 and 235 relating to material defects in the election returns and tampered or falsified election returns are considered election offenses under Section 262 of the Omnibus Election Code. 9 The pertinent provisions read as follows:

SECTION 234. Material defects in the election returns. If it should clearly appear that some requisites in form or data had been omitted in the election returns, the board of canvassers shall call for all the members of the board of election inspectors concerned by the most expeditious means, for the same board to effect the correction. Provided, That in case of the omission in the election returns of the name of any candidate and/or his corresponding votes, the board of canvassers shall require the board of election inspectors concerned to complete the necessary data in the election returns and affix therein their initials: Provided, further, That if the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots, the Commission, after satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the board of election inspectors to open the ballot box, and, also after satisfying itself that the integrity of the ballots therein has been duly preserved, order the board of election inspectors to count the votes for the candidate whose votes have been omitted with notice thereof to all candidates for the position involved and thereafter complete the returns. The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election protest is subsequently filed by any of the candidates. SECTION 235. When election returns appear to be tampered with or falsified. If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors, the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than the members of the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass. (Sec. 173, 1978 EC). LexLib The petition must fail. It must be borne in mind that we are persuaded strongly by the principle that the findings of facts of administrative bodies charged with their specific field of expertise, are afforded great weight by the courts, and in the absence of substantial showing that such findings are made from an erroneous estimation of the evidence

presented, they are conclusive, and in the interest of stability of the governmental structure, should not be disturbed. 10 The COMELEC, as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, has more than enough expertise in its field that its findings or conclusions are generally respected and even given finality. 11 We do not find the instant case an exception to this avowed rule. In order to allay any suspicion of gravely abusing its discretion, the COMELEC made a careful examination of the contested election returns. "To check and double check" if it were true that the contested election returns were tampered with, altered or falsified, the COMELEC en banc examined two separate copies of the election returns: (1) the copy for the Municipal Board of Canvassers and (2) the COMELEC copy. Thus, the following findings were made: In the election returns for precinct 88-A-1, only formal defects are present, there being no entries on the requisite data as to the number of registered voters in the precinct, the actual number of votes cast and the number of valid votes cast. However, the number of votes credited to the petitioner and private respondent and the taras therein do not contain any erasure or alteration as to bring the number of votes obtained by the petitioner and private respondent within the realm of controversy. We, therefore, rule for the inclusion of the election returns for this precinct. The election returns for precinct 89-A-1 was ruled excluded by the Second Division for several reasons. It was alleged (1) that there is a discrepancy in the total number of valid votes cast and number of votes received by private respondent Salalila; (2) that two (2) members of the Board of election Inspectors did not affix their thumb mark in the questioned election returns; and (3) that the election returns states that there were 197 voters who actually voted while there were 22 excess ballots which means that the number of voters who actually voted will be 219 in excess of the 215 total number of registered voters in the precinct. An examination of this election returns shows that all pages of the election returns have been signed and thumb marked by the chairman and members of the board of election inspectors except on page 3 where the members did not thumb mark but the chairman did and on page 4 where the chairman had no thumb mark but the members did have. This is a mere oversight and it did not vitiate the validity of the votes credited to each candidate nor did it destroy the integrity of the election return. A perusal of the election returns for the mayoral candidates shows that Salalila got one hundred four (104) votes while petitioner/appellant Ocampo received zero (0). The fact that private respondent/appellee got almost all the votes cast in this precinct is not necessarily proof of fraud for there is nothing in the returns to show that it was tampered or altered. The election returns itself reflects with clarity the votes obtained by Salalila and Ocampo. It bears no sign whatsoever of tampering or alteration. Moreover, contrary to the findings of the Second

Division, the election returns for this precinct did not state that there were 197 voters who actually voted and that there were 22 excess ballots but rather, the number of voters who actually voted is only 105 out of 115 total registered voters in this precinct and the excess ballots is zero. We, therefore, rule for the inclusion in the canvass of the election returns for this precinct. LLjur In the election returns for precinct 92-A, it was ruled excluded on the ground that one (1) vote is missing therein, 153 voters having actually voted and private respondent Salalila received 152 votes while petitioner got zero (0). We overrule. The fact that Salalila got one hundred fifty two (152) votes out of 153 voters who actually voted while Ocampo got zero (0), does not necessarily mean that one (1) vote is missing. One (1) voter in this precinct might have desisted from casting his vote for the mayor or may have voted but the vote was not credited because it was stray or just illegible. But the missing vote cannot be a ground for exclusion. Hence, We rule for the inclusion of the election returns in the canvass. In the election returns for clustered precincts 93-A and 94-A, an examination of the returns shows that it is complete with entries of the requisite data and that it had been signed by all the members of the board of election inspectors. It also discloses that it is not true there was one hundred percent (100%) turn-out of voters for this clustered precincts as there were only two hundred forty five (245) voters who actually voted out of the two hundred seventy two (272) registered voters. Hence, there is nothing mysterious about the 27 excess but unused ballots found in the ballot box. Similarly, we saw no erasures or alteration on the face of the election returns, specifically the portion showing the number of votes. If at all, there were superimposition made on the faintly written names of the candidates to make the same easily readable. Such superimposition on the names of candidates did not in any manner render the number of votes garnered by the candidates subject to doubt as to bring the same within the realm of controversy. Moreover, We find intriguing the finding that chairman of the board of election inspectors claimed that private respondent received 96 votes instead of 97 while petitioner received 4 votes yet the election returns states that petitioner received only three votes instead of four. We find nothing in the records to support it. The election returns itself shows that Salalila obtained two hundred thirty six (236) votes while Ocampo got seven (7) votes. We, therefore, rule for the inclusion in the canvass of said election returns. LLpr In the election returns for clustered precincts 99-A and 100-A, and precinct 104-A, only formal defects are present, there being no entries of the requisite data as to the number of registered voters in the precincts, the actual number of votes cast, and the number of valid votes cast. However, the number of votes credited to the petitioner/appellant and respondent/appellee as reflected by the taras show correctness of count. There were no erasures or alteration as to put the same into question. We, therefore, likewise rule for the inclusion in the canvass of this election returns.

In the election returns for precinct 105-A, it was ruled excluded because of alleged discrepancies in the material data in that the total number of registered voters in the precinct is 141 while the total number of the voters who actually voted is 121 but found out inside the ballot box were 144 valid ballots which is excess of three (3) from the total number of registered voters for the precinct. The three (3) "excess" ballots are in reality not excess ballots. The precinct ratio on ballot distribution adopted by the Commission in the 11 May 1998 elections is one (1) ballot for every registered voter plus four (4) ballots. At any rate, an examination of the questioned election returns shows that the defects are only formal and not material as to warrant the outright exclusion from canvass of the questioned election returns. The number of votes credited to petitioner/appellant who got three (3) votes and private respondent/appellee who received one hundred fifteen (115) votes was undisturbed and does not bear any sign of alteration as to put the result of the election into question. We, therefore, likewise rule for the inclusion in the canvass of the election returns for this precinct. 12 Notably, the COMELEC en banc merely sustained the findings and rulings of the Municipal Board of Canvassers who, at the first instance, found the contested election returns to be genuine and authentic and the objections to be without merit. Moreover, the COMELEC en banc did not meet any opposition or dissent from any of the Commissioners who have rendered the resolution 13 reversing the decision of the MBC. This only goes to show that there was a painstaking review and examination of the returns by the COMELEC en banc which does not warrant a different conclusion from this Court. cda That the election returns were obviously manufactured must be evident from the face of said documents. 14 In the absence of a strong evidence establishing spuriousness of the returns, the basic rule that the election returns shall be accorded prima facie status as bona fide reports of the results of the count of the votes for canvassing and proclamation purposes must perforce prevail. 15 The COMELEC en banc did not find any signs of alterations or tampering on the election returns nor did the petitioner present any hard evidence of such irregularity. The only thing which we surmise came too close to such a change was the written superimposition made on the family names of the candidates in the election returns of the clustered precincts 93-A and 94-A. This was certainly not an alteration or tampering since the COMELEC en banc found that such superimposition was necessarily done in order to make the names readable. Nonetheless, petitioner failed to deduce evidence to the contrary. The other thing which petitioner considered the returns to be "obviously manufactured" was the fact that petitioner garnered zero (0) votes in three (3) precincts which was allegedly statistically improbable. To this claim, the case of Sanki v. COMELEC 16 is worth reiterating: . . . Indeed, the bare fact that candidates for public office had received zero votes is not enough to make the returns statistically improbable. In the Lagumbay decision itself, Chief Justice Cesar Bengzon, who delivered the majority opinion, did not say

that when one candidate receives nothing in an election return, such a circumstance alone will make said return statistically improbable. . . . LLjur xxx xxx xxx

. . . we can not, with certainty, conclude from the facts before us that the returns questioned were "not true returns of legal votes actually cast, but simply manufactured evidences of an attempt to defeat the popular will. To be sure, it cannot be said here as this Court did intimate in Lagumbay that respondent board of canvassers may legally deny "prima facie recognition to such returns on the ground that they are manifestly fabricated or falsified;" or that "the fraud is so palpable from the return itself (res ipsa loquitur the thing speaks for itself)", such that "there is no reason to accept and give it prima facie value." The factual background of this case suggests that we should not unduly expand the reach of the statistically improbable doctrine carved out of the facts obtaining in Lagumbay. Rather, we should say that respondent board of canvassers sustained by Comelec in refusing to reject canvass of the returns from the disputed precincts, properly performed the functions allocated to it by law. It did well in not overstepping its authority. . . . cdll Anent the objection as to the omitted data in the election returns, a close reading of Section 234 of the Omnibus Election Code shows that nothing in said provision provides for the exclusion of the election returns. Moreover, such omitted data are merely formal defects and not so material as to affect the votes the candidates obtained in the election. We find the case of Baterina vs. Commission on Elections 17 similar to the case at bar, where the Court elucidated that: [T]he grounds raised by petitioners for the exclusion of the election returns from the canvassing, as stated in their "Appeal Memorandum" before the COMELEC (Rollo, p. 92), refer to the failure to close the entries with the signatures of the election inspectors; lack of inner and outer paper seals; canvassing by the BOARD of copies not intended for it; lack of time and date of receipt by the BOARD of election returns; lack of signatures of petitioners' watchers; and lack of authority of the person receiving the election returns. While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation and delivery of election returns for canvassing, they do not necessarily affect the authenticity and genuineness of the subject election returns as to warrant their exclusion from the canvassing. The grounds for objection to the election returns made by petitioner are clearly defects in form insufficient to support a conclusion that the election returns were tampered with or spurious. "A conclusion that an election return is obviously manufactured or false and

consequently should be disregarded in the canvass must be approached with extreme caution and only upon the most convincing proof. . . . For as long as the election returns which on their face appear regular and wanting of any physical signs of tampering, alteration or other similar vice, such election returns cannot just be unjustifiably excluded. To look beyond or behind these returns is not a proper issue in a pre-proclamation controversy as in the case at bar. 18 WHEREFORE, the petition for certiorari in G.R. No. 136282 is hereby DISMISSED for its failure to show grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Commission on Elections (COMELEC) in rendering the assailed Resolution, dated November 19, 1998. G.R. No. 133470 is, likewise, DISMISSED. The Temporary Restraining Order issued on December 15, 1998 is hereby LIFTED. Cdpr SO ORDERED. G.R. No. 138969. December 17, 1999.] SALIPONGAN DAGLOC, petitioner, vs. THE COMMISSION ON ELECTIONS, HON. EMMANUEL BADOY, and SALAMBAI AMBOLODTO, respondents. Kamid D. Abdul for petitioner. The Solicitor General for public respondent. Pete Quirino-Quadra for private respondent. SYNOPSIS Private respondent and Sukarno Samad were mayoralty candidates in the local elections held on May 11, 1998. Samad and Salipongan Dagloc were declared mayor and vice-mayor respectively on May 14, 1998. Private respondent filed a petition for declaration of failure of election in the Comelec and later an election protest in the RTC. She then moved to withdraw her petition in the Comelec, which the latter granted, in order to prosecute her election protest in the RTC. Samad moved for the dismissal of the election protest on the ground that it was filed more than 10 days from the date of the proclamation. His motion was denied. He then filed a petition for certiorari in the Comelec assailing the denial of the RTC of his motion to dismiss. While the case was pending, Samat died, and herein petitioner substituted his place. The Comelec declared the election protest filed by private respondents was timely filed. Hence, this petition for certiorari seeking to set aside the resolution of the Comelec en banc upholding the denial by the RTC of petitioner's motion to dismiss the election protest and directing the continuance of the proceedings. EaISDC

The Supreme Court set aside the resolution of the Comelec, and the Election Protest in the RTC was ordered dismissed for having been filed out of time. The filing by private respondent of a petition for declaration of failure of election did not suspend the running of the reglementary period within which to file an election protest or quo warranto proceeding. SYLLABUS 1. POLITICAL LAW; ELECTION; PETITION TO ANNUL OR TO SUSPEND THE PROCLAMATION; EFFECT THEREOF; RATIONALE. Sec. 248 of the Election Code reads: Effect of filing petition to annul or to suspend the proclamation. The filing with the Commission [on Elections] of a petition to annul or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings. There is no question that the above provision covers the filing of pre-proclamation controversies. This is clear from 242 of the Election Code which reads: Commission's exclusive jurisdiction of all preproclamation controversies. The Commission [on Elections] shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections. The reason for this is that unless the proclamation of a winning candidate is suspended or, if it has been held, set aside, the policy behind the allowance of pre-proclamation controversies, i.e., to prevent losing candidates from grabbing the proclamation and delaying the resolution of the electoral contest, will be defeated. 2. ID.; ID.; SUSPENSION OF PROCLAMATION; GROUNDS THEREFOR. The filing of pre-proclamation controversies under 248 of the Omnibus Election Code, is not the only ground for the suspension of proclamation. Two other instances are provided in R.A. No. 6646, known as "The Electoral Reforms Law of 1987," viz.: (1) Under 6 of the statute, the COMELEC may, upon motion of the complainant in an action for disqualification, suspend the proclamation of the winning candidate if the evidence of his guilt is strong, and (2) under 7 thereof, the COMELEC may likewise suspend the proclamation of the winning candidate if there is ground for denying or canceling his certificate of candidacy. Thus, 6 of R.A. No. 6646 provides: Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. Sec. 7, on the other hand, states: Petition to Deny Due Course to or Cancel a Certificate of

Candidacy. The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. These actions are in the nature of pre-proclamation controversies and, therefore, like pre-proclamation contests, their filing is a ground for the suspension of proclamation and, consequently, of the period for filing either an election protest or a petition for quo warranto. 3. ID.; ID.; PRE-PROCLAMATION CONTROVERSY; DISTINGUISHED FROM ACTION FOR DECLARATION OF THE FAILURE OF ELECTION. In Matalam v. COMELEC, 271 SCRA 733 (1997), it was held that an action for a declaration of the failure of election is not in the nature of a pre-proclamation controversy. The distinction between the two actions was discussed by the Court in Loong v. COMELEC, 257 SCRA 1, 23-24 (1996), in this wise: While, however, the COMELEC is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the COMELEC is duty bound to investigate allegations of fraud, terrorism, violence and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the COMELEC, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters' signatures and fingerprints in order to determine, whether or not the elections had indeed been free, honest and clean. Needless to say, a pre-proclamation controversy is not the same as an action for annulment of election results or declaration of failure of elections. Not all actions seeking the annulment of proclamation suspend the running of the period for filing an election protest or a petition for quo warranto. For it is not the relief prayed for which distinguishes actions under 248 from an election protest or quo warranto proceedings, but the grounds on which they are based. ISTCHE 4. ID.; ID.; ID.; PURPOSE THEREOF. The purpose for allowing pre-proclamation controversies is to put a stop to the pernicious practice of unscrupulous candidates of "grabbing the proclamation and prolonging the protest." Accordingly, grounds which are proper for electoral protests should not be allowed to delay the proclamation of the winners. As this Court pointed out in Dimaporo v. Commission on Elections, 186 SCRA 769, 786-787 (1990): It may well be true that public policy may occasionally permit the occurrence of "grab the proclamation and prolong the protest" situations; that public policy, however, balances the possibility of such situations against the shortening of the period during which no winners are proclaimed, a period commonly fraught with tension and danger for the public at large. DECISION MENDOZA, J p:

This is a petition for certiorari seeking to set aside the resolution, 1 dated June 29, 1999, of the Commission on Elections en banc upholding the denial by the Regional Trial Court, Branch 14, Cotabato City of petitioner's motion to dismiss the election protest filed by private respondent and directing the continuance of the proceedings. The antecedent facts are: Private respondent Salambai Ambolodto and Sukarno Samad were mayoralty candidates in the local elections held on May 11, 1998 in Kabuntalan, Maguindanao. Samad was declared winner. He and herein petitioner Salipongan Dagloc, who was elected vice-mayor, were proclaimed on May 14, 1998. dctai On May 23, 1998, private respondent filed a petition in the COMELEC entitled PETITION TO DECLARE A FAILURE OF ELECTION AND/OR ANNUL THE ELECTION RESULTS IN THE MUNICIPALITY OF KABUNTALAN, FIRST DISTRICT OF MAGUINDANAO, 2 docketed as SPA No. 98-356. In addition, on June 19, 1998, she filed an ELECTION PROTEST EX ABUNDANTI CAUTELA, 3 docketed as Election Protest No. 38-98, in the RTC, Branch 14, Cotabato City. On July 6, 1998, private respondent moved to withdraw SPA No. 98-356 in the COMELEC in order to prosecute Election Protest No. 38-98 in the RTC. 4 The COMELEC granted her motion in its order dated February 4, 1999. 5 Meanwhile, Samad filed his answer in Election Protest No. 38-98 in which he sought the dismissal of the protest on the ground that it was filed more than 10 days from the date of proclamation on May 14, 1998. He reiterated his motion to dismiss 6 in a subsequent pleading, and, in addition, asked that it be resolved before private respondent's motion for technical examination of C.E. Forms 1 and 2. In an order, dated August 18, 1998, the trial court denied the motion to dismiss. Samad then filed a petition for certiorari (SPR No. 37-98) in the COMELEC, assailing the order of the RTC denying his motion to dismiss. While the case was pending, Samad died, and herein petitioner, who had succeeded him as mayor of Kabuntalan, was substituted in his place in the pending cases before the COMELEC (SPR No. 3798) and the RTC (Election Protest No. 38-98). On June 29, 1999, the COMELEC en banc dismissed SPR No. 37-98 for lack of merit. It held that while SPA No. 98-356 filed by Samad was denominated as PETITION TO DECLARE A FAILURE OF ELECTION AND/OR TO ANNUL THE ELECTION RESULTS IN THE MUNICIPALITY OF KABUNTALAN, FIRST DISTRICT OF MAGUINDANAO, the case was actually a petition for annulment of proclamation which, under 248 of the Omnibus Election Code, suspended the running of the period for filing an election protest. Consequently, the filing of Election Protest No. 38-98 in the RTC on June 19, 1998 was timely as SPA No. 98-356, filed one day before the lapse of the period for filing an election protest, prevented the expiration of said period.

Hence, this petition. On August 10, 1999, we issued a temporary restraining order enjoining the COMELEC from implementing its questioned resolution in SPR No. 3798 and the RTC from taking further action in Election Protest No. 38-98. Petitioner contends that the COMELEC committed grave abuse of discretion in holding that the filing of private respondent's petition for a declaration of a failure of election and for the annulment of election results suspended the running of the reglementary period for filing an election protest. He maintains that what is contemplated in 248 of the Election Code is the filing of a pre-proclamation controversy praying for annulment or suspension of proclamation. In addition, petitioner questions the authority of COMELEC Commissioner Abdul Gani M. Marohombsar who signed the COMELEC resolution in question on June 29, 1999, when his term had already expired on June 4, 1999. Private respondent, on the other hand, contends that 248 of the Election Code is not limited to the filing of a pre-proclamation controversy but includes as well a petition for a declaration of the failure of election. She argues that "[f]or so long as there is a prayer for the annulment of a proclamation in a petition filed with the COMELEC and within the COMELEC's jurisdiction, the filing thereof suspends the running of the 10-day period to file an election protest or quo warranto proceedings. . . . Even the filing of a petition for disqualification praying for the annulment of proclamation on the ground of ineligibility would suspend the running of the period to file an electoral protest." She also claims that the petition in SPR No. 37-98 filed by petitioner's predecessor should have been dismissed by the COMELEC since it is actually based on the denial by the RTC of a motion to dismiss an election protest, which motion is a prohibited pleading under Rule 13, 1 of the COMELEC Rules of Procedure. The primary issue in this case is whether 248 of the Election Code applies only to the filing of a pre-proclamation controversy. On the resolution of this issue hinges the question of whether private respondent's election protest was timely filed. Sec. 248 reads: Effect of filing petition to annul or to suspend the proclamation. The filing with the Commission [on Elections] of a petition to annul or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings. LLjur There is no question that the above provision covers the filing of pre-proclamation controversies. This is clear from 242 of the Election Code which reads: Commission's exclusive jurisdiction of all pre-proclamation controversies. The Commission [on Elections] shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any

candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections. The reason for this is that unless the proclamation of a winning candidate is suspended or, if it has been held, set aside, the policy behind the allowance of preproclamation controversies, i.e., to prevent losing candidates from grabbing the proclamation and delaying the resolution of the electoral contest, will be defeated. Thus, in Esquivel v. Commission on Elections, 7 it was held that the 10-day period for filing an election protest under 289 of the former Election Code was suspended by the filing of a petition for annulment of proclamation. This Court said: The suspension of the 10-day statutory period for the filing of an election protest until such time as the Commission on Elections has finally decided the pending preproclamation controversy is but logical and just, since if the protestant prevails in the pre-proclamation controversy, there would be no further need for him to file a regular election protest. . . . This Court has since the case of Benjamin S. Abalos vs. Ernesto S. Domingo [G.R. No. 52665, Resolution of February 29, 1980] deemed suspended the 10-day statutory period for the filing of an election protest during the pendency of a preproclamation controversy and in all subsequent cases, the latest of which is its decision of July 25, 1980 [G.R. No. 53532, Noli M. Valenzuela v. Comelec] wherein the losing party in the pre-proclamation controversy was granted "a period of ten [10] days from receipt of this Resolution [of dismissal] to file before the proper court a quo warranto suit or election protest." 8 The filing of pre-proclamation controversies under 248 of the Omnibus Election Code, however, is not the only ground for the suspension of proclamation. Two other instances are provided in R.A. No. 6646, known as "The Electoral Reforms Law of 1987," viz.: (1) Under 6 of the statute, the COMELEC may, upon motion of the complainant in an action for disqualification, suspend the proclamation of the winning candidate if the evidence of his guilt is strong, and (2) under 7 thereof, the COMELEC may likewise suspend the proclamation of the winning candidate if there is ground for denying or canceling his certificate of candidacy. Thus, 6 of R.A. No. 6646 provides: Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

Sec. 7, on the other hand, states: Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. These actions are in the nature of pre-proclamation controversies and, therefore, like pre-proclamation contests, their filing is a ground for the suspension of proclamation and, consequently, of the period for filing either an election protest or a petition for quo warranto. cdphil However, petitioner is correct that SPA No. 98-356 is not a pre-proclamation controversy. Much less is it a petition for disqualification or for the denial or cancelation of a certificate of candidacy. Indeed, private respondent does not claim that her petition raises pre-proclamation issues. She frankly admits that SPA No. 98356 is a petition filed under 6 of the Omnibus Election Code for a declaration of failure of election. 9 In fact, her petition clearly states its nature, as it is denominated PETITION TO DECLARE A FAILURE OF ELECTION AND/OR TO ANNUL THE ELECTION RESULTS IN THE MUNICIPALITY OF KABUNTALAN, FIRST DISTRICT OF MAGUINDANAO, and alleges the following: 10 4.1 No valid and legitimate elections were actually held or conducted in the above-mentioned municipality; 4.2 No valid and/or legitimate elections were actually held in the said municipality as OFFICIAL BALLOTS were, in fact, PREPARED BY ONLY a few individuals. This fact will be shown by the signatures and thumbmarks affixed in the Voting Registration Records of each of the precincts in the municipality which do not belong to the registered voters; 4.3 The official ballots having been prepared by persons other than the registered voters, the votes reflected in the election returns coming from the various precincts of the same municipality are not truly reflective of the actual and true votes cast in the said precincts; 4.4 Widespread violence and intimidation were employed to force watchers of the Petitioners to leave the polling places and thus, giving a chance for the representatives of the respondent to perpetrate the above allegations. Attached hereto and marked as Annexes are the sworn affidavits of witnesses of Petitioners as well as certified true copies of the Voters Registration Records and the Voter's Voting Records attesting to the facts of the allegations above-stated; Please refer to the Annexes hereto attached.

The Voter's Registration Records duly certified by the Election Assistant of Kabuntalan, Maguindanao, on May 19, 1998, shows that the Voting Record at the back thereof is TOTALLY BLANK, meaning entries therein were not filled up. The Voter's Voting Record, which is likewise, hereto attached, does not match with the Voter's Registration Record. Even with our naked eye, one can already conclude that there was actually NO voting that took place in the Municipality of Kabuntalan. 5. By reason of the above terrorism, fraud and violence committed by the respondent, her supporters and sympathizers, there was failure of election in Kabuntalan, Maguindanao. Any proclamation of the respondent is void ab initio there being a failure of election; 6. There is a need for a technical examination of the Voter's Registration Records and the List of Voters with Voting records for the purpose of determining the massive substitute voting in the precincts in Kabuntalan, Maguindanao In Matalam v. COMELEC, 11 it was held that an action for a declaration of the failure of election is not in the nature of a pre-proclamation controversy. The distinction between the two actions was discussed by the Court in Loong v. COMELEC 12 in this wise: While, however, the COMELEC is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the COMELEC is duty bound to investigate allegations of fraud, terrorism, violence and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the COMELEC, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters' signatures and fingerprints in order to determine whether or not the elections had indeed been free, honest and clean. Needless to say, a pre-proclamation controversy is not the same as an action for annulment of election results or declaration of failure of elections. Private respondent, on the other hand, contends that as long as there is a prayer for the annulment of a proclamation, the filing of such petition effectively suspends the running of the period for filing an election protest. This contention has no merit. Not all actions seeking the annulment of proclamation suspend the running of the period for filing an election protest or a petition for quo warranto. For it is not the relief prayed for which distinguishes actions under 248 from an election protest or quo warranto proceedings, but the grounds on which they are based. llcd The purpose for allowing pre-proclamation controversies is to put a stop to the pernicious practice of unscrupulous candidates of "grabbing the proclamation and prolonging the protest." Accordingly, grounds which are proper for electoral protests

should not be allowed to delay the proclamation of the winners. As this Court pointed out in Dimaporo v. Commission on Elections: 13 It may well be true that that public policy may occasionally permit the occurrence of "grab the proclamation and prolong the protest" situations; that public policy, however, balances the possibility of such situations against the shortening of the period during which no winners are proclaimed, a period commonly fraught with tension and danger for the public at large. In view of the foregoing, we hold that the filing by private respondent of a petition for declaration of failure of election (SPA No. 98-356) did not suspend the running of the reglementary period within which to file an election protest or quo warranto proceedings. The period for private respondent to do so expired on May 24, 1998, 10 days from the proclamation of Sukarno Samad and petitioner as mayor and vicemayor, respectively. The filing of private respondent's election protest in the RTC on June 19, 1998 was made out of time. However, petitioner's contention that the assailed resolution is invalid because Commissioner Abdul Gani M. Marohombsar had no authority to sign the same, because his term had expired when the resolution was promulgated, is without merit. It appears that Commissioner Marohombsar's term expired on June 3, 1999 (not June 4, 1999 as alleged by petitioner), while the assailed resolution was promulgated on June 29, 1999. The voting was 6-1. Even disregarding the vote of Commissioner Marohombsar there was still a majority. The resolution in question is, therefore, valid. On the other hand, private respondent contends that the petition in SPR No. 37-98 filed in the COMELEC by Samad, petitioner's predecessor, should be dismissed and stricken out since it is actually based on a motion to dismiss in Election Protest No. 38-98 in the RTC, which is a prohibited pleading under the COMELEC Rules of Procedure. The argument is also untenable. Private respondent apparently refers to the prohibition found in Rule 13, 1 of the COMELEC Rules of Procedure, 14 under Part III entitled INITIATION OF ACTIONS OR PROCEEDINGS BEFORE THE COMMISSION. As is evident from the said heading, this provision is applicable only to actions or proceedings before the COMELEC. Rule 1, 2 of the COMELEC Rules states: These rules, except Part VI, shall apply to all actions and proceedings brought before the Commission. Part VI shall apply to election contests and quo warranto cases cognizable by courts of general or limited jurisdiction. The prohibition, therefore, does not apply to the proceedings in the RTC where the motion to dismiss was filed.

WHEREFORE, the resolution, dated June 29, 1999, of the Commission on Elections is SET ASIDE and Election Protest No. 38-98 in the Regional Trial Court, Branch 14, Cotabato City is ordered DISMISSED for having been filed out of time. cdll SO ORDERED. G.R. No. 149803. January 31, 2002.] DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B. BIRUAR, ALONTO B. DAUDIE, MICHAEL B. DIRANGAREN, ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M. ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATUMANONG, FREDDIE G. MANGUDADATU and ABBAS A. PENDATUN, JR., petitioners, vs. COMMISSION ON ELECTIONS, DATU ZACARIA A. CANDAO, DATU NORODIN M. MATALAM, KHARIS M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY, PATULA O. TIOLO, MARHOMSAL K. LAUBAN, MENTANG T. KABAGANI, ELIZABETH C. MASUKAT, GAPOR A. RAJAMUDA, SAID S. SALIK and LINTATO G. SANDIGAN, respondents. Soo Gutierrez & Lee, Pete Quirino-Quadra and Romulo B. Makalintal for petitioners. Froilan M. Bacungan & Associates for Datu Ali B. Sangki. The Solicitor General for public respondent. De Lima-Bohol & Meez Law Offices for private respondents. SYNOPSIS Petitioners and respondents were candidates for the provincial elective positions in the province of Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and respondent Candao vied for the gubernatorial position. When petitioners emerged as the winning candidates, respondents filed a petition with the COMELEC for the annulment of election returns and/or declaration of failure of elections in several municipalities in Maguindanao for massive fraud and terrorism. The COMELEC initially suspended proclamation but eventually lifted the same. Petitioners were then proclaimed winners and assumed their offices. In the meantime, the COMELEC ordered the random technical examination of several precincts and issued an order outlining the procedure therefor. Petitioners filed the present recourse claiming that by virtue of their proclamation the proper remedy available to respondents was not a petition for declaration of failure of elections but an election protest. cECTaD The Court ruled that the proclamation of a candidate does not deprive the COMELEC the authority to annul canvass and illegal proclamation. The COMELEC is dutybound to conduct an investigation as to the veracity of respondents' allegations of massive fraud and terrorism that attended the conduct of the May 14, 2001 election. SYLLABUS

1. POLITICAL LAW; ELECTIONS; COMMISSION ON ELECTIONS; DUTY-BOUND TO INVESTIGATE ALLEGATIONS OF FRAUD, TERRORISM, VIOLENCE AND OTHER ANALOGOUS CAUSES. In Loong v. Commission on Elections, (326 Phil. 790, 814 [1996]). We ruled that "While, however, the Comelec is restricted, in preproclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the Comelec is duty-bound to investigate allegations of fraud, terrorism, violence, and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the Comelec, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters' signatures and thumbprints in order to determine whether or not the elections had indeed been free, honest and clean." 2. ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar, the Comelec is dutybound to conduct an investigation as to the veracity of respondents' allegations of massive fraud and terrorism that attended the conduct of the May 14, 2001 election. It is well to stress that the Comelec has started conducting the technical examination on November 16, 2001. However, by an urgent motion for a temporary restraining order filed by petitioners, in virtue of which we issued a temporary restraining order on November 20, 2001, the technical examination was held in abeyance until the present. In order not to frustrate the ends of justice, we lift the temporary restraining order and allow the technical examination to proceed with deliberate dispatch. 3. ID.; ID.; ID.; PROCLAMATION OF CANDIDATE DOES NOT DEPRIVE COMMISSION OF AUTHORITY TO ANNUL CANVASS AND ILLEGAL PROCLAMATION. The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its authority to annul any canvass and illegal proclamation. In the case at bar, we cannot assume that petitioners' proclamation and assumption into office on June 30, 2001, was legal precisely because the conduct by which the elections were held was put in issue by respondents in their petition for annulment of election results and/or declaration of failure of elections. 4. ID.; ELECTIONS; PROCLAMATION; MAY BE CHALLENGED EVEN IF CANDIDATE HAS ASSUMED OFFICE. We have but to reiterate the oft-cited rule that the validity of a proclamation may be challenged even after the irregularly proclaimed candidate has assumed office. 5. ID.; ID.; FAILURE OF ELECTION; CONDITIONS. Elucidating on the concept of failure of election, we held that: ". . . before Comelec can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and

second, the votes cast would affect the result of the election. In Loong vs. Commission on Elections, this Court added that the cause of such failure of election should have been any of the following: force majeure, violence, terrorism, fraud or other analogous cases." MELO, J., dissenting opinion: 1. POLITICAL LAW; ELECTIONS; COMMISSION ON ELECTIONS; FUNCTIONS. The traditional function of COMELEC since its creation in 1940 has been supervisory and administrative in nature. As an administrative body, COMELEC takes all the necessary measures to promote free, orderly, and honest elections. It has exclusive charge over the enforcement and administration of all laws and regulations relative to the conduct of elections (Section 2, Art. X, the 1935 Constitution, as amended.) It supervises the election machinery and decides questions involving the performance by election officers of their official functions. The authority given to COMELEC to declare a failure of elections and to call for the holding and continuation of the failed election falls under its administrative function. The Court had given a wide latitude to the exercise of this jurisdiction as COMELEC enforces the laws relative to the conduct of elections. In 1973, the revised Constitution added the judicial function of adjudicating certain election contests to COMELEC jurisdiction (Sec. 2, Art. XII-C of the 1973 Constitution). The procedures followed in a judicial contest are markedly different from those used by COMELEC in its enforcement and administrative machinery. The two functions cannot be mixed up in one indiscriminate proceeding. The administrative function should not supersede or encroach on the exercise of judicial powers over election contests. SIaHDA 2. ID.; ID.; ELECTION CONTEST; ISSUE. In election contests, COMELEC is no longer concerned with the enforcement of the laws or the conduct of elections. Exercising its judicial functions, COMELEC ascertains who between the contending candidates actually received the majority or plurality of the legitimate or valid ballots (Gardiner vs. Romulo, 26 Phil. 521 [1914]). Under the present Constitution, COMELEC exercises original jurisdiction over all contests, relating to the election, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over election contests involving elective municipal and barangay officials (Sec. 2, Art. IV-C of the 1987 Constitution). The question asked in election protests is who are the real choices of the people (De Mesa vs. Mencias, (18 SCRA 933 [1966]; Garcia vs. Court of Appeals (36 SCRA 582 [1970]). Thus, allegations of fraud and irregularities in the casting and counting of ballots and canvass of returns are examined with the end in view of ascertaining who among the contestants is the legitimate winning candidate and not for the holding or continuation of failed or suspended elections. 3. ID.; ID.; FAILURE OF ELECTIONS; INSTANCES. In Sison vs. COMELEC (334 SCRA 170 [1999]), we ruled that under the pertinent provisions of the Omnibus Election Code, there are only three instances where a failure of elections may be

declared, namely: (a) The election in any polling place has not been held on the date fixed, on account of force majeure, violence, terrorism, fraud, or other analogous causes; or (b) The election in any polling place had not been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous cause; or (c) After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes. 4. ID.; ID.; ID.; ELECTIONS IN CASE AT BAR, ACTUALLY CONDUCTED. Elections were actually held on May 14, 2001. There was no suspension of voting in any polling place before the hour fixed for the closing of the voting. The records do not show any failure to elect based on events after the voting and during the preparation, transmission, and canvass of the returns. 5. ID.; ID.; ID.; "FAILURE TO ELECT", CONSTRUED. In Borja vs. COMELEC (260 SCRA 604 [1996]), we stated that the phrase "failure to elect" must be literally interpreted to mean that nobody emerged as a winner. DECISION PARDO, J p: The case is a petition for certiorari and prohibition under Rule 64 in relation to Rule 65 of the Revised Rules of Court with preliminary injunction or temporary restraining order 1 to nullify and set aside two (2) orders dated July 26, 2001 2 and August 28, 2001 3 of the Commission on Elections (COMELEC), ordering a random technical examination of pertinent election paraphernalia and other documents in several municipalities in the province of Maguindanao to determine a failure of elections. Petitioners 4 and respondents 5 were candidates for the provincial elective positions in the province of Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and respondent Candao contended for the position of governor. The slate of Ampatuan emerged as winners as per election returns. On May 23, 2001, respondents filed a petition with the Comelec for the annulment of election results and/or declaration of failure of elections 6 in several municipalities 7 in the province of Maguindanao. They claimed that the elections "were completely sham and farcical." The ballots were filled-up en masse by a few persons the night before election day, and in some precincts, the ballot boxes, official ballots and other election paraphernalia were not delivered at all. 8 On May 25, 2001, the Comelec issued an order suspending the proclamation of the winning candidates for congressman of the second district, governor, vice-governor and board members of Maguindanao. 9

On May 30, 2001, petitioners filed with the Comelec a motion to lift the suspension of proclamation. 10 On June 14, 2001, the Comelec issued an order lifting the suspension of proclamation of the winning candidates for governor, vice-governor and board members of the first and second districts. 11 Consequently, the Provincial Board of Canvassers proclaimed petitioners winners. 12 On June 16, 2001, respondents filed with the Supreme Court a petition to set aside the Comelec order dated June 14, 2001, and preliminary injunction to suspend the effects of the proclamation of the petitioners. 13 Meantime, petitioners assumed their respective offices on June 30, 2001. On July 17, 2001, the Court resolved to deny respondents' petition. 14 Petitioners' assumption into office notwithstanding, on July 26, 2001, the Comelec ordered the consolidation of respondents' petition for declaration of failure of elections with SPA Nos. 01-244, 01-332, 01-360, 01-388 and 01-390. 15 The COMELEC further ordered a random technical examination on four to seven precincts per municipality on the thumb-marks and signatures of the voters who voted and affixed in their voter's registration records, and forthwith directed the production of relevant election documents in these municipalities. 16 On August 28, 2001, the Comelec issued another order 17 directing the continuation of the hearing and disposition of the consolidated SPAs on the failure of elections and other incidents related thereto. It likewise ordered the continuation of the technical examination of election documents as authorized in the July 26, 2001 order. On September 27, 2001, the Comelec issued an order outlining the procedure to be followed in the technical examination. 18 On September 26, 2001, petitioners filed the present petition. 19 They claimed that by virtue of their proclamation pursuant to the June 14, 2001 order issued by the Comelec, the proper remedy available to respondents was not a petition for declaration of failure of elections but an election protest. The former is heard summarily while the latter involves a full-blown trial. Petitioners argued that the manner by which the technical examination is to be conducted 20 would defeat the summary nature of a petition for declaration of failure of elections. On October 5, 2001, petitioners filed a motion 21 reiterating their request for a temporary restraining order to enjoin the implementation of the July 26, 2001 and August 28, 2001 Comelec orders. On October 22, 2001, the Comelec issued an order suspending the implementation of the two (2) assailed orders, the pertinent portion of which reads as follows: "The Commission, in view of the pendency of G.R. No. 149803 . . ., requiring it to comment within ten (10) days from notice, hereby suspends implementation of its orders of July 26, 2001 and August 28, 2001 in deference to the resolution of said court." 22

However, on November 13, 2001, the Comelec issued another order lifting the suspension. 23 On November 20, 2001, we issued a temporary restraining order, to wit: ". . . the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER prayed for, effective immediately and continuing until further orders from this Court, ordering the respondent Commission on Elections to CEASE and DESIST from ordering the lifting of the suspended implementation orders dated 26 July 2001 and 28 August 2001 in SPA No. 01-323 . . . ." 24 The main issue to be resolved is whether the Commission on Elections was divested of its jurisdiction to hear and decide respondents' petition for declaration of failure of elections after petitioners had been proclaimed. We deny the petition. Petitioners submit that by virtue of their proclamation as winners, the only remedy left for private respondents is to file an election protest, in which case, original jurisdiction lies with the regular courts. Petitioners cited several rulings that an election protest is the proper remedy for a losing candidate after the proclamation of the winning candidate. 25 However, the authorities petitioners relied upon involved pre-proclamation controversies. In Loong v. Commission on Elections, 26 we ruled that "a preproclamation controversy is not the same as an action for annulment of election results, or failure of elections." These two remedies were more specifically distinguished in this wise: "While, however, the Comelec is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the Comelec is duty bound to investigate allegations of fraud, terrorism, violence, and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the Comelec, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters' signatures and thumbprints in order to determine whether or not the elections had indeed been free, honest and clean." 27 The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its authority to annul any canvass and illegal proclamation. 28 In the case at bar, we cannot assume that petitioners' proclamation and assumption into office on June 30, 2001, was legal precisely because the conduct by which the elections were held was put in issue by respondents in their petition for annulment of election results and/or declaration of failure of elections.

Respondents' allegation of massive fraud and terrorism that attended the May 14, 2001 election in the affected municipalities cannot be taken lightly as to warrant the dismissal of their petition by the Comelec on the simple pretext that petitioners had been proclaimed winners. We are not unmindful of the fact that "a pattern of conduct observed in past elections has been the pernicious 'grab-the-proclamationprolong-the-protest' slogan of some candidates or parties" such that even if the protestant wins, it becomes "a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired." . . . "We have but to reiterate the oft-cited rule that the validity of a proclamation may be challenged even after the irregularly proclaimed candidate has assumed office." 29 Petitioners likewise rely on the case of Typoco, Jr. v. Commission on Elections. 30 This Court held that Comelec committed no grave abuse of discretion in dismissing a petition for declaration of failure of elections. However, we made a pronouncement that the dismissal was proper since the allegations in the petition did not justify a declaration of failure of elections. "Typoco's relief was for Comelec to order a recount of the votes cast, on account of the falsified election returns, which is properly the subject of an election contest." 31 Respondents' petition for declaration of failure of elections, from which the present case arose, exhaustively alleged massive fraud and terrorism that, if proven, could warrant a declaration of failure of elections. Thus: "4.1. The 'elections' in at least eight (8) other municipalities . . . were completely sham and farcical. There was a total failure of elections in these municipalities, in that in most of these municipalities, no actual voting was done by the real, legitimate voters on election day itself but 'voting' was made only by few persons who prepared in advance, and en masse, the ballots the day or the night before election and, in many precincts, there was completely no voting because of the nondelivery of ballot boxes, official ballots and other election paraphernalia; and in certain municipalities, while some semblance of 'voting' was conducted on election day, there was widespread fraudulent counting and/or counting under very irregular circumstances and/or tampering and manufacture of election returns which completely bastardized the sovereign will of the people. These illegal and fraudulent acts of desecration of the electoral process were perpetrated to favor and benefit respondents. These acts were, by and large, committed with the aid and/or direct participation of military elements who were deployed to harass, intimidate or coerce voters and the supporters or constituents of herein petitioners, principally, of reelectionist Governor Datu Zacaria Candao. Military units and personnel visibly, openly and flagrantly violated election laws and regulations by escorting people or elements engaged in the illegal, advanced preparation of ballots and election returns and, at times, manning the polling places or precincts themselves and/or staying within the prohibited radius. Ballot boxes and other election paraphernalia were brought not to the precincts or voting centers concerned but somewhere else

where massive manufacture of ballots and election documents were perpetrated." 32 The Comelec en banc has the authority to annul election results and/or declare a failure of elections. 33 Section 6 of the Omnibus Election Code further provides that: "SECTION 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended 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 of failure to elect." Elucidating on the concept of failure of election, we held that: " . . . before Comelec can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and second, the votes cast would affect the result of the election. In Loong vs. Commission on Elections, this Court added that the cause of such failure of election should have been any of the following: force majeure, violence, terrorism, fraud or other analogous cases." 34 In another case, we ruled that "while it may be true that election did take place, the irregularities that marred the counting of votes and the canvassing of the election returns resulted in a failure to elect." 35 In the case at bar, the Comelec is duty-bound to conduct an investigation as to the veracity of respondents' allegations of massive fraud and terrorism that attended the conduct of the May 14, 2001 election. It is well to stress that the Comelec has started conducting the technical examination on November 16, 2001. However, by an urgent motion for a temporary restraining order filed by petitioners, in virtue of which we issued a temporary restraining order on November 20, 2001, the technical examination was held in abeyance until the present. In order not to frustrate the ends of justice, we lift the temporary restraining order and allow the technical examination to proceed with deliberate dispatch. WHEREFORE, the petition is hereby DISMISSED. The temporary restraining order issued on November 20, 2001 is DISSOLVED. The Commission on Elections is directed to proceed with the hearing of the consolidated petitions and the technical

examination as outlined in its September 27, 2001 order with deliberate dispatch. No costs. SO ORDERED. G.R. Nos. 155560-62. November 11, 2003.] ALEEM AMERODDIN SARANGANI, petitioner, vs. COMMISSION ON ELECTIONS and MAMINTAL ADIONG, respondents. Brillantes, Navarro, Jumamil, Arcilla Escolin & Martinez Law Offices for petitioner. The Solicitor General for public respondent. Romulo B. Macalintal for private respondent. SYNOPSIS Petitioner, candidate for the position of Governor in the Province of Lanao del Sur in the May 2001 elections, assailed in the instant special civil action for certiorari the COMELEC's en banc resolution in SPC No. 01-369 as having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. The submissions of the parties and their argument boil down to the basic issue, largely predicated on factual considerations, of whether the Certificates of Canvass (COC) from the municipalities of Wao and Bubong should be excluded or included in the canvass of votes. In its 10 October 2002 Resolution, the respondent Commission, finding no defects whatsoever in the subject COC, ruled for its inclusion in the canvass of the 14 May 2001 election results for the position of Governor in the province of Lanao del Sur. After a close scrutiny of the subject COC, the respondent Commission found the same clean and regular on its face without even any sign of tampering or alterations made therein. While it contains some erasures, such were nevertheless insignificant and insufficient to warrant exclusion of the said COC in the canvass. According to the respondent Commission, in the absence of palpable error and/or material defects, which are clearly discernible on the face of an election return or a certificate of canvass, the same should be included in the canvassing by the board of canvassers. However, the petitioner claimed otherwise. According to him, the COCs from Wao and Bubong were manufactured and falsified that should accordingly be excluded from the canvass. In dismissing the petition, the Court held that the COMELEC en banc did not commit grave abuse of discretion when it ordered the inclusion of the COC from the municipalities of Wao and Bubong, Lanao del Sur, in the canvass of votes. It reiterated the rule that unless the COMELEC is shown to have committed gave abuse of discretion, its decision will not be interfered with by the Court. According to the Court, its function is merely to check or to ascertain where COMELEC might have gone far astray from parameters laid down by law but not to supplant its

factual findings. So long as its findings are not arbitrary and unfounded, the Court is not at liberty to discard and ignore such findings. SYLLABUS 1. POLITICAL LAW; ELECTIONS; COMELEC; COURT IS NOT AT LIBERTY TO DISCARD AND IGNORE FACTUAL FINDINGS THEREOF SO LONG AS THE SAME ARE NOT ARBITRARY AND UNFOUNDED. The Supreme Court's function is merely to check or to ascertain where COMELEC might have gone far astray from parameters laid down by law but not to supplant its factual findings. So long as its findings are not arbitrary and unfounded, the Court is not at liberty to discard and ignore such findings. 2. ID.; ID.; ELECTION PROTEST; PROPER REMEDY WHERE RESOLUTION OF THE ISSUES WOULD NECESSITATE THE COMELEC TO PIERCE THE VEIL OF ELECTION RETURNS WHICH ARE PRIMA FACIE REGULAR. 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. 3. ID.; ID.; COURT WILL NOT INTERFERE WITH DECISION OF COMELEC ABSENT ABUSE OF DISCRETION. In sum, the COMELEC en banc has not committed grave abuse of discretion in annulling and setting aside the ruling of its Second Division and in ordering the inclusion of the COCs from the municipalities of Wao and Bubong, Lanao del Sur, in the canvass of the 14th May 2001 election results for the position of governor of Lanao del Sur. The Court reiterates the rule that, unless the COMELEC is shown to have committed grave abuse of discretion, its decision will not be interfered with by this Court. DECISION VITUG, J p: In the aforenumbered special civil action for certiorari pursuant to Rule 64, in relation to Rule 65, of the 1997 Rules on Civil Procedure, petitioner Aleem Ameroddin Sarangani assails the resolution, promulgated on 10 October 2002, of the Commission on Elections (COMELEC) en banc in SPC No. 01-369 as having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. TDcHCa Petitioner Aleem Ameroddin Sarangani, Saidamen B. Pangarungan and private respondent Mamintal M. Adiong were the contenders for the position of governor in the province of Lanao del Sur in the elections of 14th May 2001. During the canvass of votes made by the Provincial Board of Canvassers (PBC), the contending

candidates made several objections to the inclusion of Certificates of Canvass (COC) from several municipalities. On 02 July 2001, the PBC issued resolutions, excluding COCs from the municipality of Wao, to wit: "In view of the fact that the second page of the subject Certificate of Canvass (COC) is a photocopy (Xerox) where the votes written in figures were likewise appearing to be a result of photo copying although the votes in words were handwritten thereon, and no single signature was affixed on that page of the COC that would least prove its authenticity, the Board resolved to exclude the same from the canvass." 1 The PBC likewise excluded the COCs from the municipality of Bubong, viz: "The Board finds that there is an alteration of votes as reflected in the certificate of votes and the corresponding statements of votes where the board, with its limited authority, cannot ascertain, the true and real votes, thus, the board resolved to exclude the same from the canvass." 2 On the same day, Sarangani and Pangarungan received a copy each of the board's ruling. Adiong, in his case, refused to acknowledge receipt of the rulings of the PBC; instead, Adiong filed with the COMELEC a "Motion to Resolve Petition to Change Composition of the Provincial Board of Canvassers of Lanao del Sur." The COMELEC granted the motion in its order, dated 02 July 2001, that read: "WHEREFORE, the newly constituted Provincial Board of Canvassers of Lanao del Sur is hereby directed to resolve with dispatch all pending incidents left unresolved by the old board, by completing the canvass and proclaiming the winning candidates of the Province of Lanao del Sur in accordance with law." 3 On 09 July 2001, the newly constituted PBC overturned the rulings of the old board on the COCs in the municipalities of Bubong and Wao. The new PBC observed that the rulings were signed by two members of the old board but not dated and merely submitted to the Office of the Secretary of the COMELEC for promulgation. The new PBC thus decided to include the COCs from the municipalities of Wao and Bubong in the canvass which, upon completion, resulted in the proclamation of Adiong as being the duly elected governor of Lanao del Sur. HATEDC Feeling aggrieved by the new ruling, Sarangani and Pangarungan filed, on 14 July 2001, separate appeals to the COMELEC. The appeals, docketed SPC No. 369 and SPC No. 370, were eventually consolidated in the Second Division of the COMELEC together with the "Urgent Petition to Annul the Proclamation of Respondent Mamintal Adiong for the Elective Position of Governor of Lanao del Sur" filed by petitioner and docketed SPC No. 373. Sarangani and Pangarungan claimed that the COCs from Wao and Bubong were manufactured and falsified that should accordingly be excluded from the canvass.

On 09 November 2001, the COMELEC Second Division rendered a resolution setting aside the 09th July 2001 order of the new PBC and reinstating the 02nd July 2001 ruling of the previous PBC which excluded the COCs from Wao and Bubong. On 15 November 2001, Adiong filed a motion for reconsideration before the COMELEC en banc contending that the resolution, dated 09 November 2001, of the Second Division was not supported by evidence, as well as contrary to law and existing jurisprudence, and arrived at without actual examination of the COCs from Wao and Bubong. On 10 October 2002, the COMELEC en banc rendered a resolution that, in turn, annulled and set aside the questioned resolution of the Second Division; the resolution concluded: "WHEREFORE, this Commission (en banc) Resolved, as it hereby Resolves to Grant the instant motion for reconsideration of movant Mamintal M. Adiong and Deny the Motion for Reconsideration filed by movant Saidamen B. Pangarungan. The 09 November 2001 Resolution of the Second Division (this Commission) is hereby Annulled and Set Aside and the 09 July 2001 Rulings of the New Provincial Board of Canvassers of Lanao del Sur, including the certificates of canvass from the municipalities of Wao and Bubong, Lanao del Sur in the canvass of the 14 May 2001 election results for the position of governor of Lanao del Sur, are hereby Revived and Reinstated. Accordingly, the proclamation of herein movant Mamintal M. Adiong as the duly elected governor of the province of Lanao del Sur in the concluded 14 May 2001 elections is hereby Affirmed. IDSaAH "This Commission (en banc), likewise, hereby Directs the Law Department of this Commission to conduct an investigation for any culpable violation of the Omnibus Election Code and other pertinent election laws that the two (2) members of the old Provincial Board of Canvassers of Lanao del Sur namely, Atty. Ray Sumalipao, PES of Lanao del Sur, as Chairman and Dagaranao Saripada as Member-Secretary, might have committed by their following acts, to wit: (1) their failure to appear on the scheduled hearings/meetings in the instant cases after the suspension of the canvass on 29 June 2001 despite their assurances and legal duty to do so; (2) their having issued the alleged written rulings excluding the COCs from Wao and Bubong, Lanao Del Sur, without giving the Vice-Chairman, Atty. Jubil Surmieda, 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 on 02 July 2001, without setting any hearing or giving notice to the Vice-Chairman and/or to the herein parties." 4 Aleem Ameroddin Sarangani now assails in the instant petition before the Court COMELEC's en banc resolution. The submissions of the parties and their argument boil down to the basic issue, largely predicated on factual considerations, of

whether the certificates of canvass from the municipalities of Wao and Bubong should be excluded or included in the canvass of votes. The COMELEC en banc has made a careful examination of the original copies of the COCs from Wao and Bubong used by the PBC in the canvass, along with the statement of votes, which accompanied the COCs. The results have been found to be virtually the same. 5 The COMELEC explains: "Further perusal of the said COC likewise revealed that the entries written in the photocopied form used as second page are actually mere continuation of the entries written on page one thereof. As we have observed, the number of candidates who ran for the positions of Congressman and Vice-Governor during the said elections cannot be accommodated in the spaces provided in the first page of the COC. It appears therefore that the MBC of Wao deemed it wise to photocopy the first page of the COC and used it to reflect the other candidates for the said positions which cannot be accommodated anymore in the limited spaces provided for in the first page. Also, it must be noted that although the form used as second page of the COC is not an original page, the said page however is authenticated by the signatures and thumb marks of the watchers of NAMFREL and of the different parties during the said elections. TcDIaA "Thus, while it is conceded that the form used as second page of the COC is only a Xeroxed copy of page one and not an original page, we nonetheless hold that the entries made or written therein are all authentic and original, as correctly observed and ruled by the new board. "Second, we in the Commission (en banc) went out of our way and conducted our own investigation as to what really transpired during the canvassing of the 14 May 2001 election results in Wao, Lanao del Sur. From the inquiries made, it was deduced that during the canvass of election results in Wao, Lanao del Sur, the MBC found that the limited spaces provided for in the first page of the COC cannot accommodate the number of candidates who ran in the said elections, particularly for the positions of Congressman and Vice-Governor of Lanao del Sur. The MBC of Wao, in order not to jeopardize the canvass of election results and for it to clearly reflect the actual number of votes obtained by each candidate, decided to improvise a second page by photocopying the first page of the COC. The MBC then used the improvised photocopy of the first page, as the second page of the COC, in the canvass of the results of the elections in said municipality. "It is worth emphasizing that the result of our investigation is borne by the records of the instant consolidated cases. In fact, it is in full accord with the testimony given by the Chairman of the MBC of Wao when she was summoned by no less than the old PBC and made to explain before this Commission about the said matter. As testified by the Chairman, the MBC of Wao used the improvised 'photocopied' form as page 2 of the COC because they ran out of 'original' forms during the said elections. She however justified the action as being authorized by a COMELEC

Resolution and further added that during the canvass, no candidate or political party ever questioned the use of such improvised second page. The Chairman likewise confirmed and affirmed all the contents of the questioned COC from Wao including the votes obtained by the parties, as reflected therein. "Third, the petitioners' contention that the COC from Wao is not an actual repository of the results of the elections as the second page thereof is a mere Xeroxed copy, finds no basis in fact and in law. IcAaSD "We have already held that only the form used as second page of the COC is Xeroxed but not the entries appearing or written therein by the MBC of Wao which are all authentic and original. But aside from this uncontroverted fact, there is another substantial reason why the subject certificate should really not be excluded in the canvass. It must be emphasized that the position being contested here is that of the governor. The entries for the position of governor are written, not on the alleged manufactured and photocopied form used as second page but on the first page of the said COC. The first page of the questioned COC, where the names and number of votes garnered by all the candidates for governor in the province of Lanao del Sur in the 14 May 2001 elections are written, is an original page which is duly authenticated by the signatures and thumb marks of all the members of the MBC of Wao and of the watchers of NAMFREL and the different political parties in the said elections. A close perusal of the first page of the COC from Wao (and even of the rest of the pages) also shows that the same is clean, regular and authentic on its face without any sign of tampering or alteration. Thus, the first page of the subject COC with all the entries written therein being authentic and original, it cannot be gainsaid that the said certificate certainly reflects the actual number of votes garnered by the parties in the contested elections, as ruled also by the new board. "xxx xxx xxx

"With the original copy of the COC from Bubong in view, we in the Commission (en banc) find no factual and legal basis whatsoever to exclude the said certificate in the canvass. We made a close scrutiny of the subject COC and found the same clean and regular on its face without even any sign of tampering or alterations made therein, similar to the findings of the new board. While it contains some erasures, such are nevertheless insignificant and truly insufficient to warrant the exclusion of the said COC in the canvass. "In examining the said COC, prudence will dictate that the erasures appearing therein are actually mere corrections made by the MBC of Bubong to reflect the true and actual number of votes garnered by the candidates during the elections. We in the Commission (en banc) are aware of the rigors attending the canvass of election results and that the board of canvassers normally commit errors in writing entries in the COCs, returns, etc. Naturally also, the board has to effect the necessary

corrections by erasing the wrong entries and replacing it with the right ones. This is a normal occurrence during canvass proceedings and we have to make allowances. Indeed, certain errors and corrections are expected to appear in the election documents. ESTcIA "Thus, we hold that the ruling of the old board excluding in the canvass the COC from Bubong, which is affirmed by the Second Division (this Commission), really has no leg to stand on. A simple finding that the subject COC contains erasures is barely enough of a ground to support a ruling to immediately exclude the same in the canvass. It would be the height of exaggeration and unjustness if we in the Commission (en banc), upon examining the COC from Bubong which is clean and regular on its face, are to rule for its exclusion in the canvass upon a mere finding that it contains erasures. Furthermore, it is well-settled that in the absence of palpable errors and/or material defects which are clearly discernible on the face of an election return or a certificate of canvass, the same should be included in the canvassing by the board of canvassers. Extreme caution should likewise be exercised in excluding from the canvass a certificate of canvass as it will result in the disenfranchisement of the entire voters of a particular municipality. Finding no defects whatsoever in the subject COC, we rule for its inclusion in the canvass of the 14 May 2001 elections results for the position of governor in the province of Lanao del Sur. "It is worth to add that we also requested from the ERSD of this Commission the original copies of the Statement of Votes (SOV) by Precinct accompanying the COC from Bubong. Having made the computations, we have compared the figures or the number of votes of the herein parties appearing in the COC with the aggregate number of votes obtained by them from the SOVs and found the results to be practically the same. Verily, the COC from Bubong must truly be included in the canvass so as not to disenfranchise the electorate of the province of Lanao del Sur." 6 The Supreme Court's function is merely to check or to ascertain where COMELEC might have gone far astray from parameters laid down by law but not to supplant its factual findings. So long as its findings are not arbitrary and unfounded, the Court is not at liberty to discard and ignore such findings. 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. 7 Relative to the dubious circumstances surrounding the issuance of the original board's ruling of 02 July 2001 (wherein the COC's from the municipalities of Wao

and Bubong were excluded from the canvass of votes) the COMELEC en banc held: HEISca "We in the Commission (en banc) likewise very much affirm the findings of the new PBC in its questioned ruling of 9 July 2001. There is really something incredulous in the manner and the circumstances surrounding the issuance by the old board of its written rulings on 2 July 2001. As can be gleaned from the records, after the canvass proceedings were suspended on 29 June 2001, the members of the old board, more particularly the Chairman and the Member-Secretary, assured the parties that they will thereafter immediately convene and issue written rulings to the inclusion or exclusion of the questioned COCs in the canvass. The said two (2) members however reneged on their promises for only the Vice-Chairman appeared on the scheduled hearings with the Chairman and the Member-Secretary always absent or nowhere to be found. This uncontroverted fact, it is worth reiterating, is exactly what impelled us to immediately grant Adiong's motion to resolve his petition to change the composition of the old board on the very same day that it was filed, or on 2 July 2001 to be exact. To this Commission (en banc), the failure of the old board to still convene and issue written rulings on 2 July 2001 is already causing disenfranchisement to the electorate of Lanao del Sur. "Thus, it is truly a wonder that the two members of the old PBC, who always absented themselves on all the scheduled meetings after the suspension of the canvass on 29 June 2001 despite their assurances to appear, suddenly came up on 2 July 2001 with the alleged written rulings. It must be stressed that the records are bereft of any showing that the old board, particularly the Chairman and the Member-Secretary who deliberated with and signed the written rulings by themselves, set a hearing or notified the herein parties or even the Vice-Chairman of the date, time and place for the deliberation and issuance of the said rulings, much less, the manner of its promulgation. As to when, where and how the said rulings would be deliberated, issued and promulgated, only the said two (2) members of the old board knew. "What we also find extraordinary in the instant consolidated cases is the manner by which the promulgation of the written rulings was effected by the two (2) members of the old PBC. Contrary to the provisions of law, procedures and established practice in this Commission, the herein parties including the Vice-Chairman were not notified by the two (2) members of the old board of the scheduled time and place for the issuance and/or promulgation of the written rulings, which is commonly made in open court or session. Likewise, it must be noted, and this may be the first time that we heard of this in the Commission, that the two (2) members of the old board submitted their written rulings to the Office of the Secretary of the Commission, for promulgation." 8 The fact that private respondent has failed to file the appropriate appeal from the 02nd July 2001 ruling of the original PBC pursuant to Section 20 of Republic Act

7166, in relation to Section 38 of COMELEC Resolution 3848, cannot be taken as a blatant violation of the procedural rules considering the circumstances found by the COMELEC in the promulgation of the ruling. The procedure laid down in Section 20 (d & e) of Republic Act 7166, as well as in Section 38 (4 & 5) of COMELEC Resolution 3848, is to the following effect; viz: EHaDIC "(d) Upon receipt of the evidence, the board shall take up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rule thereon. The board shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members. "(e) Any party adversely affected by the ruling of the board shall immediately inform the board if he intends to appeal said ruling. The board shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider the other returns." The records, as well as the findings of the COMELEC en banc, would disclose that the old PBC did not convene on its scheduled hearing on 30 June 2001 where it was supposed to promulgate its ruling; instead, it merely submitted the same to the Office of the Secretary of the COMELEC on 02 July 2001. On said date (of 02 July 2001), the COMELEC, without being aware that the original PBC submitted its rulings to the Office of the Secretary of COMELEC, issued an order changing the composition of the Board of Canvassers. It was then before the new Board of Canvassers that petitioner could raise his objections to the ruling of the original board. In sum, the COMELEC en banc has not committed grave abuse of discretion in annulling and setting aside the ruling of its Second Division and in ordering the inclusion of the COCs from the municipalities of Wao and Bubong, Lanao del Sur, in the canvass of the 14th May 2001 election results for the position of governor of Lanao del Sur. The Court reiterates the rule that, unless the COMELEC is shown to have committed grave abuse of discretion, its decision will not be interfered with by this Court. 9 WHEREFORE, the instant petition is DISMISSED, public respondent not having been shown to have committed grave abuse of discretion. Its challenged resolution, dated 10 October 2002, is AFFIRMED. No costs. SO ORDERED. G.R. No. 166229. June 29, 2005.] MS. BAIRANSALAM LAUT LUCMAN, petitioner, vs. COMMISSION ON ELECTIONS and MOSAMA M. PANDI, respondents. Romulo B. Makalintal for petitioner.

The Solicitor General for public respondent. Pete Quirino-Quadra for private respondent. SYLLABUS 1. POLITICAL LAW; ELECTION LAWS; OMNIBUS ELECTION CODE; PREPROCLAMATION CONTROVERSY; ISSUES THAT MAY BE RAISED THEREIN. Section 241 of the Omnibus Election Code defines a pre-proclamation controversy as "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, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns." Under Section 243 of the same Code, the issues that may be raised in a pre-proclamation controversy, are as follows: "SEC. 243. Issues that may be raised in preproclamation controversy. The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates." The foregoing enumeration is restrictive and exclusive. CTSAaH 2. ID.; ID.; ID.; ID.; LIMITED TO THE EXAMINATION OF THE ELECTION RETURNS ON THEIR FACE. Pre-proclamation controversies are 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. A pre-proclamation controversy is limited to an examination of the election returns on their face. As a rule, the COMELEC is limited to an examination of the election returns on their face. It is beyond the COMELEC's jurisdiction to go beyond the face of the returns or investigate election irregularities. 3. ID.; ID.; ID.; PRE-PROCLAMATION CONTROVERSY AND ELECTION PROTEST, DISTINGUISHED. The proceedings in a pre-proclamation controversy are summary in nature. Reception of evidence aliunde, such as the List of Voters with Voting Record and the VRRs, is proscribed. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy.

Such issues should be posed and resolved in a regular election protest, which is within the original jurisdiction of the Regional Trial Court (RTC). In a regular election protest, the parties may litigate all the legal and factual issues raised by them inasmuch detail as they may deem necessary or appropriate. 4. ID.; ID.; ID.; ELECTION PROTEST; GROUNDS. In Macabago vs. COMELEC, the Court reiterated: "That the padding of the List of Voters may constitute fraud, or that the Board of Election Inspectors may have fraudulently conspired in its preparation, would not be a valid basis for a pre-proclamation controversy either. For, whenever irregularities, such as fraud, are asserted, the proper course of action is an election protest. Such irregularities as fraud, 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, precisely, of only a relative few. Otherwise, elections will never be carried out with the resultant disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665)." EcHTCD DECISION AUSTRIA-MARTINEZ, J p: Petitioner Bairansalam Laut Lucman and private respondent Mosama M. Pandi were mayoralty candidates in Poona-Bayabao, Lanao del Sur, during the May 10, 2004 elections. During the canvassing of votes, private respondent objected to the inclusion of ten election returns, although only six of these are subjects of the present controversy, to wit: 1 Precinct Number Election Returns Objection/s

Number 1A 01201094 1) The election returns is obviously

manufactured and/or falsified 2) 3) 1B/C 01201091 3A 01201095 2) It is not authentic It contains alterations 1) 1) Obviously manufactured Obviously manufactured

Incomplete

8A

01201093

1)

Obviously manufactured and/or

falsified 2) 8B/8C 01201106 Incomplete 1) The election returns is obviously

manufactured 2) It is incomplete, it lacks statistical data 14A/14B 01201096 1) Obviously manufactured

The Municipal Board of Canvassers (Board) overruled private respondent's objections on the disputed returns, 2 and proclaimed petitioner as the winning candidate, as shown in the Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Municipal Offices, signed on May 19, 2004. 3 Petitioner won over private respondent by a margin of 16 votes. SaDICE Private respondent filed with Commission on Elections (COMELEC) an appeal from the ruling of the Board, docketed as SPC 04-184, alleging massive fraud and irregularities in the conduct of the elections, e.g., force, threat and intimidation were employed on the voters, double voting, substitution of voters, snatching of ballots, padding of ballots and existence of flying voters. 4 Private respondent also contended that the contested election returns should have been excluded from the canvass, and that the Board was precipitate in proclaiming petitioner as the winning candidate, as private respondent has manifested on record that he is intending to appeal the Board's ruling. 5 Private respondent admits that the exclusion of the contested returns is a ground for election protest, but he also argues that the COMELEC may go beyond the face of the returns to determine whether the elections in the precincts involved are a sham. Private respondent also filed a motion to annul proclamation and/or to suspend the effects of proclamation pendente lite. 6 Petitioner filed his Comment and/or Answer to the appeal, arguing that the grounds relied upon by private respondent are not proper in a pre-proclamation controversy but in an election protest. Petitioner also argues that her proclamation is valid; the petition is defective for failure to include indispensable parties; and that private respondent failed to inform the Board that he is appealing its ruling, as required by Section 20 of Republic Act No. 7166, or The Electoral Reforms Law of 1991. 7 On June 16, 2004, a hearing on the appeal was held, wherein counsel for petitioner and private respondent, and several Board of Election Inspectors of Poona-Bayabao appeared, and Ms. Monera P. Macadato, Poll Clerk of Precinct 3A was called to the

witness stand. 8 Presiding Commissioner Resurreccion Z. Borra, for the First Division, then issued an order on the same date, requiring the parties to submit their simultaneous memoranda. 9 On September 30, 2004, the COMELEC's First Division issued the assailed order, with the following dispositive portion: In order therefore to resolve the issues raised in this Appeal the Commission (FIRST DIVISION) hereby ORDERS the document examiners of the Commission on Elections to conduct an examination of the List of Voters with Voting Record of the precincts involved in this case as well as the VRRs pertaining to the contested precincts in the Municipality of Poonabayabao to determine whether or not actual voting by the duly registered voters of said precincts were conducted during the elections of May 10, 2004; Considering that we have annulled the proclamation of BAIRAMSALAM (sic) LAUT LUCMAN as duly elected mayor of Poonabayabao, Lanao del Sur, it is hereby ordered that the Vice-Mayor of said Municipality assumed (sic) the position pursuant to the provisions of the Local Government Code, until the final resolution of this petition. TDcHCa SO ORDERED. 10 Commissioner Virgilio O. Garcillano dissented to the majority opinion on the ground that the petition involves issues proper to an election protest and not a preproclamation controversy. 11 Petitioner moved to reconsider the assailed Order, and in an Order dated October 13, 2004, Commissioner Borra ordered and certified the motion for reconsideration to the Commission en banc. 12 Thereafter, the Commission en banc, in an Order dated October 14, 2004, issued a temporary restraining order and a status quo ante order, directing the parties to maintain the status prevailing before the issuance of the September 30, 2004 Resolution. On December 14, 2004, the COMELEC en banc issued the assailed Resolution denying petitioner's motion for lack of merit. 13 The dispositive portion of said Resolution reads: WHEREFORE, in view of the foregoing, the Commission (en banc) RESOLVED, as it hereby RESOLVES to DENY the Motion for Reconsideration for lack of merit. The Order of the Commission (First Division) dated 30 September 2004 is hereby AFFIRMED. Accordingly, in implementation of the directive therein, the document examiners of the Commission on Elections are hereby ordered to conduct an examination of the List of Voters with Voting Record of the precincts involved in this case as well as the VRRs pertaining to the contested precincts in the Municipality of Poonabayabao to determine whether or not actual voting by the duly registered

voters of said precincts were conducted during the elections of May 10, 2004, and thereafter submit a report thereon. IHaSED The Temporary Restraining Order/Status Quo Ante Order dated 14 October 2004 is hereby lifted. SO ORDERED. 14 On December 17, 2004, Commissioner Mehol Sadain issued a Constancia protesting his lack of participation in the En Banc Resolution. Commissioner Sadain stated that although he was out on official business at the time the Resolution was routed to his office, he should have been allowed to vote thereon, or at least, informed of the urgency of its promulgation so that he may cast his vote or allow its promulgation without his signature. 15 Petitioner then filed the present special civil action for certiorari and prohibition with prayer for the issuance of temporary restraining order/preliminary injunction, based on the following grounds: PUBLIC RESPONDENT ACTED WITHOUT, IN EXCESS OR WITH GRAVE ABUSE OF DISCRETION IN ANNULLING THE PROCLAMATION OF THE PETITIONER. PUBLIC RESPONDENT ACTED IN EXCESS OR WITH GRAVE ABUSE OF DISCRETION IN ORDERING THE DOCUMENT EXAMINERS TO EXAMINE THE LIST OF VOTERS WITH VOTING RECORDS AND THE VRRs. PUBLIC RESPONDENT ACTED WITHOUT, IN EXCESS OR WITH GRAVE OF DISCRETION (sic) IN TAKING COGNIZANCE OF THE APPEAL WITHOUT THE INDISPENSABLE PARTIES IMPLEADED AND WITHOUT THE MANDATORY REQUIREMENTS OF SECTION 20, RA 7166 COMPLIED. PUBLIC RESPONDENT ACTED WITHOUT JURISDICTION IN TAKING COGNIZANCE OF THE MOTION TO RECONSIDER THE CHALLENGED INTERLOCUTORY ORDER OF SEPTEMBER 30, 2004. 16 The pivotal issue in this case is whether the appeal from the Board of Canvassers to the COMELEC (First Division) interjected by private respondent makes a case for a pre-proclamation controversy. HCEaDI Section 241 of the Omnibus Election Code defines a pre-proclamation controversy as "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, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns."

Under Section 243 of the same Code, the issues that may be raised in a preproclamation controversy, are as follows: SEC. 243. Issues that may be raised in pre-proclamation controversy. The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. DIECTc The foregoing enumeration is restrictive and exclusive. 17 In the present case, the objections initially raised by private respondent before the Municipal Board of Canvassers were proper in a pre-proclamation controversy, i.e., the election returns is obviously manufactured and/or falsified, it is not authentic, it contains alterations. However, in his appeal to the COMELEC, he further alleged that the elections held in the precincts clustered in the Pooni Lomabao Central Elementary were tainted with massive election irregularities. According to private respondent, there were "massive substitution of voters, snatching of ballots from the voters by people identified with the Lucman who filled them up against the will of the voters, force or coercion, threats, intimidation, casting of votes by double registrants in the same precincts (double entry), and flying voters . . . " 18 Private respondent also alleged that the counting of votes on May 11, 2004, were not prepared simultaneously with the appreciation of the ballots/counting of votes, in violation of Section 44 of COMELEC Resolution No. 6667 (March 16, 2004). Also, private respondent's watchers were threatened by petitioner's watchers, forcing them to leave the counting room, and that the Board of Election Inspectors merely copied the entries on the tally boards and records of votes made by petitioner's watchers. Finally, private respondent alleged that the denial to his objections to the contested election returns were not made by the Municipal Board of Canvassers in the prescribed form, and that despite his manifestation that he will appeal the Board's ruling on the returns, it proceeded with petitioner's proclamation. 19

Obviously, the foregoing allegations pertain not only to the preparation, transmission, receipt, custody and appreciation of the election returns, but to the conduct of the elections as well. aDCIHE Pre-proclamation controversies are 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. A pre-proclamation controversy is limited to an examination of the election returns on their face. As a rule, the COMELEC is limited to an examination of the election returns on their face. 20 It is beyond the COMELEC's jurisdiction to go beyond the face of the returns or investigate election irregularities. 21 The proceedings in a pre-proclamation controversy are summary in nature. 22 Reception of evidence aliunde, such as the List of Voters with Voting Record and the VRRs, is proscribed. 23 Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and resolved in a regular election protest, which is within the original jurisdiction of the Regional Trial Court (RTC). 24 In a regular election protest, the parties may litigate all the legal and factual issues raised by them inasmuch detail as they may deem necessary or appropriate. 25 In Macabago vs. COMELEC, 26 the Court reiterated: That the padding of the List of Voters may constitute fraud, or that the Board of Election Inspectors may have fraudulently conspired in its preparation, would not be a valid basis for a pre-proclamation controversy either. For, whenever irregularities, such as fraud, are asserted, the proper course of action is an election protest. Such irregularities as fraud, 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, precisely, of only a relative few. Otherwise, elections will never be carried out with the resultant disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665). ACETSa

Hence, as correctly argued by petitioner, private respondent's cause of action before the COMELEC is proper for an election protest and not a pre-proclamation controversy, and the COMELEC committed grave abuse of discretion in entertaining private respondent's petition/appeal. Consequently, all subsequent actions by the

COMELEC in relation to private respondent's appeal are null and void, and correctible by the present special civil action for certiorari. Following the disposition of the Court in Macabago vs. COMELEC, 27 the dismissal of private respondent's petition/appeal before the COMELEC is without prejudice to the filing of a regular election protest before the proper RTC, the period for the filing of which is deemed suspended by the filing of private respondent's petition/appeal. In light of the foregoing ruling, the Court need not delve on the other issues posed by petitioner as these necessarily have been rendered moot and academic 28 thereby. WHEREFORE, the petition is GRANTED. The assailed Order dated September 30, 2004 of the First Division and Resolution En Banc dated December 14, 2004 are SET ASIDE on ground of lack of jurisdiction. Private respondent's appeal to the First Division and the appeal to the COMELEC En Banc are DISMISSED, without prejudice to the filing of a regular election protest, the period for the filing of which is deemed suspended by the filing of the petition before the COMELEC until the finality of herein decision. The proclamation of petitioner by the Municipal Board of Canvassers is maintained and petitioner should be allowed to assume her office as mayor of Poona-Bayabao, Lanao del Sur. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario and Garcia, JJ., concur. Footnotes 1. 2. 3. 4. 5. 6. 7. 8. 9. Rollo, pp. 63-68, Annexes "E" to "E-5." Id., pp. 69-72, Annexes "F" to "F-3." Id., pp. 73-74, Annexes "G" to "G-1." Id., pp. 82-83, Petition/Appeal. Id., pp. 83-85. Id., pp. 100-108. Id., pp. 113-120, Answer and/or Comment. Id., p. 160. Ibid.

10. 11. 12. 13. 14. 15. 16.

Id., pp. 52-53. Id., pp. 54-56. Id., pp. 258-259. Id., pp. 41-45. Id., pp. 44-45. Id., pp. 282-283. Id., pp. 19-20.

17. Dagloc vs. COMELEC, G.R. Nos. 154442-47, December 10, 2003, 417 SCRA 574, 590. 18. 19. 20. 21. 22. Rollo, p. 77. Id., pp. 76-81. Bandala vs. COMELEC, G.R. No. 159369, March 3, 2004, 424 SCRA 267, 274. Matalam vs. COMELEC, G.R. No. 123230, April 18, 1997, 271 SCRA 733, 745. Chu vs. COMELEC, G.R. No. 135423, November 29, 1999, 319 SCRA 482, 491.

23. Macabago vs. COMELEC, G.R. No. 152163, November 18, 2002, 392 SCRA 178, 185. 24. 25. 26. 27. 28. Ibid., p. 186. Supra., Bandala case, p. 276. Supra., Macabago case, p. 186. Supra., Macabago case, p. 189. Supra., Chu case, p. 494.

Copyright 2005

C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 165973 June 29, 2005 LACSON HERMANAS, INC. vs. HEIRS OF CENON IGNACIO, ET AL. FIRST DIVISION

[G.R. No. 165973. June 29, 2005.] LACSON HERMANAS, INC., herein represented by its President MR. ODILON L. LACSON, petitioner, vs. HEIRS OF CENON IGNACIO, herein represented by their attyin-fact, AMALIA IGNACIO, REGIONAL TRIAL COURT, BRANCH 48, CITY OF SAN FERNANDO, presided by the HON. JUDGE SERAFIN B. DAVID, respondents. Rivera Perico David & Rivera Law Offices for petitioners. Gopez & Guiao Law Firm for respondents. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; SPECIAL CIVIL ACTIONS; CERTIORARI; THE SUPREME COURT'S ORIGINAL JURISDICTION TO ISSUE A WRIT OF CERTIORARI IS CONCURRENT WITH THE REGIONAL TRIAL COURT AND THE COURT OF APPEALS; DOCTRINE OF HIERARCHY OF COURTS, APPLICABLE. [T]he instant petition for certiorari should have been filed with the Court of Appeals and not with this Court pursuant to the doctrine of hierarchy of courts. Disregard of this rule warrants the outright dismissal of the petition. While the Court's original jurisdiction to issue a writ of certiorari is concurrent with the Regional Trial Courts and the Court of Appeals in certain cases, we emphasized in Liga ng mga Barangay National v. Atienza, Jr., that such concurrence does not allow an unrestricted freedom of choice of court forum, thus "This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefore will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard of that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. It is a policy necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket." In the present case, petitioner adduced no special and important reason why direct recourse to this Court should be allowed. Thus, we reaffirm the judicial policy that this Court will not entertain a direct invocation of its jurisdiction unless the redress desired cannot be obtained in the appropriate courts, and exceptional and compelling circumstances justify the resort to the extraordinary remedy of writ of certiorari. aSCHIT 2. CIVIL LAW; PRESIDENTIAL DECREE 1344; HOUSING AND LAND USE REGULATORY BOARD; JURISDICTION. Section 1 of PD 1344 vests the National

Housing Authority (now HLURB) with exclusive jurisdiction to hear and decide the following cases: (a) unsound real estate business practice; (b) claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, broker, or salesman; and (c) cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lot or condominium unit against the owner, developer, dealer, broker or salesman. 3. REMEDIAL LAW; CIVIL PROCEDURE; JURISDICTION; JURISDICTION OVER THE SUBJECT MATTER IS DETERMINED BY THE ALLEGATIONS IN THE COMPLAINT; CASE AT BAR. It is a settled rule that jurisdiction over the subject matter is determined by the allegations in the complaint and is not affected by the pleas or the theories set up by the defendant in an answer or a motion to dismiss. Otherwise, jurisdiction would become dependent upon the whims of the defendant. Here, the allegations in private respondents' complaint clearly vest jurisdiction in the trial court. Nothing therein shows that the questioned property is a subdivision lot and sold by petitioner as a subdivision developer. It simply referred to petitioner as a corporation and the seller of a lot described as "portion of a parcel of land, particularly a 1,000 sq. m. area thereof . . . covered by Transfer Certificate of Title No. 261974-R . . . ." Mere assertion by petitioner that it is a subdivision developer and the land involved is a subdivision lot, will not automatically strip the trial court of its jurisdiction and authorize the HLURB to take cognizance of the complaint. Indeed, it does not always follow that each sale made by petitioner is undertaken in its capacity as a subdivision developer, in the same manner that sales made in such capacity are not at all times intended for subdivision development. CIScaA DECISION YNARES-SANTIAGO, J p: Assailed in this petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure are the September 9, 2004 1 and October 15, 2004 2 Orders of the Regional Trial Court of San Fernando City, Branch 48, 3 which denied petitioner's motion to dismiss and motion for reconsideration, respectively. The undisputed facts show that on April 29, 2004, private respondents filed a complaint 4 for recovery of real property against petitioner Lacson Hermanas, Inc. They alleged that their predecessor-in-interest, Cenon Ignacio (Cenon), purchased from petitioner a 1,000 square meter portion of a parcel of land covered by Transfer Certificate of Title (TCT) No. 261974-R for P50,000.00 which was fully paid on September 24, 1989. Cenon thereafter took possession of the subject area and fenced the boundaries thereof for the construction of Seventh Day Adventist Chapel. On January 11, 1996, however, Cenon died. HAaDcS Sometime in 2002, private respondents demanded the delivery of the lot's title and the segregation of the portion sold to Cenon but was informed by petitioner that the

same lot has been sold to Rowena T. Coleman. Hence, the instant case to compel petitioner to execute the necessary deed of sale and to deliver the owner's duplicate copy of title. Petitioner filed a motion to dismiss 5 contending, among others, that the case is cognizable by the Housing and Land Use Regulatory Board (HLURB) and not the trial court because it is sued as a subdivision developer and the property involved is a subdivision lot. HSCcTD The trial court denied the motion to dismiss holding that it has jurisdiction over the subject matter. It added that petitioner's allegation that the lot involved is a subdivision lot is not a ground to deprive the court of its jurisdiction. 6 Petitioner's motion for reconsideration was denied. 7 Hence, the instant petition. The petition lacks merit. At the outset, the instant petition for certiorari should have been filed with the Court of Appeals and not with this Court pursuant to the doctrine of hierarchy of courts. Disregard of this rule warrants the outright dismissal of the petition. While the Court's original jurisdiction to issue a writ of certiorari is concurrent with the Regional Trial Courts and the Court of Appeals in certain cases, we emphasized in Liga ng mga Barangay National v. Atienza, Jr., 8 that such concurrence does not allow an unrestricted freedom of choice of court forum, thus This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefore will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard of that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. It is a policy necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. 9 In the present case, petitioner adduced no special and important reason why direct recourse to this Court should be allowed. Thus, we reaffirm the judicial policy that this Court will not entertain a direct invocation of its jurisdiction unless the redress desired cannot be obtained in the appropriate courts, and exceptional and

compelling circumstances justify the resort to the extraordinary remedy of writ of certiorari. ASICDH Although the invocation of this Court's jurisdiction is available to petitioner on the ground that this case raises a pure question of law, specifically, the issue of jurisdiction, 10 the proper recourse is not a petition for certiorari under Rule 65 but an appeal via a petition for review on certiorari in accordance with Rule 45 of the Revised Rules of Civil Procedure, 11 which should have been filed within 15 days from notice of the denial of its motion for reconsideration 12 on October 22, 2004. Even if we treat the instant petition as an appeal under Rule 45, the same will not prosper having been filed only on November 30, 2004, way beyond the 15 day reglementary period. Then too, even if we gloss over these procedural infirmities, the instant petition must fail for lack of merit. Section 1 of PD 1344 13 vests the National Housing Authority (now HLURB) with exclusive jurisdiction to hear and decide the following cases: (a) unsound real estate business practice; (b) claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, broker, or salesman; and (c) cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lot or condominium unit against the owner, developer, dealer, broker or salesman. It is a settled rule that jurisdiction over the subject matter is determined by the allegations in the complaint and is not affected by the pleas or the theories set up by the defendant in an answer or a motion to dismiss. Otherwise, jurisdiction would become dependent upon the whims of the defendant. DTCSHA Here, the allegations in private respondents' complaint clearly vest jurisdiction in the trial court. Nothing therein shows that the questioned property is a subdivision lot and sold by petitioner as a subdivision developer. It simply referred to petitioner as a corporation and the seller of a lot described as "portion of a parcel of land, particularly a 1,000 sq.m. area thereof . . . covered by Transfer Certificate of Title No. 261974-R . . . " 14 Mere assertion by petitioner that it is a subdivision developer and the land involved is a subdivision lot, will not automatically strip the trial court of its jurisdiction and authorize the HLURB to take cognizance of the complaint. Indeed, it does not always follow that each sale made by petitioner is undertaken in its capacity as a subdivision developer, in the same manner that sales made in such capacity are not at all times intended for subdivision development. IECAaD In Javellana v. Presiding Judge, RTC, Branch 30, Manila, 15 the Court sustained the denial of a motion to dismiss, holding that jurisdiction lies with the regular courts and not with the HLURB because the averments in the complaint reveal that the

transaction involved an installment sale of a lot and not a sale of a subdivision lot. It further held that even the allegation a subdivision lot in a subdivision project, is not sufficient to vest jurisdiction with the HLURB, thus A reading of the complaint does not show that the subject lot was a subdivision lot which would fall under the jurisdiction of the HLURB. The complaint clearly described the subject lot as Lot No. 44, Plan 15 with an area of 139.4 sq. meters situated in the District of Sampaloc covered by Transfer Certificate of Title No. 131305 of the Registry of Deeds of Manila. We note that such description was used when referring to the subject lot. What appears from the complaint was the fact that the subject lot was sold to petitioners in an ordinary sale of a lot on installment basis; that petitioners allegedly defaulted in the payment of their monthly installments for which reason respondent seeks to recover possession thereof. Thus, the trial court has jurisdiction over the case. xxx xxx xxx

[T]he use of the phrase "regular subdivision project" does not automatically make the instant case fall under the jurisdiction of the HLURB. In Sps. Kakilala vs. Faraon, notwithstanding the allegations of petitioners in their complaint that the subject lot is "a subdivision lot" in a "subdivision project," we held that such allegations were not sufficient to vest the HLURB of jurisdiction over the case, thus: Jurisdiction is determined by the averments of the complaint and not by the defense contained in the answer. Hence, the jurisdictional issue involved here shall be determined on the basis of the allegations of petitioner's complaint before the HLURB. Petitioners simply alleged therein that the subject lot is "a subdivision lot" in "a subdivision project." Under Section 2(d) and (e) of PD 957, "subdivision project" and "subdivision lot" are defined as follows: ScaATD d) Subdivision project "Subdivision project" shall mean a tract or a parcel of land registered under Act No. 496 which is partitioned primarily for residential purposes into individual lots with or without improvements thereon, and offered to the public for sale, in cash or in installment terms. It shall include all residential, commercial, industrial and recreational areas as well as open spaces and other community and public areas in the project. e) Subdivision lot. "Subdivision lot" shall mean any of the lots, whether residential, commercial, industrial, or recreational, in a subdivision project. There is no allegation in the complaint that the lot purchased by petitioners is part of a tract of land partitioned primarily for residential purposes into individual lots and offered to the public for sale. There is likewise no allegation that the tract of land includes recreational areas and open spaces. Nor does the "Contract to Sell", which forms part of the complaint, describe the subject property as a subdivision lot. What the contract strongly suggests is that the property is simply a lot offered

by respondents, as vendors, to the petitioners, as vendees, for sale on installment. As can be clearly gleaned from the same contract, respondents are not acting as subdivision owners, developers, brokers or salesmen, nor are they engaged in the real estate business. What is plain is that the parties are acting only as ordinary sellers and buyers of a specific lot, a portion of a big tract of land co-owned by the heirs of Mariano Faraon. Neither are there undertakings specified in the contract that respondents shall develop the land, like providing for the subdivision concrete roads and sidewalks, street lights, curbs and gutters, underground drainage system, independent water system, landscaping, developed park, and 24-hour security guard service. Even the rights and obligations of the sellers and buyers of a subdivision lot are not provided in the agreement. All these provisions are usually contained in a standard contract involving a sale of a subdivision lot. 16 In the instant case, the parties never mentioned if the contract was embodied in a written instrument which may shed light on the nature of their transaction. At any rate, the allegations in private respondents' complaint which determine the tribunal that may lawfully take cognizance of the case, clearly show that jurisdiction in the present controversy is lodged with the trial court and not with the HLURB. EHTIDA WHEREFORE, the petition is DENIED. The September 9, 2004 and October 15, 2004 Orders of the Regional Trial Court of San Fernando City, Branch 48, which denied petitioner's motion to dismiss and motion for reconsideration, respectively, are AFFIRMED. SO ORDERED. G.R. No. 135716. September 23, 1999.] FERDINAND TRINIDAD, petitioner, vs. COMMISSION ON ELECTIONS and MANUEL C. SUNGA, respondents. Pete Quirino-Quadra for petitioner. The Solicitor General for public respondent. Antonio A. Ante for private respondent. SYNOPSIS This is a petition for certiorari questioning the Resolution of the Commission on Elections disqualifying petitioner as a mayoralty candidate in the May 1995 elections. Likewise, it seeks the review of a subsequent resolution annulling petitioner's proclamation as elected mayor in the May 1998 elections. HTcDEa Petitioner's term as mayor under the May 8, 1995 elections expired on June 30, 1998. Thus, when the first questioned Resolution was issued by the COMELEC on June 22, 1998, petitioner was still serving his term. However, by the time the Motion

for Reconsideration of petitioner was filed on July 3, 1998, the case had already become moot and academic as his term had already expired. So, too, the second questioned Resolution issued on October 13, 1998, came at a time when the issue of the case had already been rendered moot and academic by the expiration of petitioner's challenged term of office. With the complaint for disqualification of private respondent rendered moot and academic by the expiration of petitioner's term of office therein contested, the COMELEC acted with grave abuse of discretion in proceeding to disqualify petitioner from his reelected term of office. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. HIDCTA SYLLABUS 1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; DECISIONS AND RULING THEREOF, GENERALLY NOT INTERFERED WITH BY SUPREME COURT. The Commission on Elections is the agency vested with exclusive jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election contests involving elective municipal and barangay officials. Unless the Commission is shown to have committed a grave abuse of discretion, its decision and rulings will not be interfered with by this Court. aTDcAH 2. ID.; DUE PROCESS; CONSTRUED. As explained in Paat v. Court of Appeals . . . 'The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial type hearing is not at all times and in all instances essential. The requirements are satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice or hearing. 3. ID.; ID.; NOT DENIED WHERE PARTY AFFORDED OPPORTUNITY TO BE HEARD THRU PLEADINGS. Petitioner complains that while the COMELEC reinstated SPA No. 95-213, it conducted no hearing and private respondent presented no evidence. Yet, this does not equate to a denial of due process. In the case at bar, petitioner was able to file an Answer with Counter Petition and Motion to Dismiss. He was also able to submit his counter-affidavit, and sworn statements of forty-eight (48) witnesses. While he complains that these were not considered by the Hearing Officer, he, himself, admits that the COMELEC did not rely on the findings of the Hearing Officer but referred the case to its Second Division. Thus, by the time the Second Division reviewed his case, petitioners evidence were already in place. Moreover, petitioner was also given a chance to explain his arguments further in the Motion for Reconsideration which he filed before the COMELEC. Clearly, in the light of the ruling in Paat, no deprivation of due process was committed. Considering that

petitioner was afforded an opportunity to be heard, through his pleadings, there is really no denial of procedural due process. EHcaDT 4. POLITICAL LAW; ELECTIONS; DISQUALIFICATION; RENDERED MOOT AND ACADEMIC BY EXPIRATION OF TERM OF OFFICE. We note that petitioner's term as Mayor under the May 8, 1995 elections expired on June 30, 1998. Thus, when the first questioned Resolution was issued by COMELEC on June 22, 1998, petitioner was still serving his term. However, by the time the motion for Reconsideration of petitioner was filed on July 3, 1998, the case had already become moot and academic as his term had already expired. So, too, the second questioned Resolution which was issued on October 13, 1998, came at a time when the issue of the case had already been rendered moot and academic by the expiration of petitioners challenged term of office. In Malaluan v. Commission on Elections, this Court clearly pronounced that expiration of the challenged term of office renders the corresponding petition moot and academic. 5. ID.; ID.; REMOVAL; CANNOT EXTEND BEYOND TERM DURING WHICH ALLEGED MISCONDUCT WAS COMMITTED. With the complaint for disqualification of private respondent rendered moot and academic by the expiration of petitioners term of office therein contested, COMELEC acted with grave abuse of discretion in proceeding to disqualify petitioner from his reelected term of office in its second questioned Resolution on the ground that "it comes as a matter of course after his disqualification in SPA No. 95-213 promulgated after the 1998 election." While it is true that the first questioned Resolution was issued eight (8) days before the term of petitioner as Mayor expired, said Resolution had not yet attained finality and could not effectively be held to have removed petitioner from his office. Indeed, removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. 6. CONSTITUTIONAL LAW; DUE PROCESS; DENIAL THEREOF BY ANNULMENT OF PROCLAMATION WITHOUT ANY PRIOR NOTICE OR HEARING. Yet another ground to reverse the COMELEC's annulment of petitioners proclamation under the 1998 elections is the undeniable fact that petitioner was not accorded due process insofar as this issue is concerned. To be sure, this was not part of the first questioned Resolution which only touched on the matter raised in the complaint the May 8, 1995 elections. Private respondent merely prayed for the annulment of petitioner's proclamation as winner in the 1998 elections in his Opposition to the Motion for Reconsideration. It was with grave abuse of discretion, then, that the COMELEC went on to annul petitioner's proclamation as winner of the 1998 elections without any prior notice or hearing on the matter. AHEDaI 7. POLITICAL LAW; ELECTIONS; PEOPLE'S WILL AT ALL TIMES UPHELD. It is fundamental that the people's will be at all times upheld. As eloquently stressed in Frivaldo v. Commission on Elections "This Court has time and again liberally and

equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: '. . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (Benito v. Commission on Elections, 235 SCRA 436, 442 [August 17, 1994]. 8. ID.; ID.; DISQUALIFICATION CASES; CANDIDATE WHO OBTAINED SECOND HIGHEST NUMBER OF VOTES CANNOT BE PROCLAIMED IN EVENT WINNER DISQUALIFIED. Finally, we see no error in the COMELEC's rejection of private respondent's move to be declared as Mayor on account of petitioner's disqualification. To begin with, the issue had been rendered moot and academic by the expiration of petitioner's challenged term of office. Second, even in law and jurisprudence, private respondent cannot claim any right to the office. As held by the COMELEC, the succession to the office of the mayor shall be in accordance with the provisions of the Local Government Code which, in turn, provides that the vice mayor concerned shall become the mayor. Also, in Nolasco v. Commission on Elections, citing Reyes v. Commission on Elections, we already rejected, once and for all, the position that the candidate who obtains the second highest number of votes may be proclaimed the winner in the event of disqualification or failure of the candidate with the highest number of votes to hold office. ETaHCD DECISION YNARES-SANTIAGO, J p: The instant Petition for Certiorari questions the June 22, 1998 Resolution 1 of the Commission on Elections (hereinafter referred to as COMELEC) in SPA No. 95-213, disqualifying petitioner as a candidate for Mayor of Iguig, Cagayan, in the May 8, 1995 elections. It also questions the October 13, 1998 COMELEC Resolution 2 which not only denied petitioner's Motion for Reconsideration, but also annulled his proclamation as elected Mayor in the May 11, 1998 elections. llcd This case has been filed before this Court when the Petition for Disqualification of private respondent (SPA No. 95-213) was dismissed by the COMELEC. Acting on the Petition for Certiorari of private respondent, this court, in Sunga v. Commission on Elections, 3 ordered the COMELEC to reinstate SPA No. 95-213 and act thereon. The facts of the case, as found in Sunga v. Commission on Elections, supra, are as follows: "Petitioner (herein private respondent) Manuel C. Sunga was one of the candidates for the position of Mayor in the Municipality of Iguig, Province of Cagayan, in the May 8, 1995 elections. Private respondent (herein petitioner) Ferdinand B. Trinidad,

then incumbent mayor, was a candidate for re-election in the same municipality. LLphil On 22 April 1995, Sunga filed with the COMELEC a letter-complaint for disqualification against Trinidad, accusing him of using three (3) local government vehicles in his campaign, in violation of Section 261, par. (o), Art. XXII, of BP Blg. 881 (Omnibus Election Code, as amended). On 7 May 1995, Sunga filed another letter-complaint with the COMELEC charging Trinidad this time with violation of Sec. 261, par. (e) (referring to threats, intimidation, terrorism or other forms of coercion) of the Omnibus Election Code, in addition to the earlier violation imputed to him in the first letter-complaint. This was followed by an Amended Petition for disqualification consolidating the charges in the two (2) letters-complaint, including vote buying, and providing more specific details of the violations committed by Trinidad. The case was docketed as SPA No. 95-213. In a Minute Resolution dated 25 May 1995, the COMELEC 2nd Division referred the complaint to its Law Department for investigation. Hearings were held wherein Sunga adduced evidence to prove his accusations. Trinidad, on the other hand, opted not to submit any evidence at all. Meanwhile, the election results showed that Trinidad garnered the highest number of votes, while Sunga trailed second. LLjur On 10 May 1995 Sunga moved for the suspension of the proclamation of Trinidad. However, notwithstanding the motion, Trinidad was proclaimed the elected mayor, prompting Sunga to file another motion to suspend the effects of the proclamation. Both motions were not acted upon by the COMELEC 2nd Division. On 28 June 1995 the COMELEC Law Department submitted its Report to the COMELEC En Banc recommending that Trinidad be charged in court for violation of the following penal provisions of the Omnibus Election Code: (a) Sec. 261, par. (a), on vote buying; (b) Sec. 261, par. (e), on threats, intimidation, terrorism or other forms of coercion; and, (c) Sec. 261, par. (o), on use of any equipment, vehicle owned by the government or any of its political subdivisions. The Law Department likewise recommended to recall and revoke the proclamation of Ferdinand D. Trinidad as the duly elected Mayor of Iguig, Cagayan; proclaim Manuel C. Sunga as the duly elected Mayor, and, direct Sunga to take his oath and assume the duties and functions of the office. The COMELEC En Banc approved the findings of the Law Department and directed the filing of the corresponding informations in the Regional Trial Court against Trinidad. Accordingly, four (4) informations for various election offenses were filed in the Regional Trial Court of Tuguegarao, Cagayan. The disqualification case, on the other hand, was referred to the COMELEC 2nd Division for hearing. LLpr

On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the Effects and Annul the Proclamation with Urgent Motion for Early Resolution of the Petition. But in its 17 May 1996 Resolution, the COMELEC 2nd Division dismissed the petition for disqualification, . . . . His motion for reconsideration having been denied by the COMELEC En Banc, Sunga filed the instant petition contending that the COMELEC committed grave abuse of discretion in dismissing the petition for disqualification . . . ." As we have mentioned, above, private respondent's Petition with this Court was granted and COMELEC was ordered to reinstate SPA No. 95-213 and hear the same. 4 Finally, on June 22, 1998, the COMELEC 1st Division (former 2nd Division) promulgated the first questioned Resolution disqualifying petitioner as a candidate in the May 8, 1995 elections. 5 Petitioner filed a Motion for Reconsideration, 6 claiming denial of due process. Private respondent filed his Opposition to the Motion, 7 at the same time moving for the cancellation of petitioner's proclamation as elected Mayor in the 1998 elections and praying that he be proclaimed Mayor instead. cdtai On October 13, 1998, the COMELEC En Banc denied petitioner's Motion for Reconsideration and also annulled his proclamation as duly elected Mayor of Iguig, Cagayan in the May 11, 1998 elections. 8 Private respondent's motion to be declared Mayor was, however, denied. Commissioner Teresita Dy-Liacco Flores rendered a dissenting opinion insofar as the Resolution annulled the proclamation of petitioner as Mayor in the May 11, 1998 elections, which she found to be "bereft of any legal basis." Petitioner alleges that the questioned Resolutions were promulgated without any hearing conducted and without his evidence having been considered by the COMELEC, in violation of his right to due process. He also contends that the portion of the October 13, 1998 Resolution annulling his proclamation as Mayor in the May 11, 1998 elections was rendered without prior notice and hearing and that he was once more effectively denied due process. Petitioner also adopts the stand of Commissioner Dy-Liacco Flores that his disqualification, if any, under SPA No. 95213 cannot extend beyond the three-year term to which he was elected on May 8, 1995, in relation to which the corresponding Petition for his disqualification was lodged. cdphil In his Comment, 9 private respondent assails the arguments raised in the Petition and prays that he be proclaimed as the elected Mayor in the 1998 elections. Petitioner filed a Reply 10 to private respondent's Comment on February 24, 1999. Meanwhile, on February 25, 1999, the criminal cases filed against the petitioner with the Regional Trial Court of Tuguegarao, Cagayan were dismissed. 11 On March 8, 1999, the Solicitor General filed a Comment for the COMELEC, 12 reiterating the

argument that the COMELEC is empowered to disqualify petitioner from continuing to hold public office and at the same time, barring private respondent's moves to be proclaimed elected in the 1998 elections. Respective Memoranda were filed by both parties. The issues before us may be summarized as follows: 1. Was petitioner deprived of due process in the proceedings before the COMELEC insofar as his disqualification under the May 8, 1995 elections was concerned? 2. Was petitioner deprived of due process in the proceedings before the COMELEC insofar as his disqualification under the May 11, 1998 elections was concerned? cdphil 3. May petitioner's proclamation as Mayor under the May 11, 1998 elections be cancelled on account of the disqualification case filed against him during the May 8, 1995 elections? 4. May private respondent, as the candidate receiving the second highest number of votes, be proclaimed as Mayor in the event of petitioner's disqualification? The Commission on Elections is the agency vested with exclusive jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election contests involving elective municipal and barangay officials. Unless the Commission is shown to have committed a grave abuse of discretion, its decision and rulings will not be interfered with by this Court. 13 Guided by this doctrine, we find that no violation of due process has attached to the COMELEC's June 22, 1998 Resolution. prLL Petitioner complains that while the COMELEC reinstated SPA No. 95-213, it conducted no hearing and private respondent presented no evidence. 14 Yet, this does not equate to a denial of due process. As explained in Paat v. Court of Appeals 15 ". . . . Due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard (Pepsi Cola Distributors of the Phil. v. NLRC, G.R. No. 100686, August 15, 1995). One may be heard, not solely by verbal presentation but also, and perhaps many times more creditably and predictable than oral argument, through pleadings (Concerned Officials of MWSS v. Vasquez, G.R. No. 109113, January 25, 1995). In administrative proceedings moreover, technical rules of procedure and evidence are not strictly applied; administrative process cannot be fully equated with due process in its strict judicial sense (Ibid.) Indeed, deprivation of due process cannot be successfully invoked where a party was given a chance to be heard on his motion for reconsideration (Rodriguez v. Project 6 Market Service

Cooperative, G.R. No. 79968, August 23, 1995), as in the instant case, when private respondents were undisputedly given the opportunity to present their side when they filed a letter of reconsideration dated June 28, 1989 which was, however, denied in an order of July 12, 1989 of Executive Director Baggayan. In Navarro III vs. Damasco (G.R. No. 101875, July 14, 1995), we ruled that: 'The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial type hearing is not at all times and in all instances essential. The requirements are satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice or hearing.'" cdll In the case at bar, petitioner was able to file an Answer with Counter Petition and Motion to Dismiss. 16 He was also able to submit his counter-affidavit and sworn statements of forty-eight (48) witnesses. While he complains that these were not considered by the Hearing Officer, he, himself, admits that the COMELEC did not rely on the findings of the Hearing Officer but referred the case to its Second Division. Thus, by the time the Second Division reviewed his case, petitioner's evidence were already in place. Moreover, petitioner was also given a chance to explain his arguments further in the Motion for Reconsideration which he filed before the COMELEC. Clearly, in the light of the ruling in Paat, no deprivation of due process was committed. Considering that petitioner was afforded an opportunity to be heard, through his pleadings, there is really no denial of procedural due process. 17 Being interrelated, we shall discuss the second and third issues together. cda

We note that petitioner's term as Mayor under the May 8, 1995 elections expired on June 30, 1998. 18 Thus, when the first questioned Resolution was issued by COMELEC on June 22, 1998, petitioner was still serving his term. However, by the time the Motion for Reconsideration of petitioner was filed on July 3, 1998, the case had already become moot and academic as his term had already expired. So, too, the second questioned Resolution which was issued on October 13, 1998, came at a time when the issue of the case had already been rendered moot and academic by the expiration of petitioner's challenged term of office. In Malaluan v. Commission on Elections, 19 this Court clearly pronounced that expiration of the challenged term of office renders the corresponding petition moot and academic. Thus: "It is significant to note that the term of office of the local officials elected in the May, 1992 elections expired on June 30, 1995. This petition, thus, has become moot and academic insofar as it concerns petitioner's right to the mayoralty seat in his municipality (Amatong v. COMELEC, G.R. No. 71003, April 28, 1988, En Banc, Minute

Resolution; Artano v. Arcillas, G.R. No. 76823, April 26, 1988, En Banc, Minute Resolution) because expiration of the term of office contested in the election protest has the effect of rendering the same moot and academic (Atienza v. Commission on Elections, 239 SCRA 298; Abeja v. Tanada, 236 SCRA 60; Yorac v. Magalona, 3 SCRA 76). cdasia When the appeal from a decision in an election case has already become moot, the case being an election protest involving the office of the mayor the term of which had expired, the appeal is dismissible on that ground, unless the rendering of a decision on the merits would be of practical value (Yorac v. Magalona, supra). This rule we established in the case of Yorac v. Magalona which was dismissed because it had been mooted by the expiration of the term of office of the Municipal Mayor of Saravia, Negros Occidental. . . ." (emphasis, ours) With the complaint for disqualification of private respondent rendered moot and academic by the expiration of petitioner's term of office therein contested, COMELEC acted with grave abuse of discretion in proceeding to disqualify petitioner from his reelected term of office in its second questioned Resolution on the ground that "it comes as a matter of course after his disqualification in SPA No. 95-213 promulgated after the 1998 election." While it is true that the first questioned Resolution was issued eight (8) days before the term of petitioner as Mayor expired, said Resolution had not yet attained finality and could not effectively be held to have removed petitioner from his office. 20 Indeed, removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. 21 In this regard, therefore, we agree with the dissenting opinion of Commissioner Teresita Dy-Liacco Flores in the second questioned Resolution that petitioner's disqualification under SPA No. 95-213 cannot extend beyond the term to which he was elected in 1995. 22 Yet another ground to reverse the COMELEC's annulment of petitioner's proclamation under the 1998 elections is the undeniable fact that petitioner was not accorded due process insofar as this issue is concerned. To be sure, this was not part of the first questioned Resolution which only touched on the matter raised in the complaint the May 8, 1995 elections. Private respondent merely prayed for the annulment of petitioner's proclamation as winner in the 1998 elections in his Opposition to the Motion for Reconsideration. It was with grave abuse of discretion, then, that the COMELEC went on to annul petitioner's proclamation as winner of the 1998 elections without any prior notice or hearing on the matter. 23 As per the Certificate of Canvass, 24 petitioner obtained 5,920 votes as against the 1,727 votes obtained by private respondent and 15 votes garnered by the third mayoral candidate, Johnny R. Banatao. This gives petitioner a high 77.26% of the

votes cast. There is no doubt, therefore, that petitioner received his municipality's clear mandate. This, despite the disqualification case filed against him by private respondent. cdll This further lends support to our decision to bar his disqualification insofar as the May 11, 1998 elections is concerned. Indeed, in election cases, it is fundamental that the people's will be at all times upheld. As eloquently stressed in Frivaldo v. Commission on Elections 25 "This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: '. . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (Benito v. Commission on Elections, 235 SCRA 436, 442 [August 17, 1994])'." dctai Finally, we see no error in the COMELEC's rejection of private respondent's move to be declared as Mayor on account of petitioner's disqualification. To begin with, the issue had been rendered moot and academic by the expiration of petitioner's challenged term of office. Second, even in law and jurisprudence, private respondent cannot claim any right to the office. As held by the COMELEC, the succession to the office of the mayor shall be in accordance with the provisions of the Local Government Code which, in turn, provides that the vice mayor concerned shall become the mayor. 26 Also, in Nolasco v. Commission on Elections, 27 citing Reyes v. Commission on Elections, 28 we already rejected, once and for all, the position that the candidate who obtains the second highest number of votes may be proclaimed the winner in the event of disqualification or failure of the candidate with the highest number of votes to hold office. This court ratiocinated thus "That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled (Frivaldo v. COMELEC, 174 SCRA 245 [1989]; Labo, Jr. v. COMELEC, 176 SCRA 1 [1989]; Abella v. COMELEC, 201 SCRA 253 [1991]; Labo, Jr. v. COMELEC, 211 SCRA 297 [1992]; Benito v. COMELEC, 235 SCRA 436 [1994]). The doctrinal instability caused by see-sawing rulings (Compare Topacio v. Paredes, 23 Phil. 238 [1912] with Ticson v. COMELEC, 103 SCRA 687 [1981]; Geronimo v. Ramos, 136 SCRA 435 [1985] with Santos v. COMELEC, 137 SCRA 740 [1985]) has since been removed. In the latest ruling (Aquino v. COMELEC, G.R. No. 120265, September 18, 1995) on the question, this Court said:

To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances." LibLex Private respondent claims that there are compelling reasons to depart from this doctrine. He argues that since the disqualification case filed against the petitioner for the 1995 elections has been rendered moot and academic, it is with the 1998 elections that its impact must be felt. He also claims that justice should be given him as victim of petitioner's dilatory tactics. We are not persuaded. On the other hand, the fact that despite the disqualification case filed against petitioner relating to the 1995 elections, he still won the mandate of the people for the 1998 elections, leads us to believe that the electorate truly chose petitioner and repudiated private respondent. To allow private respondent, a 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. 29 Therefore, the Resolution of the COMELEC dated October 13, 1998 which annulled petitioner's proclamation as Mayor of Iguig, Cagayan in the May 11, 1998 elections should be set aside. On the other hand, the petition filed before the COMELEC against petitioner for election offenses committed during the May 1995 elections should be dismissed for being moot and academic, the term of office to which petitioner was elected having already expired. Cdpr WHEREFORE, the petition is partly GRANTED. The Resolution of the COMELEC, dated October 13, 1998 is SET ASIDE insofar as it annuls the proclamation of petitioner as winner in the May 11, 1998 elections. Insofar as the May 8, 1995 elections is concerned, we find the issues related thereto rendered moot and academic by expiration of the term of office challenged and, accordingly, DISMISS the petition lodged in connection therewith. No costs. SO ORDERED. G.R. No. 151216. July 18, 2003.] MANUEL MILLA, petitioner, vs. REGINA BALMORES-LAXA, respondent. Manuel V. Mendoza for petitioner. Cesar Bernard Coloma for respondent.

SYNOPSIS Petitioner herein questioned the power of the Commission on Elections (Comelec) to annul the proclamation, due to an alleged error in the tabulation of the statement of votes, of a winning candidate for municipal councilor who had taken his oath and assumed office as such. According to the Supreme Court, following Sec. 3 of Art. IX-C of the 1987 Constitution a petition involving pre-proclamation controversy should have first been heard and decided by a division of the Comelec and then by the En Banc if a motion for reconsideration of the division was filed. Since in this case the Comelec sitting en banc acted on respondent's petition, which was not first passed upon by a division, it acted without jurisdiction, or with grave abuse of discretion. The assailed resolution, therefore, was null and void. The present petition was granted and the resolution of the Comelec En Banc was set aside. CAcEaS SYLLABUS POLITICAL LAW; ELECTIONS; PRE-PROCLAMATION CONTROVERSIES; SHOULD FIRST BE HEARD AND DECIDED BY A DIVISION OF THE COMELEC AND THEN BY THE EN BANC WHEN A MOTION FOR RECONSIDERATION WAS FILED; VIOLATION IN CASE AT BAR. By his admission, the petition filed by respondent before the COMELEC involves a pre-proclamation controversy, not an election contest and indeed it is not, for while the petition alleged fraud and statistical improbability, the remedy sought was merely for correction of erroneous entries in the Statement of Votes which were based on the election returns. As the petition then of respondent involves a pre-proclamation controversy, following Sec. 3 of Art. IX-C of the 1987 Constitution which provides: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. It should have first been heard and decided by a division of the COMELEC, and then by the En Banc if a motion for reconsideration of the decision of the division were filed. Since, as reflected above, the COMELEC sitting en banc acted on respondent's petition which was not first passed upon by a division, it acted without jurisdiction, or with grave abuse of discretion. DECISION CARPIO-MORALES, J p: The petition at bar involves the power of the Commission on Elections (COMELEC) to annul the proclamation, due to an alleged error in the tabulation of the Statement of Votes, of a winning candidate for municipal councilor who had taken his oath and assumed office as such. HDCAaS

Petitioner Manuel Milla and respondent Regina Balmores-Laxa were candidates for councilor of Gerona, Tarlac in the May 14, 2001 elections. 1 On May 18, 2001, petitioner was proclaimed as the eighth winning candidate by the Municipal Board of Canvassers (BOC) based on the Statement of Votes and the Certificate of Canvass 2 showing the votes obtained by each candidate as follows: Daisy Mamba Edwin Yamoyam Antonio Perez, Jr. Orlando Ines 9,764 Raul Cruz 9,724 14,558 12,424 11,607

Francisco de Leon 9,390 Ricardo Parazo Manuel Milla 8,052 Regina Balmores-Laxa 8,006 8,781

Pastora M. Cucuin 7,669 3 One month after petitioner's proclamation or on June 18, 2001, respondent filed a petition 4 with the COMELEC against petitioner and the BOC for "correction of entries in [the] Statement of Votes . . . based on fraud and irregularities in [the] canvassing of votes." 5 The petition, which was docketed as SPC No. 01-311, alleged that the entries for four precincts in the Statement of Votes did not correspond to the election returns for the respective precincts, to wit: [Manuel Milla and the Municipal Board of Canvassers], by confederating, aiding and helping one another violating Sections 223, 230 and 231 of the Omnibus Election Code of the Philippines (B.P. 881) and Section 27(b) of R.A. 6646 (Electoral Reforms Law of 1987[)], padded respondent Manuel Milla's votes by THREE HUNDRED FIFTY (350) VOTES by inserting the number "1" figure before the actual votes in three precincts and converting "1" into "6" in one precinct illustrated as follows: Precinct No. Actual votes (ER) 6 71A 32 132 129 64 Padded votes (SOV) 7

30[A] 29 21A2 14

41A

31

131. 8

Attached to respondent's petition were photocopies of the election returns from precincts 71A, 9 30A 10 and 21A 11 and photocopies of certified true copies of the Statement of Votes. 12 Respondent likewise alleged that the said entries for the four precincts were statistically improbable because petitioner "garnered so much higher votes than the other candidates." 13 As, by the Certificate of Canvass, petitioner led respondent by 46 votes whereas the "discrepancy" between the Statement of Votes and the election returns was 350, respondent prayed before the COMELEC for the correction of errors in the Statement of Votes and Certificate of Canvass, the declaration as null and void of the proclamation of petitioner, and her proclamation as one of the duly elected municipal councilors. 14 Petitioner, who in the meantime took his oath of office on June 29, 2001 and thereafter assumed the position of municipal councilor, 15 prayed in his Answer to respondent's petition before the COMELEC for the dismissal of the petition on the following grounds: (1) the petition was filed beyond the reglementary period of five (5) days from date of proclamation, 16 (2) pre-proclamation cases should be terminated after proclamation and assumption of office, 17 and (3) padding of statement of votes is not a proper subject of a pre-proclamation case. 18 The BOC, on the other hand, in its Answer 19 with motion for the reconvening of the BOC to effect the correction of entries in the Statement of Votes, proffered unawareness of, and disclaimed any hand in, any irregularity in the copying of the number of votes from the election returns to the Statement of Votes, as its role during the canvassing was limited to appreciating election returns, the canvassing having been done by two sub-canvassing committees. 20 In its Resolution 21 of December 18, 2001, the COMELEC En Banc, found as follows: . . . Milla, on the other hand, does not deny . . . the padding of his votes by three hundred fifty 350 votes; but instead moved for the dismissal of the petition on the petty ground of a technicality that the petition was filed beyond the five (5) day reglementary period for filing petitions of its sort. xxx xxx xxx

Given the attendant evidence at hand, specifically the unexplained mismatched inscriptions in the entries for the questioned precincts in the Statement of Votes, we conclude that the padding of three hundred fifty (350) votes committed by respondent Board in order to favor respondent Milla is beyond the realm of an honest mistake. As to the correct number of votes, it is without question that what

appears in the election returns is the actual number of votes garnered by private respondent. xxx xxx xxx

In addition, not a single item in the material averments of the Petition was specifically denied by either respondent, thus lending credence to the complete truthfulness of petitioner's account of the "dagdag-bawas" scheme which she has already proven by clear and convincing evidence. As such, we cannot leave the "correction" of the "error" in canvassing to the same body [which] perpetrated such "error," as they so pray for in their answer. 22 (Italics supplied), and denied the BOC's motion to reconvene, declared herein petitioner's proclamation null and void, and proclaimed respondent as the eighth winning candidate. Hence, the present recourse anchored on the following grounds: I THE COMMISSION ON ELECTION[S] HAS NO JURISDICTION TO PROCLAIM RESPONDENT AS THE EIGHT[H] WINNING CANDIDATE FOR COUNCILOR AND TO DECLARE PETITIONER'S PROCLAMATION NULL AND VOID. 23 II THE RESOLUTION IN QUESTION IS NOT SUPPORTED BY THE EVIDENCE. 24 Petitioner maintains that the COMELEC has no jurisdiction over the petition as it was filed beyond the reglementary period. For, so petitioner contends, since the proclamation was made on May 18, 2001, the petition to correct the Statement of Votes should have been filed within 5 days thereafter conformably with Section 5, Rule 27 of the COMELEC Rules of Procedure 25 which reads: Sec. 5. Pre-proclamation Controversies Which May Be Filed Directly With the Commission. (a) The following pre-proclamation controversies may be filed directly with the Commission: xxx 1) ... xxx xxx

2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing as where (1) a copy of the election returns or certificate of canvass was tabulated more than once, (2) two or more copies of the election returns of one precinct, or two or more copies of certificate of

canvass were tabulated separately, (3) there has been a mistake in the copying of the figures into the statement of votes or into the certificate of canvass, or (4) socalled returns from non-existent precincts were included in the canvass, and such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidates had already been made. b) ...

If the petition is for correction, it must be filed not later than five (5) days following the date of proclamation and must implead all candidates who may be adversely affected thereby. xxx xxx xxx (Italics supplied)

In holding that it validly assumed jurisdiction over the petition, the COMELEC asserts that "[a] proclamation that is based on a clerical or mathematical mistake (or a blatant padding of votes) is not a valid proclamation [h]ence, the same can be challenged even after the proclaimed candidate has assumed office." 26 The Statement of Votes forms the basis of the Certificate of Canvass and of the proclamation. Any error in the statement ultimately affects the validity of the proclamation. 27 If a candidate's proclamation is based on a Statement of Votes which contains erroneous entries, it is null and void. It is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to annul the proclamation. 28 In the case at bar, as the Statement of Votes contained erroneous entries, the COMELEC rightfully assumed jurisdiction over respondent's petition for the correction thereof and declaration of nullity of petitioner's proclamation. While our election laws are silent when such and similar petitions may be filed directly with the COMELEC, 29 the above-quoted Section 5, Rule 27 of the Rules of Procedure sets a prescriptive period of five (5) days following the date of proclamation. The COMELEC, however, could suspend its own Rules of Procedure so as not to defeat the will of the electorate. 30 For adherence to technicality that would put a stamp on a palpably void proclamation, with the inevitable result of frustrating the people's will, cannot be countenanced. 31 Petitioner nevertheless posits that even assuming that the COMELEC may suspend the application of Section 5, Rule 27 of its Rules of Procedure, it can no longer exercise jurisdiction after his proclamation, oath and assumption of office 32 in view of Section 16 of Republic Act 7166 33 which states: Sec. 16. Pre-Proclamation Cases Involving Provincial, City and Municipal Offices. Pre-proclamation cases involving provincial, city and municipal offices shall be allowed and shall be governed by Sections 17, 18, 19, 20, 21 and 22 hereof. All pre-

proclamation cases pending before the Commission shall be deemed terminated at the beginning of the term of the office involved and the rulings of the boards of canvassers concerned shall be deemed affirmed, without prejudice to the filing of a regular election protest by the aggrieved party. However, proceedings may continue when on the basis of evidence thus far presented, the Commission determined that the petition appears meritorious and accordingly issues an order for the proceeding to continue or when an appropriate order has been issued by the Supreme Court in a petition for certiorari. (Italics supplied) By petitioner's claim, there is no showing that respondent's petition falls under the exception in the above-quoted provision as "the petition has not been determined by the COMELEC to be meritorious" and "no order has been issued for the proceeding to continue." 34 The claim does not lie. The COMELEC issued Resolution No. 4493 on June 29, 2001 declaring the termination of all pre-proclamation cases except those included in the list annexed thereto which list included SPC No. 01311, respondent's petition before the COMELEC subject of the present petition. Petitioner additionally claims that the COMELEC, in assuming original jurisdiction over a case involving municipal officials, acted beyond the limits of its power under the Constitution, particularly Section 2, paragraph 2 of Article IX-C 35 which provides: Sec. 2. functions: (1) ... The Commission on Elections shall exercise the following powers and

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory and not appealable. (3) . . . (Italics supplied)

Petitioner's above-claim does not likewise lie. By his admission, the petition filed by respondent before the COMELEC involves a pre-proclamation controversy, not an election contest and indeed it is not, for while the petition alleged fraud and statistical improbability, the remedy sought was merely for correction of erroneous entries in the Statement of Votes which were based on the election returns. As the petition then of respondent involves a pre-proclamation controversy, following Sec. 3 of Art. IX-C of the 1987 Constitution which provides:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Italics supplied) it should have first been heard and decided by a division of the COMELEC, 36 and then by the En Banc if a motion for reconsideration of the decision of the division were filed. Since, as reflected above, the COMELEC sitting en banc acted on respondent's petition which was not first passed upon by a division, it acted without jurisdiction, or with grave abuse of discretion. 37 The assailed Resolution of the COMELEC dated December 18, 2001 is thus null and void and it is in this light that the present petition is GRANTED. This leaves it unnecessary to pass on petitioner's second assigned error. WHEREFORE, the instant petition is GRANTED. The Resolution of the COMELEC En Banc dated December 18, 2001 in SPC No. 01-311 is hereby SET ASIDE, and the COMELEC is ordered to assign the SPC No. 01-311 to a division, which is hereby directed to resolve the same with reasonable dispatch. THEDCA No pronouncement as to costs. SO ORDERED. G.R. No. 124033. September 25, 1997.] ANTONIO T. KHO, petitioner, vs. COMMISSION ON ELECTIONS and EMILIO A. ESPINOSA, respondents. Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner. Brillantes (Nachura), Navarro, Jumamil, Arcilla & Bello Law Offices for private respondents. SYNOPSIS Petitioner Antonio T. Kho, a losing candidate in the 1995 gubernatorial elections in Masbate, filed on May 30, 1995, an election protest against private respondent Emilio A. Espinosa. The latter received the summons on June 6, 1995, but he filed his answer with counter-protest only on June 15, 1995. When Kho received the answer with counter-protest of Espinosa, he filed on the same date a motion to expunge the said pleading because it was filed way beyond the reglementary period of five (5) days as provided for under Rule 10, Section 1, Part II in relation to Rule 20, Section 4 of the COMELEC Rules of Procedure. Respondent COMELEC First Division admitted Espinosa's answer with counter-protest. It dismissed Kho's motion

to expunge, holding that Espinosa's pleading which was mailed on June 15, 1995 was filed within the reglementary period. Kho moved for reconsideration, but the same was denied. Kho filed the instant petition arguing that the respondent COMELEC First Division committed grave abuse of discretion or without or in excess of jurisdiction in admitting the belatedly filed answer with counter-protest of Espinosa. llcd The Supreme Court upheld Kho's argument that private respondent Espinosa's answer with counter-protest was filed way beyond the reglementary period of five (5) days provided for by law. As a result thereof, the COMELEC First Division loses its jurisdictional authority to entertain the belatedly filed counter-protest. SYLLABUS 1. POLITICAL LAW; ELECTION LAW; COMELEC RULES OF PROCEDURE; IN THE ABSENCE OF A MOTION FOR EXTENSION OF TIME WITHIN WHICH TO FILE ANSWER WITH COUNTER-PROTEST, THERE IS NO BASIS FOR THE COMELEC FIRST DIVISION TO ADMIT THE BELATEDLY FILED ANSWER WITH COUNTER PROTEST; CASE AT BAR. It is clear from the records that private respondent Espinosa filed his answer with counter-protest way beyond the reglementary period of five (5) days provided for by law. It must be pointed out that Espinosa received the COMELEC summons and the Petition to Protest of Kho on June 6, 1995. Under Section 1, Rule 10 of the COMELEC Rules of Procedure, the answer must be filed within five days from service of summons and a copy of the petition. Private respondent Espinosa, therefore, had until June 11, 1995 within which to file his answer. In violation however of the aforesaid rules, Espinosa filed his answer with counter-protest only on June 15, 1995, obviously beyond the five (5) day mandatory period. It should be stressed that under the COMELEC Rules of Procedure, the protestee may incorporate in his answer a counter-protest. It has been said that a counter-protest is tantamount to a counterclaim in a civil action and may be presented as a part of the answer within the time he is required to answer the protest, unless a motion for extension is granted, in which case it must be filed before the expiration of the extended time. Apparently, the counter-protest of Espinosa was incorporated in his answer. And as what was revealed, this answer with counter-protest was filed only on June 15, 1995, which was obviously late for four (4) days. It appears that Espinosa did not file a motion for extension of time within which to file his answer with counterprotest. In the absence thereof, there is no basis then for the COMELEC First Division to admit the belatedly filed answer with counter-protest. dctai 2. ID.; ID.; ID.; IT DOES NOT APPEAR THAT THE SUBJECT CONTROVERSY IS ONE OF THE CASES SPECIFICALLY PROVIDED UNDER THE COMELEC RULES OF PROCEDURE IN WHICH THE COMMISSION MAY SIT EN BANC. As to the issue of whether or not the case should be referred to the COMELEC en banc, this Court finds the respondent COMELEC First Division correct when it held in its order dated February 28, 1996 that no final decision, resolution or order has yet been made

which will necessitate the elevation of the case and its records to the Commission en banc. No less than the Constitution requires that election cases must be heard and decided first in division and any motion for reconsideration of decisions shall be decided by the Commission en banc. Apparently, the orders dated July 26, 1995, November 15, 1995 and February 28, 1996 and the other orders relating to the admission of the answer with counter-protest are issuances of a Commission in division and are all interlocutory orders because they merely rule upon an incidental issue regarding the admission of Espinosa's answer with counter-protest and do not terminate or finally dispose of the case as they leave something to be done before it is finally decided on the merits. In such a situation, the rule is clear that the authority to resolve incidental matters of a case pending in a division, like the questioned interlocutory orders, falls on the division itself, and not on the Commission en banc. Section 5 (c), Rule 3 of the COMELEC Rules of Procedure explicitly provides for this. A look at Section 2, Rule 3 of the COMELEC Rules of Procedure confirms that the subject case does not fall on any of the instances over which the Commission en banc can take cognizance of. In the instant case, it does not appear that the subject controversy is one of the cases specifically provided under the COMELEC Rules of Procedure in which the Commission may sit en banc. Neither is it shown that the present controversy is a case where a division is not authorized to act nor a situation wherein the members of the First Division unanimously voted to refer the subject case to the Commission en banc. Clearly, the Commission en banc, under the circumstances shown above, can not be the proper forum which the matter concerning the assailed interlocutory orders can be referred to. In a situation such as this where the Commission in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is not permissible under its present rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court. prLL DECISION TORRES, JR., J p: May the Commission on Elections entertain a counter-protest filed by a party after the period to file the same has expired? Although a routine issue, it can also have crippling effects. lexlib This is the case before us. On May 30, 1995, petitioner Kho, a losing candidate in the 1995 gubernatorial elections in Masbate, filed an election protest 1 against private respondent Espinosa

to set aside the proclamation of the latter as the Provincial Governor of Masbate and to declare him instead the winner in the elections. Summons 2 was then issued by the Commission on Elections (COMELEC, for brevity) to Espinosa on June 1, 1995 requiring him to answer Kho's petition of protest within five (5) days from receipt thereof. It appears that Espinosa received the summons on June 6, 1995, 3 but, he filed his answer with counter-protest only on June 15, 1995. 4 When Kho received the answer with counter-protest of Espinosa on June 24, 1995, he filed on the same date a motion to expunge the said pleading because it was filed way beyond the reglementary period of five (5) days as provided for under Rule 10, Section 1, Part II in relation to Rule 20, Section 4 of the COMELEC Rules of Procedure. Way back on June 19, 1995, petitioner Kho also filed an omnibus motion 5 praying that since five (5) days had elapsed and no answer to the protest had yet been filed by Espinosa, a general denial must be entered into the records in accordance with the COMELEC Rules of Procedure. The Respondent COMELEC First Division, however, issued an order 6 dated July 26, 1995 admitting Espinosa's answer with counter-protest and requiring his lawyer to submit a supplemental pleading specifying the numbers of counter-protested precincts listed in the answer with counter-protest. Kho received a copy of such order on September 20, 1995. Following the order dated July 26, 1995, Espinosa filed on September 18, 1995 his compliance specifying therein the counter-protested precincts. Consequently, the Comelec First Division, through its order dated September 23, 1995, admitted the said compliance, required Espinosa to make a cash deposit of P40,150.00 for the 73 counter-protested precincts and ordered the collection and delivery of the counter-protested ballot boxes to the Commission for revision. On September 23, 1995, Kho filed a motion to resolve 7 alleging that he filed a motion to expunge on June 24, 1995 as a result of Espinosa's failure to answer the election protest within the legal period. Since, this motion to expunge had not yet been acted by the Commission, he, accordingly, prayed for its resolution. Acting on the said motion, however, the COMELEC First Division, by its September 26, 1995 order, 8 dismissed the motion to resolve holding that Espinosa's answer with counter-protest which was mailed on June 15, 1995 was filed within the five (5) day reglementary period. On September 29, 1995, Kho filed a motion for reconsideration 9 of the orders dated September 23 and 26, 1995. Espinosa, on the other hand, filed his opposition thereto arguing that the questioned interlocutory orders dated September 23 and 26, 1995 were mere incidental orders which implemented the earlier order dated

July 26, 1995. He asserted that the failure on the part of Kho to seek first a reconsideration of this July 26, 1995 order which admitted the answer with counterprotest is a fatal and an irreversible procedural infirmity. In denying the motion for reconsideration of Kho, the COMELEC First Division, through its November 15, 1995 order, 10 held that since Kho did not attempt to file a motion for reconsideration of the July 26, 1995 order, such order can not now be disturbed. The subsequent orders of September 23 and 26, 1995 that carried out the July 26, 1995 order should not be set aside to prevent unnecessary delay in the proceedings of the case. On December 1, 1995, Kho filed a manifestation and motion, 11 this time addressed to the COMELEC en banc, reiterating the arguments he asserted in his motion for reconsideration and praying at the same time for the elevation of the case to the Commission en banc and the setting aside of the November 15, 1995 order and all other related orders concerning the belated filing of Espinosa's answer with counterprotest. But the COMELEC First Division, in its order dated February 28, 1996, 12 denied the prayer for the elevation of the case to en banc because the September 23 and 26, 1995 orders were mere interlocutory orders which would not necessitate the elevation of the case to en banc, and merely took note of the other prayers in the manifestation and motion. The dispositive portion of the said order reads as follows: "WHEREFORE, in view of the foregoing, the Commission (First Division) hereby ORDERS, as follows: 1. That the manifestations, as well as the second and third prayers, in protestant's Manifestation and Motion be NOTED; 2. That the prayer for the elevation of the records of this case to the Commission en banc be DENIED; 3. That the protestee's prayer for suspension of revision proceedings be declared MOOT. SO ORDERED." 13 On March 15, 1996, Kho filed the instant petition 14 arguing that the respondent COMELEC First Division committed grave abuse of discretion or without or in excess of jurisdiction in admitting the belatedly filed answer with counter-protest of Espinosa, and in refusing to elevate the case to the Commission en banc upon the pretext that the COMELEC First Division issued mere interlocutory orders. He prayed for the issuance of a temporary restraining order against the COMELEC to cease and desist from implementing the July 26, 1995 order and all other orders related to it, and that the COMELEC be directed to proceed with the protest case without

considering the answer with counter-protest of Espinosa, which should be expunged from the records of the case. Private respondent Espinosa, on the other hand, argued that the five (5) day period of filing an answer is not jurisdictional because the answer is not an initiatory pleading and the time of its filing can be extended either through motion or motu propio. He added that the COMELEC, in admitting the answer with counter-protest, committed no error as it is allowed to suspend its rules in the interest of justice and speedy disposition of matters before it. According to him, the order of the COMELEC dated July 26, 1995 admitting his counter-protest is not subjected to a timely motion for reconsideration by petitioner Kho, thus it became final and executory and can no longer be disturbed. Consequently, this Court issued a temporary restraining order on May 28, 1996. 15 We find the petition meritorious. It is clear from the records that private respondent Espinosa filed his answer with counter-protest way beyond the reglementary period of five (5) days provided for by law. It must be pointed out that Espinosa received the COMELEC summons and the Petition of Protest of Kho on June 6, 1995. Under Section 1, Rule 10 of the COMELEC Rules of Procedure, the answer must be filed within five days from service of summons and a copy of the petition. Private respondent Espinosa, therefore, had until June 11, 1995 within which to file his answer. In violation however of the aforesaid rules, Espinosa filed his answer with counter-protest only on June 15, 1995, obviously beyond the five (5) day mandatory period. It should be stressed that under the COMELEC Rules of Procedure, the protestee may incorporate in his answer a counter-protest. 16 It has been said that a counterprotest is tantamount to a counterclaim in a civil action and may be presented as a part of the answer within the time he is required to answer the protest, unless a motion for extension is granted, in which case it must be filed before the expiration of the extended time. 17 Apparently, the counter-protest of Espinosa was incorporated in his answer. And as what was revealed, this answer with counterprotest was filed only on June 15, 1995, which was obviously late for four (4) days. It appears that Espinosa did not file a motion for extension of time within which to file his answer with counter-protest. In the absence thereof, there is no basis then for the COMELEC First Division to admit the belatedly filed answer with counter-protest. It is worthy to note that as early as in the case of Arrieta vs. Rodriguez, 18 this Court had firmly settled the rule that the counter-protest must be filed within the period provided by law, otherwise, the forum loses its jurisdiction to entertain the belatedly filed counter-protest. In the case at bar, there is no question that the answer with counter-protest of Espinosa was filed outside the reglementary period provided for by law. As such, the COMELEC First Division has no jurisdictional authority to entertain the belated answer with counter-protest much less pass upon

and decide the issues raised therein. It follows therefore that the order of July 26, 1995 which pertains to the admission of the answer with counter-protest of Espinosa as well as the other consequent orders implementing the order of admission issued by the COMELEC First Division are void for having been issued without jurisdiction. Even if petitioner Kho did not file a motion for reconsideration of the order dated July 26, 1995 admitting the answer with counter-protest, the jurisdictional infirmity, brought about by the late filing of the answer to the protest, persists and can not be cured by the omission on the part of the protesteepetitioner to seek a reconsideration of the order dated July 26, 1995. Admittedly, even before the order dated July 26, 1995 was issued by the COMELEC First Division, petitioner Kho had already put into issue the late filing of Espinosa's answer with counter-protest and persistently asserted his right to move for the exclusion of the same from the record of the case. The records unmistakably show that when petitioner Kho was apprised of the fact that Espinosa did not file the answer within the reglementary period of five days, he filed on June 19, 1995 an omnibus motion praying that a general denial should be entered into the records of the case against Espinosa. He also filed on June 24, 1995 a motion to expunge from the records the answer with counter-protest of Espinosa. And when he received the July 26, 1995 order on September 20, 1995, he immediately filed on September 23, 1995 a motion praying for the resolution of the motion to expunge filed earlier. These circumstances indubitably show that even though petitioner Kho did not file a motion for reconsideration of the July 26, 1995 order he was not remiss in assailing at the first instance the belated filing of the answer with counter-protest of Espinosa. As to the issue of whether or not the case should be referred to the COMELEC en banc, this Court finds the respondent COMELEC First Division correct when it held in its order dated February 28, 1996 that no final decision, resolution or order has yet been made which will necessitate the elevation of the case and its records to the Commission en banc. No less than the Constitution requires that election cases must be heard and decided first in division and any motion for reconsideration of decisions shall be decided by the Commission en banc. Apparently, the orders dated July 26, 1995, November 15, 1995 and February 28, 1996 and the other orders relating to the admission of the answer with counter-protest are issuances of a Commission in division and are all interlocutory orders because they merely rule upon an incidental issue regarding the admission of Espinosa's answer with counterprotest and do not terminate or finally dispose of the case as they leave something to be done before it is finally decided on the merits. 19 In such a situation, the rule is clear that the authority to resolve incidental matters of a case pending in a division, like the questioned interlocutory orders, falls on the division itself, and not on the Commission en banc. Section 5 (c), Rule 3 of the COMELEC Rules of Procedure explicitly provides for this, "Section 5. Quorum; Votes Required. . .

xxx

xxx

xxx

(c) Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division which shall be resolved by the division which issued the order." ( emphasis provided) Furthermore, a look at Section 2, Rule 3 of the COMELEC Rules of Procedure confirms that the subject case does not fall on any of the instances over which the Commission en banc can take cognizance of. It reads as follows: cdpr "Section 2. The Commission en banc. The Commission shall sit en banc in cases hereinafter specifically provided, or in pre-proclamation cases upon a vote of a majority of the members of a Commission, or in all other cases where a division is not authorized to act, or where, upon a unanimous vote of all the members of a Division, an interlocutory matter or issue relative to an action or proceeding before it is decided to be referred to the Commission en banc." In the instant case, it does not appear that the subject controversy is one of the cases specifically provided under the COMELEC Rules of Procedure in which the Commission may sit en banc. Neither is it shown that the present controversy is a case where a division is not authorized to act nor a situation wherein the members of the First Division unanimously voted to refer the subject case to the Commission en banc. Clearly, the Commission en banc, under the circumstances shown above, can not be the proper forum which the matter concerning the assailed interlocutory orders can be referred to. In a situation such as this where the Commission in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is not permissible under its present rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court. Nevertheless, the resolution of this second issue is not decisive in the disposition of the instant case. What we considered here is the fact that the respondent COMELEC First Division committed grave abuse of discretion tantamount to lack of jurisdiction in admitting the belatedly filed answer with counter-protest of private respondent Espinosa. ACCORDINGLY, the petition is hereby GRANTED. The Order dated July 26, 1995 admitting the answer with counter-protest of the private respondent as well as the other related orders, in so far as they pertain to the admission of the answer with counter-protest, are hereby declared void for having been issued without jurisdiction. The respondent COMELEC First Division is hereby directed to proceed

with the hearing of the protest case with utmost dispatch without considering the answer with counter-protest of the private respondent. SO ORDERED. G.R. Nos. 141952-53. April 20, 2001.] RODOLFO DUMAYAS, JR., petitioner, vs. COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF THE MUNICIPALITY OF CARLES, PROVINCE OF ILOILO and FELIPE BERNAL, JR., respondent. Hector P. Teodosio for petitioner. The Solicitor General for public respondent. Antonio P. Pacheo for private respondent. SYNOPSIS Petitioner Dumayas, Jr. and respondent Bernal, Jr. were rival candidates for the position of mayor in Carles, Iloilo last May 11, 1998 synchronized elections. During the canvassing of votes petitioner protested the inclusion of some of the election returns before the Municipal Board of Canvassers (MBC). The MBC denied petitioner's objection to the inclusion, hence, he filed a Notice of Appeal. The appeal was given due course by the Comelec Second Division and rendered a resolution in favor of exclusion of the returns in question. Respondent Bernal moved for the reconsideration of the resolution before the Comelec en banc. Despite presentation of the certification from the Comelec en banc that there was a pending motion for reconsideration of the resolution of the Comelec Second Division, petitioner was proclaimed as winner. Thereafter, respondent Bernal immediately filed an urgent motion to declare void ab initio the proclamation of petitioner, which the latter opposed. The duly proclaimed vice-mayor for his part filed an action for quo warranto against the petitioner and said action included respondent Bernal as one of the petitioners. Petitioner, therefore, filed a motion to expunge respondent's motions filed before the Comelec on the ground of abandonment due to the filing of the action before the regular court. The Comelec en banc denied petitioner's motion and at the same time declared petitioner's proclamation as null and void. Respondent Bernal was proclaimed by the newly constituted MBC as the duly elected Mayor of the Municipality of Carles, thereby unseating petitioner Dumayas. Hence, this instant special civil action. aTEAHc The challenged resolution was affirmed by the Supreme Court. The petition was dismissed for lack of merit. The respondent Commission did not err when it refused to consider that the motions of respondent Bernal were abandoned by the filing of the quo warranto petition. Such petition could not be deemed as proper remedy in favor of respondent Bernal even if his name was included in the title of the petition. Also, the Court held that the Comelec en banc was correct in reversing the ruling of

the Second Division. The appeal brought by the petitioner from the order of inclusion issued by the MBC should have been dismissed by the Division since the grounds for exclusion relied upon by the petitioner were not proper in a preproclamation case, which is summary in nature. SYLLABUS 1. CONSTITUTIONAL LAW; ELECTIONS; COMMISSION ON ELECTIONS (COMELEC); RETIREMENT OF MEMBERS BEFORE PROMULGATION OF JUDGMENT; EFFECT ON DECISION SIGNED EARLIER; APPLICATION IN CASE AT BAR. In Jamil vs. Commission on Elections, we held that a decision becomes binding only after its promulgation. If at the time it is promulgated, a judge or member of the collegiate court who had earlier signed or registered his vote has vacated office, his vote on the decision must automatically be withdrawn or cancelled. Accordingly, the votes of Commissioners Gorospe and Guiani should merely be considered as withdrawn for the reason that their retirement preceded the resolution's promulgation. The effect of the withdrawal of their votes would be as if they had not signed the resolution at all and only the votes of the remaining commissioners would be properly considered for the purpose of deciding the controversy. However, unless the withdrawal of the votes would materially affect the result insofar as votes for or against a party is concerned, we find no reason for declaring the decision a nullity. In the present case, with the cancellation of the votes of retired Commissioners Gorospe and Guiani, the remaining votes among the four incumbent commissioners at the time of the resolution's promulgation would still be 3 to 1 in favor of respondent. Noteworthy, these remaining Commissioners still constituted a quorum. In our view, the defect cited by petitioner does not affect the substance or validity of respondent Commission's disposition of the controversy. The nullification of the challenged resolution, in our view, would merely prolong the proceedings unnecessarily. aIcDCT 2. ID.; ID.; ELECTION PROTEST; PRECLUDES FILING OF PRE-PROCLAMATION CONTROVERSY; EXCEPTIONS. As a general rule, the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. The reason for this rule is that once the competent tribunal has acquired jurisdiction of an election protest or a petition for quo warranto, all questions relative thereto will have to be decided in the case itself and not in another proceeding, so as to prevent confusion and conflict of authority. Nevertheless, the general rule is not absolute. It admits of certain exceptions, as where: (a) the board of canvassers was improperly constituted; (b) quo warranto was not the proper remedy; (c) what was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation; (d) the filing of a quo warranto petition or an election protest was expressly made without

prejudice to the pre-proclamation controversy or was made ad cautelam; and (e) the proclamation was null and void. ATSIED 3. ID.; ID.; ID.; DISTINGUISHED FROM PETITION FOR QUO WARRANTO. In Samad vs. COMELEC, we explained that the petition for quo warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. An election protest is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns. It raises the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office. 4. ID.; ID.; ID.; FALSIFICATION OF ELECTION RETURN, AS GROUND; CASE AT BAR. Well-entrenched is the rule that findings of fact by the COMELEC or any other administrative agency exercising particular expertise in its field of endeavor, are binding on this Court. 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 of which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy is a regular election protest, not a pre-proclamation controversy. In the present case, petitioner barely alleged that the preparation of said returns was attended by threats, duress, intimidation or coercion without offering any proof, other than the affidavits mentioned above, that these had affected the regularity or genuineness of the contested returns. Absent any evidence appearing on the face of the returns that they are indeed spurious, manufactured or tampered with, the election irregularities cited by petitioner would require the reception of evidence aliunde which cannot be done in a pre-proclamation controversy such as the one initiated by petitioner. Returns can not be excluded on mere allegation that the returns are manufactured or fictitious when the returns, on their face, appear regular and without any physical signs of tampering, alteration or other similar vice. If there had been sham voting or minimal voting which was made to appear as normal through falsification of the election returns, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy. CcAHEI DECISION QUISUMBING, J p: In this special civil action, petitioner Rodolfo Dumayas, Jr., seeks to nullify the Resolution promulgated March 2, 2000 by the Commission on Elections (COMELEC) en banc, reversing that of the Second Division dated August 4, 1998, which annulled the petitioner's proclamation as Municipal Mayor of Carles, Iloilo. TSIEAD The antecedent facts of the case, as found by the COMELEC en banc, are as follows:

Petitioner Dumayas, Jr. and respondent Bernal, Jr. were rival candidates for the position of mayor in Carles, Iloilo last 11 May 1998 synchronized elections. During the canvassing on 13 May 1998, election returns for precincts nos. 61A, 62A, and 63A/64A all of Barangay Pantalan were protested for inclusion in the canvass before the Municipal Board of Canvassers (MBC for brevity) by petitioner-appellant Dumayas Jr. The grounds relied upon for their exclusion are all the same that is, "violation of Secs. 234, 235, 236 of the Omnibus Election Code and other election laws; acts of terrorism, intimidation, coercion, and similar acts prohibited by law." Appellant Dumayas, Jr. submitted his evidence to the Board of Canvassers on 14 May 1998 which consist of (a) the joint affidavits executed by LAMMP watchers for precinct 61A: Teresita Oblido, Reyland de la Rosa, and Armando Flores [signed by Oblido and Flores only]; (b) affidavit of petitioner's supporter Virgilisa Capao; (c) joint affidavit of precinct 63A watcher Nona Dichosa and precinct 62A watcher Daniel Carmona; (d) blotter report dated 12 May 1998 of Carles PNP, Iloilo; and (d) corroborating affidavit of LAMMP supporter Honorato Gallardo. All the affidavits submitted by petitioner contain similar attestations such as: certain local baranggay (sic) officials were inside the polling place during the casting and counting of votes, or acted as watcher of respondent; SPO3 Gilbert Sorongon who was in shorts and t-shirt armed with an armalite roamed around and inside the polling places; a CVO in uniform was roaming precinct 63A; the presence of the public officials posed threat and intimidation driving most of the watchers of other political parties away; the BEIs were so intimidated and coerced that no election return was prepared simultaneous with the tallying; the election returns were prepared under duress; the voters were coerced to vote for certain favored candidates especially herein respondent; petitioner's watchers were made to sign or affix their thumbmarks on the already prepared election returns; in precinct 63A/64A, the voting ended at almost 9:00 P.M. without the BEI members writing the names of such voters. Petitioner also submitted a certification issued by PO3 Tito Billones, Desk Officer of PNP Carles representing the blotter report (extracted from the police log book) which states that on 12 May 1998, Virgilisa Capao reported to the Police Station of Carles, Iloilo that PO3 Sorongon and Brgy. Capt. Mahilum entered Precinct 63A with (sic) the company of other CVO and Brgy. Kagawad during election. And that these people gravely intimidated the voters by telling them the names of the candidates they should vote for. It also states that PO3 Sorongon was not in his prescribed uniform when seen with hand grenades hanging on his neck and carrying an armalite roaming inside and outside the polling place. On the other hand, respondent Bernal, Jr. in vehemently denying the allegations of petitioner, submitted joint affidavits of the members of the different Boards of Election Inspectors for precinct nos. 61A, 62A and 63A/64A.

xxx

xxx

xxx

All the supplemental affidavits of the different BEIs categorically declared that the elections in their respective precincts "starting from the start of the voting to its closing, to the counting of votes and to the preparation and submission of election returns" were peaceful, clean, orderly and no acts of terrorism, intimidation, coercion and similar acts prohibited by law was (sic) exerted on anybody including the voters and members of the BEIs. They all attested that the incidents alleged by petitioner's watchers did not happen. The alleged terrorism, coercion, or violation of election laws like the opening of ballots and reading the votes allegedly done by certain public officials like SPO3 Sorongon, Nody Mahilum, Anonia Barrios, Telesforo Gallardo and others are not true, the truth being that these people were only inside the polling place to exercise their right of suffrage. They also vehemently denied that the election returns were not simultaneously prepared with the tallying and counting of votes. They stressed that as public school teachers, they cannot risk their future and career and will not allow or tolerate anybody to make a mockery of the electoral process to (sic) which they were duly sworn to uphold. Nody Mahilum and PO3 Gilbert Sorongon also executed a joint affidavit denying the accusations of Dumayas, Jr. and his watchers stating therein that they only entered their respective precinct-polling place in order to exercise their right of suffrage and that the election in the three precincts of Barangay Pantalan was orderly, peaceful, and honest which (sic) truly reflects the will of the electorate. LLphil xxx xxx xxx 1

In the afternoon of May 14, 1998, the Municipal Board of Canvassers denied petitioner's objection to the inclusion of the contested returns and proceeded with the canvass. The results of the voting were as follows: DUMAYAS BERNAL

CONTESTED PRECINCTS Prec. 61A Prec. 62A 44 43 117 114 159 7,636 7,514

Prec. 63A/64A (clustered) 54 Uncontested prec[incts] total Over all total7,777 7,904 2

Petitioner filed a Notice of Appeal before the MBC on May 15, 1998.

The appeal was given due course by the COMELEC Second Division 3 which rendered a resolution dated August 4, 1998, disposing as follows: WHEREFORE, finding the preparation of the contested election returns to be tainted with irregularities, this Commission (SECOND DIVISION) RESOLVED, as it hereby RESOLVES, to EXCLUDE Election Return No. 3000976 from Precinct No. 61-A; Election Return No. 3000977 from Precinct No. 62-A; and Election return No. 3000978 from Precinct Nos. 63-A/64-A (clustered). Respondent Mun(i)cipal Board of Canvassers is hereby directed to RECONVENE and FINISH the canvass of the remaining or uncontested returns and thereafter, PROCLAIM the winning mayoralty candidate of Carles, Iloilo. SO ORDERED. 4 On August 10, 1998, private respondent Felipe Bernal, Jr., filed a motion for reconsideration of the above-cited resolution with the COMELEC en banc. On August 12, 1998, an order certifying that the motion for reconsideration and records of the case were elevated to the COMELEC en banc was signed by Commissioner Julio F. Desamito and issued by the Clerk of the Commission. Pending resolution of the motion for reconsideration and pursuant to the resolution of the COMELEC Second Division, Election Officer Rolando Dalen set the reconvening of the MBC on August 13, 1998, for the continuation of canvass proceedings and proclamation of winning candidates for Vice-Mayor and Municipal Councilors of Carles, Iloilo. No winner for the position of Mayor was proclaimed since private respondent was able to present a copy of his motion for reconsideration before the MBC. The MBC then reset the date for reconvening of the board on August 17, 1998, after confirming by phone with COMELEC-Manila that a motion for reconsideration was indeed filed by private respondent. Thereafter, the MBC ruled that proclamation of the winning candidate for Mayor would proceed on August 17, 1998 unless private respondent could present a certification from the COMELEC that the motion for reconsideration was elevated to the COMELEC en banc. On August 17, 1998, despite presentation of the August 12, 1998 order, petitioner was proclaimed winner of the election after excluding from the canvass the election returns from the three contested precincts in accordance with the COMELEC Second Division Resolution. The MBC, with its Vice-Chairman dissenting, justified its act by reasoning that it did not receive an official copy of the order directing the elevation of the case to the banc. The following day, private respondent immediately filed an urgent motion to declare void ab initio the proclamation of petitioner on the ground that the resolution of the COMELEC Second Division was not yet final and executory. For his part, petitioner opposed both the motion for reconsideration and motion to declare void ab initio his

proclamation as Mayor of Carles, asserting that private respondent failed to show palpable errors to warrant reconsideration of said resolution and maintaining, at the same time, that his proclamation was legal since respondent failed to produce the certification required by the MBC. TDAHCS Meanwhile, on August 25, 1998, the duly-proclaimed Vice-Mayor Arnold Betita filed an action for quo warranto 5 against petitioner before the Regional Trial Court of Iloilo, Branch 66. Docketed as Spl. Civil Action No. 98-141, said petition included respondent Bernal as one of the petitioners together with Vice-Mayor Betita. On September 18, 1998, petitioner filed before the COMELEC en banc a motion to expunge respondent Bernal's motion for reconsideration and motion to declare petitioner's proclamation void ab initio, on the ground that respondent Bernal should be deemed to have abandoned said motions by the filing of Spl. Civil Action No. 98-141 which, according to petitioner, is a formal election protest via quo warranto brought before the regular courts. In a resolution dated August 24, 1999 but promulgated on March 2, 2000, the COMELEC en banc denied petitioner's motion to expunge, thus: WHEREFORE, premises considered, the Resolution of the Second Division is hereby REVERSED and SET ASIDE and the proclamation of Rodolfo Dumayas, Jr. is hereby ANNULLED. A new Municipal Board of Canvassers of Carles, Iloilo is hereby constituted with the following members: Atty. Nelia Aureus, Chairman; Atty. Rosel Abad, Vice-Chairman; and Atty. Manuel Lucero, Third Member all of Election Contests and Adjudication Department of the Commission. They are directed to convene at Session Hall of the COMELEC Main Office, Manila on the tenth (10th) day from the date of promulgation of this Resolution with notice to the parties. The new board of canvassers shall complete the canvassing of all the returns and proceed with the proclamation of the true winner for the position of mayor of Carles, Iloilo. Petitioner Rodolfo Dumayas, Jr. is hereby directed to cease and desist from performing the functions of the office of mayor of Carles, Iloilo. Election Officer Rolando Dalen is hereby directed to bring to the Commission's Main Office the election returns of Carles, Iloilo which need to be canvassed and the other election documents necessary for the canvassing and proclamation and turn them over to the new board of canvassers. The Law Department is directed to investigate the election offense allegedly committed by PO3 Gilbert Sorongon on election day. Let the Deputy Executive Director for Operations of the Commission implement this Resolution with dispatch giving a copy thereof to the Secretary of the Department of Interior and Local Government. SO ORDERED. 6

On March 13, 2000, respondent Bernal, Jr. was proclaimed by the newly-constituted Municipal Board of Canvassers as the duly-elected Mayor of the Municipality of Carles, thereby unseating petitioner Dumayas. Hence, this instant special civil action where he alleges that: A. RESPONDENT COMMISSION ERRED IN NOT HOLDING THAT, PRIVATE RESPONDENT FELIPE BERNAL JR. IS DEEMED TO HAVE ABANDONED HIS MOTION FOR RECONSIDERATION BEFORE THE COMMISSION ON ELECTION EN BANC CONSIDERING THAT PRIVATE RESPONDENT, TOGETHER WITH ARNOLD BETITA FILED AN ELECTION CASE THRU A QUO WARRANTO, BEFORE THE REGIONAL TRIAL COURT OF ILOILO BRANCH 66, DOCKETED AS CASE NO. 98-141. B. RESPONDENT COMMISSION ERRED IN UPHOLDING THE INCLUSION FOR CANVASS THE THREE ELECTION RETURNS FOR PRECINCT NOS. 61-A, 62-A, and 63A/64-A (CLUSTERED) BY THE MUNICIPAL BOARD OF CANVASSERS OF CARLES, ILOILO NOTWITHSTANDING THE FACT THAT THERE IS CLEAR AND SUFFICIENT EVIDENCE TO SHOW THAT THE ELECTION RETURNS FOR THESE THREE PRECINCT(S) WERE PREPARED UNDER DURESS AND NOT PREPARED SIMULTANEOUSLY WITH THE COUNTING OF VOTES. C. THE RESOLUTION PROMULGATED ON MARCH 2, 2000 IS ILLEGAL AS IT WAS VIOLATIVE OF ARTICLE IX (A) SECTION 7 OF THE CONSTITUTION CONSIDERING THAT ONLY FOUR COMMISSIONERS VOTED TO REVERSE THE RESOLUTION DATED AUGUST 4, 1998 OF THE SECOND DIVISION COMMISSION ON ELECTION AND THAT, TWO COMMISSIONER(S) HAVE ALREADY RETIRED, AT THE TIME OF THE PROMULGATION. 7 The following are the issues to be resolved: (1) Should respondent Bernal, who was named as petitioner in the quo warranto proceedings commenced before the regular court, be deemed to have abandoned the motions he had filed with respondent Commission? (2) Did the COMELEC err in ordering the inclusion of the contested election returns in the canvassing of ballots? (3) In view of the retirement of Commissioners Gorospe and Guiani before the date of the promulgation of the assailed resolution on March 2, 2000, should said resolution be deemed null and void for being violative of Article IX-A, Section 7 of the 1987 Constitution? ATcEDS We shall first discuss the third issue. Petitioner claims that March 2, 2000 Resolution of the COMELEC is void because Commissioners Manolo Gorospe and Japal Guiani have already retired on the date of its promulgation, even if they had participated earlier in the deliberations of the case and signed the resolution dated August 24, 1999. Petitioner submits that this defect invalidated the entire decision of the Commission and that accordingly, a new vote should be taken to settle the matter. In Jamil vs. Commission on Elections, 8 we held that a decision becomes binding only after its promulgation. If at the time it is promulgated, a judge or member of

the collegiate court who had earlier signed or registered his vote has vacated office, his vote on the decision must automatically be withdrawn or cancelled. Accordingly, the votes of Commissioners Gorospe and Guiani should merely be considered as withdrawn for the reason that their retirement preceded the resolution's promulgation. The effect of the withdrawal of their votes would be as if they had not signed the resolution at all and only the votes of the remaining commissioners would be properly considered for the purpose of deciding the controversy. However, unless the withdrawal of the votes would materially affect the result insofar as votes for or against a party is concerned, we find no reason for declaring the decision a nullity. In the present case, with the cancellation of the votes of retired Commissioners Gorospe and Guiani, the remaining votes among the four incumbent commissioners at the time of the resolution's promulgation would still be 3 to 1 in favor of respondent. Noteworthy, these remaining Commissioners still constituted a quorum. In our view, the defect cited by petitioner does not affect the substance or validity of respondent Commission's disposition of the controversy. The nullification of the challenged resolution, in our view, would merely prolong the proceedings unnecessarily.

Now, regarding the first issue raised by petitioner. Did respondent Bernal effectively abandon his pending motions before the COMELEC en banc by the filing of Spl. Civil Action No. 98-141? Petitioner's contention that Bernal did appears to us untenable. As a general rule, the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. The reason for this rule is that once the competent tribunal has acquired jurisdiction of an election protest or a petition for quo warranto, all questions relative thereto will have to be decided in the case itself and not in another proceeding, so as to prevent confusion and conflict of authority. 9 Nevertheless, the general rule is not absolute. It admits of certain exceptions, as where: (a) the board of canvassers was improperly constituted; (b) quo warranto was not the proper remedy; (c) what was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation; (d) the filing of a quo warranto petition or an election protest was expressly made without prejudice to the pre-proclamation controversy or was made ad cautelam; and (e) the proclamation was null and void. 10 An examination of the petition filed primarily by Vice-Mayor Betita with the Regional Trial Court of Iloilo City reveals that it is neither a quo warranto petition under the Omnibus Election Code nor an election protest. In Samad vs. COMELEC 11 , we explained that a petition for quo warranto under the Omnibus Election Code raises

in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. An election protest is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns. It raises the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office. The allegations contained in Betita's petition before the regular court do not present any proper issue for either an election protest or a quo warranto case under the Omnibus Election Code. Spl. Civil Action No. 98-141 appears to be in the nature of an action for usurpation of public office brought by Betita to assert his right to the position of Mayor pursuant to the rules on succession of local government officials contained in the Local Government Code. 12 Although said petition is also denominated as a quo warranto petition under Rule 66 of the Rules of Court, it is different in nature from the quo warranto provided for in the Omnibus Election Code where the only issue proper for determination is either disloyalty or ineligibility of respondent therein. Neither can it be considered as an election protest since what was put forth as an issue in said petition was petitioner's alleged unlawful assumption of the office of Mayor by virtue of his alleged illegal proclamation as the winning candidate in the election. aHDTAI A closer look at the specific allegations in the petition disclose that Spl. Civil Action No. 98-141 is actually an action for the annulment of petitioner's proclamation on the ground of illegality and prematurity. This conclusion is consistent with the rule that the nature of the action is determined by the averments in the complaint or petition 13 and not the title or caption thereof. The material stipulations of the petition substantially state: 13. That when the Board of Canvassers convened in the afternoon and despite the submission of the copy of the order certifying the Motion for Reconsideration to the COMELEC En Banc and in violation of the Comelec Rules and Procedure and due to the threat received by the Board, Mr. Dalen, the Chairman of the Board and Mr. Serafin Provido, Jr. signed the Certificate of Proclamation proclaiming respondent as winner of the elections for Mayor. Mr. Deony Cabaobao did not signed (sic) the said Certificate of Proclamation as he dissented to (sic) the decision to proclaim respondent; 14. The proclamation, therefore, of respondent is illegal and null and void from the very beginning for it was done in violation of law and under duress. The affidavit of Mr. Serafin Provido, Jr. a member of the Board of Canvassers showing duress is hereto attached as Annex "C"; 15. On account of the illegal proclamation of the respondent said proclamation does not vest any right or authority for him to sit as Mayor of the town of Carles

thus when he sits as such Mayor he usurps, intrudes into, and unlawfully holds and exercise(s) a public office without authority; 16. The authority to act as mayor for and in the absence of the duly proclaimed mayor is vested on petitioner Betita pursuant to law; 17. That the continued unlawful exercise by the respondent of the position of mayor of the town of Carles will cause great and irreparable damage to the petitioners, particularly petitioner Betita, who pursuant to law is entitled to act as Mayor of the town of Carles and the people of Carles who pays his salaries unless he be restrained or enjoined from sitiing (sic) as such Mayor; xxx xxx xxx 14

Thus, respondent Commission did not err, much less abuse its discretion, when it refused to consider as abandoned Bernal's motion for reconsideration and urgent motion to declare petitioner's proclamation as void ab initio. Note that under the allegations cited above, the determination of Betita's right would ultimately hinge on the validity of petitioner's proclamation in the first place. To repeat, the "quo warranto" petition brought by Vice-Mayor Betita is a petition to annul petitioner's proclamation over which COMELEC exercises original exclusive jurisdiction. Consequently, it could not be deemed as a proper remedy in favor of respondent Bernal, Jr. even if his name was included in the title of said petition. We now consider whether the MBC's proclamation of petitioner Dumayas as the winning candidate in the 1998 mayoralty election is null and void. For where a proclamation is null and void, it is no proclamation at all such that the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation. 15 Although petitioner's proclamation was undertaken pursuant to the resolution of the COMELEC's Second Division, it appears plain to us that the latter grievously erred in ordering the exclusion of the contested returns from Precincts 61A, 62A and 63A/64A (clustered). On this score, the Comelec en banc correctly reversed the Second Division by holding that petitioner Dumayas failed to justify the exclusion of said returns on the ground of duress, intimidation, threat or coercion. We note that the only evidence submitted by petitioner to prove said irregularities were selfserving affidavits executed by his watchers and supporters. Aside from the fact that these allegations were countered by opposing affidavits made by the members of the Boards of Election Inspectors who are presumed to have regularly performed their duties 16 and who categorically denied the allegations, the election returns were also observed to be genuine, clean, signed and/or thumbmarked by the proper officials and watchers. 17 Well-entrenched is the rule that findings of fact by the COMELEC, or any other administrative agency exercising particular expertise in its field of endeavor, are

binding on this Court. 18 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 of which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy is a regular election protest, not a pre-proclamation controversy. 19 In the present case, petitioner barely alleged that the preparation of said returns was attended by threats, duress, intimidation or coercion without offering any proof, other than the affidavits mentioned above, that these had affected the regularity or genuineness of the contested returns. Absent any evidence appearing on the face of the returns that they are indeed spurious, manufactured or tampered with, the election irregularities cited by petitioner would require the reception of evidence aliunde which cannot be done in a pre-proclamation controversy such as the one initiated by petitioner. Returns can not be excluded on mere allegation that the returns are manufactured or fictitious when the returns, on their face, appear regular and without any physical signs of tampering, alteration or other similar vice. If there had been sham voting or minimal voting which was made to appear as normal through falsification of the election returns, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy. 20 In sum, we hold that the COMELEC en banc did not commit grave abuse of discretion in reversing the ruling of its Second Division. The appeal brought by petitioner from the order of inclusion issued by the MBC should have been dismissed by that Division right away, since the grounds for exclusion relied upon by petitioner are not proper in a pre-proclamation case, which is summary in nature. ITScHa WHEREFORE, the instant petition is DISMISSED for lack of merit, public respondent having committed no grave abuse of discretion. Its challenged resolution dated August 24, 1999 is AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 165691. June 22, 2005.] ROBERT Z. BARBERS, petitioner, vs. COMMISSION ON ELECTIONS, NATIONAL BOARD OF CANVASSERS FOR SENATORS AND PARTY-LIST REPRESENTATIVES, and RODOLFO G. BLAZON, respondents. Brillantes Nachura Navarro Jumamil Arcilla Escolin Martinez & Vivero Law Offices for petitioner. Dencio B. Bargas & Hilario U. delos Santos for Sen. R.G. Biazon. SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; ESSENTIAL REQUISITES. Certiorari as a special civil action is available only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, and (b) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law to annul or modify the proceeding. There must be capricious, arbitrary and whimsical exercise of power for certiorari to prosper. HaIESC 2. ID.; ID.; PROHIBITION; ESSENTIAL REQUISITES. On the other hand, prohibition as a special civil action is available only if the following essential requisites concur: (a) the proceedings of the tribunal, corporation, board, officer or person exercising judicial, quasi-judicial or ministerial functions are without or in excess of its or his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and (b) there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law to compel the respondent to desist from further proceedings in the action. 3. ID.; ID.; CERTIORARI AND PROHIBITION; WILL NOT LIE WHERE THERE IS AN AVAILABLE AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW TO ANNUL THE ASSAILED PROCEEDINGS. Certiorari and prohibition will not lie in this case considering that there is an available and adequate remedy in the ordinary course of law to annul the COMELEC's assailed proceedings. We take pains to emphasize that after the proclamation, Barbers should have filed an electoral protest before the SET. 4. POLITICAL LAW; LEGISLATIVE DEPARTMENT; SENATE ELECTORAL TRIBUNAL; HAS EXCLUSIVE JURISDICTION OVER ELECTION CONTESTS RELATING TO MEMBERS OF THE SENATE. The word "sole" in Section 17, Article VI of the 1987 Constitution and Rule 12 of the Revised Rules of the Senate Electoral Tribunal ("SET") underscores the exclusivity of the SET's jurisdiction over election contests relating to members of the Senate. The authority conferred upon the SET is categorical and complete. It is therefore clear that this Court has no jurisdiction to entertain the instant petition. Since Barbers contests Biazon's proclamation as the 12th winning senatorial candidate, it is the SET which has exclusive jurisdiction to act on Barbers' complaint. 5. ID.; ELECTIONS; ELECTION PROTEST WITH THE SENATE ELECTORAL TRIBUNAL, PROPER REMEDY TO CONTEST THE PROCLAMATION OF THE CANDIDATE IN THE CONGRESSIONAL ELECTIONS. In Pangilinan, we ruled that "where the candidate has already been proclaimed winner in the congressional elections, the remedy of petitioner is to file an electoral protest with the Electoral Tribunal of the House of Representatives." In like manner, where as in the present case, Barbers assails Biazon's proclamation as the 12th duly elected Senator, Barbers' proper recourse is to file a regular election protest with the SET. CTSDAI

6. ID.; ID.; AN INCOMPLETE CANVASS OF VOTES IS ILLEGAL AND CANNOT BE THE BASIS OF A SUBSEQUENT PROCLAMATION. An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation. A canvass is not reflective of the true vote of the electorate unless the board of canvassers considers all returns and omits none. However, this is true only where the election returns missing or not counted will affect the results of the election. 7. ID.; ID.; COMMISSION ON ELECTIONS; ENJOYS THE PRESUMPTION OF GOOD FAITH AND REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTY; CASE AT BAR. In the present case, the report which the COMELEC Supervisory Committee submitted on 29 June 2004 shows that Barbers obtained 6,736 votes in areas where results were not included in the national canvass. As for Biazon, he garnered 2,263 votes. Also, the Supervisory Committee's report shows that the total number of registered voters in areas where special elections were still to be conducted was only 2,931, covering only 19 precincts in three municipalities. As correctly stated by the COMELEC: From the above summation, the lead of private respondent over petitioner undoubtedly was reduced to six thousand two hundred twelve (6,212). Assuming that the remaining uncanvassed votes of two thousand nine hundred thirty-one (2,931) in places where special elections are yet to be held were all votes in favor of petitioner Barbers, nevertheless, this will not materially affect the results of the election. To say the least, even if private respondent's lead was decreased to three thousand two hundred ninety-nine (3,299) votes, he remains to be the winner and therefore the lawful occupant of the 12th slot for the senatorial position. It suffices to say that the COMELEC based its ruling in the assailed Resolutions on official COMELEC records. The COMELEC enjoys the presumption of good faith and regularity in the performance of official duty. Since the election returns not included in the national canvass as well as the results of the special elections to be held would not materially affect the results of the elections, it is immaterial whether the COMELEC used PCOCs or MCOCs in the subsequent canvass. 8. ID.; ID.; SENATE ELECTORAL TRIBUNAL HAS SOLE JURISDICTION OVER DISPUTE RELATING TO THE ELECTION RETURNS OF MEMBERS OF THE SENATE. The alleged invalidity of Biazon's proclamation involves a dispute or contest relating to the election returns of members of the Senate. Indisputably, the resolution of such dispute falls within the sole jurisdiction of the SET. For this Court to take cognizance of the electoral protest against Biazon would usurp the constitutional functions of the SET. In addition, the COMELEC did not commit any grave abuse of discretion in issuing the assailed Resolutions affirming Biazon's proclamation since the uncanvassed returns and the results of the special elections to be held would not materially affect the results of the elections. CTHDcS DECISION CARPIO, J p:

The Case This is a petition for certiorari 1 and prohibition with prayer for temporary restraining order and preliminary injunction to nullify the Resolution dated 6 July 2004 of the Special Division of the Commission on Elections ("COMELEC"), 2 as well as the Resolution dated 25 October 2004 of the COMELEC en banc. 3 The Resolutions affirmed the proclamation of the COMELEC sitting en banc as the National Board of Canvassers. ("NBC") declaring Rodolfo G. Biazon ("Biazon") as the duly elected 12th Senator in the 10 May 2004 National and Local Elections. IDScTE The Facts Robert Z. Barbers ("Barbers") and Biazon were candidates for re-election to the Senate of the Philippines in the 10 May 2004 Synchronized National and Local Elections ("elections"). On 24 May 2004, the COMELEC sitting en banc as the NBC for the election of Senators promulgated Resolution No. NBC 04-002 proclaiming the first 11 duly elected Senators in the elections. The COMELEC as the NBC promulgated the Resolution based on the Certificates of Canvass ("COCs") submitted by the following: (a) 78 Provincial Boards of Canvassers; (b) 7 City Boards of Canvassers of cities comprising one or more legislative districts; (c) 13 City Board of Canvassers from the National Capital Region; (d) 2 District Boards of Canvassers from Metro Manila; (e) 74 Special Boards of Canvassers for Overseas Absentee Voting; and (f) 1 Board of Canvassers for Local Absentee Voting. The COMELEC declared that it would proclaim the remaining 12th winning candidate for Senator after canvassing the remaining unsubmitted COCs. 4 On 2 June 2004, the COMELEC promulgated Resolution No. NBC 04-005 proclaiming Biazon as "the 12th ranking duly elected 12th Senator of the Republic of the Philippines in the May 10, 2004 national and local elections, to serve for a term of 6 years, beginning on June 30, 2004 in accordance with Article VI, Section IV of the Constitution of the Philippines." The COMELEC stated that after the canvass of the supplemental Provincial COCs from Maguindanao (Cotabato City), Lanao del Sur and one barangay in Nueva Vizcaya, Biazon obtained 10,635,270 votes nationwide. On the other hand, Barbers obtained 10,624,585 votes. Thus, Biazon obtained 10,685 more votes than Barbers. The COMELEC stated that this "difference will not materially be affected by the votes in certain precincts where there was failure of elections." 5 Claiming that Biazon's proclamation was void, Barbers filed a petition to annul the proclamation of Biazon as Senator of the Republic of the Philippines with the COMELEC on 7 June 2004. The petition, docketed as SPC Case No. 04-258, was assigned to a Special Division of the COMELEC. 6

In his petition, Barbers asserted that the proclamation of Biazon was "illegal and premature being based on an incomplete canvass." Barbers asserted that the remaining uncanvassed COCs and votes and the results of the special elections, which were still to be conducted, would undoubtedly affect the results of the elections. 7 In his Comment/Answer, Biazon asserted that: (1) the First Division of the COMELEC has no jurisdiction to review, modify, or set aside what the COMELEC sitting en banc as the NBC for Senators has officially performed, which is the promulgation of Resolution No. NBC 04-005; (2) since the COMELEC has proclaimed Biazon on 2 June 2004 in Resolution No. NBC 04-005 as the duly elected 12th Senator and Biazon has taken his oath of office on 30 June 2004, the Senate Electoral Tribunal, not the COMELEC, has jurisdiction to entertain the present petition; (3) with Biazon's admitted and established margin of 10,685 votes, the votes from the alleged uncanvassed COCs and the votes still to be cast in the special elections which were still to be conducted would not substantially affect the results of the election for the 12th and last slot for Senator; and (4) the NBC committed a manifest error in crediting to Barbers a total of 34,711 votes from the province of Lanao del Sur while crediting to Biazon only 1,428 votes from the supplemental Provincial COCs for Lanao del Sur despite the existence and availability of the Municipal COCs for Balabagan and Tagoloan, Lanao del Sur. 8 On 9 June 2004, Barbers filed an Omnibus Motion for Immediate Service of Summons, for Suspension of the Effects of Proclamation, and to Set Case for Hearing. Barbers asserted that an immediate resolution of the present case was necessary because the term of office of Senators would commence on 30 June 2004. Barbers further claimed that there were Municipal COCs still to be included in the senatorial canvass and special elections still to be held in certain municipalities involving a total of 29,219 votes. Thus, Barbers insisted that "suspension of the effects of the proclamation" of Biazon was necessary. Barbers stressed that there could be no valid proclamation based on an incomplete canvass. 9 On 6 July 2004, the COMELEC issued the first assailed Resolution, disposing as follows: WHEREFORE, premises considered, the Commission (Special Division) hereby DENIES the petition to annul the proclamation of respondent RODOLFO G. BIAZON for LACK OF MERIT. cHaDIA ACCORDINGLY, the Special Division RESTATES the proclamation of the Commission on Elections sitting en banc as the National Board of Canvassers declaring RODOLFO G. BIAZON as the duly elected 12th Senator of the Republic of Philippines in the May 10, 2004 National and Local Elections. SO ORDERED. 10

Barbers filed a motion for reconsideration 11 which the COMELEC en banc denied in the second assailed 25 October 2004 Resolution. The COMELEC's Ruling In its 6 July 2004 Resolution, the COMELEC (Special Division) denied Barbers' petition, thus: The instant petition is not a pre-proclamation case as the issues raised herein clearly are not among those enumerated under Section 34 of COMELEC Resolution No. 6669. Neither is it a protest case because the ground cited in the petition is not proper for protest although a proclamation has already been made. It is a petition, as entitled, to annul proclamation based on alleged incomplete canvass. The power to annul proclamation is an exclusive power of the Commission vested upon it by the Constitution, which states that the Commission shall exercise the power to "Decide except those involving the right to vote, all questions affecting elections . . ." (Article IX-C, Section 2 (3). As held in the Case of Aguam vs. COMELEC, the COMELEC shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. The Constitution enjoins the COMELEC to decide, saving those involving the right to vote, all administrative questions, affecting elections. Corollary thereto, the court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation illegally made. IHCESD Records reveal that on June 2, 2004, the National Board of Canvassers (NBC), on the basis of the Certificates of Canvass submitted by seventy-eight (78) Provincial Board of Canvassers; seven (7) City Boards of Canvassers of cities comprising one or more legislative districts; thirteen (13) from the National Capital Region (NCR); two (2) from the District Boards of Canvassers of Metro Manila; seventy-four (74) from the Special Board of Canvassers for Overseas Absentee Voting; and one (1) from the Board of Canvassers for Local Absentee Voting, including the supplemental Provincial Certificates of Canvass from Maguindanao (Cotabato City), Lanao del Sur and Nueva Vizcaya (one barangay), declared that private respondent obtained ten million six hundred thirty-five thousand two hundred seventy (10,635,270) votes as against the ten million six hundred twenty-four thousand five hundred eighty-five (10,624,585) votes garnered by petitioner. On the basis of the number of votes garnered by private respondent, he was proclaimed on June 2, 2004 as the duly elected Senator in the recently concluded May 10, 2004 National and Local Elections.

However, after his proclamation, the Commission received Certificates of Canvass from the aforementioned provinces. The results of the votes for petitioner and private respondent, showed the following figures, to wit: PROVINCE NO. OF VOTES OBTAINED

PRECINCTS BARBERS 1. Maguindanao a. b. 2. South Upi Talitay 35 32 4,068 997 116 138 BIAZON

Sultan Kudarat a. Columbio 21 831 656

3.

Northern Samar a. Silvino Lobos 31 462 372

4.

Albay a. Ligao City 12 1,259 100

Total 6,736 2,263

Although special elections in Tinglayan, Kalinga were conducted on June 7, 2004, no voters voted, thus, there was no COC to canvass. CAaDTH On the other hand, special elections for the remaining places are yet to be conducted, namely: 1. Lanao del Sur a. b. c. d. 2. Bayang Balabagan Madalum 259 votes 375 votes 537 votes (3 precincts) (2 precincts) (4 precincts)

Kapai 197 votes

(1 precinct)

Maguindanao a. Kabuntalan 263 votes (1 precinct)

3.

Northern Samar a. Silvino Lobos Total 2,931 votes 1,300 votes (8 precincts)

From the foregoing data, petitioner and private respondent should be credited with the following number of votes, to wit: As canvassed by the NBC Not included in the PCOC where special elections were conducted BLAZON BARBERS 10,635,270 2,263 10,637,533 10,624,585 6,736 10,631,321 Total

From the above summation, the lead of private respondent over petitioner undoubtedly was reduced to six thousand two hundred twelve (6,212). Assuming that the remaining uncanvassed votes of two thousand nine hundred thirty-one (2,931) in places where special elections are yet to be held were all votes in favor of petitioner Barbers, nevertheless, this will not materially affect the results of the election. To say the least, even if private respondent's lead was decreased to three thousand two hundred ninety-nine (3,299) votes, he remains to be the winner and therefore the lawful occupant of the 12th slot for the senatorial position. 12 In its 25 October 2004 Resolution, the COMELEC en banc denied Barbers' motion for reconsideration, thus: We maintain Our declaration and findings as established by the Special Division. After a judicious and thorough scrutiny of the records, We are more than convinced that respondent's proclamation was indeed, valid and operative. In the questioned resolution issued by the Special Division, We based our ruling on the official Comelec records, revealing that respondent's lead over petitioner was insurmountable regardless of the results from the delayed certificates of canvass and from the uncanvassed votes for the special elections. This ratiocination was very well explained in the assailed resolution and need not be reiterated herein. Unfortunately for petitioner, he failed in this motion to adduce evidence sufficient to overturn Our ruling and justify the prayer for reliefs. AEIcTD

It must be noted that, in a pleading, petitioner has raised the Report/Recommendation of the Supervisory Committee to buttress his claim that, indeed, there was incomplete canvass. Petitioner is invited to examine the said report closer, for the same shows the extent of irregularities that transpired in the subject towns and provinces such as Columbio, Sultan Kudarat, and Talitay, Maguindanao, rendering the supplemental provincial certificates of canvass dubious at the very least. For the town of Columbio, the Committee reported that: . . . Records with the ERSD show that the MCOC and corresponding SOV dated June 18 and 17, 2004, respectively, for the twenty-one (21) precincts used as basis for the supplemental PCOC are unsigned by the chairman of the municipal board of canvassers, but signed by the two other members. Please note that the two other members of the MBC who signed the SOV and MCOC used as basis of the supplemental PCOC are the members of the Pangamadun board all of whom were replaced by the Radam board as early as May 20, 2004. (emphasis supplied) On the other hand, the Committee noted that for the town of Talitay, thus: Atty. Wyne Asdala, Chairman of the Provincial Board of Canvassers for the Province of Maguindanao then submitted a supplemental provincial certificate of canvass dated June 16, 2004 containing the results from the municipalities of South Upi and Talitay. Per SOV attached to the supplemental PCOC, Barbers obtained 4,472 votes and Biazon, 455 votes for the municipality of Talitay. Records do not show which MCOC was used as basis by the Asdala board for the preparation of the supplemental PCOC. (emphasis supplied) CHTAIc And by exercising its prerogative and discretion, the Commission duly noted the said Committee's recommendation to "use only the MCOCs prepared by the duly constituted municipal boards of canvassers as basis for the provincial canvass in Sultan Kudarat and Maguindanao." At any rate, We likewise confirm the opinion of Commissioner Florentino A. Tuason, Jr., on the nature and ramifications of herein SPC Case for Annulment of Proclamation. Citing the case of Rasul vs. Comelec, the Honorable Supreme Court declared that In Pangilinan vs. Commission on Elections, this Court has ruled that 'where the candidate has already been proclaimed winner in the congressional elections, the remedy of petitioner is to file an electoral protest with the Electoral Tribunal of the House of Representatives.' In like manner, where as in this case, petitioner assails the Commission's resolution proclaiming the twelfth (12th) winning senatorial candidate, petitioner's proper recourse was to file a regular election protest which under the Constitution and the Omnibus Election Code exclusively pertains to the Senate Electoral Tribunal.

Under the Omnibus Election Code (OEC), following the clear enunciation of Section 242 and the immediately succeeding sections, it is clear that annulment of proclamation, be it partial or total, arises from the Commission's jurisdiction over pre-proclamation controversies. Republic Act (RA) No. 7166, qualifies such power of the Commission by so stating that a pre-proclamation contest may only apply in cases where there are "manifest errors" in the election returns or certificates of canvass, with respect to national elective positions such as herein case. To prove that the same is manifest, the errors must appear on the certificates of canvass or election returns sought to be corrected and/or objections thereto must have been made before the board of canvassers and specifically noted in the minutes of their administrative proceedings. (Chavez vs. Comelec, GR No. 150799, 03 February 2004) DHEACI Parties, therefore, ought to be careful in availing themselves of remedies lest they fall into a trap of their own making one that they cannot escape from. Nevertheless, granting arguendo that the present case is not a pre-proclamation case, as so painstakingly pointed out by petitioner, but one that is due to an incomplete canvass, and the relief sought emanates from the plenary power of the Commission, herein petitioner, sadly, failed to present convincing and legitimate evidence in support of his petition (including this motion for reconsideration). 13 Hence, this petition. The Issues Barbers raises the following issues for resolution: Whether or not public respondent COMELEC gravely abused its discretion, amounting to lack or excess of jurisdiction when it deliberately insisted in resorting to and in using and considering, for purposes of tallying/tabulation of the still uncanvassed election results, MERE improvised Municipal COCs, which are NONCANVASSED election documents, unauthentic, unreliable and dubious on their faces which documents were submitted, not to the NBC, but to a mere Comelec. Department [ERSD]; instead of availing and relying on official CANVASS documents PROVINCIAL COCs submitted to COMELEC, as the National Board of Canvassers for Senators. AcSEHT Whether or not the public respondent COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction when it first correctly recognized the undisputed fact that there was an INCOMPLETE CANVASS at the time that respondent Biazon was initially "proclaimed" PREMATURELY on June 2, 2004, but adamantly refused to rectify its VOID premature proclamation when it opted to reinstate the said sham proclamation of respondent Biazon, by anomalously resorting to and relying on, unauthentic, dubious and non-canvassed documents

[Municipal COCs], rather, than on the legal and lawful canvassed documents [PROVINCIAL COCs]. 14 The Court's Ruling The petition must fail. To our mind, the basic issue for resolution is whether this Court can take cognizance of this petition. Certiorari as a special civil action is available only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, and (b) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law to annul or modify the proceeding. There must be capricious, arbitrary and whimsical exercise of power for certiorari to prosper. 15 On the other hand, prohibition as a special civil action is available only if the following essential requisites concur: (a) the proceedings of the tribunal, corporation, board, officer or person exercising judicial, quasi-judicial or ministerial functions are without or in excess of its or his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and (b) there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law to compel the respondent to desist from further proceedings in the action. 16 Article VI, Section 17 of the 1987 Constitution provides: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organization registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. (Emphasis and underscoring supplied) ADEacC Rule 12 of the Revised Rules of the Senate Electoral Tribunal provides: RULE 12. Jurisdiction. The Senate Electoral Tribunal is the sole judge of all contests relating to the election, returns, and qualifications of the Members of the Senate. (Emphasis and underscoring supplied) In Pangilinan v. Commission on Elections, 17 we ruled that:

The Senate and the House of Representatives now have their respective Electoral Tribunals which are the "sole judge of all contests relating to the election, returns, and qualifications of their respective Members," thereby divesting the Commission on Elections of its jurisdiction under the 1973 Constitution over election cases pertaining to the election of the Members of the Batasang Pambansa (Congress). In Javier v. COMELEC, 18 we interpreted the phrase "election, returns and qualifications" as follows: The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns; and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy. (Emphasis supplied) HcDSaT The word "sole in Section 17, Article VI of the 1987 Constitution and Rule 12 of the Revised Rules of the Senate Electoral Tribunal ("SET") underscores the exclusivity of the SET's jurisdiction over election contests relating to members of the Senate. The authority conferred upon the SET is categorical and complete. It is therefore clear that this Court has no jurisdiction to entertain the instant petition. 19 Since Barbers contests Biazon's proclamation as the 12th winning senatorial candidate, it is the SET which has exclusive jurisdiction to act on Barbers' complaint. 20 In Pangilinan, 21 we ruled that "where the candidate has already been proclaimed winner in the congressional elections, the remedy of petitioner is to file an electoral protest with the Electoral Tribunal of the House of Representatives." 22 In like manner, where as in the present case, Barbers assails Biazon's proclamation as the 12th duly elected Senator, Barbers' proper recourse is to file a regular election protest with the SET. 23 Certiorari and prohibition will not lie in this case considering that there is an available and adequate remedy in the ordinary course of law to annul the COMELEC's assailed proceedings. We take pains to emphasize that after the proclamation, Barbers should have filed an electoral protest before the SET. While the resolution of the issues presented in this petition falls within the sole jurisdiction of the SET, still we opt to discuss them to show the absence of grave abuse of discretion on the part of COMELEC. Barbers claims that Biazon's 2 June 2004 proclamation as the 12th winning senatorial candidate is a nullity because it was based on an incomplete canvass.

Barbers asserts that the COMELEC's act of making such premature proclamation constituted grave abuse of discretion amounting to lack or excess of jurisdiction. Barbers also claims that the COMELEC gravely abused its discretion when, after having used Provincial Certificates of Canvass ("PCOCs") in the canvass of election results for Senators up to 2 June 2004, the COMELEC used the Municipal Certificates of Canvass ("MCOCs") in the "final tabulation of the uncanvassed results and that of the special elections yet to be held in certain parts of the country. 24 Barbers' arguments are specious. TEcCHD An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation. A canvass is not reflective of the true vote of the electorate unless the board of canvassers considers all returns and omits none. However, this is true only where the election returns missing or not counted will affect the results of the election. 25 The COMELEC, in promulgating its 2 June 2004 Resolution No. NBC 04-005 proclaiming Biazon as the 12th duly elected Senator, observed the following provisions of the Omnibus Election Code: SEC. 233. When the election returns are delayed, lost or destroyed. In case its copy of the election returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing election returns from the board of election inspectors concerned, or if said returns have been lost or destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the authentic copies of said election returns or certified copy of said election returns issued by the Commission, and forthwith direct its representative to investigate the case and immediately report the matter to the Commission. The board of canvassers, notwithstanding the fact that not all the election returns have been received by it, may terminate the canvass and proclaim the candidates elected on the basis of the available election returns if the missing election returns will not affect the results of the election. (Emphasis and underscoring supplied) On 5 May 2004, the COMELEC promulgated Resolution No. 6749, i.e., "General Instructions for the Canvass of Votes and Proclamation of the Results for Senators and Party List in the May 10, 2004 National and Local Elections." Section 9 of the Resolution provides: SEC. 9. Proclamation of results. Upon completion of the canvass, the Supervisory Committee and the watchers if available shall certify the final printout of results as canvassed. On the basis of the certified final printout, the NBC shall cause the preparation of, sign and approve the Certificate of Canvass and Proclamation, and proclaim the winning candidates for senators, certify the results of the election of the party-list system and proclaim the nominees of the parties which obtained the required percentage of votes. EcDSHT

Notwithstanding the fact that not all of the COCs have been received or canvassed the NBC may terminate the canvass if the missing COCs would no longer affect the results of the elections. (Emphasis and underscoring supplied) In the present case, the report which the COMELEC Supervisory Committee submitted on 29 June 2004 shows that Barbers obtained 6,736 votes in areas where results were not included in the national canvass. As for Biazon, he garnered 2,263 votes. 26 Also, the Supervisory Committee's report shows that the total number of registered voters in areas where special elections were still to be conducted was only 2,931, covering only 19 precincts in three municipalities. 27 As correctly stated by the COMELEC: From the above summation, the lead of private respondent over petitioner undoubtedly was reduced to six thousand two hundred twelve (6,212). Assuming that the remaining uncanvassed votes of two thousand nine hundred thirty-one (2,931) in places where special elections are yet to be held were all votes in favor of petitioner Barbers, nevertheless, this will not materially affect the results of the election. To say the least, even if private respondent's lead was decreased to three thousand two hundred ninety-nine (3,299) votes, he remains to be the winner and therefore the lawful occupant of the 12th slot for the senatorial position. 28 It suffices to say that the COMELEC based its ruling in the assailed Resolutions on official COMELEC records. The COMELEC enjoys the presumption of good faith and regularity in the performance of official duty. 29 Since the election returns not included in the national canvass as well as the results of the special elections to be held would not materially affect the results of the elections, it is immaterial whether the COMELEC used PCOCs or MCOCs in the subsequent canvass. STHAaD The alleged invalidity of Biazon's proclamation involves a dispute or contest relating to the election returns of members of the Senate. Indisputably, the resolution of such dispute falls within the sole jurisdiction of the SET. For this Court to take cognizance of the electoral protest against Biazon would usurp the constitutional functions of the SET. In addition, the COMELEC did not commit any grave abuse of discretion in issuing the assailed Resolutions affirming Biazon's proclamation since the uncanvassed returns and the results of the special elections to be held would not materially affect the results of the elections. WHEREFORE, we DISMISS the instant petition. No pronouncement as to costs. SIaHTD SO ORDERED. G.R. No. 95336. July 12, 1991.]

JUAN GARCIA RIVERA, petitioner, vs. COMMISSION ON ELECTIONS and JUAN MITRE GARCIA II, respondents. A. Florentino Dumlao, Jr. for petitioner. Mariano V . Baranda, Jr. for private respondent. SYLLABUS 1. CONSTITUTIONAL LAW; CONSTITUTIONAL COMMISSIONS; COMMISSION ON ELECTIONS; DECISIONS IN ELECTION CONTESTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY OFFICIALS MAY BE QUESTIONED IN THE SUPREME COURT VIA SPECIAL CIVIL ACTION OF CERTIORARI. In the Galido case (G.R. No. 95346, decided 18 January 1991) the Court held that the fact that Article IX (c), Section 2 (2) of the Constitution provides that decisions, final orders or rulings of the Commission on Elections in contests involving elective municipal and barangay officers are final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. The Court referred to the proceedings in the Constitutional Commission. Earlier, the Court had occasion to resolve the same issue in the case of Flores vs. COMELEC (G.R. No. 89604, 20 April 1990) where the Court stated that the "provision was not intended to divest the Supreme Court of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Constitution." NARVASA, J., dissenting: 1. CONSTITUTIONAL LAW; 1987 CONSTITUTION; CONSTITUTIONAL COMMISSIONS; COMMISSION ON ELECTIONS; FINAL DECISIONS OR ORDERS IN ELECTION CONTESTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY OFFICIALS CANNOT BE APPEALED TO SUPREME COURT; SPECIAL CIVIL ACTION OF CERTIORARI; UNAVAILING. There is no way by which a final judgment or order of the COMELEC in "election contests involving elective municipal and barangay offices" may be elevated to the Supreme Court. The Constitution prescribes none of the three (3) traditional modes of appeal as a procedure for the review of decisions or rulings of the COMELEC. It has singled out the special action of certiorari under Rule 65 as the sole method for the review of the COMELEC's judgments and rulings, in general. But even this mode of review is, by specific provision, eliminated as regards, particularly, "election contests involving elective municipal and barangay offices." It is legally impossible for a party aggrieved in such contests to appeal by any of the three (3) usual modes of appeal, none being provided for; and it is legally impossible for said party to resort to the mode of review prescribed for judgments and rulings of the COMELEC, generally: the special civil action of certiorari under Rule 65. It thus results that, as explicitly ordained by Section 7 of Article IX-C of the Constitution: "Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory and not appealable."

2. ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BAR. The Institution by the petitioner in this Court of the special civil action of certiorari at bar, in an effort to nullify and set aside the decision of the COMELEC en banc in the election contest between him and the private respondent Garcia involving the elective municipal office of mayor of Guinobatan on the theory that the COMELEC had acted without or in excess of jurisdiction or with grave abuse of discretion is totally unavailing and must be dismissed. For it is precisely that action which, to repeat, is the general mode of review of COMELEC decisions that is proscribed in the particular cases of election contests involving elective municipal and barangay offices. And it is entirely inutile to attempt to distinguish between certiorari as a mode of appeal and certiorari as a special civil action, considering that it is in truth the special civil action that is prescribed as the mode of appeal. REGALADO, J., concurring: 1. CONSTITUTIONAL LAW; CONSTITUTIONAL COMMISSIONS; COMMISSION ON ELECTIONS; DECISION IN CONTESTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY OFFICIALS; APPLICABILITY OF GENERAL RULE THAT WRIT OF CERTIORARI IS AVAILABLE AGAINST COMELEC DECISIONS. I find no reason why the same considerations and rationale authorizing an original action for certiorari under Section 7, Article IX-A of the Constitution that is, since the decisions, orders or rulings stated therein are unappealable, should not apply to the same determination of said commission under Section 2 (2), Article IX-C which are likewise unappealable. That Section 7, Article IX-A is supposed to be the general rule while Section 2 (2), Article IX-C is a special rule does not, to my mind, constitute a justification for a dichotomous treatment. Both rules, instead of being discrete and inconsistent, should be complimentary and consonant. If, under the situation envisioned in Section 7, Article IX-A the possibility of jurisdictional errors warrants availment of the extraordinary writ of certiorari, the same could just as well exist in the commission's dispositions stated in Section 2 (2), Article IX-C and likewise justify resort to the same writ. 2. ID.; ID.; ID.; ID.; DELIBERATIONS OF CONSTITUTIONAL COMMISSION SHOW THAT AVAILABILITY OF EXTRAORDINARY REMEDY OF CERTIORARI WAS INTENDED AND PROVIDED FOR. Section 2 (2) of Article IX-C of the Constitution is clear. It merely declares the adjudications stated therein final, executory and not appealable but it does not declare them unassailable on jurisdictional errors which may have attended the same. Had the contrary been intended by the Constitutional Commission, it could readily have so provided. Yet the deliberations on this particular provision (Record of the Constitutional Commission, Vol. I, p. 562) show that the remedies of certiorari, prohibition and mandamus were categorically agreed and intended to be available in this particular instance. In sum, what was intended and provided was that decisions, final orders and rulings of the Commission on Elections in election contests involving elective municipal and barangay offices shall be final, executory and not appealable and, therefore, no

further appeal may be taken therefrom. That is all. Excluded from that proscription, which is directed only against another appeal, are the original special civil actions of certiorari, prohibition or mandamus, when proper and justified, because they serve and are intended for specific objectives and are based on different grounds. RESOLUTION PADILLA, J p: Petitioner Juan Garcia Rivera and private respondent Juan Mitre Garcia II were candidates for the position of Mayor of Guinobatan, Albay, during the local elections in January 1988. The Municipal Board of Canvassers proclaimed Rivera as the duly elected Mayor by a majority of ten (10) votes. On 26 January 1988, Garcia filed an election protest with the Regional Trial Court, Legazpi City, docketed as Case No. 01-88. After due hearing, and upon considering the report of a Revision Committee it had earlier created, the trial court rendered its verdict on 9 September 1989, finding Garcia to have obtained 6,376 votes as against Rivera's 6,222. Rivera appealed to the COMELEC. Through its First Division, the COMELEC sustained with modification the appealed judgment of the Regional Trial Court, as follows: "1. Affirming the Trial court's annulment of the Board of Canvasser's proclamation of Protestee-Appellant Juan G. Rivera as the duly elected Municipal Mayor; 2. Declaring Protestant-Appellee Juan Mitre Garcia II as the duly elected Municipal Mayor of Guinobatan, Albay, by a majority of ONE HUNDRED FIFTY THREE (153) votes over Protestee-Appellant Juan G. Rivera instead of a plurality of ONE HUNDRED FIFTY FOUR (154) votes; and 3. Protestee-Appellant Juan Garcia Rivera is hereby directed to turn over the Office of the Municipal Mayor to Protestant-Appellee Juan Mitre Garcia II. xxx xxx xxx"

Rivera's motion for reconsideration was acted upon by the COMELEC en banc. In its per curiam decision, dated 6 September 1990, the COMELEC denied the motion and re-affirmed the decision of its First Division declaring Garcia as the duly elected Mayor of Guinobatan, Albay but with a winning margin of one hundred twenty-three (123) votes over Rivera. Garcia commenced to discharge the duties and functions of Mayor of Guinobatan on 10 October 1990, by virtue of a writ of execution implementing the COMELEC decision of 6 September 1990. He continued as mayor until 10 November 1990

when he was served notice of this Court's temporary restraining order, issued upon Rivera's motion. prLL Rivera filed the present petition on 5 October 1990 seeking annulment of the COMELEC en banc decision rendered in favor of respondent Garcia. He also prayed for the issuance of an order restraining the implementation of the said judgment, arguing that the same had not yet become final and executory as of the time this petition was filed. He cites Article IX-C, Section 2, Par. (2) of the 1987 Constitution, in relation to Part VII, Rule 39, Section 1 of the COMELEC Rules of Procedure. He also contends that since the COMELEC decision of 6 September 1990 has not yet become final and executory, the COMELEC has no authority to issue the assailed order and writ of execution. Petitioner maintains further that he has a period of thirty (30) days from 6 September 1990 or until 6 October 1990 within which to elevate the COMELEC decision, on certiorari, to this Court, pursuant to Section 1, Rule 39 of the COMELEC Rules of Procedure. He submits that the questioned COMELEC decision is not one that became final and executory unless restrained by this Court as provided under Section 3, Rule 39 of the COMELEC Rules, as said rule applies only to "decisions in pre-proclamation cases and petitions to deny due course or to disqualify a candidate, and postpone or suspend elections." Lastly, according to petitioner, Section 13(a) of Rule 18 (finality of Comelec decisions or resolutions) and Section 1 of Rule 39 (review by the Supreme Court of Comelec decisions, orders and rulings) of the COMELEC Rules of Procedure, should be read in the context of Section 7, Article IX-A of the Constitution (Supreme Court authority to review on certiorari a Comelec decision, order or ruling). Upon the other hand, respondent Garcia contends that: 1. The Constitution declares the decisions of the COMELEC on election contests involving elective municipal and barangay officials to be final, executory and not appealable (Article IX-C, Sec. 2, par. (2), second sentence, 1987 Constitution). 2. In an earlier petition for certiorari filed by Rivera with this Court, docketed as G.R. No. 87046, charging the Regional Trial Court of grave abuse of discretion in Case No. 01-88, wherein the same issue now raised in this petition was raised by Rivera, this Court dismissed the petition for lack of merit on 7 March 1989. 3. The supplemental ground raised by petitioner Rivera that the COMELEC committed grave abuse of discretion "by not excluding from the total votes of Garcia at least ten (10) votes which were misappreciated in Garcia's favor, outside of those objected votes already ruled upon by the COMELEC" does not deserve any consideration. If true, it is an error in judgment, correctible by appeal, not by a petition for certiorari pursuant to Rule 65, Section 1, of the Rules of Court. The environmental facts of this petition are similar to those in the Galido case (G R. No. 95346, decided 18 January 1991). The issue of whether the decisions of the

COMELEC in election contests involving elective municipal and barangay officials, being final and executory and not appealable, preclude the filing of a special civil action of certiorari, was decided in the said Galido case. The Court held: prLL "Under Article IX (A), Section 7 of the Constitution, which petitioner cites in support of this petition, it is stated: Unless otherwise provided by the Constitution or by law, any decision, order, or ruling of each (Constitutional) Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.' On the other hand, private respondent relies on Article IX, (C), Section 2 (2), paragraph 2 of the Constitution which provides that decisions, final orders, or rulings of the Commission on Elections in contests involving elective municipal and barangay offices shall be final, executory and not appealable. (Emphasis supplied). We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the Commission on Elections in contests involving elective municipal and barangay offices are final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. The proceedings in the Constitutional Commission on this matter are enlightening. Thus 'MR. FOZ. So, the amendment is to delete the word "inappealable." MR. REGALADO. Before that, on page 26, line 26, we should have a transposition because decisions are always orders. So, it should read: "However, decisions, final orders or rulings,' to distinguish them from interlocutory orders. ". . . of the Commission on Elections on municipal and barangay officials shall be final and IMMEDIATELY executory." That would be my proposed amendment. MR. FOZ. Accepted, Mr. Presiding Officer. MR. REGALADO. It is understood, however, that while these decisions with respect to barangay and municipal officials are final and immediately executory and, therefore, not appealable, that does not rule out the possibility of an original special civil action for certiorari, prohibition, or mandamus, as the case may be, under Rule 65 of the Rules of Court. MR. FOZ. That is understood, Mr. Presiding Officer. MR. REGALADO. At least it is on record. Thank you, Mr. Presiding Officer.'" Earlier, the Court had occasion to resolve the same issue in the case of Flores vs. COMELEC (G.R. No. 89604, 20 April 1990) where the Court stated: prcd

"Obviously, the provision of Article IX-C, Section 2(2) of the Constitution that 'decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable' applies only to questions of fact and not of law. That provision was not intended to divest the Supreme Court of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Constitution. We eschew a literal reading of that provision that would contradict such authority. Actually, the main thrust of the present petition for certiorari is that the respondent COMELEC en banc committed grave abuse of discretion when it affirmed the decision of its First Division, promulgated on 2 May 1990, annulling the proclamation of the petitioner as the duly elected Mayor of Guinobatan, Albay and when it did not exclude from the total votes of Garcia at least ten (10) votes which were allegedly misappreciated in Garcia's favor. We have closely scrutinized the challenged COMELEC decision and find that the said decision was not arrived at capriciously or whimsically by respondent COMELEC. A painstaking re-evaluation of the questioned 67 ballots was made by the COMELEC en banc. In fact, fourteen (14) ballots originally adjudicated in Garcia's favor were overruled by the Commission en banc, thus reducing the number of votes in his favor to 894 votes out of the 2,445 contested ballots. On the other hand, 16 ballots were added in Rivera's favor, thus increasing the votes in his favor to 1,087 votes. Moreover, the appreciation and re-evaluation of ballots are factual determinations. It is settled that in a petition for certiorari, findings of fact of administrative bodies are final unless grave abuse of discretion has marred such factual determinations. We find none in this case. ACCORDINGLY, the Court resolved to DISMISS the petition. The temporary restraining order issued on 20 November 1990 is hereby LIFTED. SO ORDERED. G.R. No. L-57574. April 20, 1983.] ANTONIO S. MIRO, petitioner, vs. COMMISSION ON ELECTIONS and CAYETANO B. CAUAN, respondents. Melanio T. Singson for petitioner. Hilario L. Aquino for respondents. SYLLABUS 1. ADMINISTRATIVE LAW; ELECTION CODE OF 1978; INTERPRETATION; LAWS GOVERNING ELECTION PROTESTS LIBERALLY INTERPRETED; TIMELINESS OF FILING OF A PROTEST INFERRED FROM RECORDS OF THE CASE. It is a recognized

principle that laws governing election protests must be liberally interpreted to the end that the popular will express in the election of public officers will not, by reason of purely technical objection be defeated. Generally, an averment in the petition of protests that the same "was presented within the period fixed by law" is not sufficient assurance that the petition was indeed filed on time, absent a showing of the date to reckon the timeliness of the filing of the petition. Where, however, even without a statement of the date of the proclamation, the timeliness of the filing of the petition of protest could be determined in some way, the court must not close its eyes to the facts and dismiss the case by mere technicality. Thus, even in the Yumul case, the court said that the protestant's compliance with the mandatory provision of law requiring that an election protest must be filed within two (2) weeks following the date of the elected candidate's proclamation must appear either expressly or by implication. In other words, where the court, on the basis of the records of the case, can infer that the case was filed on time, the court is with jurisdiction to try and decide the case. 2. REMEDIAL LAW; PLEADING AND PRACTICE; ABSENCE OF AVERMENT AS TO DATE OF PROCLAMATION NOT A DEPRIVATION OF JURISDICTION; CASE AT BAR. In this case, the absence of averment as regards the date of the proclamation, is not fatal so as to prevent the court from acquiring jurisdiction over petitioner's petition of protest. The mere fact that the petition of protest was filed with the Court of First Instance on February 9, 1980 as the records will show, is presumptive of the fact that the petition of protest was filed within the ten (10) day period, considering that the elections were held on January 30, 1980. Respondent-protestee's admission in his answer with counter-protest and motion to dismiss of his proclamation, attaching thereto the certificate of canvass and proclamation showing that he was proclaimed on January 31, 1980 erases all doubts as to the timeliness of the filing of the protest. By these facts, therefore, it becomes undisputable that the petition of protest was filed on time and respondent court should not have dismissed the case. DECISION DE CASTRO, J p: Petitioner seeks the reversal of the decision of the Commission on Elections which affirmed the order dated May 27, 1980 of the Court of First Instance of Isabela, Branch III, dismissing the petition of protest filed by him in Election Case No. III-320 for lack of jurisdiction. The records show that on February 9, 1980, petitioner Miro filed the election protest before the Court of First Instance, alleging, inter alia: "3. That on ______, 1980, the Municipal Board of Canvassers of San Pablo, Isabela, declared the herein contestee Cayetano B. Cauan (who) obtained 3,304 votes as against 2,133 votes adjudicated unto herein contestant Antonio S. Miro and

therefore proclaimed said Cayetano B. Cauan as the Municipal Mayor-elect of San Pablo, Isabela; xxx "7. xxx xxx

That the petition was presented within the period fixed by law." 1

On March 11, 1980, private respondent as protestee filed his answer with counter protest and motion to dismiss, admitting that he was proclaimed as the duly elected candidate for Mayor of San Pablo, Isabela, submitting therein, as annex of said answer, a copy of the Certificate of Canvass and Proclamation issued by the Municipal Board of Canvassers, and praying that the case be dismissed on the ground that the jurisdictional allegations that contestant has filed a certificate of candidacy and of the date of proclamation have not been alleged in the petition of protest. 2 On May 27, 1980, the Court of First Instance issued an order 3 dismissing the election protest on the sole ground that the failure of the protestants to allege the date of proclamation of the protestee renders the court without jurisdiction to try and decide the protest, citing the case of Yumul vs. Palma. 4 From the aforesaid order of dismissal, petitioners appealed to the COMELEC, which as adverted to above, affirmed the order of dismissal, stating that the "omission is a fatal defect as it is jurisdictional; in other words, it (the CFI) did not acquire jurisdiction to hear and decide the case from the very start and the only mandatory course of action for it to take is to dismiss, as it did, the said protest." 5 The law applicable is Section 190 of P.D. No. 1296, otherwise known as the Election Code of 1978, which provides that: "Sec. 190. Election contests for municipal and municipal district offices. A sworn petition contesting the election of a municipal or municipal district officer shall be filed with the proper Court of First Instance by any candidate for the same office who has duly filed a certificate of candidacy, within ten (10) days after the proclamation of the election." This provision is amplified by Section 2, Rule II of Resolution No. 1451, promulgated by COMELEC on February 26, 1980 under the authority of the 1978 Election Code in relation to Section 18 of Batas Pambansa Blg. 52, thus: "Sec. 2. Filing of election contests. A sworn petition contesting the election of any municipal or municipal district officer-elect shall be filed with the proper Court of First Instance, or mailed at the post office as registered matter addressed to said Court, together with twelve (12) legible copies thereof, by any candidate for the same office who had duly filed a certificate of candidacy and who was voted upon in the election. Each contest shall refer exclusively to one office but contests for offices of the Sangguniang Bayan may be consolidated in one case."

We can readily see from the foregoing that in order that the Court of First Instance may be able to exercise special or limited jurisdiction in election cases, the following special or jurisdictional facts must be alleged in the election protest, to wit: LLpr a. that the protestant was a candidate who has duly filed a certificate of candidacy and was voted upon in the election; b. c. that the protestee has been proclaimed in the said election; and that the petition was filed within ten (10) days after the proclamation.

There is no question that the petition of protest contains averments that sufficiently comply with the first two (2) requisites of jurisdiction. The only question hinges on the third requisite. Paragraph 7 of petitioner's petition of protest claims that the same "was presented within the period filed by law". Generally, such averment is not sufficient assurance that the petition was indeed filed on time, absent a showing of the date to reckon the timeliness of the filing of the petition. Thus, in the Yumul case, cited by respondent court, the latter dismissed the case for lack of jurisdiction, it appearing that the motion of protest merely shows that the general elections were held on April 5, 1928 and the motion of protest was filed on April 24, 1928, or twenty (20) days after the election day, such that the court was unable to determine whether it was filed within two (2) weeks following the proclamation. Where, however, even without a statement of the date of the proclamation, the timeliness of the filing of the position of protest could be determined in some way, the court must not close its eyes to the facts and dismiss the case by mere technicality. 6 Thus, even in the Yumul case, the court said that the protestant's compliance with the mandatory provision of law requiring that an election protest must be filed within two (2) weeks following the date of the elected candidate's proclamation must appear either expressly or by implication. In other words, where the court, on the basis of the records of the case, can infer that the case was filed on time, the court is with jurisdiction to try and decide the case. In this case, We hold that the absence of averment as regards the date of the proclamation, is not fatal so as to prevent the court from acquiring jurisdiction over petitioner's petition of protest. The mere fact that the petition of protest was filed with the Court of First Instance on February 9, 1980 as the records will show, is presumptive of the fact that the petition of protest was filed within the ten (10) day period, considering that the elections were held on January 30, 1980. Respondentprotestee's admission in his answer with counter-protest and motion to dismiss of his proclamation, attaching thereto the certificate of canvass and proclamation showing that he was proclaimed on January 31, 1980 erases all doubts as to the timeliness of the filing of the protest. By these facts, therefore, it becomes

undisputable that the petition of protest was filed on time and respondent court should not have dismissed the case. llcd This is an opportune time to recall the recognized principle that laws governing election protests must be liberally interpreted to the end that the popular will express in the election of public officers will not, by reason of purely technical objections, be defeated. 7 WHEREFORE, the questioned decision of the Commission on Elections is hereby set aside, and the Court of First Instance of Isabela, Branch III, hereby ordered to give due course to the petition. No costs. SO ORDERED. G.R. No. 125249. February 7, 1997.] JIMMY S. DE CASTRO, petitioner, vs. THE COMMISSION ON ELECTIONS and AMADO A. MEDRANO, respondents. Garcia de la Pea & Partners for petitioner. Brillantes Nachura Navarro Jumamil Arcilla & Bello Law Offices for private respondents. SYLLABUS 1. POLITICAL LAW; PUBLIC OFFICE; NOT A PROPERTY TRANSMISSIBLE TO HIS HEIR UPON HIS DEATH. It is true that a public office is personal to the public officer and is not a property transmissible to his heirs upon death. Thus, applying the doctrine of actio personalis moritur cum persona, upon the death of the incumbent, no heir of his may be allowed to continue holding his office in his place. 2. ID.; ELECTIONS; ELECTION PROTEST; PROCEEDING IMBUED WITH PUBLIC INTEREST; PROCEEDINGS NOT ABATED BY DEATH OF PARTY. But while the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to continue the protest proceedings. An election contest, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. The death of the protestant, as in this case, neither constitutes a ground for the dismissal of the contest nor ousts the trial court of its jurisdiction to decide the election contest. 3. REMEDIAL LAW; ACTIONS; PARTIES; VICE-MAYOR ELECT, REAL PARTY IN INTEREST IN ELECTION PROTEST WHERE RIVAL CANDIDATE DIED DURING PENDENCY OF CONTEST. The asseveration of petitioner that private respondent is not a real party in interest entitled to be substituted in the election protest in place

of the late Jamilla, is utterly without legal basis. Categorical was our ruling in Vda. de Mesa and Lomugdang that: ". . . the Vice Mayor elect has the status of a real party in interest in the continuation of the proceedings and is entitled to intervene therein. For if the protest succeeds and the protestee is unseated, the Vice-Mayor succeeds to the office of Mayor that becomes vacant if the one duly elected can assume the post." 4. ID; RULES OF COURT; APPLIED TO ELECTION CASES IN A SUPPLETORY CHARACTER. To finally dispose of this case, we rule that the filing by private respondent of his Omnibus Petition/Motion on January 15, 1996, well within a period of thirty days from December 19, 1995 when Jamilla's counsel informed the trial court of Jamilla's death, was in compliance with Section 17, Rule 3 of the Revised Rules of Court. Since the Rules of Court, though not generally applicable to election cases, may however be applied by analogy or in a suppletory character, private respondent was correct to rely thereon. DECISION HERMOSISIMA, JR., J p: Before us is a petition for certiorari raising twin issues as regards the effect of the contestant's death in an election protest. Is said contest a personal action extinguished upon the death of the real party in interest? If not, what is the mandatory period within which to effectuate the substitution of parties? The following antecedent facts have been culled from the pleadings and are not in dispute: Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May 8, 1995 elections. In the same elections, private respondent was proclaimed Vice-Mayor of the same municipality. On May 19, 1995, petitioner's rival candidate, the late Nicolas M. Jamilla, filed an election protest 1 before the Regional Trial Court of Pinamalayan, Oriental Mindoro. 2 During the pendency of said contest, Jamilla died. 3 Four days after such death or on December 19, 1995, the trial court dismissed the election protest ruling as it did that "[a]s this case is personal, the death of the protestant extinguishes the case itself. The issue or issues brought out in this protest have become moot and academic." 4 On January 9, 1995, private respondent learned about the dismissal of the protest from one Atty. Gaudencio S. Sadicon, who, as the late Jamilla's counsel, was the one who informed the trial court of his client's demise.

On January 15, 1996, private respondent filed his Omnibus Petition/Motion (For Intervention and/or Substitution with Motion for Reconsideration). 5 Opposition thereto was filed by petitioner on January 30, 1996. 6 In an Order dated February 14, 1996, 7 the trial court denied private respondent's Omnibus Petition/Motion and stubbornly held that an election protest being personal to the protestant, is ipso facto terminated by the latter's death Unable to agree with the trial court's dismissal of the election protest, private respondent filed a petition for certiorari and mandamus before the Commission on Elections (COMELEC); private respondent mainly assailed the trial court orders as having been issued with grave abuse of discretion. COMELEC granted the petition for certiorari and mandamus. 8 It ruled that an election contest involves both the private interests of the rival candidates and the public interest in the final determination of the real choice of the electorate, and for this reason, an election contest necessarily survives the death of the protestant or the protestee. We agree. It is true that a public office is personal to the public officer and is not a property transmissible to his heirs upon death. 9 Thus, applying the doctrine of actio personalis moritur cum persona, upon the death of the incumbent, no heir of his may be allowed to continue holding his office in his place. But while the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to continue the protest proceedings. An election contest, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. As we have held in the case of Vda. de De Mesa v. Mencias: 10 ". . . It is axiomatic that an election contest, involving as it does not only the adjudication and settlement of the private interests of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the offices within their gift, is a proceeding imbued with public interest which raises it onto a plane over and above ordinary civil actions. For this reason, broad perspectives of public policy impose upon courts the imperative duty to ascertain by all means within their command who is the real candidate elected in as expeditious a manner as possible, without being fettered by technicalities and procedural barriers to the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R.

L-13242, July 31, 1958). So inextricably intertwined are the interests of the contestants and those of the public that there can be no gainsaying the logic of the proposition that even the voluntary cessation in office of the protestee not only does not ipso facto divest him of the character of an adversary in the contest inasmuch as he retains a party interest to keep his political opponent out of the office and maintain therein his successor, but also does not in any manner impair or detract from the jurisdiction of the court to pursue the proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R. L-13206). Upon the same principle, the death of the protestee De Mesa did not abate the proceedings in the election protest filed against him, and it may be stated as a rule that an election contest survives and must be prosecuted to final judgment despite the death of the protestee." 11 The death of the protestant, as in this case, neither constitutes a ground for the dismissal of the contest nor ousts the trial court of its jurisdiction to decide the election contest. Apropos is the following pronouncement of this court in the case of Lomugdang v. Javier: 12 "Determination of what candidate has been in fact elected is a matter clothed with public interest, wherefore, public policy demands that an election contest, duly commenced, be not abated by the death of the contestant. We have squarely so rule in Sibulo Vda. de Mesa vs. Judge Mencias, G.R. No. L-24583, October 29, 1966, in the same spirit that led this Court to hold that the ineligibility of the protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57), and that the protestee's cessation in office is not a ground for the dismissal of the contest nor detract the Courts jurisdiction to decide the case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584)." 13 The asseveration of petitioner that private respondent is not a real party in interest entitled to be substituted in the election protest in place of the late Jamilla, is utterly without legal basis. Categorical was our ruling in Vda. de Mesa and Lomugdang that: ". . . the Vice Mayor elect has the status of a real party in interest in the continuation of the proceedings and is entitled to intervene therein. For if the protest succeeds and the protestee is unseated, the Vice-Mayor succeeds to the office of Mayor that becomes vacant if the one duly elected can assume the post." 14 cdt To finally dispose of this case, we rule that the filing by private respondent of his Omnibus Petition/Motion on January 15, 1996, well within a period of thirty days from December 19, 1995 when Jamilla's counsel informed the trial court of Jamilla's death, was in compliance with Section 17, Rule 3 of the Revised Rules of Court. Since the Rules of Court, though not generally applicable to election cases, may

however be applied by analogy or in a suppletory character, 15 private respondent was correct to rely thereon. The above jurisprudence is not ancient; in fact these legal moorings have been recently reiterated in the 1991 case of De la Victoria vs. COMELEC. 16 If only petitioner's diligence in updating himself with case law is as spirited as his persistence in pursuing his legal asseverations up to the highest court of the land, no doubt further derailment of the election protest proceedings could have been avoided. WHEREFORE, premises considered, the instant petition for certiorari is hereby DISMISSED. Costs against petitioner. SO ORDERED.

COMELEC
G.R. No. 153945. February 4, 2003.] REYNATO BAYTAN, REYNALDO BAYTAN AND ADRIAN BAYTAN, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. Topacio Law Offices for petitioners. The Solicitor General for respondent. SYNOPSIS Petitioners assail Comelec En Banc's resolutions denying their motion to reconsider its order directing its Law Department to file the proper information against them for double registration. HEcaIC As defense, petitioners claimed honest mistake and good faith in registering twice. The Supreme Court dismissed the petition on certiorari, ruling: that the assailed resolutions were issued only in the preliminary investigation stage; that the finding of probable cause in the prosecution of election offenses rests in the COMELEC's sound discretion; that there were certain circumstances in this case sufficient to warrant the finding of probable cause; that double registration is malum prohibitum, thus, their claim of lack of intent to violate the law is inconsequential; and that the election offense in this case has not prescribed because the prescriptive period was interrupted when COMELEC initiated proceedings against petitioners and remains tolled pending the termination of the case. SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; DETERMINATION OF PROBABLE CAUSE; SUFFICIENCY OF CIRCUMSTANCES WARRANTING A FINDING OF PROBABLE CAUSE IN CASE AT BAR. A preliminary investigation is essentially inquisitorial and is only the means to discover who may be charged with a crime, its function being merely to determine probable cause. All that is required in the preliminary investigation is the determination of probable cause to justify the holding of petitioners for trial. . . . There is no question that petitioners registered twice on different days and in different precincts without canceling their previous registration. Aside from this, the COMELEC found certain circumstances prevailing in the case sufficient to warrant the finding of probable cause. The COMELEC noted that petitioners wrote down their address in Precinct No. 83-A of Barangay 18 as No. 709 T. Gomez Extension St., Barangay 18-Maya, Cavite City. However, in Precinct No. 129-A of Barangay 28, petitioners registered as residents of No. 709 Magcawas St., Barangay 28-Taurus, Caridad, Cavite City. The COMELEC noted further that the affidavits submitted by petitioners contained glaring inconsistencies. Petitioners claimed that Ignacio led them to the wrong precinct to register. However, Ignacio's affidavit stated that while he led them to the voting precinct of Barangay 18, he immediately left the area not knowing that petitioners registered in the wrong barangay. . . . All told, a reasonably prudent man would readily conclude that there exists probable cause to hold petitioners for trial for the offense of double registration. aEACcS 2. POLITICAL LAW; ELECTION LAWS; DOUBLE REGISTRATION IS MALUM PROHIBITUM; CASE AT BAR. The COMELEC also pointed out that since "double registration" is malum prohibitum, petitioners' claim of lack of intent to violate the law is inconsequential. 3. ID.; ID.; COMELEC; FINDING OF PROBABLE CAUSE IN THE PROSECUTION OF ELECTION OFFENSES RESTS IN COMELEC'S SOUND DISCRETION. It is also wellsettled that the finding of probable cause in the prosecution of election offenses rests in the COMELEC's sound discretion. The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices. Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of discretion. IaEHSD 4. CRIMINAL LAW; PRESCRIPTION OF CRIME; INTERRUPTED WHEN PROCEEDINGS ARE INSTITUTED AGAINST THE OFFENDER; CASE AT BAR. Prescription of the crime or offense is the forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain time. Section 267 of the Election Code provides that "election offenses shall prescribe after five years from the date of their commission." In this case, the offense of double registration allegedly occurred on June 22, 1997 when petitioners registered for a second time in a different precinct without canceling their previous registration. At this point, the period of prescription for the alleged offense started to run. However, prescription is interrupted when

proceedings are instituted against the offender. Specifically, the period of prescription is interrupted by the filing of the complaint even if it be merely for purposes of preliminary examination or investigation. The COMELEC initiated the complaint for double registration against petitioners motu proprio under Sections 3, 4 and 5, Rule 34 of the 1993 COMELEC Rules of Procedure. CAHTIS DECISION CARPIO, J p: The Case Challenged in this petition for certiorari 1 with prayer for temporary restraining order and preliminary injunction is the Resolution dated June 3, 2002 2 of the Commission on Elections ("COMELEC" for brevity) en banc in E.O. Case No. 97-503. In its assailed Resolution, the COMELEC en banc denied the motion to reconsider Minute Resolution No. 00-2281 dated November 9, 2000 3 ordering the Law Department to file criminal cases for "double registration" against petitioners Reynato Baytan, Reynaldo Baytan and Adrian Baytan ("petitioners" for brevity). cAEDTa The Antecedents On June 15, 1997, petitioners were on their way to register for the May 1998 elections when they met the newly elected Barangay Captain, Roberto Ignacio ("Ignacio" for brevity), in Barangay 18, Zone II of Cavite City. Ignacio led petitioners to register in Precinct No. 83-A of Barangay 18. Petitioners registered in this precinct as evidenced by Voters Registration Records Nos. 41762473, 41762472 and 41762470. When petitioners returned home, they wondered why the registrants in this precinct looked unfamiliar to them. This prompted petitioners to return to the registration center to study the precinct map of Barangay 18. They then realized that their residence is situated within the jurisdiction of Barangay 28. Thus, petitioners proceeded to Precinct 129-A of Barangay 28 and registered anew on June 22, 1997 as evidenced by Voters Registration Records Nos. 42662969, 42662968 and 42662917. Subsequently, petitioners sent a letter dated August 21, 1997 to former COMELEC Assistant Executive Director Jose Pio O. Joson and furnished a copy thereof to COMELEC Registrar Francisco Trias. In this letter, petitioners requested for advice on how to cancel their previous registration. They also explained the reason and circumstances of their second registration and expressed their intention to redress the error. SECAHa On September 16, 1997, the Election Officer of Cavite City forwarded copies of petitioners' Voters Registration Records to the Provincial Election Supervisor, Atty.

Juanito V. Ravanzo ("Ravanzo" for brevity), for evaluation. Ravanzo endorsed the matter to the Regional Director for prosecution. Eventually, the Law Department endorsed the case to Ravanzo for resolution. On January 10, 1998, Ravanzo recommended filing an information for double registration against petitioners. In an en banc meeting held on November 09, 2000, the COMELEC in its Minute Resolution No. 00-2281 affirmed the recommendation of Ravanzo. Petitioners moved for reconsideration. The COMELEC en banc denied the motion and disposed as follows: "WHEREFORE, premises considered, the En Banc resolution dated November 9, 2000 is hereby AFFIRMED. The Law Department is hereby directed to file the proper information against respondents for violation of Art. XXII, Sec. 261, par. (y) sub-par. (5) of the Omnibus Election Code." Hence, the instant petition. The Issues Petitioners contend that the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in 1. Recommending the prosecution of petitioners for double registration despite clear and convincing evidence on record that they had no intention of committing said election offense; 2. Not considering the letter dated August 21, 1997 addressed to the COMELEC Assistant Director of Cavite City as substantial compliance with the requirement of the law for cancellation of previous registration; and 3. Taking cognizance of the case in the first instance in violation of Section 3, Article IX-C of the Constitution. In sum, petitioners insist they are innocent of any wrongdoing in their act of registering twice on different days in two different precincts. Petitioners argue that they did not intend to perpetrate the act prohibited, and therefore they should be exculpated. They claim honest mistake and good faith in registering twice. Petitioners claim they made the first registration because of the intervention and instigation of Ignacio. STHAaD Petitioners theorize that their August 21, 1997 letter to the election registrar of Cavite City informing him of the lapse and asking how to rectify the same constitutes substantial compliance with the Omnibus Election Code's requirement of cancellation of prior registration. They further implore a liberal construction of the laws on election offenses since almost five years had lapsed from the date of the commission of the offense on June 15, 1997. They claim the case is about to prescribe under the Election Code.

Lastly, petitioners fault the COMELEC en banc for assuming original jurisdiction over the case in contravention of Section 3, Article IX-C of the Constitution. Petitioners argue that this constitutional provision requires that election cases must first be heard and decided by a Division before assumption of jurisdiction by the COMELEC en banc. The Court's Ruling The petition is bereft of merit. First and Second Issues: Whether the criminal cases should be dismissed on the ground of lack of intent and substantial compliance with the requirement of cancellation of previous registration. In Minute Resolution No. 00-2281 dated November 9, 2000, the COMELEC en banc affirmed the recommendation of the investigating officer. The COMELEC thus directed its Law Department to file the necessary information against petitioners for violation of Article XXII, SEC. 261 (y) (5) of the Election Code which reads: "SEC. 261. (y) Prohibited Acts. The following shall be guilty of an election offense:

On Registration of Voters:

(5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration." Petitioners filed a motion for reconsideration to which the COMELEC en banc issued the assailed Resolution dated June 3, 2002 affirming the Minute Resolution. The grant by the Constitution to the COMELEC of the power to investigate and prosecute election offenses is intended to enable the COMELEC to assure the people of "free, orderly, honest, peaceful and credible elections." This grant is an adjunct to the COMELEC's constitutional duty to enforce and administer all election laws. Failure by the COMELEC to exercise this power could result in the frustration of the true will of the people and make an idle ceremony of the sacred right and duty of every qualified citizen to vote. 4 Petitioners lose sight of the fact that the assailed resolutions were issued in the preliminary investigation stage. A preliminary investigation is essentially inquisitorial and is only the means to discover who may be charged with a crime, its function being merely to determine probable cause. 5 All that is required in the preliminary investigation is the determination of probable cause to justify the holding of petitioners for trial. By definition, probable cause is ". . . a reasonable ground of presumption that a matter is, or may be, well founded . . . such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an honest or strong

suspicion that a thing is so. The term does not mean 'actual or positive cause' nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge." 6 There is no question that petitioners registered twice on different days and in different precincts without canceling their previous registration. Aside from this, the COMELEC found certain circumstances prevailing in the case sufficient to warrant the finding of probable cause. The COMELEC noted that petitioners wrote down their address in Precinct No. 83-A of Barangay 18 as No. 709 T. Gomez Extension St., Barangay 18-Maya, Cavite City. However, in Precinct No. 129-A of Barangay 28, petitioners registered as residents of No. 709 Magcawas St., Barangay 28-Taurus, Caridad, Cavite City. The COMELEC noted further that the affidavits submitted by petitioners contained glaring inconsistencies. Petitioners claimed that Ignacio led them to the wrong precinct to register. However, Ignacio's affidavit stated that while he led them to the voting precinct of Barangay 18, he immediately left the area not knowing that petitioners registered in the wrong barangay. Contrary to petitioners' sworn statements, Aurora Baytan, mother of petitioners, had another version. She claimed in her affidavit that on June 15, 1997, Ignacio went to their house to inform them about the redefinition of their barangay's territorial jurisdiction. Right then and there, Ignacio brought her sons to Barangay 18 to register. CSaHDT The COMELEC also pointed out that since "double registration" is malum prohibitum, petitioners' claim of lack of intent to violate the law is inconsequential. Neither did the COMELEC consider petitioners' letter dated August 22, 1997 as an application to cancel their previous registration. The COMELEC explained that this letter was sent after their second registration was accomplished and after the election officer of Cavite City had already reported their act of double registration to a higher official. All told, a reasonably prudent man would readily conclude that there exists probable cause to hold petitioners for trial for the offense of double registration. SECAHa Moreover, petitioners' claims of honest mistake, good faith and substantial compliance with the Election Code's requirement of cancellation of previous registration are matters of defense best ventilated in the trial proper rather than at the preliminary investigation. 7 The established rule is that a preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence. It is for the presentation of such evidence only as may engender a wellgrounded belief that an offense has been committed and the accused is probably guilty thereof. 8

It is also well-settled that the finding of probable cause in the prosecution of election offenses rests in the COMELEC's sound discretion. The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offense and malpractices. 9 Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of discretion. This principle emanates from the COMELEC's exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. 10 We also cannot accept petitioners' plea for a liberal construction of the laws on the ground of prescription. Prescription of the crime or offense is the forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain time. 11 Section 267 of the Election Code provides that "election offenses shall prescribe after five years from the date of their commission." In this case, the offense of double registration allegedly occurred on June 22, 1997 when petitioners registered for a second time in a different precinct without canceling their previous registration. At this point, the period of prescription for the alleged offense started to run. However, prescription is interrupted when proceedings are instituted against the offender. Specifically, the period of prescription is interrupted by the filing of the complaint even if it be merely for purposes of preliminary examination or investigation. 12 The COMELEC initiated the complaint for double registration against petitioners motu proprio under Sections 3, 13 4 14 and 5, 15 Rule 34 of the 1993 COMELEC Rules of Procedure. On September 16, 1997, the Election Officer of Cavite City forwarded copies of petitioners' Voters' Registration Records for evaluation to Atty. Juanito V. Ravanzo, Provincial Election Supervisor of Cavite City, who was also tasked to investigate the case. Ravanzo endorsed the matter to the Regional Director for prosecution. The Regional Director forwarded the case to the Law Department and the latter re-endorsed the same to the office of Ravanzo for resolution. A preliminary investigation hearing was conducted on January 19, 1998 where petitioners were instructed to submit their counter-affidavits. After the preliminary investigation and based on the affidavits and other evidence submitted in the case, Ravanzo recommended the prosecution of petitioners for the offense of double registration. Ineluctably, the prescriptive period of the offense was interrupted upon the COMELEC's initiation of proceedings against petitioners and remains tolled pending the termination of the case. SDHCac The liberal construction of punitive laws in relation to the prescription of offenses cannot be invoked to prejudice the interest of the State to prosecute election

offenses, especially those which the COMELEC described as "ruffling the electoral system." 16 Third Issue: Whether the COMELEC en banc's assumption of original jurisdiction over the case violated the Constitution. Petitioners rely on Section 3, Article IX-C of the 1987 Constitution which states: "Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc." Petitioners assert that this constitutional provision serves as basis to nullify the proceedings conducted and orders issued by the COMELEC en banc in E.O. Case No. 97-503. Petitioners cite Sarmiento v. Comelec 17 and Zarate v. Comelec 18 to support their stand that the COMELEC en banc acted without jurisdiction or with grave abuse of discretion when it assumed original jurisdiction over the case without first referring the same to any of its divisions. In Sarmiento and Zarate, the Court similarly held that "election cases must first be heard and decided by a Division of the Commission," and that the "Commission, sitting en banc, does not have the authority to hear and decide the same at the first instance." In its Comment for the COMELEC, the Solicitor General points out that the rulings in Sarmiento and Zarate were clarified in Canicosa v. COMELEC 19 to mean that "[I]t is only in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC is mandated to hear and decide cases first by division and then, upon motion for reconsideration, by the COMELEC en banc. This is when it is jurisdictional." The Solicitor General contends that the conduct of a preliminary investigation before the filing of an information in court does not in any way adjudicate with finality the rights and liabilities of the parties investigated. A preliminary investigation does not make any pronouncement as to the guilt or innocence of the party involved. Hence, a preliminary investigation cannot be considered a judicial or quasi-judicial proceeding required to be heard by the Division in the first instance. TCcDaE On the other hand, petitioners countered that in Cruz v. People, 20 the Court held that the conduct of a preliminary investigation "is a judicial or quasi-judicial proceeding since there is opportunity to be heard and for the production and weighing of evidence and a decision is rendered thereon." Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial powers. The COMELEC's administrative powers are

found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article IX-C. 21 The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether en banc or in division. The Constitution merely vests the COMELEC's administrative powers in the "Commission on Elections," while providing that the COMELEC "may sit en banc or in two divisions." Clearly, the COMELEC en banc can act directly on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC both under the 1973 and 1987 Constitutions. 22 On the other hand, the COMELEC's quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit: "Section 2. function: xxx The Commission on Elections shall exercise the following powers and xxx xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable." The COMELEC's exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires that all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and the motion for reconsideration shall be decided by the COMELEC en banc. It follows, as held by the Court in Canicosa, 23 that the COMELEC is mandated to decide cases first in division, and then upon motion for reconsideration en banc, only when the COMELEC exercises its quasi-judicial powers. The COMELEC is empowered in Section 2(6), Article IX-C of the 1987 Constitution to "prosecute cases of violations of election laws." The prosecution of election law violators involves the exercise of the COMELEC's administrative powers. Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. In sum, the second sentence of Section 3, Article IX-C of the 1987 Constitution is not applicable in administrative cases, like the instant case where the COMELEC is

determining whether probable cause exists to charge petitioners for violation of the provision of the Election Code prohibiting double registration. AHDacC Indeed, the COMELEC acted in accordance with Section 9(b), Rule 34 of the 1993 COMELEC Rules of Procedure governing the prosecution of election offenses in meeting en banc in the first instance and acting on the recommendation of Investigating Officer Ravanzo to file charges against petitioners. The rule reads: "SEC. 9. Duty of the Law Department, State Prosecutor, Provincial or City Fiscal Upon Receipt of Records. . . . (b). In cases investigated by the lawyers or the field personnel of the Commission the Director of the Law Department shall review and evaluate the recommendation of said legal officer, prepare a report and make a recommendation to the Commission affirming, modifying or reversing the same which shall be included in the agenda of the succeeding meeting en banc of the Commission. If the Commission approves the filing of an information against the respondent/s, the Director of the Law Department shall prepare and sign the information for immediate filing with the appropriate court." (Emphasis supplied) Minute Resolution No. 00-2281 was issued during the en banc meeting held on November 9, 2000 to resolve the recommendation of Ravanzo in the case. DcaSIH WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED. G.R. No. 90336. August 12, 1991.] RUPERTO TAULE, petitioner, vs. SECRETARY LUIS T. SANTOS and GOVERNOR LEANDRO VERCELES, respondents. Balgos & Perez and Bugaring, Tugonon & Associates Law Offices for petitioner. Juan G. Atencia for private respondent. SYLLABUS 1. ADMINISTRATIVE LAW; ELECTION LAW; COMMISSION ON ELECTIONS; JURISDICTION OVER ELECTIVE BARANGAY OFFICIALS LIMITED TO APPELLATE JURISDICTION FROM DECISIONS OF THE TRIAL COURTS. The jurisdiction of the COMELEC over contests involving elective barangay officials is limited to appellate jurisdiction from decisions of the trial courts. Under the law, the sworn petition contesting the election of a barangay officer shall be filed with the proper Municipal or Metropolitan Trial Court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office within 10 days after the proclamation of the results. A voter may also contest the election of any barangay officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines

by filing a sworn petition for quo warranto with the Metropolitan or Municipal Trial Court within 10 days after the proclamation of the results of the elections. Only appeals from decisions of inferior courts on election matters as aforestated may be decided by the COMELEC. 2. ID.; ID.; ID.; JURISDICTION OVER POPULAR ELECTIONS, CONSTRUED. The jurisdiction of the COMELEC is over popular elections, the elected officials of which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Specifically, the term "election," in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes which do not characterize the election of officers in the katipunan ng mga barangay. "Election contests" would refer to adversary proceedings by which matters involving the title or claim of title to an elective office, made before or after proclamation of the winner, is settled whether or not the contestant is claiming the office in dispute and in the case of elections of barangay officials, it is restricted to proceedings after the proclamation of the winners as no pre-proclamation controversies are allowed. 3. ID.; ID.; ID.; JURISDICTION OF THE COMELEC DOES NOT COVER PROTESTS OVER THE ORGANIZATIONAL SET-UP OF THE KATIPUNAN NG MGA BARANGAY. The jurisdiction of the COMELEC does not cover protests over the organizational setup of the katipunan ng mga barangay composed of popularly elected punong barangays as prescribed by law whose officers are voted upon by their respective members. The authority of the COMELEC over the katipunan ng mga barangay is limited by law to supervision of the election of the representative of the katipunan concerned to the sanggunian in a particular level conducted by their own respective organization. 4. ID.; ID.; SECRETARY OF LOCAL GOVERNMENT; WITHOUT JURISDICTION TO ENTERTAIN PROTESTS INVOLVING THE ELECTION OF OFFICERS OF THE FABC. The Secretary of Local Government is not vested with jurisdiction to entertain any protest involving the election of officers of the FABC. There is no question that he is vested with the power to promulgate rules and regulations as set forth in Section 222 of the Local Government Code. Likewise, under Book IV, Title XII, Chapter 1, Sec. 3(2) of the Administrative Code of 1987, the respondent Secretary has the power to "establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and on the promotion of local autonomy and monitor compliance thereof by said units." Also, the respondent Secretary's rule making power is provided in Sec. 7, Chapter II, Book IV of the Administrative Code. Thus, DLG Circular No. 89-09 was issued by respondent Secretary in pursuance of his rule-making power conferred by law and which now has the force and effect of law. It is a well-settled principle of administrative law that unless expressly empowered, administrative agencies are

bereft of quasi-judicial powers. The jurisdiction of administrative authorities is dependent entirely upon the provisions of the statutes reposing power in them; they cannot confer it upon themselves. Such jurisdiction is essential to give validity to their determinations. There is neither a statutory nor constitutional provision expressly or even by necessary implication conferring upon the Secretary of Local Government the power to assume jurisdiction over an election protest involving officers of the katipunan ng mga barangay. cdasia 5. ID.; GENERAL SUPERVISION OF THE CHIEF EXECUTIVE; CONCEPT. Presidential power over local governments is limited by the Constitution to the exercise of general supervision "to ensure that local affairs are administered according to law." The general supervision is exercised by the President through the Secretary of Local Government. In administrative law, supervision means overseeing or the power or authority of an officer to see that the subordinate officers perform their duties. If the latter fails or neglects to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. The fundamental law permits the Chief Executive to wield no more authority than that of checking whether said local government or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments so long as the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. 6. ID.; ID.; CONSTITUTIONAL LIMITATION DEPRIVES SECRETARY OF LOCAL GOVERNMENT AUTHORITY TO PASS UPON VALIDITY OR REGULARITY OF THE ELECTION OF THE OFFICERS OF THE KATIPUNAN. Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that respondent Secretary has no authority to pass upon the validity or regularity of the election of the officers of the katipunan. To allow respondent Secretary to do so will give him more power than the law or the Constitution grants. It will in effect give him control over local government officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be achieved. In fact, his order that the new elections to be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local governments. 7. ID.; AUTONOMY OF LOCAL GOVERNMENTS; STATE POLICY REFLECTED IN LOCAL GOVERNMENT CODE. It is the policy of the state to ensure the autonomy

of local governments. This state policy is echoed in the Local Government Code wherein it is declared that "the State shall guarantee and promote the autonomy of local government units to ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." To deny the Secretary of Local Government the power to review the regularity of the elections of officers of the katipunan would be to enhance the avowed state policy of promoting the autonomy of local governments. 8. ID.; ID.; DOUBT AS TO THE POWER OF SECRETARY OF LOCAL GOVERNMENT TO INTERFERE WITH LOCAL AFFAIRS, RESOLVED IN FAVOR OF GREATER AUTONOMY OF LOCAL GOVERNMENT. Although the Department is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely "monitoring compliance" by local government units of such issuances. To monitor means to "watch, observe or check." Even the Local Government Code which grants the Secretary power to issue implementing circulars, rules and regulations is silent as to how these issuances should be enforced. Since the respondent Secretary exercises only supervision and not control over local governments, it is truly doubtful if he could enforce compliance with the DLG Circular. Any doubt therefore as to the power of the Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government. 9. ID.; ELECTION PROTEST IN THE ELECTION OF THE OFFICERS OF THE FABC; REGIONAL TRIAL COURTS ACCORDED EXCLUSIVE ORIGINAL JURISDICTION. The respondent Secretary not having the jurisdiction to hear an election protest involving officers of the FABC, the recourse of the parties is to the ordinary courts. The Regional Trial Courts have the exclusive original jurisdiction to hear the protest. 10. ID.; LOCAL GOVERNMENT; CIRCULARS AND REGULATIONS ISSUED BY THE SECRETARY OF LOCAL GOVERNMENT; CANNOT BE APPLIED RETROACTIVELY. The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which states that "whenever the guidelines are not substantially complied with, the election shall be declared null and void by the Department of Local Government and an election shall conduct anew," being invoked by the Solicitor General cannot be applied. DLG Circular No. 89-15 was issued on July 3, 1989 after the June 18, 1989 elections of the FABC officers and it is the rule in statutory construction that laws, including circulars and regulations, cannot be applied retrospectively. Moreover, such provision is null and void for having been issued in excess of the respondent Secretary's jurisdiction, inasmuch as an administrative authority cannot confer jurisdiction upon itself. 11. ID.; ID.; GOVERNOR, PROPER PARTY TO FILE ELECTION PROTEST OVER ELECTION OF OFFICERS OF FABC. Under Section 205 of the Local Government Code, the membership of the sangguniang panlalawigan consists of the governor,

the vice-governor, elective members of the said sanggunian, and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation. The governor acts as the presiding officer of the sangguniang panlalawigan. As presiding officer of the sangguniang panlalawigan, the respondent governor has an interest in the election of the officers of the FABC since its elected president becomes a member of the assembly. If the president of the FABC assumes his presidency under questionable circumstances and is allowed to sit in the sangguniang panlalawigan, the official actions of the sanggunian may be vulnerable to attacks as to their validity or legality. Hence, respondent governor is a proper party to question the regularity of the elections of the officers of the FABC. 12. ID.; ID.; ELECTIONS OF THE OFFICERS OF THE FABC; NULLIFICATION FOR FAILURE TO COMPLY WITH DLG CIRCULAR NO. 89-09. Section 2.4 of DLG Circular No. 89-09 provides that "the incumbent FABC President or the Vice-President shall preside over the reorganizational meeting, there being a quorum." The rule specifically provides that it is the incumbent FABC President or Vice-President who shall preside over the meeting. The word "shall" should be taken in its ordinary signification, i.e., it must be imperative or mandatory and not merely permissive, as the rule is explicit and requires no other interpretation. If it had been intended that any other official should preside, the rules would have provided so, as it did in the elections at the town and city levels as well as the regional level. It is admitted that neither the incumbent FABC President nor the Vice-President presided over the meeting and elections but Alberto P. Molina, Jr., the Chairman of the Board of Election Supervisors/Consultants. Thus, there was a clear violation of the aforesaid mandatory provision. On this ground, the election should be nullified. 13. ID.; ID.; APPOINTEES TO THE SANGGUNIANG PANLUNGSOD; QUALIFICATIONS SET BY LAW; SHOULD BE MET. In Ignacio vs. Banate, J. the Court, interpreting similarly worded provisions of Batas Pambansa Blg. 337 and Batas Pambansa Blg. 51 on the composition of the sangguniang panlungsod, declared as null and void the appointment of private respondent Leoncio Banate, Jr. as member of the Sangguniang Panlungsod of the City of Roxas representing the katipunang panlungsod ng mga barangay for he lacked the eligibility and qualification required by law, not being a barangay captain and for not having been elected president of the association of barangay councils. The Court held that an unqualified person cannot be appointed a member of the sanggunian, even in an acting capacity. In Reyes vs. Ferrer, the appointment of Nemesio L. Rasgo, Jr. as representative of the youth sector to the sangguniang panlungsod of Davao City was declared invalid since he was never the president of the kabataang barangay city federation as required by Sec. 173, Batas Pambansa Blg. 337. cda 14. ID.; ID.; APPOINTEES TO THE SANGGUNIANG PANLALAWIGAN; QUALIFICATIONS SET BY LAW SHOULD ALSO BE MET. Involving the sangguniang panlalawigan, the law is likewise explicit. To be appointed by the President of the Philippines to sit in the sangguniang panlalawigan is the president of the katipunang

panlalawigan. The appointee must meet the qualifications set by law. The appointing power is bound by law to comply with the requirements as to the basic qualifications of the appointee to the sangguniang panlalawigan. The President of the Philippines or his alter ego, the Secretary of Local Government, has no authority to appoint anyone who does not meet the minimum qualification to be the president of the federation of barangay councils. Augusto Antonio is not the president of the federation. He is a member of the federation but he was not even present during the elections despite notice. The argument that Antonio was appointed as a remedial measure in the exigency of the service cannot be sustained. Since Antonio does not meet the basic qualification of being president of the federation, his appointment to the sangguniang panlalawigan is not qualified notwithstanding that such appointment is merely in a temporary capacity. If the intention of the respondent Secretary was to protect the interests of the federation in the sanggunian, he should have appointed the incumbent FABC President in a hold-over capacity. The appointment of Antonio, allegedly the protege of respondent Governor, gives credence to petitioner's charge of political interference by respondent Governor in the organization. This should not be allowed. The barangays should be insulated from any partisan activity or political intervention if only to give true meaning to local autonomy. DECISION GANCAYCO, J p: The extent of authority of the Secretary of Local Government over the katipunan ng mga barangay or the barangay councils is brought to the fore in this case. On June 18, 1989, the Federation of Associations of Barangay Councils (FABC) of Catanduanes, composed of eleven (11) members, in their capacities as Presidents of the Association of Barangay Councils in their respective municipalities, convened in Virac, Catanduanes with six members in attendance for the purpose of holding the election of its officers. Present were petitioner Ruperto Taule of San Miguel, Allan Aquino of Viga, Vicente Avila of Virac, Fidel Jacob of Panganiban, Leo Sales of Caramoran and Manuel Torres of Baras. The Board of Election Supervisors/Consultants was composed of Provincial Government Operation Officer (PGOO) Alberto P. Molina, Jr. as Chairman with Provincial Treasurer Luis A. Manlapaz, Jr. and Provincial Election Supervisor Arnold Soquerata as members. LLpr When the group decided to hold the election despite the absence of five (5) of its members, the Provincial Treasurer and the Provincial Election Supervisor walked out.

The election nevertheless proceeded with PGOO Alberto P. Molina, Jr. as presiding officer. Chosen as members of the Board of Directors were Taule, Aquino, Avila, Jacob and Sales. Thereafter, the following were elected officers of the FABC: President - Ruperto Taule - Allan Aquino

Vice-President Secretary Treasurer Auditor

- Vicente Avila - Fidel Jacob - Leo Sales 1

On June 19, 1989, respondent Leandro I. Verceles, Governor of Catanduanes, sent a letter to respondent Luis T. Santos, the Secretary of Local Government, * protesting the election of the officers of the FABC and seeking its nullification in view of several flagrant irregularities in the manner it was conducted. 2 In compliance with the order of respondent Secretary, petitioner Ruperto Taule as President of the ABC, filed his comment on the letter-protest of respondent Governor denying the alleged irregularities and denouncing said respondent Governor for meddling or intervening in the election of FABC officers which is a purely non-partisan affair and at the same time requesting for his appointment as a member of the Sangguniang Panlalawigan of the province being the duly elected President of the FABC in Catanduanes. 3 On August 4, 1989, respondent Secretary issued a resolution nullifying the election of the officers of the FABC in Catanduanes held on June 18, 1989 and ordering a new one to be conducted as early as possible to be presided by the Regional Director of Region V of the Department of Local Government. 4 Petitioner filed a motion for reconsideration of the resolution of August 4, 1989 but it was denied by respondent Secretary in his resolution of September 5, 1989. 5 In the petition for certiorari before Us, petitioner seeks the reversal of the resolutions of respondent Secretary dated August 4, 1989 and September 5, 1989 for being null and void. Petitioner raises the following issues: 1) Whether or not the respondent Secretary has jurisdiction to entertain an election protest involving the election of the officers of the Federation of Association of Barangay Councils;

2) Whether or not the respondent Governor has the legal personality to file an election protest; 3) Assuming that the respondent Secretary has jurisdiction over the election protest, whether or not he committed grave abuse of discretion amounting to lack of jurisdiction in nullifying the election; The Katipunan ng mga Barangay is the organization of all sangguniang barangays in the following levels: in municipalities to be known as katipunang bayan; in cities, katipunang panlungsod; in provinces, katipunang panlalawigan; in regions, katipunang pampook; and on the national level, katipunan ng mga barangay. 6 The Local Government Code provides for the manner in which the katipunan ng mga barangay at all levels shall be organized: "SECTION 110. Organization. (l) The katipunan at all levels shall be organized in the following manner: (a) The katipunan in each level shall elect a board of directors and a set of officers. The president of each level shall represent the katipunan concerned in the next higher level of organization. (b) The katipunan ng mga barangay shall be composed of the katipunang pampook, which shall in turn be composed of the presidents of the katipunang panlalawigan and the katipunang panlungsod. The presidents of the katipunang bayan in each province shall constitute the katipunang panlalawigan. The katipunang panlungsod and the katipunang bayan shall be composed of the punong barangays of cities and municipalities, respectively. xxx xxx xxx."

The respondent Secretary, acting in accordance with the provision of the Local Government Code empowering him to "promulgate in detail the implementing circulars and the rules and regulations to carry out the various administrative actions required for the initial implementation of this Code in such a manner as will ensure the least disruption of on-going programs and project," 7 issued Department of Local Government Circular No. 89-09 on April 7, 1989, 8 to provide the guidelines for the conduct of the elections of officers of the Katipunan ng mga Barangay at the municipal, city, provincial, regional and national levels. It is now the contention of petitioner that neither the constitution nor the law grants jurisdiction upon the respondent Secretary over election contests involving the election of officers of the FABC, the katipunan ng mga barangay at the provincial level. It is petitioner's theory that under Article IX, C, Section 2 of the 1987 Constitution, it is the Commission on Elections which has jurisdiction over all contests involving elective barangay officials.

On the other hand, it is the opinion of the respondent Secretary that any violation of the guidelines as set forth in said circular would be a ground for filing a protest and would vest upon the Department jurisdiction to resolve any protest that may be filed in relation thereto. Under Article IX, C, Section 2(2) of the 1987 Constitution, the Commission on Elections shall exercise "exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction." The 1987 Constitution expanded the jurisdiction of the COMELEC by granting it appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or elective barangay officials decided by trial courts of limited jurisdiction. 9 The jurisdiction of the COMELEC over contests involving elective barangay officials is limited to appellate jurisdiction from decisions of the trial courts. Under the law, 10 the sworn petition contesting the election of a barangay officer shall be filed with the proper Municipal or Metropolitan Trial Court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office within 10 days after the proclamation of the results. A voter may also contest the election of any barangay officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines by filing a sworn petition for quo warranto with the Metropolitan or Municipal Trial Court within 10 days after the proclamation of the results of the election. 11 Only appeals from decisions of inferior courts on election matters as aforestated may be decided by the COMELEC. The Court agrees with the Solicitor General that the jurisdiction of the COMELEC is over popular elections, the elected officials of which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. 12 It involves the choice or selection of candidates to public office by popular vote. 13 Specifically, the term "election," in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes 14 which do not characterize the election of officers in the Katipunan ng mga barangay. "Election contests" would refer to adversary proceedings by which matters involving the title or claim of title to an elective office, made before or after proclamation of the winner, is settled whether or not the contestant is claiming the office in dispute 15 and in the case of elections of barangay officials, it is restricted to proceedings after the proclamation of the winners as no pre-proclamation controversies are allowed. 16 The jurisdiction of the COMELEC does not cover protests over the organizational setup of the katipunan ng mga barangay composed of popularly elected punong

barangays as prescribed by law whose officers are voted upon by their respective members. The COMELEC exercises only appellate jurisdiction over election contests involving elective barangay officials decided by the Metropolitan or Municipal Trial Courts which likewise have limited jurisdiction. The authority of the COMELEC over the katipunan ng mga barangay is limited by law to supervision of the election of the representative of the katipunan concerned to the sanggunian in a particular level conducted by their own respective organization. 17 However, the Secretary of Local Government is not vested with jurisdiction to entertain any protest involving the election of officers of the FABC. There is no question that he is vested with the power to promulgate rules and regulations as set forth in Section 222 of the Local Government Code. Likewise, under Book IV, Title XII, Chapter 1, Sec. 3(2) of the Administrative Code of 1987, ** the respondent Secretary has the power to "establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and on the promotion of local autonomy and monitor compliance thereof by said units." Also, the respondent Secretary's rule making power is provided in Sec. 7, Chapter II, Book IV of the Administrative Code, to wit: "(3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans, programs and projects;" Thus, DLG Circular No. 89-09 was issued by respondent Secretary in pursuance of his rule-making power conferred by law and which now has the force and effect of law. 18 Now the question that arises is whether or not a violation of said circular vests jurisdiction upon the respondent Secretary, as claimed by him, to hear a protest filed in relation thereto and consequently declare an election null and void. It is a well-settled principle of administrative law that unless expressly empowered, administrative agencies are bereft of quasi-judicial powers. 19 The jurisdiction of administrative authorities is dependent entirely upon the provisions of the statutes reposing power in them; they cannot confer it upon themselves. 20 Such jurisdiction is essential to give validity to their determinations. 21 There is neither a statutory nor constitutional provision expressly or even by necessary implication conferring upon the Secretary of Local Government the power to assume jurisdiction over an election protest involving officers of the katipunan ng mga barangay. An understanding of the extent of authority of the Secretary over local governments is therefore necessary if We are to resolve the issue at hand.

Presidential power over local governments is limited by the Constitution to the exercise of general supervision 22 "to ensure that local affairs are administered according to law." 23 The general supervision is exercised by the President through the Secretary of Local Government. 24 In administrative law, supervision means overseeing or the power or authority of an officer to see that the subordinate officers perform their duties. If the latter fails or neglects to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. The fundamental law permits the Chief Executive to wield no more authority than that of checking whether said local government or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments so long as the same or its officers act within the scope of their authority. 25 Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. 26 Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that respondent Secretary has no authority to pass upon the validity or regularity of the election of the officers of the katipunan. To allow respondent Secretary to do so will give him more power than the law or the Constitution grants. It will in effect give him control over local government officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be achieved. In fact, his order that the new elections to be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local governments. 27 Indeed, it is the policy of the state to ensure the autonomy of local governments. 28 This state policy is echoed in the Local Government Code wherein it is declared that "the State shall guarantee and promote the autonomy of local government units to ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." 29 To deny the Secretary of Local Government the power to review the regularity of the elections of officers of the katipunan would be to enhance the avowed state policy of promoting the autonomy of local governments. Moreover, although the Department is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely "monitoring compliance" by local government units of such issuances. 30 To monitor means "to watch, observe or check." 31 This is compatible with the power

of supervision of the Secretary over local governments which as earlier discussed is limited to checking whether the local government unit concerned or the officers thereof perform their duties as provided by statutory enactments. Even the Local Government Code which grants the Secretary power to issue implementing circulars, rules and regulations is silent as to how these issuances should be enforced. Since the respondent Secretary exercises only supervision and not control over local governments, it is truly doubtful if he could enforce compliance with the DLG Circular. 32 Any doubt therefore as to the power of the Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government. Thus, the Court holds that in assuming jurisdiction over the election protest filed by respondent Governor and declaring the election of the officers of the FABC on June 18, 1989 as null and void, the respondent Secretary acted in excess of his jurisdiction. The respondent Secretary not having the jurisdiction to hear an election protest involving officers of the FABC, the recourse of the parties is to the ordinary courts. The Regional Trial Courts have the exclusive original jurisdiction to hear the protest. 33 The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which states that "whenever the guidelines are not substantially complied with, the election shall be declared null and void by the Department of Local Government and an election shall conduct anew," being invoked by the Solicitor General cannot be applied. DLG Circular No. 89-15 was issued on July 3, 1989 after the June 18, 1989 elections of the FABC officers and it is the rule in statutory construction that laws, including circulars and regulations, 34 cannot be applied retrospectively. 35 Moreover, such provision is null and void for having been issued in excess of the respondent Secretary's jurisdiction, inasmuch as an administrative authority cannot confer jurisdiction upon itself.

As regards the second issue raised by petitioner, the Court finds that respondent Governor has the personality to file the protest. Under Section 205 of the Local Government Code, the membership of the sangguniang panlalawigan consists of the governor, the vice-governor, elective members of the said sanggunian, and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation. The governor acts as the presiding officer of the sangguniang panlalawigan. 36 As presiding officer of the sangguniang panlalawigan, the respondent governor has an interest in the election of the officers of the FABC since its elected president becomes a member of the assembly. If the president of the FABC assumes his presidency under questionable circumstances and is allowed to sit in the sangguniang panlalawigan, the official actions of the sanggunian may be vulnerable

to attacks as to their validity or legality. Hence, respondent governor is a proper party to question the regularity of the elections of the officers of the FABC. As to the third issue raised by petitioner, the Court has already ruled that the respondent Secretary has no jurisdiction to hear the protest and nullify the elections. Nevertheless, the Court holds that the issue of the validity of the elections should now be resolved in order to prevent any unnecessary delay that may result from the commencement of an appropriate action by the parties. The elections were declared null and void primarily for failure to comply with Section 2.4 of DLG Circular No. 89-09 which provides that "the incumbent FABC President or the Vice-President shall preside over the reorganizational meeting, there being a quorum." The rule specifically provides that it is the incumbent FABC President or Vice-President who shall preside over the meeting. The word "shall" should be taken in its ordinary signification, i.e., it must be imperative or mandatory and not merely permissive, 37 as the rule is explicit and requires no other interpretation. If it had been intended that any other official should preside, the rules would have provided so, as it did in the elections at the town and city levels 38 as well as the regional level. 39 It is admitted that neither the incumbent FABC President nor the Vice-President presided over the meeting and elections but Alberto P. Molina, Jr., the Chairman of the Board of Election Supervisors/Consultants. Thus, there was a clear violation of the aforesaid mandatory provision. On this ground, the elections should be nullified. Under Sec. 2.3.2.7 of the same circular it is provided that a Board of Election Supervisors/Consultants shall be constituted to oversee and or witness the canvassing of votes and proclamation of winners. The rules confine the role of the Board of Election Supervisors/Consultants to merely overseeing and witnessing the conduct of elections. This is consistent with the provision in the Local Government Code limiting the authority of the COMELEC to the supervision of the election. 40 In case at bar, PGOO Molina, the Chairman of the Board, presided over the elections. There was direct participation by the Chairman of the Board in the elections contrary to what is dictated by the rules. Worse, there was no Board of Election Supervisors to oversee the elections in view of the walk out staged by its two other members, the Provincial COMELEC Supervisor and the Provincial Treasurer. The objective of keeping the election free and honest was therefore compromised. The Court therefore finds that the election of officers of the FABC held on June 18, 1989 is null and void for failure to comply with the provisions of DLG Circular No. 89-09.

Meanwhile, pending resolution of this petition, petitioner filed a supplemental petition alleging that public respondent Local Government Secretary, in his memorandum dated June 7, 1990, designated Augusto Antonio as temporary representative of the Federation to the sangguniang panlalawigan of Catanduanes. 41 By virtue of this memorandum, respondent governor swore into said office Augusto Antonio on June 14, 1990. 42 The Solicitor General filed his comment on the supplemental petition 43 as required by the resolution of the Court dated September 13, 1990. In his comment, the Solicitor General dismissed the supervening event alleged by petitioner as something immaterial to the petition. He argues that Antonio's appointment was merely temporary "until such time that the provincial FABC president in that province has been elected, appointed and qualified." 44 He stresses that Antonio's appointment was only a remedial measure designed to cope with the problems brought about by the absence of a representative of the FABC to the "sangguniang panlalawigan." Sec. 205 (2) of the Local Government Code (B.P. Blg. 337) provides "(2) The sangguniang panlalawigan shall be composed of the governor, the vicegovernor, elective members of the said sanggunian, and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation who shall be appointed by the President of the Philippines." (Emphasis supplied.) Batas Pambansa Blg. 51, under Sec. 2 likewise states: "xxx xxx xxx

The sangguniang panlalawigan of each province shall be composed of the governor as chairman and presiding officer, the vice-governor as presiding officer pro tempore, the elective sangguniang panlalawigan members, and the appointive members consisting of the president of the provincial association of barangay councils, and the president of the provincial federation of the kabataang barangay." (Emphasis supplied.) In Ignacio vs. Banate, Jr. 45 the Court, interpreting similarly worded provisions of Batas Pambansa Blg. 337 and Batas Pambansa Blg. 51 on the composition of the sangguniang panlungsod, 46 declared as null and void the appointment of private respondent Leoncio Banate, Jr. as member of the Sangguniang Panlungsod of the City of Roxas representing the katipunang panlungsod ng mga barangay for he lacked the eligibility and qualification required by law, not being a barangay captain and for not having been elected president of the association of barangay councils. The Court held that an unqualified person cannot be appointed a member of the sanggunian, even in an acting capacity. In Reyes vs. Ferrer, 47 the appointment of Nemesio L. Rasgo, Jr. as representative of the youth sector to the sangguniang

panlungsod of Davao City was declared invalid since he was never the president of the kabataang barangay city federation as required by Sec. 173, Batas Pambansa Blg 337. In the present controversy involving the sangguniang panlalawigan, the law is likewise explicit. To be appointed by the President of the Philippines to sit in the sangguniang panlalawigan is the president of the katipunang panlalawigan. The appointee must meet the qualifications set by law. 48 The appointing power is bound by law to comply with the requirements as to the basic qualifications of the appointee to the sangguniang panlalawigan. The President of the Philippines or his alter ego, the Secretary of Local Government, has no authority to appoint anyone who does not meet the minimum qualification to be the president of the federation of barangay councils. Augusto Antonio is not the president of the federation. He is a member of the federation but he was not even present during the elections despite notice. The argument that Antonio was appointed as a remedial measure in the exigency of the service cannot be sustained. Since Antonio does not meet the basic qualification of being president of the federation, his appointment to the sangguniang panlalawigan is not justified notwithstanding that such appointment is merely in a temporary capacity. If the intention of the respondent Secretary was to protect the interest of the federation in the sanggunian, he should have appointed the incumbent FABC President in a hold-over capacity. For even under the guidelines, the term of office of officers of the katipunan at all levels shall be from the date of their election until their successors shall have been duly elected and qualified, without prejudice to the terms of their appointments as members of the sanggunian to which they may be correspondingly appointed. 49 Since the election is still under protest such that no successor of the incumbent has as yet qualified, the respondent Secretary has no choice but to have the incumbent FABC President sit as member of the sanggunian. He could even have appointed petitioner since he was elected the president of the federation but not Antonio. The appointment of Antonio, allegedly the protege of respondent Governor, gives credence to petitioner's charge of political interference by respondent Governor in the organization. This should not be allowed. The barangays should be insulated from any partisan activity or political intervention if only to give true meaning to local autonomy. WHEREFORE, the petition is GRANTED in that the resolution of respondent Secretary dated August 4, 1989 is hereby SET ASIDE for having been issued in excess of jurisdiction. The election of the officials of the ABC Federation held on June 18, 1989 is hereby annulled. A new election of officers of the federation is hereby ordered to be conducted immediately in accordance with the governing rules and regulations.

The Supplemental petition is hereby GRANTED. The appointment of Augusto Antonio as representative to the Sangguniang Panlalawigan in a temporary capacity is declared null and void. No costs. SO ORDERED. De Jesus vs People 120 SCRA 760 G.R. Nos. 148948 & 148951-60. February 17, 2003.] COMMISSION ON ELECTIONS, petitioner, vs. HON LUCENITO N. TAGLE; Presiding Judge, Regional Trial Court, Branch 20, Imus, Cavite, respondent. Jose P. Balbuena for COMELEC. SYNOPSIS A criminal case for vote-buying was filed against Mayor Poblete, et al. Thereafter, a criminal case for vote-selling was filed against the witnesses in the vote-buying case. The COMELEC held that the witnesses in the vote-buying case are exempt from criminal prosecution pursuant to the fourth paragraph of Section 28 of RA No. 6646, which grants immunity from criminal prosecution to persons who voluntarily give information and willingly testify against those liable for vote-buying or voteselling. The trial judge in the vote-selling case, however, refused to dismiss the case. CcaDHT The Court agreed with the COMELEC. The witnesses to the vote-buying case voluntarily admitted that they were the recipients in the vote-buying done by accused in the case. It was precisely because of such voluntary admission and willingness to testify that the COMELEC en banc held that the respondents therein are exempt from criminal prosecution pursuant to the last paragraph of Section 28 of RA No. 6646. SYLLABUS 1. POLITICAL LAW; ELECTIONS; IMPORTANCE OF HONEST AND CREDIBLE ELECTIONS. A free, orderly, honest, peaceful, and credible election is indispensable in a democratic society. Without it, democracy would not flourish and would be a sham. Election offenses, such as vote-buying and vote-selling, are evils which prostitute the election process. They destroy the sanctity of the votes and abet the entry of dishonest candidates into the corridors of power where they may do more harm. As the Bible says, one who is dishonest in very small matters is dishonest in great ones. One who commits dishonesty in his entry into an elective office through the prostitution of the electoral process cannot be reasonably expected to respect and adhere to the constitutional precept that a public office is a

public trust, and that all government officials and employees must at all times be accountable to the people and exercise their duties with utmost responsibility, integrity, loyalty, and efficiency. 2. ID.; ID.; PREVENTION OF VOTE-BUYING; HOW ENFORCED. One of the effective ways of preventing the commission of vote-buying and of prosecuting those committing it is the grant of immunity from criminal liability in favor of the party whose vote was bought. This grant of immunity will encourage the recipient or acceptor to come into the open and denounce the culprit-candidate, and will ensure the successful prosecution of the criminal case against the latter. Congress saw the wisdom of this proposition in Section 28 of R.A. No. 6646 on Prosecution of VoteBuying and Vote-Selling. . . . [T]o avoid possible fabrication of evidence against the vote-buyers, especially by the latter's opponents, Congress saw it fit to warn "votesellers" who denounce the vote-buying that they could be liable for perjury or false testimony should they not tell the truth. DAHSaT 3. ID.; ID.; COMELEC, WITH EXCLUSIVE POWER TO CONDUCT PRELIMINARY INVESTIGATION OF AND PROSECUTE ALL ELECTION OFFENSES. It must be stressed that the COMELEC has the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. The Chief State Prosecutor, all Provincial and City Prosecutors, or their respective assistants are, however, given continuing authority, as deputies of the COMELEC, to conduct preliminary investigation of complaints involving election offenses and to prosecute the same. This authority may be revoked or withdrawn by the COMELEC anytime whenever, in its judgment, such revocation or withdrawal is necessary to protect the integrity of the COMELEC and to promote the common good, or when it believes that the successful prosecution of the case can be done by the COMELEC. 4. ID.; ID.; COMELEC'S NULLIFICATION OF THE PROVINCIAL PROSECUTOR'S RESOLUTION IS EQUIVALENT TO A WITHDRAWAL OF THE DEPUTATION GRANTED TO THE LATTER. "When the COMELEC nullified the resolution of the Provincial Prosecutor in I.S. No. 1-99-1080, which was the basis of the informations for voteselling, it, in effect, withdrew the deputation granted to the prosecutor. Such withdrawal of the deputation was clearly in order, considering the circumstances obtaining in these cases where those who voluntarily executed affidavits attesting to the vote-buying incident and became witnesses against the vote-buyers now stand as accused for the same acts they had earlier denounced. . . . It was precisely because of such voluntary admission and willingness to testify that the COMELEC en banc declared null and void the resolution of the Office of the Provincial Prosecutor of Cavite in I.S. No. 1-99-1080 and held that the respondents therein are exempt from criminal prosecution pursuant to the last paragraph of Section 28 of R.A. No. 6646. What the Prosecutor did was to sabotage the prosecution of the criminal case against the "vote-buyers" and put in serious peril the integrity of the COMELEC, which filed the said case for vote-buying. If the Prosecutor had listened to the

command of prudence and good faith, he should have brought the matter to the attention of the COMELEC. AcHCED DECISION DAVIDE, JR., C.J p: In this special civil action for certiorari and mandamus, petitioner Commission on Elections (COMELEC) seeks the nullification of the orders of 16 March 2001 1 and 9 May 2001 2 of respondent Judge Lucenito N. Tagle of the Regional Trial Court (RTC), Branch 20, Imus, Cavite, denying petitioner's motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 and motion for reconsideration, respectively. During the 11 May 1998 elections, Florentino A. Bautista ran for the position of mayor in the Municipality of Kawit, Cavite. On 8 July 1998, he filed with the COMELEC a complaint against then incumbent mayor Atty. Federico Poblete, Bienvenido Pobre, Reynaldo Aguinaldo, Arturo Ganibe, Leonardo Llave, Diosdado del Rosario, Manuel Ubod, Angelito Peregrino, Mario Espiritu, Salvador Olaes and Pedro Paterno, Jr., for violation of Section 261 (a) and (b) of the Omnibus Election Code. The complaint was supported by the separate affidavits of forty-four (44) witnesses attesting to the vote-buying activities of the respondents and was docketed as E.O. Case No. 98-219. EcSCAD On 25 February 1999, upon the recommendation of its Law Department, the COMELEC en banc issued a resolution 3 directing the filing of the necessary information against the respondents in E.O. Case No. 98-219 and authorizing the Director IV of the Law Department to designate a COMELEC prosecutor to handle the prosecution of the cases and to file the appropriate motion for the preventive suspension of the respondents. The Law Department filed the corresponding information against the respondents in E.O. Case No. 98-219 before the RTC, Branch 90, Imus, Cavite, which was docketed as Criminal Case No. 7034-99. Before the trial of Criminal Case No. 7034-99 commenced, or on 2 December 1999, a complaint was filed by Innocencio Rodelas and Gerardo Macapagal with the Office of the Provincial Prosecutor in Imus, Cavite, for violation of Section 261 (a) of the Omnibus Election Code against the witnesses in the criminal case for vote-buying, who were the witnesses in E.O. Case No. 98-219. The complaint was docketed as I.S. No. 1-99-1080. On 10 April 2000, the Office of the Provincial Prosecutor resolved to file separate informations for vote-selling in the various branches of the RTC in Imus, Cavite, against the respondents in I.S. No. 1-99-1080, The cases were docketed as (1) Criminal Cases Nos. 7940-00 to 7949-00 and 7981-00, which were assigned to Branch 22; (2) Criminal Cases Nos. 7973-00 to 7979-00 and 7970-00, assigned to

Branch 21; (3) Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, assigned to Branch 20; and (4) Criminal Cases Nos. 7960-00 to 7969-00, assigned to Branch 90. On 23 June 2000, the respondents in I.S. No. 1-99-1080 appealed before the COMELEC the 10 April 2000 Resolution of the Provincial Prosecutor. On 6 July 2000, the COMELEC en banc denied the appeal for lack of jurisdiction. 4 However, upon the urgent motion to set for hearing the appeal, the COMELEC en banc resolved to defer action on the appeal and refer the same to the Law Department for comment and recommendation. 5 The Law Department of the COMELEC filed motions to suspend proceedings before Branches 20, 21, 22 and 90 of the RTC of Imus, Cavite, until the COMELEC would have resolved the appeal of the respondents in I.S. No. 1-99-1080. The Presiding Judge of Branch 22 granted the motion for the suspension of proceedings in Criminal Cases Nos. 7940-00 to 7949-00 and 7981-00. In its Minute Resolution No. 00-2453, 6 the COMELEC en banc, upon the recommendation of its Law Department, declared null and void the resolution of the Office of the Provincial Prosecutor in I.S. No. 1-99-1080. It held that the respondents therein are exempt from criminal prosecution pursuant to the fourth paragraph of Section 28 of R.A. No. 6646, 7 otherwise known as "The Electoral Reforms Law of 1987," which grants immunity from criminal prosecution persons who voluntarily give information and willingly testify against those liable for vote-buying or voteselling. It further directed the Law Department to file the necessary motions to dismiss the criminal cases filed against the said respondents. IAaCST Pursuant to Minute Resolution No. 00-2453, the Law Department filed a motion to dismiss 8 Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 before Branch 20 of the RTC of Imus, Cavite, presided by herein respondent judge. The latter, however, denied the said motion and the motion for reconsideration. According to respondent judge, before one can be exempt from prosecution under the fourth paragraph of Section 28 of R.A. No. 6646, it is necessary that such person has already performed the overt act of voluntarily giving information or testifying in any official investigation or proceeding for the offense to which such information or testimony was given. It was thus premature to exempt the respondents in I.S. No. 1-99-1080 from criminal prosecution, since they have not yet testified. Hence, this petition, ascribing to the respondent judge grave abuse of discretion amounting to excess or lack of jurisdiction in peremptorily denying the prosecution's motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 798000. This Court referred the petition to the Office of the Solicitor General (OSG) and required it to manifest whether it is adopting the petition. 9 In a Manifestation and Motion 10 filed with this Court, the OSG stated that it repleads the submissions contained in the petition and adopts the petition as its own.

The petition is meritorious. A free, orderly, honest, peaceful, and credible election is indispensable in a democratic society. Without it, democracy would not flourish and would be a sham. Election offenses, such as vote-buying and vote-selling, are evils which prostitute the election process. They destroy the sanctity of the votes and abet the entry of dishonest candidates into the corridors of power where they may do more harm. As the Bible says, one who is dishonest in very small matters is dishonest in great ones. One who commits dishonest; in his entry into an elective office through the prostitution of the electoral process cannot be reasonably expected to respect and adhere to the constitutional precept that a public office is a public trust, and that all government officials and employees must at all times be accountable to the people and exercise their duties with utmost responsibility, integrity, loyalty, and efficiency. The provision of law alleged to have been violated by the respondents in E.O. Case No. 98-219, who are the accused in Criminal Case No. 7034-99, reads as follows: SEC. 261. Prohibited Acts. The following shall be guilty of an election offense:

(a) Vote-buying and vote-selling. (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party. (2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations. (b) Conspiracy to bribe voters. Two or more persons whether candidates or not, who come to an agreement concerning the commission of any violation of paragraph (a) of this section and decide to commit it. One of the effective ways of preventing the commission of vote-buying and of prosecuting those committing it is the grant of immunity from criminal liability in favor of the party whose vote was bought. This grant of immunity will encourage the recipient or acceptor to come into the open and denounce the culprit-candidate, and will ensure the successful prosecution of the criminal case against the latter. Congress saw the wisdom of this proposition, and so Section 28 of R.A. No. 6646 on Prosecution of Vote-Buying and Vote-Selling concludes with this paragraph: HSDIaC

The giver, offeror, the promisor as well as the solicitor, acceptor, recipient and conspirator referred to in paragraphs (a) and (b) of Section 261 of Batas Pambansa Blg. 881 shall be liable as principals: Provided, That any person, otherwise guilty under said paragraphs who voluntarily gives information and willingly testifies on any violation thereof in any official investigation or proceeding shall be exempt from prosecution and punishment for the offenses with reference to which his information and testimony were given: Provided, further, That nothing herein shall exempt such person from criminal prosecution for perjury or false testimony. However, to avoid possible fabrication of evidence against the vote-buyers, especially by the latter's opponents, Congress saw it fit to warn "vote-sellers" who denounce the vote-buying that they could be liable for perjury or false testimony should they not tell the truth. It must be stressed that the COMELEC has the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. 11 The Chief State Prosecutor, all Provincial and City Prosecutors, or their respective assistants are, however, given continuing authority, as deputies of the COMELEC, to conduct preliminary investigation of complaints involving election offenses and to prosecute the same. 12 This authority may be revoked or withdrawn by the COMELEC anytime whenever, in its judgment, such revocation or withdrawal is necessary to protect the integrity of the COMELEC and to promote the common good, or when it believes that the successful prosecution of the case can be done by the COMELEC. 13 In this case, when the COMELEC nullified the resolution of the Provincial Prosecutor in I.S. No. 1-99-1080, which was the basis of the informations for vote-selling, it, in effect, withdrew the deputation granted to the prosecutor. Such withdrawal of the deputation was clearly in order, considering the circumstances obtaining in these cases where those who voluntarily executed affidavits attesting to the vote-buying incident and became witnesses against the vote-buyers now stand as accused for the same acts they had earlier denounced. What the Prosecutor did was to sabotage the prosecution of the criminal case against the "vote-buyers" and put in serious peril the integrity of the COMELEC, which filed the said case for vote-buying. If the Prosecutor had listened to the command of prudence and good faith, he should have brought the matter to the attention of the COMELEC. Petitioner COMELEC found that the respondents in I.S. No. 1-99-1080, who executed affidavits and turned witnesses in Criminal Case No. 7034-99, voluntarily admitted that they were the acceptors or recipients in the vote-buying done by the accused in said case. It was precisely because of such voluntary admission and willingness to testify that the COMELEC en banc, in its Minute Resolution No. 00-2453, declared null and void the resolution of the Office of the Provincial Prosecutor of Cavite in I.S. No. 1-99-1080 and held that the respondents therein are exempt from criminal

prosecution pursuant to the last paragraph of Section 28 of R.A. No. 6646. Hence, it directed its Law Department to file a motion to dismiss the criminal cases which the Office of the Provincial Prosecutor filed in court against the respondents in I.S. No. 1-99-1080. We agree with the petitioner and hold that the respondents in I.S. No. 1-99-1080, who are the accused in Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, are exempt from criminal prosecution for vote-selling by virtue of the proviso in the last paragraph of Section 28 of R.A. No. 6646. Respondent judge lost sight of the fact that at the time the complaint for vote-selling was filed with the Office of the Provincial Prosecutor, the respondents in I.S. No. 1-99-1080 had already executed sworn statements attesting to the corrupt practice of vote-buying in the case docketed as Criminal Case No. 7034-99. It cannot then be denied that they had already voluntarily given information in the vote-buying case. In fact, they willingly testified in Criminal Case No. 7034-99 per petitioner's Memorandum filed with this Court. 14 In a futile attempt to justify his denial of the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, respondent judge averred in his comment on the petition that nothing was mentioned in the motion to dismiss that the accused in said cases had already given information or testified in any proceeding. Besides, no record of any preliminary investigation was attached to the motion to dismiss. The petitioner merely referred to the dispositive portion of Minute Resolution No. 002453 without mentioning any preliminary investigation conducted by the Law Department of the COMELEC. This contention is without basis. A reading of the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 shows that a certified true copy of COMELEC Minute Resolution No. 00-2453 was attached thereto and was made an integral part thereof. The attached resolution indicated that the accused in the cases sought to be dismissed had voluntarily given information and were willing to testify against the vote-buyers, and are therefore utilized as witnesses in the pending case for vote-buyers docketed as Criminal Case No. 7034-99. aCSHDI Clearly then, respondent judge committed grave abuse of discretion when he denied the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 despite COMELEC's determination that the accused therein are exempt from criminal prosecution for vote-selling pursuant to the proviso in the fourth paragraph of Section 28 of R.A. No. 6646. WHEREFORE, the petition is GRANTED. The challenged orders dated 16 March 2001 and 9 May 2001 of respondent judge in Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 before Branch 20 of the Regional Trial Court in Imus, Cavite, are hereby SET ASIDE, and said criminal cases are ordered DISMISSED. No pronouncement as to costs.

SO ORDERED. G.R. Nos. 83938-40. November 6, 1989.] PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. HENRY B. BASILLA, SALVACION COLAMBOT, SPOUSES JAIME AND ADORACION TAYONG and MELCHOR YANSON, respondents. The Office of the Solicitor General for petitioner. Ruben A. Songco for respondents. SYLLABUS 1. ELECTION LAWS; OMNIBUS ELECTION CODE; POWER AND AUTHORITY OF COMELEC TO CONDUCT PRELIMINARY INVESTIGATION OF ELECTION OFFENSES. There is no dispute that the Comelec is vested with power and authority to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code and to prosecute such offenses in court (Section 265.) 2. ID.; ID.; ID.; AUTHORIZES COMELEC TO AVAIL ITSELF OF ASSISTANCE OF OTHER PROSECUTING ARMS OF GOVERNMENT. We note that while Section 265 of the Code vests "exclusive power" to conduct preliminary investigation of election offenses and to prosecute the same upon the Comelec, it at the same time authorizes the Comelec to avail itself of the assistance of other prosecuting arms of the Government (Section 2, Article IX-C of the 1987 Constitution; Executive Order No. 134). 3. ID.; ID.; ID.; ID.; DEPUTATION BY COMELEC OF PROSECUTING ARMS OF GOVERNMENT, NOT LIMITED TO PEACE KEEPING FUNCTIONS. The contention of private respondents that the deputation by the Comelec of the prosecuting arms of the Government would be warranted only before the elections and only to ensure free, honest, orderly, peaceful and credible elections, that is, to perform the peacekeeping functions of policemen, lacks substance. There is nothing in Section 2 (4) of Article IX-C of the Constitution which requires such a pinched and niggardly interpretation of the authority of the Comelec to appoint as its deputies, officials or employees of other agencies and instrumentalities of the government. The prompt investigation and prosecution and disposition of election offenses constitute an indispensable part of the task of securing free, orderly, honest, peaceful and credible elections. The investigation and prosecution of election offenses are, in an important sense, more important than the maintenance of physical order in election precincts. Without the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the Department of Justice, the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible, unless, perhaps, the Comelec had a bureaucracy many times larger than what it actually

has. Moreover, the prosecution officers designated by the Comelec become deputies or agents of the Comelec and pro tanto subject to the authority, control and supervision of the Comelec in respect of the particular functions covered by such deputation. The acts of such deputies within the lawful scope of their delegated authority are, in legal contemplation, the acts of the Comelec itself. 4. CONSTITUTIONAL LAW; CONSTITUTIONAL COMMISSIONS; COMMISSION ON ELECTIONS; LIMITATION PLACED BY CONSTITUTION UPON COMELEC'S AUTHORITY OVER ITS DEPUTIES, CITED. The only limitation the Constitution itself places upon the Comelec's authority over its deputies relates to the enforcement of such authority through administrative sanctions. Such sanctions - e.g., suspension or removal - may be recommended by the Comelec to the President (Sec. 2 [8], Article IX-C, 1987 Constitution) rather than directly imposed by the Comelec, evidently, to pre-empt and avoid potential difficulties with the executive department of the Government where the prosecution and other officers deputized are ordinarily located. DECISION FELICIANO, J p: As an aftermath of the May 1987 congressional elections in Masbate, complaints for violations of Section 261 of the Omnibus Election Code (BP Blg. 881) were filed with the Office of the Provincial Fiscal of Masbate against the private respondents as follows: 1) by Jolly Fernandez, then Officer-in-Charge of the Office of the Governor, against the spouses Jaime and Adoracion Tayong for violation of Section 261, paragraph a-1, for vote-buying; 2) by Ladislao Bataliran against Salvacion Colambot for violation of Section 261, paragraph a-1, also for vote buying; and 3) by PC/Sgt. Arturo Rebaya against Melchor Yanson for violation of Section 261, paragraph p, for carrying of deadly weapon. After preliminary investigation of the foregoing complaints, the Provincial Fiscal of Masbate filed in the Regional Trial Court, Branch 49, Cataingan, Masbate, the following criminal complaints: (1) Criminal Case No. 324 against the spouses Tayong; (2) Criminal Case No. 326 against Salvacion Colambot; and (3) Criminal Case No. 375 against Melchor Yanson. In three (3) separate orders, all dated 6 October 1987, and identical in tenor save for the names of the accused respondent Judge Henry Basilla motu proprio dismissed the three (3) informations filed by the Provincial Fiscal, giving the following justification: LexLib

"xxx

xxx

xxx

The record shows that the complainant filed the complaint with the fiscal and not with the COMELEC. The COMELEC did not investigate the case. The Constitution of the Republic of the Philippines says: 'Sec. 2(6) of Art. IX (C). The Commission on Election shall exercise the following powers and functions: xxx xxx xxx

. . .; investigate and, when appropriate, prosecute cases of violation of election laws, including acts or omissions, constituting election frauds offenses, malpractices.' The Omnibus Election Code of the Philippines (BP Blg. 881) says: 'Sec. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government; Provided, however, that in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. (Sec. 182, 1978, EC; and Sec. 66, BP 697)' In the landmark case of De Jesus vs. People, L-60998, February 22, 1983, 120 SCRA 760, the Supreme Court ruled: 'The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomitant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to ensure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute election offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.' Consistently, and lately, in Corpu[s], et al. vs. Tanodbayan of the Philippines', et al., L-62075, April 15, 1987, our Supreme Court rules: 'An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to

investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all embracing power over the conduct of election.' IN THE LIGHT OF ALL THE FOREGOING, inasmuch as the election offense was not investigated and prosecuted by the COMELEC, the case is motu proprio dismissed." 1 The People moved for reconsideration of respondent Judge's orders, without success. cdphil The instant Petition for Review assails the three (3) orders dismissing the three (3) criminal informations against the private respondents, as constituting grave abuse of discretion amounting to lack of jurisdiction. The Petition argues principally that the Commission on Elections ("Comelec") has authority to deputize the chief state prosecutors, provincial and city fiscals and their assistants, under Sections 2 (4) and (8), Article IX-C of the 1987 Constitution, and that the Comelec did deputize such prosecution officers to conduct preliminary investigation of complaints for alleged violation of election laws and to institute criminal informations therefor. The Petition must be granted. There is no dispute that the Comelec is vested with power and authority to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code and to prosecute such offenses in court. Section 265 of this Code reads as follows: "Sec. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. (Sec. 182, 1973 EC; and Sec. 66, BP 697)" (Italics supplied). We note that while Section 265 of the Code vests "exclusive power" to conduct preliminary investigation of election offenses and to prosecute the same upon the Comelec, it at the same time authorizes the Comelec to avail itself of the assistance of other prosecuting arms of the Government. Section 2 of Article IX-C of the 1987

Constitution clearly envisage that the Comelec would not be compelled to carry out all its functions directly and by itself alone: "Section 2. functions: The Commission on Elections shall exercise the following powers and

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. xxx xxx xxx

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. xxx xxx xxx

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. xxx xxx xxx

(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. xxx xxx xxx"

(Emphasis supplied). The concurrence of the President with the deputation by Comelec of the prosecuting arms of the Government, was expressed in general terms and in advance in Executive Order No. 134, dated 27 February 1987, entitled "Enabling Act for the Elections for members of Congress on May 11, 1987, and for other purposes." Executive Order No. 134 provided in pertinent portion as follows: "xxx xxx xxx

Sec. 11. Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint within two (2) months from filing, the complainant may file the complaint with the Office of the Fiscal or with the Department of Justice for proper investigation and prosecution, if warranted.

The Commission may avail of the assistance of other prosecuting arms of the government." (Italics supplied). On 9 March 1987, the Comelec enacted its Resolution No. 1862. The pertinent operative portions of this resolution are the following: "xxx xxx xxx

NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution of the Republic of the Philippines, the Omnibus Election Code and Executive Orders Nos. 50, 94, 134 and 144, has RESOLVED to designate, as it hereby designates the Chief State Prosecutor, all Provincial and City Fiscals and their respective Assistants as its deputies in connection with the elections for Members of Congress on May 11, 1987, to perform the following duties and functions: cdll 1. Conduct preliminary investigation of complaints involving election offenses under the Omnibus Election Code which may be filed directly with them, or which may be endorsed to them by the Commission or its authorized representatives; and 2. Whenever a prima facie case exists, file the proper information in court and prosecute the same. Preliminary investigation of cases filed directly with, or endorsed to, Provincial and City Fiscals, and or their respective Assistants shall be conducted immediately and shall be finished within thirty (30) days from the filing thereof and, for this purpose, they are enjoined to hold office on a twenty-four (24) hour basis during the registration of voters on April 11 and 12, 1987, on Election Day on May 11, 1987, and until midnight on Revision Day on May 2, 1987. Provincial and City Fiscals and their respective Assistants shall submit to the Commission a report on every case directly filed with them and thereafter, monthly progress reports on the status of the cases handled by them, including those endorsed by the Commission or its authorized representatives. This Resolution shall take effect immediately." 2 (Emphasis supplied) The contention of private respondents that the deputation by the Comelec of the prosecuting arms of the Government would be warranted only before the elections and only to ensure free, honest, orderly, peaceful and credible elections, that is, to perform the peace-keeping functions of policemen, lacks substance. There is nothing in Section 2 (4) of Article IX-C of the Constitution which requires such a pinched and niggardly interpretation of the authority of the Comelec to appoint as its deputies, officials or employees of other agencies and instrumentalities of the government. The prompt investigation and prosecution and disposition of election

offenses constitute an indispensable part of the task of securing free, orderly, honest, peaceful and credible elections. The investigation and prosecution of election offenses are, in an important sense, more important than the maintenance of physical order in election precincts. Without the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the Department of Justice, the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible, unless, perhaps, the Comelec had a bureaucracy many times larger than what it actually has. Moreover, the prosecution officers designated by the Comelec become deputies or agents of the Comelec and pro tanto subject to the authority, control and supervision of the Comelec in respect of the particular functions covered by such deputation. The acts of such deputies within the lawful scope of their delegated authority are, in legal contemplation, the acts of the Comelec itself. The only limitation the Constitution itself places upon the Comelec's authority over its deputies relates to the enforcement of such authority through administrative sanctions. Such sanctions e.g., suspension or removal may be recommended by the Comelec to the President (Sec. 2 [8], Article IX-C, 1987 Constitution) rather than directly imposed by the Comelec, evidently, to pre-empt and avoid potential difficulties with the executive department of the Government where the prosecution and other officers deputized are ordinarily located. All this the respondent Judge disregarded when he motu proprio dismissed the criminal informations filed in this case. The cases he cited in his identical orders De Jesus v. People, 120 SCRA 760 (1983) and Corpus, et al. v. Tanodbayan, 149 SCRA 281 (1987) can offer him no comfort at all; for these cases do not relate to the authority of the Comelec to deputize the regular prosecution arms of the Government for the investigation and prosecution of election offenses and those cases are not in conflict with our ruling here. WHEREFORE, the Petition for Review on Certiorari is hereby GRANTED due course and the Orders of the trial court all dated October 6, 1987 in Criminal Cases Nos. 324, 326 and 375 and the Order dated December 7, 1987 in the same cases denying the People's Motion for Reconsideration, are hereby SET ASIDE and ANNULLED. The trial court is ORDERED to proceed forthwith with the continuation of Criminal Cases Nos. 324, 326 and 375 and until termination thereof. Costs against private respondents. SO ORDERED. G.R. No. 88919. July 25, 1990.] PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETE CITY, AND OIC MAYOR DOMINADOR S. REGALADO, JR., respondents. DECISION

GUTIERREZ, JR., J p: Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed through the Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court may take cognizance of the investigation and determine whether or not probable cause exists? On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado of Tanjay, Negros Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay and without obtaining prior permission or clearance from COMELEC as required by law. Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete City: (1) to conduct the preliminary investigation of the case; (2) to prepare and file the necessary information in court; (3) to handle the prosecution if the evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or dismissal as the case may be. The directive to conduct the preliminary investigation was pursuant to COMELEC Resolution No. 1752 dated January 14, 1986. The resolution, in turn, is based on the constitutional mandate that the COMELEC is charged with the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections (Sec. 2, Article XII-C of the 1973 Constitution) and on the Omnibus Election Code which implements the constitutional provision. The Resolution provides, among others: LLjur xxx xxx xxx

"Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to conduct preliminary investigations of election offenses committed in their respective jurisdictions, file the corresponding complaints and/or informations in court whenever warranted, and to prosecute the same pursuant to Section 265 of the Omnibus Election Code." (Rollo, p. 15). After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on September 26, 1988, he filed with the respondent trial court a criminal case for violation of section 261, Par. (h), Omnibus Election Code against the OIC-Mayor. In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC Mayor. It also fixed the bail at five thousand pesos (P5,000.00) as recommended by the Provincial Election Supervisor. However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside its September 30, 1988 order on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to Section 2,

Article III of the 1987 Constitution. The court stated that it "will give due course to the information filed in this case if the same has the written approval of the Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter." (at p. 23, Rollo, emphasis supplied) In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file another information charging the same offense with the written approval of the Provincial Fiscal. LLjur Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court quashed the information. A motion for reconsideration was denied. Hence, this petition. The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election Supervisor lacks jurisdiction to determine the existence of probable cause in an election offense which it seeks to prosecute in court because: "While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorized legal officers of the Commission on Elections have the exclusive power to conduct preliminary investigation of all election offenses and to prosecute the same, it is doubtful whether said authority under the auspices of the 1973 Constitution, still subsists under the 1987 Constitution which has deleted in its Section 2, Article III, the phrase 'and such other responsible officer as may be authorized by law' in the equivalent section and article of the 1973 Constitution." (Rollo, p. 24). The petition is impressed with merit. We emphasize important features of the constitutional mandate that "xx no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge xx." (Article III, Section 2, Constitution). First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination. llcd

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper - whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not be should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]): "Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon. 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is 'not a judicial function xx (but) part of the prosecution's job, a function of the executive,' (2) that wherever 'there are enough fiscals or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them,' and the fact 'that a certain power is granted does not necessarily mean that it should be indiscriminately exercised.'. "The 1988 Amendments to the 1985 Rules of Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations. "This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court rule or statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or

information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to be judicial in nature." We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. It is in this context that we address the issue raised in the instant petition so as to give meaning to the constitutional power vested in the COMELEC regarding election offenses. LLjur Article IX C Section 2 of the Constitution provides: "Sec. 2. functions: The Commission on Elections shall exercise the following powers and

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. xxx xxx xxx

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of votes, investigate and, where appropriate, prosecute cases of violation of election laws, including acts or omission constituting election frauds, offenses, and malpractices. (Emphasis supplied). In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC. "The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomitant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by

public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate. From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceived neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and hear election offenses committed by public officers in relation to their office as contradistinguished from the clear and categorical bestowal of said authority and jurisdiction upon the COMELEC and the courts of first instance under Section 182 and 184, respectively, of the Election Code of 1978. An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of elections." (Corpus v. Tanodbayan, 149 SCRA 281 [1987]). Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or Prosecutor files an information charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his office. (People v. Basilla, et al., G.R. Nos. 83938-40, November 6, 1989). In the instant case, there is no averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as a deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC's preliminary investigation. It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the President issued Executive Order No. 134 which was the ENABLING ACT FOR ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof provides: "Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint within two (2) months from filing, the complainant may file the complaint with the Office of the Fiscal or with the Department of Justice for proper investigation and prosecution, if warranted. The Commission may avail of the assistance of other prosecuting arms of the government.

It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that section 2, Article III of the 1987 Constitution comes in. This is so, because, when the application for a warrant of arrest is made and the information is filed with the court, the judge will then determine whether or not a probable cause exists for the issuance of a warrant of arrest. Bearing these principles in mind, it is apparent that the respondent trial court misconstrued the constitutional provision when it quashed the information filed by the Provincial Election Supervisor. As indicated above what the respondent trial court should have done was to enforce its September 30, 1988 order, to wit: "Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 and considering that after a personal examination of the evidence submitted by the investigating Provincial Election Supervisor III Negros Oriental (Designated Legal Officer), there is reasonable ground for this Court to rely on the certification of said Provincial Election Supervisor III in the information that a probable cause exists, let a warrant issue for the arrest of the accused fixing the bail at FIVE THOUSAND (P5,000.00) PESOS as recommended by the Provincial Election Supervisor III." The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted. llcd WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22, 1988 and December 8, 1988 are REVERSED and SET ASIDE. The respondent trial court's Order dated September 30, 1988 is REINSTATED. The respondent court is ordered to proceed hearing the case with deliberate speed until its termination. SO ORDERED. People vs. Delgado G.R. No. 93419-32 G.R. No. 136781. October 6, 2000.] VETERANS FEDERATION PARTY, ALYANSANG BAYANIHAN NG MGA MAGSASAKA, MANGGAGAWANG BUKID AT MANGINGISDA, ADHIKAIN AT KILUSAN NG ORDINARYONG TAO PARA SA LUPA, PABAHAY AT KAUNLARAN, and LUZON FARMERS PARTY, petitioners, vs. COMMISSION ON ELECTIONS, PAG-ASA, SENIOR CITIZENS, AKAP AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA, OCW-UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, 4L, AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAKBAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, AABANTE KA PILIPINAS All Being Party-List Parties/Organizations and Hon MANUEL B. VILLAR, JR., in his Capacity as Speaker of the House of Representatives, respondents. [G.R. No. 136786. October 6, 2000.]

AKBAYAN! (CITIZENS' ACTION PARTY), ADHIKAIN AT KILUSAN NG ORDINARYONG TAO PARA SA LUPA, PABAHAY AT KAUNLARAN (AKO), and ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES (APEC), petitioners, vs. COMMISSION ON ELECTIONS (COMELEC), HOUSE OF REPRESENTATIVES represented by Speaker Manuel B. Villar, PAG-ASA, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, FOUR "L", AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, AABANTE KA PILIPINAS, respondents. [G.R. No. 136795. October 6, 2000.] ALAGAD (PARTIDO NG MARALITANG-LUNGSOD), NATIONAL CONFEDERATION OF SMALL (COCONUT FARMERS' ORGANIZATIONS (NCSFCO), and LUZON FARMERS' PARTY (BUTIL), petitioners, vs. COMMISSION ON ELECTIONS, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, 4L, AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN, ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT, and AABANTE KA PILIPINAS, respondents. Romeo G. Roxas for petitioners in G.R. No. 136781. Gregorio A. Andolana for petitioner A.K.O. The Solicitor General for public respondent. Ceferino Padua Law Office for Intervenor-Movant ABB-OFW. Romero Valdecantos Arreza & Magtanong Law Offices for Chamber of Commerce and Industry. Ruth R. Aldaba for Intervenor in G.R. No. 136786. R.A.V. Saguisag for petitioner in G.R. No. 136795. Arturo M. Tolentino and Ricardo Blancaflor for Kabataan ng Masang Pilipino, National Urban Poor Assembly, Bantay Bayan Foundation Party, People's Progressive Alliance for Peace and Good Government Towards Alleviation of Poverty and Social Advancement. SYNOPSIS Petitions for certiorari were filed assailing two (2) Comelec Resolutions ordering the proclamation of thirty-eight (38) additional party-list representatives "to complete the full complement of 52 seats in the House of Representatives as provided under Section 5, Article VI of the 1987 Constitution and R.A. 7941."

Comelec, together with the respondent parties, averred that the twenty percent allocation for party-list representatives in the House under the Constitution was mandatory and that the two percent vote requirement in RA 7941 was unconstitutional, because its strict application would make it mathematically impossible to fill up the house party-list complement. The Supreme Court held that the COMELEC gravely abused its discretion in granting additional seats which violated the two percent threshold and proportional representation requirements of RA 7941. The Supreme Court held that Section 5 (2), Art. VI of the Constitution stating that "[t]he party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list" is not mandatory; that this percentage is a ceiling the mechanics by which it is to be filled up has been left to Congress; that in the exercise of its prerogative, Congress enacted RA 7941 by which it prescribed that a party, organization or coalition participating in the party-list election must obtain at least two percent of the total votes cast for the system to qualify for a seat in the House of Representatives but that no winning party, organization or coalition can have more than three seats therein; that Congress has the prerogative to determine whether to adjust or change this percentage requirement; and that the two percent threshold is consistent with the intent of the framers of the law and with the essence of "representation." SYLLABUS 1. CONSTITUTIONAL LAW; SECTION 5, ARTICLE VI OF THE 1987 CONSTITUTION; TWENTY PERCENT ALLOCATION IN THE HOUSE FOR PARTY-LIST LAWMAKERS IS A MERE CEILING AND NOT MANDATORY; CASE AT BAR. The Constitution simply states that "[t]he party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list." [A] simple reading of Section 5, Article VI of the Constitution, easily conveys the equally simple message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list system of representation. The Constitution explicitly sets down only the percentage of the total membership in the House of Representatives reserved for party-list representatives. In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier, Congress declared therein a policy to promote "proportional representation" in the election of party-list representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering more than this percentage could have "additional seats in proportion to their total number of votes." Furthermore, no winning party, organization or coalition can have more than three seats in the House of Representatives. [T]he foregoing statutory

requirements, show that Section 5 (2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-list seats in Congress. 2. ID.; ID.; ID.; TWO PERCENT THRESHOLD IS CONSISTENT WITH THE INTENT OF LAWMAKERS AND WITH THE ESSENCE OF "REPRESENTATION." In imposing a two percent threshold, Congress wanted to ensure that only those parties, organizations and coalitions having a sufficient number of constituents deserving of representation are actually represented in Congress. This intent can be gleaned from the deliberations on the proposed bill. . . The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them. But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature that features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" to ensure meaningful local representation. 3. ID.; ID.; ID.; THREE-SEAT-PER-PARTY LIMIT ENSURES ENTRY OF VARIOUS INTEREST-REPRESENTATIONS INTO THE LEGISLATURE. An important consideration in adopting the party-list system is to promote and encourage a multiparty system of representation . . . Consistent with the Constitutional Commission's pronouncements, Congress set the seat-limit to three (3) for each qualified party, organization or coalition. "Qualified" means having hurdled the two percent vote threshold. Such three-seat limit ensures the entry of various interestrepresentations into the legislature; thus, no single group, no matter how large its membership, would dominate the party-list seats, if not the entire House. EScaIT 4. REMEDIAL LAW; CERTIORARI; GRAVE ABUSE OF DISCRETION; GRANT BY COMELEC OF ADDITIONAL PARTY-LIST SEATS IN VIOLATION OF THE TWO PERCENT THRESHOLD AND PROPORTIONAL REPRESENTATION REQUIREMENTS OF RA 7941, A CASE OF; CASE AT BAR. [T]he Comelec gravely abused its discretion in ruling that the thirty-eight (38) herein respondent parties, organizations and coalitions are each entitled to a party-list seat, because it glaringly violated two requirements of RA 7941: the two percent threshold and proportional representation. In disregarding, rejecting and circumventing these statutory provisions, the Comelec effectively arrogated unto itself what the Constitution expressly and wholly vested in the legislature: the power and the discretion to define the mechanics for the enforcement of the system. The wisdom and the propriety of these impositions, absent any clear transgression of the Constitution or grave abuse of discretion amounting to lack or excess of jurisdiction, are beyond judicial review.

DECISION PANGANIBAN, J p* : Prologue To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act (RA) No. 7941 mandate at least four inviolable parameters. These are: HaAIES First, the twenty percent allocation the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. Second, the two percent threshold only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives; Third, the three-seat limit each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats. Fourth, proportional representation the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes." Because the Comelec violated these legal parameters, the assailed Resolutions must be struck down for having been issued in grave abuse of discretion. The poll body is mandated to enforce and administer election-related laws. It has no power to contravene or amend them. Neither does it have authority to decide the wisdom, propriety or rationality of the acts of Congress. Its bounden duty is to craft rules, regulations, methods and formulas to implement election laws not to reject, ignore, defeat, obstruct or circumvent them. In fine, the constitutional introduction of the party-list system a normal feature of parliamentary democracies into our presidential form of government, modified by unique Filipino statutory parameters, presents new paradigms and novel questions, which demand innovative legal solutions convertible into mathematical formulations which are, in turn, anchored on time-tested jurisprudence. The Case Before the Court are three consolidated Petitions for Certiorari (with applications for the issuance of a temporary restraining order or writ of preliminary injunction) under Rule 65 of the Rules of Court, assailing (1) the October 15, 1998 Resolution 1 of the Commission on Elections (Comelec), Second Division, in Election Matter 98065; 2 and (2) the January 7, 1999 Resolution 3 of the Comelec en banc, affirming the said disposition. The assailed Resolutions ordered the proclamation of thirty-

eight (38) additional party-list representatives "to complete the full complement of 52 seats in the House of Representatives as provided under Section 5, Article VI of the 1987 Constitution and R.A. 7941." The Facts and the Antecedents Our 1987 Constitution introduced a novel feature into our presidential system of government the party-list method of representation. Under this system, any national, regional or sectoral party or organization registered with the Commission on Elections may participate in the election of party-list representatives who, upon their election and proclamation, shall sit in the House of Representatives as regular members. 4 In effect, a voter is given two (2) votes for the House one for a district congressman and another for a party-list representative. 5 Specifically, this system of representation is mandated by Section 5, Article VI of the Constitution, which provides: SETAcC "Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected by a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." Complying with its constitutional duty to provide by law the "selection or election" of party-list representatives, Congress enacted RA 7941 on March 3, 1995. Under this statute's policy declaration, the State shall " promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the

broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible." (italics ours.) The requirements for entitlement to a party-list seat in the House are prescribed by this law (RA 7941) in this wise: "Sec. 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. For purposes of the May 1998 elections the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system. In determining the allocation of seats for the second vote, the following procedure shall be observed: (a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each; Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes; Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Pursuant to Section 18 of RA 7941, the Comelec en banc promulgated Resolution No. 2847, prescribing the rules and regulations governing the election of party-list representatives through the party-list system. Election of the Fourteen Party-list Representatives May 11, 1998, the first election for party-list representation was held simultaneously with the national elections. A total of one hundred twenty-three (123) parties, organizations and coalitions participated. On June 26, 1998, the Comelec en banc proclaimed thirteen (13) party-list representatives from twelve (12) parties and organizations, which had obtained at least two percent of the total number of votes cast for the party-list system. Two of the proclaimed representatives belonged to Petitioner APEC, which obtained 5.5 percent of the votes. The proclaimed winners and the votes cast in their favor were as follows: 6 Party/Organization/ Number of Percentage of Nominees

Coalition 1.

Votes Obtained

Total Votes

APEC 503,48

5.5% Rene M. Silos ` Melvyn D. Eballe

2. 3. 4.

ABA

321,646

3.51%Leonardo Q. Montemayor 3.41%Diogenes S. Osabel 3.33%Eduardo P. Pilapil

ALAGAD VETERANS

312,500 304,802

FEDERATION 5. 6. 7. 8. 9. 10. 11. 12. PROMDI AKO 255,184 2.79%Joy A.G. Young

239,042

2.61%Ariel A. Zartiga 2.60%Gorgonio P. Unde 2.57%Patricia M. Sarenas

NCSCFO

238,303

ABANSE! PINAY AKBAYAN

235,548

232,376

2.54%Loreta Ann P. Rosales

BUTIL 215,643 SANLAKAS

2.36%Benjamin A. Cruz 2.13%Renato B. Magtubo 2.07%Cresente C. Paez

194,617

COOP-NATCCO

189,802

After passing upon the results of the special elections held on July 4, 18, and 25, 1998, the Comelec en banc further determined that COCOFED (Philippine Coconut Planters' Federation, Inc.) was entitled to one party-list seat for having garnered 186,388 votes, which were equivalent to 2.04 percent of the total votes cast for the party-list system. Thus, its first nominee, Emerito S. Calderon, was proclaimed on September 8, 1998 as the 14th party-list representative. 7 On July 6, 1998, PAG-ASA (People's Progressive Alliance for Peace and Good Government Towards Alleviation of Poverty and Social Advancement) filed with the Comelec a "Petition to Proclaim [the] Full Number of Party-List Representatives provided by the Constitution." It alleged that the filling up of the twenty percent membership of party-list representatives in the House of Representatives, as provided under the Constitution, was mandatory. It further claimed that the literal application of the two percent vote requirement and the three-seat limit under RA 7941 would defeat this constitutional provision, for only 25 nominees would be declared winners, short of the 52 party-list representatives who should actually sit in the House.

Thereafter, nine other party-list organizations 8 filed their respective Motions for Intervention, seeking the same relief as that sought by PAG-ASA on substantially the same grounds. Likewise, PAG-ASA's Petition was joined by other party-list organizations in a Manifestation they filed on August 28, 1998. These organizations were COCOFED, Senior Citizens, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PCCI, AMMA-KATIPUNAN, OCW-UNIFIL, KAMPIL, MAHARLIKA, AFW, Women Power, Inc., Ang Lakas OCW, FEJODAP, CUP, Veterans Care, Bantay Bayan, 4L, AWATU, PMP, ATUCP, ALU and BIGAS. On October 15, 1998, the Comelec Second Division promulgated the present assailed Resolution granting PAG-ASA's Petition. It also ordered the proclamation of herein 38 respondents who, in addition to the 14 already sitting, would thus total 52 party-list representatives. It held that "at all times, the total number of congressional 9 seats must be filled up by eighty (80%) percent district representatives and twenty (20%) percent party-list representatives." In allocating the 52 seats, it disregarded the two percent-vote requirement prescribed under Section 11 (b) of RA 7941. Instead, it identified three "elements of the party-list system," which should supposedly determine "how the 52 seats should be filled up." First, "the system was conceived to enable the marginalized sectors of the Philippine society to be represented in the House of Representatives." Second, "the system should represent the broadest sectors of the Philippine society." Third, "it should encourage [the] multi-party system." (Boldface in the original.) Considering these elements, but ignoring the two percent threshold requirement of RA 7941, it concluded that "the party-list groups ranked Nos. 1 to 51 . . . should have at least one representative." It thus disposed as follows: "WHEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code (B.P. 881), Republic Act No. 7941 and other election laws, the Commission (Second Division) hereby resolves to GRANT the instant petition and motions for intervention, to include those similarly situated. ACCORDINGLY, the nominees from the party-list hereinbelow enumerated based on the list of names submitted by their respective parties, organizations and coalitions are PROCLAIMED as party-list representatives, to wit: 1. 2. 3. 4. 5. 6. SENIOR CITIZENS AKAP AKSYON PINATUBO NUPA PRP

7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32.

AMIN PAG-ASA MAHARLIKA OCW-UNIFIL FCL AMMA-KATIPUNAN KAMPIL BANTAY BAYAN AFW ANG LAKAS OCW WOMENPOWER, INC. FEJODAP CUP VETERANS CARE 4L AWATU PMP ATUCP NCWP ALU BIGAS COPRA GREEN ANAKBAYAN ARBA MINFA

33. 34. 35. 36. 37. 38.

AYOS ALL COOP PDP-LABAN KATIPUNAN ONEWAY PRINT AABANTE KA PILIPINAS

to complete the full complement of 52 seats in the House of Representatives as provided in Section 5, Article VI of the 1987 Constitution and R.A. 7941." The foregoing disposition sums up a glaring bit of inconsistency and flip-flopping. In its Resolution No. 2847 dated June 25, 1996, the Comelec en banc had unanimously promulgated a set of "Rules and Regulations Governing the Election of . . . Party List Representatives Through the Party-List System." Under these Rules and Regulations, one additional seat shall be given for every two percent of the vote, a formula the Comelec illustrated in its Annex "A". It apparently relied on this method when it proclaimed the 14 incumbent party-list solons (two for APEC and one each for the 12 other qualified parties). However, for inexplicable reasons, it abandoned said unanimous Resolution and proclaimed, based on its three "elements," the "Group of 38" private respondents. 10 The twelve (12) parties and organizations, which had earlier been proclaimed winners on the basis of having obtained at least two percent of the votes cast for the party-list system, objected to the proclamation of the 38 parties and filed separate Motions for Reconsideration. They contended that (1) under Section 11 (b) of RA 7941, only parties, organizations or coalitions garnering at least two percent of the votes for the party-list system were entitled to seats in the House of Representatives; and (2) additional seats, not exceeding two for each, should be allocated to those which had garnered the two percent threshold in proportion to the number of votes cast for the winning parties, as provided by said Section 11. aHTDAc Ruling of the Comelec En Banc Noting that all the parties movants and oppositors alike had agreed that the twenty percent membership of party-list representatives in the House "should be filled up," the Comelec en banc resolved only the issue concerning the apportionment or allocation of the remaining seats. In other words, the issue was: Should the remaining 38 unfilled seats allocated to party-list solons be given (1) to the thirteen qualified parties that had each garnered at least two percent of the

total votes, or (2) to the Group of 38 herein private respondents even if they had not passed the two percent threshold? The poll body held that to allocate the remaining seats only to those who had hurdled the two percent vote requirement "will mean the concentration of representation of party, sectoral or group interests in the House of Representatives to thirteen organizations representing two political parties, three coalitions and four sectors: urban poor, veterans, women and peasantry . . . . Such strict application of the 2% 'threshold' does not serve the essence and object of the Constitution and the legislature to develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives . . . ." Additionally, it "will also prevent this Commission from complying with the constitutional and statutory decrees for partylist representatives to compose 20% of the House of Representatives." Thus, in its Resolution dated January 7, 1999, the Comelec en banc, by a razor-thin majority with three commissioners concurring 11 and two members 12 dissenting affirmed the Resolution of its Second Division. It, however, held in abeyance the proclamation of the 51st party (AABANTE KA PILIPINAS), "pending the resolution of petitions for correction of manifest errors. Without expressly declaring as unconstitutional or void the two percent vote requirement imposed by RA 7941, the Commission blithely rejected and circumvented its application, holding that there were more important considerations than this statutory threshold. Consequently, several petitions for certiorari, prohibition and mandamus, with prayers for the issuance of temporary restraining orders or writs of preliminary injunction, were filed before this Court by the parties and organizations that had obtained at least two per cent of the total votes cast for the party-list system. 13 In the suits, made respondents together with the Comelec were the 38 parties, organizations and coalitions that had been declared by the poll body as likewise entitled to party-list seats in the House of Representatives. Collectively, petitioners sought the proclamation of additional representatives from each of their parties and organizations, all of which had obtained at least two percent of the total votes cast for the party-list system. On January 12, 1999, this Court issued a Status Quo Order directing the Comelec "to CEASE and DESIST from constituting itself as a National Board of Canvassers on 13 January 1999 or on any other date and proclaiming as winners the nominees of the parties, organizations and coalitions enumerated in the dispositive portions at its 15 October 1998 Resolution or its 7 January 1999 Resolution, until further orders from this Court." On July 1, 1999, oral arguments were heard from the parties. Atty. Jeremias U. Montemayor appeared for petitioners in GR No. 136781; Atty. Gregorio A. Andolana,

for petitioners in GR No. 136786; Atty. Rodante D. Marcoleta for petitioners in GR No. 136795; Attys. Ricardo Blancaflor and Pete Quirino Quadra, for all the private respondents; Atty. Porfirio V. Sison for Intervener NACUSIP; and Atty. Jose P. Balbuena for Respondent Comelec. Upon invitation of the Court, retired Comelec Commissioner Regalado E. Maambong acted as amicus curiae. Solicitor General Ricardo P. Galvez appeared, not for any party but also as a friend of the Court. Thereafter, the parties and the amici curiae were required to submit their respective Memoranda in amplification of their verbal arguments. 14 The Issues The Court believes, and so holds, that the main question of how to determine the winners of the subject party-list election can be fully settled by addressing the following issues: aIDHET 1. Is the twenty percent allocation for party-list representatives mentioned in Section 5 (2), Article VI of the Constitution, mandatory or is it merely a ceiling? In other words, should the twenty percent allocation for party-list solons be filled up completely and all the time? 2. Are the two percent threshold requirement and the three-seat limit provided in Section 11 (b) of RA 7941 constitutional? 3. If the answer to Issue 2 is in the affirmative, how should the additional seats of a qualified party be determined? The Court's Ruling The Petitions are partly meritorious. The Court agrees with petitioners that the assailed Resolutions should be nullified, but disagrees that they should all be granted additional seats. First Issue: Whether the Twenty Percent Constitutional Allocation Is Mandatory The pertinent provision 15 of the Constitution on the composition of the House of Representatives reads as follows: "Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected by a party-list system of registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." Determination of the Total Number of Party-List Lawmakers Clearly, the Constitution makes the number of district representatives the determinant in arriving at the number of seats allocated for party-list lawmakers, who shall comprise "twenty per centum of the total number of representatives including those under the party-list." We thus translate this legal provision into a mathematical formula, as follows: No. of district representatives .80 x .20 = No. of party-list

representatives

This formulation 16 means that any increase in the number of district representatives, as may be provided by law, will necessarily result in a corresponding increase in the number of party-list seats. To illustrate, considering that there were 208 district representatives to be elected during the 1998 national elections, the number of party-list seats would be 52, computed as follows: 208 .80 The foregoing computation of seat allocation is easy enough to comprehend. The problematic question, however, is this: Does the Constitution require all such allocated seats to be filled up all the time and under all circumstances? Our short answer is "No." Twenty Percent Allocation a Mere Ceiling The Constitution simply states that "[t]he party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list." x .20 = 52

According to petitioners, this percentage is a ceiling; the mechanics by which it is to be filled up has been left to Congress. In the exercise of its prerogative, the legislature enacted RA 7941, by which it prescribed that a party, organization or coalition participating in the party-list election must obtain at least two percent of the total votes cast for the system in order to qualify for a seat in the House of Representatives. Petitioners further argue that the constitutional provision must be construed together with this legislative requirement. If there is no sufficient number of participating parties, organizations or coalitions which could hurdle the two percent vote threshold and thereby fill up the twenty percent party-list allocation in the House, then naturally such allocation cannot be filled up completely. The Comelec cannot be faulted for the "incompleteness," for ultimately the voters themselves are the ones who, in the exercise of their right of suffrage, determine who and how many should represent them. On the other hand, Public Respondent Comelec, together with the respondent parties, avers that the twenty percent allocation for party-list lawmakers is mandatory, and that the two percent vote requirement in RA 7941 is unconstitutional, because its strict application would make it mathematically impossible to fill up the House party-list complement. We rule that a simple reading of Section 5, Article VI of the Constitution, easily conveys the equally simple message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list system of representation. The Constitution explicitly sets down only the percentage of the total membership in the House of Representatives reserved for party-list representatives. In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said earlier, Congress declared therein a policy to promote "proportional representation" in the election of party-list representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering more than this percentage could have "additional seats in proportion to their total number of votes." Furthermore, no winning party, organization or coalition can have more than three seats in the House of Representatives. Thus the relevant portion of Section 11(b) of the law provides: "(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each; Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes; Provided,

finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats." Considering the foregoing statutory requirements, it will be shown presently that Section 5 (2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-list seats in Congress. On the contention that a strict application of the two percent threshold may result in a "mathematical impossibility," suffice it to say that the prerogative to determine whether to adjust or change this percentage requirement rests in Congress. 17 Our task now, as should have been the Comelec's, is not to find fault in the wisdom of the law through highly unlikely scenarios of clinical extremes, but to craft an innovative mathematical formula that can, as far as practicable, implement it within the context of the actual election process. Indeed, the function of the Supreme Court, as well as of all judicial and quasi-judicial agencies, is to apply the law as we find it, not to reinvent or second-guess it. Unless declared unconstitutional, ineffective, insufficient or otherwise void by the proper tribunal, a statute remains a valid command of sovereignty that must be respected and obeyed at all times. This is the essence of the rule of law. Second Issue: The Statutory Requirement and Limitation The Two Percent Threshold In imposing a two percent threshold, Congress wanted to ensure that only those parties, organizations and coalitions having a sufficient number of constituents deserving of representation are actually represented in Congress. This intent can be gleaned from the deliberations on the proposed bill. We quote below a pertinent portion of the Senate discussion: "SENATOR GONZALES: For purposes of continuity, I would want to follow up a point that was raised by, I think, Senator Osmea when he said that a political party must have obtained at least a minimum percentage to be provided in this law in order to qualify for a seat under the party-list system. They do that in many other countries. A party must obtain at least 2 percent of the votes cast, 5 percent or 10 percent of the votes cast. Otherwise, as I have said, this will actually proliferate political party groups and those who have not really been given by the people sufficient basis for them to represent their constituents and, in

turn, they will be able to get to the Parliament through the backdoor under the name of the party-list system, Mr. President." 18 A similar intent is clear from the statements of the bill sponsor in the house of Representatives, as the following shows: "MR. ESPINOSA. There is a mathematical formula which this computation is based at, arriving at a five percent ratio which would distribute equitably the number of seats among the different sectors. There is a mathematical formula which is, I think, patterned after that of the party list of the other parliaments or congresses, more particularly the Bundestag of Germany." 19 Moreover, even the framers of our Constitution had in mind a minimum-vote requirement, the specification of which they left to Congress to properly determine. Constitutional Commissioner Christian S. Monsod explained: "MR. MONSOD. . . . We are amenable to modifications in the minimum percentage of votes. Our proposal is that anybody who has two-and-a-half percent of the votes gets a seat. There are about 20 million who cast their votes in the last elections. Two-and-a-half percent would mean 500,000 votes. Anybody who has a constituency of 500,000 votes nationwide deserves a seat in the Assembly. If we bring that down to two percent, we are talking about 400,000 votes. The average vote per family is three. So, here we are talking about 134,000 families. We believe that there are many sectors who will be able to get seats in the Assembly because many of them have memberships of over 10,000. In effect, that is the operational implication of our proposal. What we are trying to avoid is this selection of sectors, the reserve seat system. We believe that it is our job to open up the system and that we should not have within that system a reserve seat. We think that people should organize, should work hard, and should earn their seats within that system." 20 The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them. 21 But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" 22 to ensure meaningful local representation. DSAICa All in all, we hold that the statutory provision on this two percent requirement is precise and crystalline. When the law is clear, the function of courts is simple application, not interpretation or circumvention. 23

The Three-Seat-PerParty Limit An important consideration in adopting the party-list system is to promote and encourage a multiparty system of representation. Again, we quote Commissioner Monsod: "MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. But we also wanted to avoid the problems of mechanics and operation in the implementation of a concept that has very serious shortcomings of classification and of double or triple votes. We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system. This way, we will open it up and enable sectoral groups, or maybe regional groups, to earn their seats among the fifty. . . . ." 24 Consistent with the Constitutional Commission's pronouncements, Congress set the seat-limit to three (3) for each qualified party, organization or coalition. "Qualified" means having hurdled the two percent vote threshold. Such three-seat limit ensures the entry of various interest-representations into the legislature; thus, no single group, no matter how large its membership, would dominate the party-list seats, if not the entire House. We shall not belabor this point, because the validity of the three-seat limit is not seriously challenged in these consolidated cases. Third Issue: Method of Allocating Additional Seats Having determined that the twenty percent seat allocation is merely a ceiling, and having upheld the constitutionality of the two percent vote threshold and the threeseat limit imposed under RA 7941, we now proceed to the method of determining how many party-list seats the qualified parties, organizations and coalitions are entitled to. The very first step there is no dispute on this is to rank all the participating parties, organizations and coalitions (hereafter collectively referred to as "parties") according to the votes they each obtained. The percentage of their respective votes as against the total number of votes cast for the party-list system is then determined. All those that garnered at least two percent of the total votes cast have an assured or guaranteed seat in the House of Representatives. Thereafter, "those garnering more than two percent of the votes shall be entitled to additional seats in proportion to their total number of votes." The problem is how to

distribute additional seats "proportionally," bearing in mind the three-seat limit further imposed by the law. One Additional Seat Per Two Percent Increment One proposed formula is to allocate one additional seat for every additional proportion of the votes obtained equivalent to the two percent vote requirement for the first seat. 25 Translated in figures, a party that wins at least six percent of the total votes cast still be entitled to three seats; another party that gets four percent will be entitled to two seats; and one that gets two percent will be entitled to one seat only. This proposal has the advantage of simplicity and ease of comprehension. Problems arise, however, when the parties get very lop-sided votes for example, when Party A receives 20 percent of the total votes cast; Party B, 10 percent; and Party C, 6 percent. Under the method just described, Party A would be entitled to 10 seats; Party B. to 5 seats and Party C, to 3 seats. Considering the three-seat limit imposed by law, all the parties will each uniformly have three seats only. We would then have the spectacle of a party garnering two or more times the number of votes obtained by another, yet getting the same number of seats as the other one with the much lesser votes. In effect, proportional representation will be contravened and the law rendered nugatory by this suggested solution. Hence, the Court discarded it. TCaEAD The Niemeyer Formula Another suggestion that the Court considered was the Niemeyer formula, which was developed by a German mathematician and adopted by Germany as its method of distributing party-list seats in the Bundestag. Under this formula, the number of additional seats to which a qualified party would be entitled is determined by multiplying the remaining number of seats to be allocated by the total number of votes obtained by that party and dividing the product by the total number of votes garnered by all the qualified parties. The integer portion of the resulting product will be the number of additional seats that the party concerned is entitled to. Thus: No. of remaining seats to be allocated x Total no. of votes of qualified parties No. of additional No. of votes of = seats of party concerned

party concerned (Integer. decimal)

The next step is to distribute the extra seats left among the qualified parties in the descending order of the decimal portions of the resulting products. Based on the

1998 election results, the distribution of party-list seats under the Niemeyer method would be as follows: Party Number of Guaranteed Additional Extra Total

Votes Seats Seats Seats

1. 2. 3. 4.

APEC 503,487 ABA 321,646

1 1

5.73 3.66 1 1

1 1 3.55 3.47

7 5 4 4

ALAGAD VETERANS FEDERATION

312,500 304,802

5. 6. 7. 8. 9. 10. 11. 12. 13.

PROMDI AKO

255,184 1

1 2.72 1

2.90 1 2.71 1 2.64

1 4 1 2.68 1 3

239,042

NCSCFO

238,303

4 1 4 4

ABANSE! PINAY AKBAYAN

235,548 1 2.45 1

232,376 1

BUTIL 215,643 SANLAKAS

194,617

2.21 1 2.12 7 52 2.16

3 3 3

COOP-NATCCO COCOFED

189,802 1 32

186,388 13

Total 3,429,338

However, since Section 11 of RA 7941 sets a limit of three (3) seats for each party, those obtaining more than the limit will have to give up their excess seats. Under our present set of facts, the thirteen qualified parties will each be entitled to three seats, resulting in an overall total of 39. Note that like the previous proposal, the Niemeyer formula would violate the principle of "proportional representation," a basic tenet of our party-list system. The Niemeyer formula, while no doubt suitable for Germany, finds no application in the Philippine setting, because of our three-seat limit and the non-mandatory character of the twenty percent allocation. True, both our Congress and the Bundestag have threshold requirements two percent for us and five for them.

There are marked differences between the two models, however. As ably pointed out by private respondents, 26 one half of the German Parliament is filled up by party-list members. More important, there are no seat limitations, because German law discourages the proliferation of small parties. In contrast, RA 7941, as already mentioned, imposes a three-seat limit to encourage the promotion of the multiparty system. This major statutory difference makes the Niemeyer formula completely inapplicable to the Philippines. Just as one cannot grow Washington apples in the Philippines or Guimaras mangoes in the Arctic because of fundamental environmental differences, neither can the Niemeyer formula be transplanted in toto here because of essential variances between the two party-list models. The Legal and Logical Formula for the Philippines It is now obvious that the Philippine style party-list system is a unique paradigm which demands an equally unique formula. In crafting a legally defensible and logical solution to determine the number of additional seats that a qualified party is entitled to, we need to review the parameters of the Filipino party-list system. As earlier mentioned in top Prologue, they are as follows: First, the twenty percent allocation the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. Second, the two percent threshold only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives; Third, the three-seat limit each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats. Fourth, proportional representation the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes." The problem, as already stated, is to find a way to translate "proportional representation" into a mathematical formula that will not contravene, circumvent or amend the above-mentioned parameters. After careful deliberation, we now explain such formula, step by step. Step One. There is no dispute among the petitioners, the public and the private respondents, as well as the members of this Court, that the initial step is to rank all the participating parties, organizations and coalitions from the highest to the lowest

based on the number of votes they each received. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. All parties with at least two percent of the total votes are guaranteed one seat each. Only these parties shall be considered in the computation of additional seats. The party receiving the highest number of votes shall thenceforth be referred to as the "first" party. Step Two. The next step is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes. For example, the first party received 1,000,000 votes and is determined to be entitled to two additional seats. Another qualified party which received 500,000 votes cannot be entitled to the same number of seats, since it garnered only fifty percent of the votes won by the first party. Depending on the proportion of its votes relative to that of the first party whose number of seats has already been predetermined, the second party should be given less than that to which the first one is entitled. The other qualified parties will always be allotted less additional seats than the first party for two reasons: (1) the ratio between said parties and the first party will always be less than 1:1, (2) the formula does not admit of mathematical rounding off, because there is no such thing as a fraction of a seat. Verily, an arbitrary rounding off could result in a violation of the twenty percent allocation. An academic mathematical demonstration of such incipient violation is not necessary because the present set of facts, given the number of qualified parties and the voting percentages obtained, will definitely not end up in such constitutional contravention. The Court has previously ruled in Guingona Jr. v. Gonzales 27 that a fractional membership cannot be converted into a whole membership of one when it would, in effect, deprive another party's fractional membership. It would be a violation of the constitutional mandate of proportional representation. We said further that "no party can claim more than what it is entitled to . . . ." In any case, the decision on whether to round off the fractions is better left to the legislature. Since Congress did not provide for it in the present law, neither will this Court. The Supreme Court does not make the law; it merely applies it to a given set of facts. ITDHSE Formula for Determining Additional Seats for the First Party

Now, how do we determine the number of seats the first party is entitled to? The only basis given by the law is that a party receiving at least two percent of the total votes shall be entitled to one seat. Proportionally, if the first party were to receive twice the number of votes of the second party, it should be entitled to twice the latter's number of seats and so on. The formula, therefore, for computing the number of seats to which the first party is entitled is as follows: Number of votes of first party Total votes for party-list system If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat. We adopted this six percent bench mark, because the first party is not always entitled to the maximum number of additional seats. Likewise, it would prevent the allotment of more than the total number of available seats, such as in an extreme case wherein 18 or more parties tie for the highest rank and are thus entitled to three seats each. In such scenario, the number of seats to which all the parties are entitled may exceed the maximum number of party-list seats reserved in the House of Representatives. Applying the above formula, APEC, which received 5.5% of the total votes cast, is entitled to one additional seat or a total of two seats. Note that the above formula will be applicable only in determining the number of additional seats the first party is entitled to. It cannot be used to determine the number of additional seats of the other qualified parties. As explained earlier, the use of the same formula for all would contravene the proportional representation parameter. For example, a second party obtains six percent of the total number of votes cast. According to the above formula, the said parts would be entitled to two additional seats or a total of three seats overall. However, if the first party received a significantly higher amount of votes say, twenty percent to grant it the same number of seats as the second party would violate the statutory mandate of proportional representation, since a party getting only six percent of the votes will have an equal number of representatives as the one obtaining twenty percent. The Proportion of votes of = first party relative to total votes for party-list system

proper solution, therefore, is to grant the first party a total of three seats; and the party receiving six percent, additional seats in proportion to those of the first party. Formula for Additional Seats of Other Qualified Parties Step Three The next step is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula is encompassed by the following complex fraction: No. of votes of concerned party Total no. of votes Additional seats for concerned party = for party-list system x No. of additional seats allocated to

No. of votes of first party Total no. of votes for party list system

the first party

In simplified form, it is written as follows: No. of votes of Additional seats for concerned party = concerned party x No. of additional seats allocated to

No. of votes of first party (APEC)

the first party

Thus, in the case of ABA, the additional number of seats it would be entitled to is computed as follows: No. of votes of Additional seats ABA No. of additional

for concerned party (ABA)

seats allocated to

No. of votes of first party (APEC)

the first party

Substituting actual values would result in the following equation: Additional seats for concerned party (ABA) = 321,646 x 1 = .64 or 0 additional seat, since

503,487

rounding off is not to be applied

Applying the above formula, we find the outcome of the 1998 party-list election to be as follows: Organization Votes % age of Garnered Initial No. Additional Seats Total

Total Votes of Seats

1. 2. 3. 4.

APEC 503,487 ABA 321,646

5.50%1 3.51%1

2 1 1 1

321,646 / 503,487 * 1 = 0.64

ALAGAD VETERANS FEDERATION

312,500 304,802

3.41%1 3.33%1

312,500 / 503,487 * 1 = 0.62 304,802 / 503,487 * 1 = 0.61

5. 6. 7. 8.

PROMDI AKO

255,184

2.79%1

255,184 / 503,487 * 1 = 0.51 1

239,042

2.61%1

239,042 / 503,487 * 1 = 0.47

NCSCFO ABANSE! PINAY

238,303 235,548

2.60%1 2.57%1

238,303 / 503,487 * 1 = 0.47 321,646 / 503,487 * 1 = 0.47

1 1

9. 10. 11. 12.

AKBAYAN!

232,376

2.54%1

232,376 / 503,487 * 1 = 0.46 1

BUTIL 215,643 SANLAKAS COOPNATCCO

2.36%1

215,643 / 503,487 * 1 = 0.43

194,617

2.13%1

194,617 / 503,487 * 1 = 0.39

189,802

2.07%1

189,802 / 503,487 * 1 = 0.38

13.

COCOFED

186,388

2.04%1

186,388 / 503,487 * 1 = 0.37

Incidentally, if the first party is not entitled to any additional seat, then the ratio of the number of votes for the other party to that for the first one is multiplied by zero. The end result would be zero additional seat for each of the other qualified parties as well. The above formula does not give an exact mathematical representation of the number of additional seats to be awarded since, in order to be entitled to one additional seat, an exact whole number is necessary. In fact, most of the actual mathematical proportions are not whole numbers and are not rounded off for the reasons explained earlier. To repeat, rounding off may result in the awarding of a number of seats in excess of that provided by the law. Furthermore, obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of two additional slots. An increase in the maximum number of additional representatives a party may be entitled to would result in a more accurate proportional representation. But the law itself has set the limit: only two additional seats. Hence, we need to work within such extant parameter. The net result of the foregoing formula for determining additional seats happily coincides with the present number of incumbents; namely, two for the first party (APEC) and one each for the twelve other qualified parties. Hence, we affirm the legality of the incumbencies of their nominees, albeit through the use of a different formula and methodology. In his Dissent, Justice Mendoza criticizes our methodology for being too strict. We say, however, that our formula merely translated the Philippine legal parameters into a mathematical equation, no more no less. If Congress in its wisdom decides to modify RA 7941 to make it "less strict," then the formula will also be modified to reflect the changes willed by the lawmakers. Epilogue In sum, we hold that the Comelec gravely abused its discretion in ruling that the thirty-eight (38) herein respondent parties, organizations and coalitions are each entitled to a party-list seat, because it glaringly violated two requirements of RA 7941: the two percent threshold and proportional representation. In disregarding, rejecting and circumventing these statutory provisions, the Comelec effectively arrogated unto itself what the Constitution expressly and wholly vested in the legislature: the power and the discretion to define the mechanics for the enforcement of the system. The wisdom and the propriety of these impositions, absent any clear transgression of the Constitution or grave abuse of discretion amounting to lack or excess of jurisdiction, are beyond judicial review. 28

Indeed, the Comelec and the other parties in these cases both petitioners and respondents have failed to demonstrate that our lawmakers gravely abused their discretion in prescribing such requirements. By grave abuse of discretion is meant such capricious or whimsical exercise of judgment equivalent to lack or excess of jurisdiction. 29 The Comelec, which is tasked merely to enforce and administer election-related laws, 30 cannot simply disregard an act of Congress exercised within the bounds of its authority. As a mere implementing body, it cannot judge the wisdom, propriety or rationality of such act. Its recourse is to draft an amendment to the law and lobby for its approval and enactment by the legislature. TIAEac Furthermore, a reading of the entire Constitution reveals no violation of any of its provisions by the strict enforcement of RA 7941. It is basic that to strike down a law or any of its provisions as unconstitutional, there must be a clear and unequivocal showing that what the Constitution prohibits, the statute permits. 31 Neither can we grant petitioners' prayer that they each be given additional seats (for a total of three each), because granting such plea would plainly and simply violate the "proportional representation" mandated by Section 11 (b) of RA 7941. The low turnout of the party-list votes during the 1998 elections should not be interpreted as a total failure of the law in fulfilling the object of this new system of representation. It should not be deemed a conclusive indication that the requirements imposed by RA 7941 wholly defeated the implementation of the system. Be it remembered that the party-list system, though already popular in parliamentary democracies, is still quite new in our presidential system. We should allow it some time to take root in the consciousness of our people and in the heart of our tripartite form of republicanism. Indeed, the Comelec and the defeated litigants should not despair. Quite the contrary, the dismal result of the first election for party-list representatives should serve as a challenge to our sectoral parties and organizations. It should stir them to be more active and vigilant in their campaign for representation in the State's lawmaking body. It should also serve as a clarion call for innovation and creativity in adopting this novel system of popular democracy. With adequate information dissemination to the public and more active sectoral parties, we are confident our people will be more responsive to future party-list elections. Armed with patience, perseverance and perspicacity, our marginalized sectors, in time, will fulfill the Filipino dream of full representation in Congress under the aegis of the party-list system, Philippine style. WHEREFORE, the Petitions are hereby partially GRANTED. The assailed Resolutions of the Comelec are SET ASIDE and NULLIFIED. The proclamations of the fourteen

(14) sitting party-list representatives two for APEC and one each for the remaining twelve (12) qualified parties are AFFIRMED. No pronouncement as to costs. SO ORDERED. G.R. No. 147589. November 20, 2003.] ANG BAGONG BAYANI, OFW, et al., petitioners, vs. COMMISSION ON ELECTIONS, et al., respondents. [G.R. No. 147613. November 20, 2003.] BAYAN MUNA, petitioner, vs. COMMISSION ON ELECTIONS, respondent. Allene M. Anigan and Rodrigo E. Marias for APEC. Froilan M. Bacungan for Buhay, Cocofed & ABA. Anna Caridad Sazon-Dupaya and Homobono A. Adaza for the True Marcos Loyalist. Joventino V. Diamante for AMIN. Romulo B. Macalintal for Veterans Federation Party. J.V. Bautista for Sanlakas & PM. Musa I. Malayang for NCIA. Mercado Cordero Bael Acua & Sepulveda for PROMDI. Jerome Jose F. Paras for Lakas-NUCD-UMDP. Plutarco B. Bawagan for AKBAYAN. Ferdinand P. Cordova for Bayan Muna. Virginia Jose for CIBAC. Daniel P. Tenefrancia for VFP. Demaree J.V. Raval for Tomawis and LDB. Oliver B. San Antonio for Luzon Farmers Party (Butil). Allado, Mendoza & Associate for Bigkis Pinoy Foundation Inc. Abdul A. Basar for AKLAT. Neva B. Blancaver for People Power Party.

Delima & Meez Law Office for ABANSE!PINAY. Severino D. Corpuz for Lahing Veterano. SYNOPSIS Petitioners Ang Bagong Bayani-OFW Labor Party and Bayan Muna filed the present petitions under Rule 65 of the Rules of Court, challenging Omnibus Resolution No. 37851 issued by the Commission on Elections (Comelec) on March 26, 2001. This Resolution approved the participation of 154 organizations and parties, including those herein impleaded, in the 2001 party-list elections. Petitioners seek the disqualification of private respondents, arguing mainly that the party-list system was intended to benefit the marginalized and underrepresented; not the mainstream political parties, the non-marginalized or overrepresented. aESTAI The Supreme Court found the petition partly meritorious. The Court remanded the case to the Comelec and directed the Commission to conduct summary evidentiary hearings on the qualifications of the party-list participants. The Court rejected the submissions of the Comelec and the other respondents that the party-list system is, without any qualification, open to all. According to the Court, such position does not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices them. It would gut the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization. The Court stressed that the very reason for establishment of the party-list system is the fundamental social justice principle that those who have less in life should have more in law. It was for them that the party-list system was enacted to give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to represent the specific concerns of their constituencies; and simply to give them a direct voice in Congress and in the larger affairs of the State. The State cannot now disappoint and frustrate them by disabling and desecrating this social justice vehicle. The Court also laid down some guidelines to assist the Comelec in its work of conducting summary evidentiary hearings on the qualifications of the party-list participants. SYLLABUS PANGANIBAN, J., Separate Opinion: 1. REMEDIAL LAW; MOTIONS; NULLITY OF THE ISSUANCES AUTHORIZING THE PROCLAMATION OF ADDITIONAL NOMINEES OF APEC, BUTIL, CIBAC AND AKBAYAN DOES NOT IPSO FACTO MEAN THAT THE COURT, IN THE PRESENT PROCEEDINGS AND BY MEANS OF A MERE MOTION COULD THEREBY UNSEAT THE REPRESENTATIVES. I respectfully submit that the nullity of these issuances authorizing the proclamation of the additional nominees of APEC, BUTIL, CIBAC and AKBAYAN does, not ipso facto mean that the Court, in the present proceedings and

by means of a mere motion, could thereby automatically unseat these representatives. As held in the Court's Resolution dated 16 September 2003 in AM No. 03-8-22 SC, "there is a distinction between holding in contempt the authors of an arbitrary proclamation resolution on the one hand[;] and on the other, unseating those who have been proclaimed, have taken their seats in Congress and have begun performing their lawmaking duties." Be it remembered that on 26 June 2001, the Court in the present consolidated cases had already rendered its Decision, which has become final and executory. The instant proceedings are conducted for the purpose merely of passing upon the COMELEC's compliance with the 8-point guideline issued in the said Decision. The relief prayed for by BAYAN MUNA to declare Section 11 of RA 7941 unconstitutional is completely alien to these incidental proceedings. To take up this alleged unconstitutionality now would mean a reopening of the 26 June 2001 Decision which, to repeat, has already become final and executory. Obviously, a discussion of that issue cannot be done at this point. 2. ID.; ID.; SPECIAL CIVIL ACTIONS; TO OUST MEMBERS OF THE HOUSE OF REPRESENTATIVES WHO HAVE ALREADY TAKEN THEIR OATHS AND HAVE BEGUN TO DISCHARGE THE FUNCTIONS OF THEIR OFFICES IS A CONTENTIOUS MATTER AND PARTAKES OF THE NATURE OF QUO WARRANTO, CERTIORARI AND/OR MANDAMUS. The same observation can be made of any attempt to unseat the concerned additional nominees by means of a mere motion in these proceedings. To oust members of the House of Representatives who have already taken their oaths and have begun to discharge the functions of their offices is a contentious matter and partakes of the nature of quo warranto, certiorari and/or mandamus. Clearly, these extraordinary writs may be issued only in special civil actions for which the Rules of Court prescribe specific requirements, like the verification of an independent petition with specific allegations showing lack or excess of jurisdiction or grave abuse of discretion filed in the proper court or quasi judicial agency by the proper party; and subject to certain formalities like a sworn certificate of non-forum shopping and so on. Also, these documents must be filed within the prescribed period of time. IHDCcT 3. ID.; ID.; THE PRESENT ISSUES ARE CONTENTIOUS THAT CANNOT BE RULED UPON UNLESS THE APPROPRIATE ACTIONS ARE FILED IN THE APPRORIATE FORUM BY THE APPRORIATE TIME AND ALLEGING THE APPRORIATE JURISDICTIONAL FACTS. True, in Codilla v. Comelec, this Court ousted an incumbent member of Congress and caused the seating of the overwhelming winner during the election. However, that Decision was issued only after an independent petition for mandamus and quo warranto was filed by the proper party, and only after proper proceedings had been held thereon. In any event, in Guerrero v. Comelec, this Court declared that "once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns and qualification ends, and the HRET's own jurisdiction begins." Thus, if this Court were to give due course to BAYAN MUNA's

prayer, it will have to rule on the propriety of assuming jurisdiction over the controversy in the present proceedings; equally important, it will also have to determine which of these two rulings (Codilla or Guerrero), if any, applies. These are contentious issues that are alien to the present proceedings; they constitute questions that cannot be ruled upon unless the appropriate petitions are filed in the appropriate forum by the appropriate party at the appropriate time and alleging the appropriate jurisdictional facts. 4. POLITICAL LAW; ELECTION LAW; PARTY-LIST LAW; UNLESS AMENDED BY SUBSEQUENT LAW APPROVED BY CONGRESS OR BY A NEW RULING OF THE COURT IN APPRORIATE PROCEEDINGS, THE FORMULA SET BY THE COURT IN VETERANS FEDERATION PARTY VS. THE COMMISSION ON ELECTIONS CANNOT BE DISREGARDED, FOR THEY ENSURE THAT THE NUMBER OF SEATS ALLOCATED TO THE WINNING PARTIES CONFORM TO THE PRINCIPLE OF PROPORTIONATE REPRESENTATION MANDATED BY LAW. I respectfully submit that these Motions of BUHAY have no merit. First, the so-called COMELEC formula has long been expressly rejected by this Court in Veterans Federation Party v. COMELEC. The correct formulas for computing the proportionate allocation of seats to party-list winners have been decided in Veterans after long deliberation and study; these formulas apply to all party-list elections conducted under the present law. Unless amended by a subsequent law approved by Congress or by a new ruling of this Court in appropriate proceedings, these formulas cannot be disregarded, for they ensure that the number of seats allocated to the winning parties conform to the principle of proportional representation mandated by the Party-List Law. RESOLUTION DAVIDE, JR., C .J p: The remaining issues left for the resolution of the Court are: (1) the effect of the proclamation by the Commission on Elections of the additional nominees of APEC, BUTIL, CIBAC and AKBAYAN pursuant to its Order of 22 November 2002, a proclamation this Court declared in its Resolution of 18 February 2003 to be a violation of, inter alia, the Temporary Restraining Order it issued on 9 May 2001; and (2) whether BUHAY is entitled to one additional seat in the party-list system. EcDSTI It may be recalled that in its Resolution No. NBC-02-001 dated 6 November 2002, the COMELEC found that APEC is entitled to three seats; AKBAYAN, two seats; BUTIL, two seats; CIBAC, two seats; BUHAY, two seats; AMIN, one seat; ABA, one seat; COCOFED, one seat; NCIA, one seat; PM, one seat; and SANLAKAS, one seat. The additional nominees of APEC, BUTIL, CIBAC and AKBAYAN proclaimed by the COMELEC immediately took their oath and assumed office as members of the House of Representatives.

In its Resolution of 25 June 2003, the Court has found that, indeed BUHAY obtained 4.46% of the total number of votes cast for the party-list system, thus: Table No. 3

Rank Party-List (%) 2 3 4 5 6 7 8 9 10 11 12 Seats

Votes Percentage Additional

APEC 802,060 AKBAYAN

12.29 n/c 5.79 n/c n/c 4.46 0.44 0.42 3.51 0.38 2.31 0.26 2.07 0.24 0.40 0.51 n/c

377,852 5.06 4.96

BUTIL 330,282 CIBAC 323,810 BUHAY

290,760 3.86 3.71

AMIN 252,051 ABA 242,199

COCOFED PM

229,165 3.32

216,823

SANLAKAS

151,017

ABANSE! PINAY

135,211

In the column additional seats, those for APEC, AKBAYAN, BUTIL, and CIBAC are indicated as n/c, which, as disclosed in the footnote, means as follows: "not computed," since, to repeat, the Court is yet to resolve the validity of the proclamation of the additional nominees of APEC, AKBAYAN, BUTIL, and CIBAC, due to the Motion of BAYAN MUNA to set aside Comelec Resolution No. NBC-02-001 promulgated on November 6, 2003 and the related November 22, 2002 Comelec Order and the November 26, 2002 Comelec Resolution. The fact of the matter, however, is that the percentage for the additional seats for APEC, AKBAYAN, BUTIL and CIBAC is recorded in the table, just as what was done to BUHAY, thus: CHEDAc APEC AKBAYAN 1.40 0.66

BUTIL CIBAC

0.58 0.56

In the Resolution of 8 July 2003, this Court resolved that "the COMELEC may now proclaim those declared elected with one nominee each in the Resolution of 25 June 2003, to wit: BUHAY, AMIN, ABA, COCOFED, PM, SANLAKAS, and ABANSE! PINAY." It is thus established in the Resolution of 25 June 2003 that, like APEC, BUTIL, CIBAC and AKBAYAN, BUHAY had obtained more than four percent (4%) of the total number of votes validly cast for the party-list system and obtained more than 0.50 for the additional seats. Accordingly, just like the first four whose additional nominees are now holding office as member of the House of Representatives, BUHAY should be declared entitled to one additional seat. ACCORDINGLY, the Court hereby RESOLVES, pro hac vice 1. To consider closed and terminated the issue regarding the proclamation by the COMELEC of the additional nominees of APEC, BUTIL, CIBAC and AKBAYAN, such nominees having taken their oath and assumed office; 2. To DECLARE that BUHAY is entitled to one (1) additional seat in the party-list system in the elections of May 2001 and; 3. To ORDER the COMELEC to proclaim BUHAY's second nominee.

SO ORDERED. G.R. No. 190582. April 8, 2010.] ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, petitioner, vs. COMMISSION ON ELECTIONS, respondent. DECISION DEL CASTILLO, J p: . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. ETHIDa Justice Robert A. Jackson West Virginia State Board of Education v. Barnette 1 One unavoidable consequence of everyone having the freedom to choose is that others may make different choices choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely because they are different,

and the right to disagree and debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference in opinion. Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox philosophical justifications about what is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly. Factual Background This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009 2 (the First Assailed Resolution) and December 16, 2009 3 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELEC's refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act. 4 CDAHaE Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition 5 for registration with the COMELEC. Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections. 6 Ang Ladlad laid out its national membership base consisting of individual members and organizational supporters, and outlined its platform of governance. 7 On November 11, 2009, after admitting the petitioner's evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that:

. . . This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus: . . . a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity. SECATH and proceeded to define sexual orientation as that which: . . . refers to a person's capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender." This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote: For this cause God gave them up into vile affections, for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet. In the Koran, the hereunder verses are pertinent: For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief" (29:30). As correctly pointed out by the Law Department in its Comment dated October 2, 2008: CcADHI The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition's par. 6F: 'Consensual partnerships or relationships by gays and lesbians who are already of age'. It is further indicated in par. 24 of the Petition which waves for the record: 'In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah). Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with for accreditation. ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as 'Any act, omission, establishment, business, condition of property, or anything else which . . . (3) shocks, defies; or disregards decency or morality . . . It also collides with Article 1306 of the Civil Code: 'The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public

order or public policy. Art. 1409 of the Civil Code provides that 'Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy' are inexistent and void from the beginning. Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes 'Immoral doctrines, obscene publications and exhibitions and indecent shows' as follows: TAaIDH Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: 1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals; 2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts. 3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. THADEI Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As an agency of the government, ours too is the State's avowed duty under Section 13, Article II of the Constitution to protect our youth from moral and spiritual degradation. 8 When Ang Ladlad sought reconsideration, 9 three commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang Ladlad's Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N.

Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that: I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven its under-representation and marginalization, it cannot be said that Ladlad's expressed sexual orientations per se would benefit the nation as a whole. HcSaTI Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative organizations would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of aspirations of marginalized individuals whose interests are also the nation's only that their interests have not been brought to the attention of the nation because of their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party-list system will remain just that. II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. . . . Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of homosexual relations," as in the case of race or religion or belief. EcHTCD xxx xxx xxx

Thus, even if society's understanding, tolerance, and acceptance of LGBT's is elevated, there can be no denying that Ladlad constituencies are still males and females, and they will remain either male or female protected by the same Bill of Rights that applies to all citizens alike.

xxx IV.

xxx Public Morals

xxx

. . . There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there any attempt to any particular religious group's moral rules on Ladlad. Rather, what are being adopted as moral parameters and precepts are generally accepted public morals. They are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly accepted moral norms. V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from its Petition's paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are already of age. It is further indicated in par. 24 of the Petition which waves for the record: 'In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreover, Article 694 of the Civil Code defines "nuisance" as any act, omission . . . or anything else . . . which shocks, defies or disregards decency or morality . . . ." These are all unlawful. 10 HAICET On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlad's application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010. On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010. 11 Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment. 12 Somewhat surprisingly, the OSG later filed a Comment in support of petitioner's application. 13 Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own comment. 14 The COMELEC, through its Law Department, filed its Comment on February 2, 2010. 15 In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions. 16

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-inIntervention. 17 The CHR opined that the denial of Ang Ladlad's petition on moral grounds violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHR's motion to intervene. DcaECT On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene 18 which motion was granted on February 2, 2010. 19 The Parties' Arguments Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the Philippines' international obligations against discrimination based on sexual orientation. The OSG concurred with Ang Ladlad's petition and argued that the COMELEC erred in denying petitioner's application for registration since there was no basis for COMELEC's allegations of immorality. It also opined that LGBTs have their own special interests and concerns which should have been recognized by the COMELEC as a separate classification. However, insofar as the purported violations of petitioner's freedom of speech, expression, and assembly were concerned, the OSG maintained that there had been no restrictions on these rights. In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by COMELEC's field personnel. SCHIac Our Ruling We grant the petition. Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad's application for registration on the ground that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration. Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 20 "the enumeration of marginalized and under-represented sectors is not exclusive". The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide existence through its members and affiliate organizations. The COMELEC claims that upon verification by its field personnel, it was shown that "save for a few isolated places in the country, petitioner does not exist in almost all provinces in the country." 21 EaISTD This argument that "petitioner made untruthful statements in its petition when it alleged its national existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it said that it or any of its nominees/partylist representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioner's accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioner's alleged non-existence were already available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in respondent's theory, and a serious violation of petitioner's right to procedural due process. Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad's initial petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion group. 22 Ang Ladlad also represented itself to be "a national LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT networks:" Abra Gay Association Aklan Butterfly Brigade (ABB)-Aklan

Albay Gay Association

DaCTcA

Arts Center of Cabanatuan City-Nueva Ecija Boys Legion-Metro Manila Cagayan de Oro People Like Us (CDO PLUS) Can't Live in the Closet, Inc. (CLIC)-Metro Manila Cebu Pride-Cebu City Circle of Friends Dipolog Gay Association-Zamboanga del Norte Gay, Bisexual, & Transgender Youth Association (GABAY)

Gay and Lesbian Activists Network for Gender Equality (GALANG)-Metro Manila Gay Men's Support Group (GMSG)-Metro Manila Gay United for Peace and Solidarity (GUPS)-Lanao del Norte Iloilo City Gay Association-Iloilo City Kabulig Writer's Group-Camarines Sur Lesbian Advocates Philippines, Inc. (LEAP) LUMINA-Baguio City Marikina Gay Association-Metro Manila Metropolitan Community Church (MCC)-Metro Manila Naga City Gay Association-Naga City ONE BACARDI AaITCS

Order of St. Aelred (OSAe)-Metro Manila PUP LAKAN RADAR PRIDEWEAR Rainbow Rights Project (R-Rights), Inc.-Metro Manila San Jose del Monte Gay Association-Bulacan Sining Kayumanggi Royal Family-Rizal

Society of Transexual Women of the Philippines (STRAP)-Metro Manila Soul Jive-Antipolo, Rizal The Link-Davao City Tayabas Gay Association-Quezon Women's Bisexual Network-Metro Manila Zamboanga Gay Association-Zamboanga City 23

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELEC's findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlad's principal place of business. Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for accreditation. Indeed, aside from COMELEC's moral objection and the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad's morality, or lack thereof. Religion as the Basis for Refusal to Accept Ang Ladlad's Petition for Registration Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is "government neutrality in religious matters." 24 Clearly, "governmental reliance on religious justification is inconsistent with this policy of neutrality." 25 We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. TaDCEc Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor: 26 . . . The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as

expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. . . . Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests. 27 Public Morals as a Ground to Deny Ang Ladlad's Petition for Registration Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues: aIcCTA

Petitioner's accreditation was denied not necessarily because their group consists of LGBTs but because of the danger it poses to the people especially the youth. Once it is recognized by the government, a sector which believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any society without a set of moral precepts is in danger of losing its own existence. 28 We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted public morals" have not been convincingly transplanted into the realm of law. 29 The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that the group's members have committed or are committing immoral acts." 30 The OSG argues: . . . A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of disqualification cases against both the "straights" and the gays." Certainly this is not the intendment of the law. 31 ITSaHC Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioner's admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny. We also find the COMELEC's reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission, establishment, condition of property, or anything

else which shocks, defies, or disregards decency or morality," the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. 32 A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability. SDIaCT As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad's registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondent's blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause. Equal Protection Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be denied equal protection of the laws," courts have never interpreted the provision as an absolute prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of similar persons." 33 The equal protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances. 34 Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the classification as long as it bears a rational relationship to some legitimate government end. 35 In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas, 36 we declared that "[i]n our jurisdiction, the standard of analysis of equal protection challenges . . . have followed the 'rational basis' test, coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution." 37 The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here that is, moral disapproval of an unpopular minority is not a

legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause. The COMELEC's differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored group. From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors. CHaDIT It bears stressing that our finding that COMELEC's act of differentiating LGBTs from heterosexuals insofar as the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the OSG's position that homosexuals are a class in themselves for the purposes of the equal protection clause. 38 We are not prepared to single out homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC made "an unwarranted and impermissible classification not justified by the circumstances of the case." Freedom of Expression and Association Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its position through normal democratic means. 39 It is in the public square that deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor: 40 In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences

of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies including protection of religious freedom "not only for a minority, however small not only for a majority, however large but for each of us" the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities. Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one. aAcDSC This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning one's homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well. Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality does not justify criminalizing same-sex conduct. 41 European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts. 42 To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Court's analysis. In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by "something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." 43 With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper

opportunity of expression through the exercise of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or the majority of the population. 44 A political group should not be hindered solely because it seeks to publicly debate controversial political issues in order to find solutions capable of satisfying everyone concerned. 45 Only if a political party incites violence or puts forward policies that are incompatible with democracy does it fall outside the protection of the freedom of association guarantee. 46 We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community. Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality through this Decision. cIETHa The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no restriction on their freedom of expression or association. The OSG argues that: There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 4, Article III of the Constitution. xxx xxx xxx

A denial of the petition for registration . . . does not deprive the members of the petitioner to freely take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a constitutionallyguaranteed right which cannot be limited. As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlad's petition has the clear and immediate effect of limiting, if

not outrightly nullifying the capacity of its members to fully and equally participate in public life through engagement in the party list elections. This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed by law. . . . 47 The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of COMELEC's action, from publicly expressing its views as a political party and participating on an equal basis in the political process with other equally-qualified party-list candidates, we find that there has, indeed, been a transgression of petitioner's fundamental rights. Non-Discrimination and International Law In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct. Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of nondiscrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR. SIaHDA The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows: Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed

to include "sexual orientation." 48 Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements. 49 The UDHR provides: Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Likewise, the ICCPR states: Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; ECcTaH (c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows: 1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant. xxx xxx xxx

15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason

of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office. 50 We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines' international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioner's invocation of the Yogyakarta Principles (the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity), 51 which petitioner declares to reflect binding principles of international law. At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38 (1) of the Statute of the International Court of Justice. 52 Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status. ATDHSC We also hasten to add that not everything that society or a certain segment of society wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no longer controversial. Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are at best de lege ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris. 53 As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Court's role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioner's application for party-list accreditation. aTcIEH SO ORDERED. G.R. No. 188920. February 16, 2010.] JOSE L. ATIENZA, JR., MATIAS V. DEFENSOR, JR., RODOLFO G. VALENCIA, DANILO E. SUAREZ, SOLOMON R. CHUNGALAO, SALVACION ZALDIVAR-PEREZ, HARLIN CASTABAYON, MELVIN G. MACUSI AND ELEASAR P. QUINTO, petitioners, vs. COMMISSION ON ELECTIONS, MANUEL A. ROXAS II, FRANKLIN M. DRILON and J.R. NEREUS O. ACOSTA, respondents. DECISION ABAD, J p: This petition is an offshoot of two earlier cases already resolved by the Court involving a leadership dispute within a political party. In this case, the petitioners question their expulsion from that party and assail the validity of the election of new party leaders conducted by the respondents. HaIATC Statement of the Facts and the Case For a better understanding of the controversy, a brief recall of the preceding events is in order. On July 5, 2005 respondent Franklin M. Drilon (Drilon), as erstwhile president of the Liberal Party (LP), announced his party's withdrawal of support for the administration of President Gloria Macapagal-Arroyo. But petitioner Jose L. Atienza, Jr. (Atienza), LP Chairman, and a number of party members denounced Drilon's move, claiming that he made the announcement without consulting his party. On March 2, 2006 petitioner Atienza hosted a party conference to supposedly discuss local autonomy and party matters but, when convened, the assembly proceeded to declare all positions in the LP's ruling body vacant and elected new officers, with Atienza as LP president. Respondent Drilon immediately filed a petition 1 with the Commission on Elections (COMELEC) to nullify the elections. He claimed that it was illegal considering that the party's electing bodies, the National Executive Council (NECO) and the National Political Council (NAPOLCO), were not properly convened. Drilon also claimed that under the amended LP Constitution, 2 party officers were elected to a fixed three-year term that was yet to end on November 30, 2007. aSEHDA

On the other hand, petitioner Atienza claimed that the majority of the LP's NECO and NAPOLCO attended the March 2, 2006 assembly. The election of new officers on that occasion could be likened to "people power," wherein the LP majority removed respondent Drilon as president by direct action. Atienza also said that the amendments 3 to the original LP Constitution, or the Salonga Constitution, giving LP officers a fixed three-year term, had not been properly ratified. Consequently, the term of Drilon and the other officers already ended on July 24, 2006. On October 13, 2006, the COMELEC issued a resolution, 4 partially granting respondent Drilon's petition. It annulled the March 2, 2006 elections and ordered the holding of a new election under COMELEC supervision. It held that the election of petitioner Atienza and the others with him was invalid since the electing assembly did not convene in accordance with the Salonga Constitution. But, since the amendments to the Salonga Constitution had not been properly ratified, Drilon's term may be deemed to have ended. Thus, he held the position of LP president in a holdover capacity until new officers were elected. Both sides of the dispute came to this Court to challenge the COMELEC rulings. On April 17, 2007 a divided Court issued a resolution, 5 granting respondent Drilon's petition and denying that of petitioner Atienza. The Court held, through the majority, that the COMELEC had jurisdiction over the intra-party leadership dispute; that the Salonga Constitution had been validly amended; and that, as a consequence, respondent Drilon's term as LP president was to end only on November 30, 2007. IHCESD Subsequently, the LP held a NECO meeting to elect new party leaders before respondent Drilon's term expired. Fifty-nine NECO members out of the 87 who were supposedly qualified to vote attended. Before the election, however, several persons associated with petitioner Atienza sought to clarify their membership status and raised issues regarding the composition of the NECO. Eventually, that meeting installed respondent Manuel A. Roxas II (Roxas) as the new LP president. On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G. Valencia, Danilo E. Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin Cast-Abayon, Melvin G. Macusi, and Eleazar P. Quinto, filed a petition for mandatory and prohibitory injunction 6 before the COMELEC against respondents Roxas, Drilon and J.R. Nereus O. Acosta, the party secretary general. Atienza, et al. sought to enjoin Roxas from assuming the presidency of the LP, claiming that the NECO assembly which elected him was invalidly convened. They questioned the existence of a quorum and claimed that the NECO composition ought to have been based on a list appearing in the party's 60th Anniversary Souvenir Program. Both Atienza and Drilon adopted that list as common exhibit in the earlier cases and it showed that the NECO had 103 members. EHTISC

Petitioners Atienza, et al. also complained that Atienza, the incumbent party chairman, was not invited to the NECO meeting and that some members, like petitioner Defensor, were given the status of "guests" during the meeting. Atienza's allies allegedly raised these issues but respondent Drilon arbitrarily thumbed them down and "railroaded" the proceedings. He suspended the meeting and moved it to another room, where Roxas was elected without notice to Atienza's allies. On the other hand, respondents Roxas, et al. claimed that Roxas' election as LP president faithfully complied with the provisions of the amended LP Constitution. The party's 60th Anniversary Souvenir Program could not be used for determining the NECO members because supervening events changed the body's number and composition. Some NECO members had died, voluntarily resigned, or had gone on leave after accepting positions in the government. Others had lost their re-election bid or did not run in the May 2007 elections, making them ineligible to serve as NECO members. LP members who got elected to public office also became part of the NECO. Certain persons of national stature also became NECO members upon respondent Drilon's nomination, a privilege granted the LP president under the amended LP Constitution. In other words, the NECO membership was not fixed or static; it changed due to supervening circumstances. AaIDCS Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza, Zaldivar-Perez, and Cast-Abayon resigned for holding the illegal election of LP officers on March 2, 2006. This was pursuant to a March 14, 2006 NAPOLCO resolution that NECO subsequently ratified. Meanwhile, certain NECO members, like petitioners Defensor, Valencia, and Suarez, forfeited their party membership when they ran under other political parties during the May 2007 elections. They were dropped from the roster of LP members. On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners Atienza, et al.'s petition. It noted that the May 2007 elections necessarily changed the composition of the NECO since the amended LP Constitution explicitly made incumbent senators, members of the House of Representatives, governors and mayors members of that body. That some lost or won these positions in the May 2007 elections affected the NECO membership. Petitioners failed to prove that the NECO which elected Roxas as LP president was not properly convened. As for the validity of petitioners Atienza, et al.'s expulsion as LP members, the COMELEC observed that this was a membership issue that related to disciplinary action within the political party. The COMELEC treated it as an internal party matter that was beyond its jurisdiction to resolve. DHESca Without filing a motion for reconsideration of the COMELEC resolution, petitioners Atienza, et al. filed this petition for certiorari under Rule 65. The Issues Presented

Respondents Roxas, et al. raise the following threshold issues: 1. Whether or not the LP, which was not impleaded in the case, is an indispensable party; and 2. Whether or not petitioners Atienza, et al., as ousted LP members, have the requisite legal standing to question Roxas' election. Petitioners Atienza, et al., on the other hand, raise the following issues: 3. Whether or not the COMELEC gravely abused its discretion when it upheld the NECO membership that elected respondent Roxas as LP president; CaEATI 4. Whether or not the COMELEC gravely abused its discretion when it resolved the issue concerning the validity of the NECO meeting without first resolving the issue concerning the expulsion of Atienza, et al. from the party; and 5. Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.'s constitutional right to due process by the latter's expulsion from the party. The Court's Ruling One. Respondents Roxas, et al. assert that the Court should dismiss the petition for failure of petitioners Atienza, et al. to implead the LP as an indispensable party. Roxas, et al. point out that, since the petition seeks the issuance of a writ of mandatory injunction against the NECO, the controversy could not be adjudicated with finality without making the LP a party to the case. 7 But petitioners Atienza, et al.'s causes of action in this case consist in respondents Roxas, et al.'s disenfranchisement of Atienza, et al. from the election of party leaders and in the illegal election of Roxas as party president. Atienza, et al. were supposedly excluded from the elections by a series of "despotic acts" of Roxas, et al., who controlled the proceedings. Among these acts are Atienza, et al.'s expulsion from the party, their exclusion from the NECO, and respondent Drilon's "railroading" of election proceedings. Atienza, et al. attributed all these illegal and prejudicial acts to Roxas, et al. CcAIDa Since no wrong had been imputed to the LP nor had some affirmative relief been sought from it, the LP is not an indispensable party. Petitioners Atienza, et al.'s prayer for the undoing of respondents Roxas, et al.'s acts and the reconvening of the NECO are directed against Roxas, et al. Two. Respondents Roxas, et al. also claim that petitioners Atienza, et al. have no legal standing to question the election of Roxas as LP president because they are no longer LP members, having been validly expelled from the party or having joined other political parties. 8 As non-members, they have no stake in the outcome of the action.

But, as the Court held in David v. Macapagal-Arroyo, 9 legal standing in suits is governed by the "real parties-in-interest" rule under Section 2, Rule 3 of the Rules of Court. This states that "every action must be prosecuted or defended in the name of the real party-in-interest." And "real party-in-interest" is one who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. In other words, the plaintiff's standing is based on his own right to the relief sought. In raising petitioners Atienza, et al.'s lack of standing as a threshold issue, respondents Roxas, et al. would have the Court hypothetically assume the truth of the allegations in the petition. EIDTAa Here, it is precisely petitioners Atienza, et al.'s allegations that respondents Roxas, et al. deprived them of their rights as LP members by summarily excluding them from the LP roster and not allowing them to take part in the election of its officers and that not all who sat in the NECO were in the correct list of NECO members. If Atienza, et al.'s allegations were correct, they would have been irregularly expelled from the party and the election of officers, void. Further, they would be entitled to recognition as members of good standing and to the holding of a new election of officers using the correct list of NECO members. To this extent, therefore, Atienza, et al. who want to take part in another election would stand to be benefited or prejudiced by the Court's decision in this case. Consequently, they have legal standing to pursue this petition. Three. In assailing respondent Roxas' election as LP president, petitioners Atienza, et al. claim that the NECO members allowed to take part in that election should have been limited to those in the list of NECO members appearing in the party's 60th Anniversary Souvenir Program. Atienza, et al. allege that respondent Drilon, as holdover LP president, adopted that list in the earlier cases before the COMELEC and it should thus bind respondents Roxas, et al. The Court's decision in the earlier cases, said Atienza, et al., anointed that list for the next party election. Thus, Roxas, et al. in effect defied the Court's ruling when they removed Atienza as party chairman and changed the NECO's composition. 10 DSAEIT But the list of NECO members appearing in the party's 60th Anniversary Souvenir Program was drawn before the May 2007 elections. After the 2007 elections, changes in the NECO membership had to be redrawn to comply with what the amended LP Constitution required. Respondent Drilon adopted the souvenir program as common exhibit in the earlier cases only to prove that the NECO, which supposedly elected Atienza as new LP president on March 2, 2006, had been improperly convened. It cannot be regarded as an immutable list, given the nature and character of the NECO membership. Nothing in the Court's resolution in the earlier cases implies that the NECO membership should be pegged to the party's 60th Anniversary Souvenir Program. There would have been no basis for such a position. The amended LP Constitution did not intend the NECO membership to be permanent. Its Section 27 11 provides

that the NECO shall include all incumbent senators, members of the House of Representatives, governors, and mayors who were LP members in good standing for at least six months. It follows from this that with the national and local elections taking place in May 2007, the number and composition of the NECO would have to yield to changes brought about by the elections. DHSCTI Former NECO members who lost the offices that entitled them to membership had to be dropped. Newly elected ones who gained the privilege because of their offices had to come in. Furthermore, former NECO members who passed away, resigned from the party, or went on leave could not be expected to remain part of the NECO that convened and held elections on November 26, 2007. In addition, Section 27 of the amended LP Constitution expressly authorized the party president to nominate "persons of national stature" to the NECO. Thus, petitioners Atienza, et al. cannot validly object to the admission of 12 NECO members nominated by respondent Drilon when he was LP president. Even if this move could be regarded as respondents Roxas, et al.'s way of ensuring their election as party officers, there was certainly nothing irregular about the act under the amended LP Constitution. The NECO was validly convened in accordance with the amended LP Constitution. Respondents Roxas, et al. explained in details how they arrived at the NECO composition for the purpose of electing the party leaders. 12 The explanation is logical and consistent with party rules. Consequently, the COMELEC did not gravely abuse its discretion when it upheld the composition of the NECO that elected Roxas as LP president. ASHICc Petitioner Atienza claims that the Court's resolution in the earlier cases recognized his right as party chairman with a term, like respondent Drilon, that would last up to November 30, 2007 and that, therefore, his ouster from that position violated the Court's resolution. But the Court's resolution in the earlier cases did not preclude the party from disciplining Atienza under Sections 29 13 and 46 14 of the amended LP Constitution. The party could very well remove him or any officer for cause as it saw fit. Four. Petitioners Atienza, et al. lament that the COMELEC selectively exercised its jurisdiction when it ruled on the composition of the NECO but refused to delve into the legality of their expulsion from the party. The two issues, they said, weigh heavily on the leadership controversy involved in the case. The previous rulings of the Court, they claim, categorically upheld the jurisdiction of the COMELEC over intra-party leadership disputes. 15 But, as respondents Roxas, et al. point out, the key issue in this case is not the validity of the expulsion of petitioners Atienza, et al. from the party, but the legitimacy of the NECO assembly that elected respondent Roxas as LP president. Given the COMELEC's finding as upheld by this Court that the membership of the NECO in question complied with the LP Constitution, the resolution of the issue of

whether or not the party validly expelled petitioners cannot affect the election of officers that the NECO held. SEDICa While petitioners Atienza, et al. claim that the majority of LP members belong to their faction, they did not specify who these members were and how their numbers could possibly affect the composition of the NECO and the outcome of its election of party leaders. Atienza, et al. has not bothered to assail the individual qualifications of the NECO members who voted for Roxas. Nor did Atienza, et al. present proof that the NECO had no quorum when it then assembled. In other words, the claims of Atienza, et al. were totally unsupported by evidence. Consequently, petitioners Atienza, et al. cannot claim that their expulsion from the party impacts on the party leadership issue or on the election of respondent Roxas as president so that it was indispensable for the COMELEC to adjudicate such claim. Under the circumstances, the validity or invalidity of Atienza, et al.'s expulsion was purely a membership issue that had to be settled within the party. It is an internal party matter over which the COMELEC has no jurisdiction. What is more, some of petitioner Atienza's allies raised objections before the NECO assembly regarding the status of members from their faction. Still, the NECO proceeded with the election, implying that its membership, whose composition has been upheld, voted out those objections. HCaDIS The COMELEC's jurisdiction over intra-party disputes is limited. It does not have blanket authority to resolve any and all controversies involving political parties. Political parties are generally free to conduct their activities without interference from the state. The COMELEC may intervene in disputes internal to a party only when necessary to the discharge of its constitutional functions. The COMELEC's jurisdiction over intra-party leadership disputes has already been settled by the Court. The Court ruled in Kalaw v. Commission on Elections 16 that the COMELEC's powers and functions under Section 2, Article IX-C of the Constitution, "include the ascertainment of the identity of the political party and its legitimate officers responsible for its acts." The Court also declared in another case 17 that the COMELEC's power to register political parties necessarily involved the determination of the persons who must act on its behalf. Thus, the COMELEC may resolve an intra-party leadership dispute, in a proper case brought before it, as an incident of its power to register political parties. The validity of respondent Roxas' election as LP president is a leadership issue that the COMELEC had to settle. Under the amended LP Constitution, the LP president is the issuing authority for certificates of nomination of party candidates for all national elective positions. It is also the LP president who can authorize other LP officers to issue certificates of nomination for candidates to local elective posts. 18 In simple terms, it is the LP president who certifies the official standard bearer of the party. SHcDAI

The law also grants a registered political party certain rights and privileges that will redound to the benefit of its official candidates. It imposes, too, legal obligations upon registered political parties that have to be carried out through their leaders. The resolution of the leadership issue is thus particularly significant in ensuring the peaceful and orderly conduct of the elections. 19 Five. Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue of party membership or discipline; it involves a violation of their constitutionally-protected right to due process of law. They claim that the NAPOLCO and the NECO should have first summoned them to a hearing before summarily expelling them from the party. According to Atienza, et al., proceedings on party discipline are the equivalent of administrative proceedings 20 and are, therefore, covered by the due process requirements laid down in Ang Tibay v. Court of Industrial Relations. 21 But the requirements of administrative due process do not apply to the internal affairs of political parties. The due process standards set in Ang Tibay cover only administrative bodies created by the state and through which certain governmental acts or functions are performed. An administrative agency or instrumentality "contemplates an authority to which the state delegates governmental power for the performance of a state function." 22 The constitutional limitations that generally apply to the exercise of the state's powers thus, apply too, to administrative bodies. aEDCSI The constitutional limitations on the exercise of the state's powers are found in Article III of the Constitution or the Bill of Rights. The Bill of Rights, which guarantees against the taking of life, property, or liberty without due process under Section 1 is generally a limitation on the state's powers in relation to the rights of its citizens. The right to due process is meant to protect ordinary citizens against arbitrary government action, but not from acts committed by private individuals or entities. In the latter case, the specific statutes that provide reliefs from such private acts apply. The right to due process guards against unwarranted encroachment by the state into the fundamental rights of its citizens and cannot be invoked in private controversies involving private parties. 23 Although political parties play an important role in our democratic set-up as an intermediary between the state and its citizens, it is still a private organization, not a state instrument. The discipline of members by a political party does not involve the right to life, liberty or property within the meaning of the due process clause. An individual has no vested right, as against the state, to be accepted or to prevent his removal by a political party. The only rights, if any, that party members may have, in relation to other party members, correspond to those that may have been freely agreed upon among themselves through their charter, which is a contract among the party members. Members whose rights under their charter may have been

violated have recourse to courts of law for the enforcement of those rights, but not as a due process issue against the government or any of its agencies. ETHSAI But even when recourse to courts of law may be made, courts will ordinarily not interfere in membership and disciplinary matters within a political party. A political party is free to conduct its internal affairs, pursuant to its constitutionally-protected right to free association. In Sinaca v. Mula, 24 the Court said that judicial restraint in internal party matters serves the public interest by allowing the political processes to operate without undue interference. It is also consistent with the state policy of allowing a free and open party system to evolve, according to the free choice of the people. 25 To conclude, the COMELEC did not gravely abuse its discretion when it upheld Roxas' election as LP president but refused to rule on the validity of Atienza, et al.'s expulsion from the party. While the question of party leadership has implications on the COMELEC's performance of its functions under Section 2, Article IX-C of the Constitution, the same cannot be said of the issue pertaining to Atienza, et al.'s expulsion from the LP. Such expulsion is for the moment an issue of party membership and discipline, in which the COMELEC cannot intervene, given the limited scope of its power over political parties. DcITaC WHEREFORE, the Court DISMISSES the petition and UPHOLDS the Resolution of the Commission on Elections dated June 18, 2009 in COMELEC Case SPP 08-001. SO ORDERED. G.R. No. 147571. May 5, 2001.] SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent. Quiason Makalintal Barot Torres & Ibarra for petitioners. The Solicitor General for respondent. SYNOPSIS Petitioners Social Weather Stations, Inc. and Kamahalan Publishing Corporation, publisher of Manila Standard, brought this action before the Supreme Court to declare as unconstitutional Section 5.4 of Republic Act No. 9006. Petitioners claimed that said provision, which prohibited the publication of surveys affecting national candidates fifteen days before an election, and surveys affecting local candidates seven days before an election, was a prior restraint on the exercise of the freedom of speech without any clear and present danger to justify such restraint. Respondent, on the other hand, justified said restrictions on the ground that the same was necessary to prevent the manipulation and corruption of the electoral

process by unscrupulous and erroneous surveys. It was claimed that the indiscriminate publication of surveys up to election day led to misinformation, junking of weak and losing candidates by parties, and the creation of a bandwagon effect in favor of certain candidates. aDSIHc The Supreme Court in its majority opinion concluded that the disputed provision constitutes an unconstitutional abridgment of the freedom of speech, expression and the press. According to the Court, Section 5.4 was invalid because of three reasons: (1) it imposed a prior restraint on the freedom of expression, (2) it was a direct and total suppression of a category of expression even though such suppression was only for a limited period, and (3) the governmental interest sought to be promoted could be achieved by means other than the suppression of freedom of expression. The petition for prohibition was granted. HAaDcS SYLLABUS 1. POLITICAL LAW; ELECTION LAW; SEC. 5.4, R.A. NO. 9006 (FAIR ELECTION ACT); CONSTITUTES AN UNCONSTITUTIONAL ABRIDGEMENT OF FREEDOM OF SPEECH, EXPRESSION, AND THE PRESS; RATIONALE. For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Indeed, "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government 'thus carries a heavy burden of showing justification for the enforcement of such restraint.'" There is thus a reversal of the normal presumption of validity that inheres in every legislation. Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use of such media facilities for "public information campaigns and forums among candidates." This Court stated: "The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press." Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the

ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. DcSACE 2. ID.; ID.; ID.; TEST USED TO DETERMINE THE CONSTITUTIONAL VALIDITY THEREOF. What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. O'Brien: "[A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest." This is so far the most influential test for distinguishing content-based from content-neutral regulations and is said to have "become canonical in the review of such laws." It is noteworthy that the O'Brien test has been applied by this Court in at least two cases. Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not unrelated to the suppression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. Our inquiry should accordingly focus on these two considerations as applied to 5.4. To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. SATDHE 3. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF EXPRESSION; CONSTITUTIONAL GUARANTEE THEREOF, CONSTRUED. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire, thus: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly

outweighed by the social interest in order and morality." Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v. Minnesota, it was held: "[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds; the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government . . . ." 4. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; PETITION FOR PROHIBITION, AS A REMEDY TO TEST CONSTITUTIONALITY OF ELECTION LAWS, RULE, AND REGULATIONS; PROPER IN CASE AT BAR. On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a "decision, order, or resolution" within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintains that Resolution 3636 was "rendered" by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELEC's claim that this petition for prohibition is inappropriate. Prohibition has been found appropriate for testing the constitutionality of various election laws, rules, and regulations. ASTcaE MELO, J., Concurring Opinion: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; DEFINED AND CONSTRUED. Freedom of speech has been defined as the liberty to know, to utter, and to argue freely according to conscience, above all liberties. It includes not only the right to express one's views, but also other cognate rights relevant to the free communication of ideas, including the right to be informed on matters of public concern. Indeed, the principle of free political discussion is one of the touchstones of democracy, it being a guarantee that the people will be kept informed at all times, thereby ensuring their intelligent discharge of the responsibilities of sovereignty. 2. ID.; ID.; ID.; NOT ABSOLUTE AND CAN BE VALIDLY REGULATED; REQUISITES; NOT PRESENT IN CASE AT BAR. However, despite the primacy of free expression in the hierarchy of fundamental civil liberties, the same is not absolute. It can be validly regulated. Regulation must, however, be reasonable. It must be shown that the interest of the public, generally, as distinguished from that of a particular class, requires such regulation. Second, it must appear that the means used are

reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The provision in dispute plainly constitute prior restraint on the freedom of expression. As aptly stated by the noted constitutionalist Fr. Bernas, "any system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutional validity, with the Government carrying a heavy burden of showing justification for the enforcement of such a restraint" (The Constitution of the Republic of the Philippines: A Commentary, p. 142). Any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. It is the burden of the respondent. . . to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down (Iglesia ni Kristo vs. CA, 259 SCRA 529 [1996]). Respondent COMELEC has fallen short of the required effort to overthrow this presumption, it having failed to show that the means used by Section 5.4 of Republic Act No. 9006 are reasonably necessary for the accomplishment of the purpose, and that the same are not unduly oppressive upon individuals. The means used to regulate free expression is thus, not reasonably necessary for the accomplishment of the purpose. Worse, it is unduly oppressive upon survey organizations, which have been singled out for suppression, on the mere apprehension that their survey results will lead to misinformation, "junking," or contrived bandwagon effect. HDaACI PUNO, J., Concurring Opinion: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND OF THE PRESS; ENJOYS A PREFERRED STATUS IN THE HIERARCHY OF RIGHTS; TESTS ENUNCIATED FOR ITS PROTECTION; CONSTRUED. It is now deeply embedded in our jurisprudence that freedom of speech and of the press enjoys a preferred status in our hierarchy of rights. The rationale is that the preservation of other rights depend on how well we protect our freedom of speech and of the press. In view of the preferred status of freedom of speech and of the press, several tests have been enunciated to protect it. We have the dangerous tendency test which now commands little following. We have the clear and present danger test, the most libertarian test, formulated by Justice Holmes in Schenk v. United States, viz: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that the State has a right to prevent." In Gonzales v. COMELEC, Mr. Chief Justice Fernando explained that "the term clear seems to point to a causal connection with the danger of the substantive evil arising from the utterance questioned. Present refers to the time element. It used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable." We have the various balancing tests typified by the Obrien test, to wit: "[A] government regulation is sufficiently. justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the

suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest." CSaHDT 2. POLITICAL LAW; ELECTION LAW; R.A. NO. 9006 (FAIR ELECTION ACT); CONSTITUTES PRIOR RESTRAINT ON FREEDOM OF SPEECH AND OF THE PRESS; RATIONALE. The provision in question is unconstitutional because it constitutes a clear prior restraint on petitioners' freedom of speech and of the press. I like to stress on the prohibition against prior restraint for two reasons: (1) a historical study of human rights will show that it is prior restraint that gave rise to freedom of speech and of the press; and (2) there is a growing tendency, as noted by legal observers, for governments to manipulate the free market of ideas in the guise of merely regulating the time, manner and place of exercising freedom of speech and of the press. The tendency appears in various masks. One of them is thru prior restraint or thru subsequent punishment of acts regulating the exercise of freedom of speech and of the press. 3. ID.; ID.; ID.; ID.; VOID FOR ITS OVERBREADTH; OVERBREADTH DOCTRINE; CONSTRUED; CASE AT BAR. The provision in question is also void for its overbreadth. The overbreadth doctrine prohibits government from achieving its purpose by "means that sweep unnecessarily broadly, reaching constitutionally protected as well as unprotected activity." Stated otherwise, "the essence of overbreadth is that government has gone too far: its legitimate interest can be satisfied without reaching so broadly into the area of protected freedom." In the case at bar, the prohibited surveys are all inclusive. They include "measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualification, platforms or a matter of public discussion in relation to the election, including voter's preference for candidates or publicly discussed issues during the campaign period . . . ." Clearly, the provision bans not only popularity surveys which show the winning and losing candidates but all "measurement of opinions and perceptions of the voters as regards a candidate's . . . qualifications, platforms or a matter of public discussion in relation to the election . . . . " The inhibitory effect of this ban on free speech and the free flow of information which voters need to guide their choice of candidates is too much. Indeed, the ban does not distinguish between biased and unbiased surveys or between surveys conducted with scientific accuracy and surveys done sloppily or between surveys that help enlighten voters in exercising their right of suffrage and surveys that mislead. Petitioner Social Weather Stations, Inc. is one of our more reliable private non-stock, non-profit social research institutions with a no-nonsense record. Yet, the provision in question, because of its overbreadth, will bar petitioner from making its useful pre-election surveys. Certainly, there are less drastic means which government can utilize to achieve its objective of protecting voters from false, misleading and unfair surveys. TSIDEa

PANGANIBAN, J., Concurring Opinion: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF EXPRESSION; PREFERRED RIGHT THAT STANDS ON HIGHER LEVEL THAN OTHER SUBSTANTIVE LIBERTIES; CONSTRUED. In the recent case ABS-CBN Broadcasting Corporation v. Commission on Elections, the Court en banc junked Comelec Resolution No. 981419 dated April 21, 1998, which restrained the conduct of exit polls, a species of electoral surveys. We held that "the holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press." They cannot be banned "totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls properly conducted and publicized can be vital tools in eliminating the evils of election-fixing and fraud." As mankind pushes the frontiers of science and technology in mass communications, so must the scope of free expression expand to cover the conduct and the publication of surveys. In said case, we visited the long-standing fundamental principle underlying democracies that the freedom of expression is a preferred right, standing on a higher level than other substantive liberties. Indeed, as this nation has recently witnessed once again, lessons of history, both political and legal, illustrate that freedom of thought and speech is an indispensable condition of nearly every other form of freedom. Thus, our Constitution explicitly mandates that no law shall be passed abridging the freedoms of speech and of the press. 2. ID.; ID.; ID.; NOT ABSOLUTE; WHEN LIMITATION THEREOF JUSTIFIED; CASE AT BAR. While the exercise of these basic rights could not be absolute liberty is never absolute but may be subject to regulation by the state, any limitation should be justified by a clear and present danger of such substantive character that the state has a right to prevent. In other words, the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument. There is, however, no compelling or justifiable reason for the prohibition made by Congress under the assailed law. The Comelec also utterly fails to convince me that a substantive danger, which the state has a right to prevent, lies lurking and threatening to explode if ignited by the conduct and the dissemination of the prohibited surveys. No lover of freedom, no guardian of the Constitution and no advocate of democracy can agree to this unreasonable restraint. CDTHSI KAPUNAN, J., Dissenting Opinion: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND OF THE PRESS; NOT ABSOLUTE OR UNLIMITED RIGHT; COURTS MAY ALLOW REGULATION IN THE EXERCISE THEREOF. Although among our most cherished rights, the freedoms of speech and of the press are not absolute or unlimited. In certain instances, this Court has allowed the regulation of the exercise of these freedoms vis-a-vis election-related laws.

2. ID.; ID.; ID.; TESTS EMPLOYED TO DETERMINE VALID RESTRICTIONS THEREOF. Courts have employed certain tests to determine the validity of restrictions on the rights to free speech and free press. The "dangerous tendency" rule provided that the State has the power to proscribe and punish speech which "creates a dangerous tendency which the State has a right to prevent." This formulation, however, had long been abandoned in the United States as well as in this jurisdiction. The "clear and present danger" rule postulates that "the question in every case is whether the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent." This rule has been applied in our jurisdiction in a number of cases. Nevertheless, Associate Justice Fred Ruiz Castro, later Chief Justice, in his separate opinion in Gonzales vs. Commission on Elections, expressed the view that in determining the constitutionality of Republic Act No. 4880 assailed therein, another approach, the so-called "balancing-ofinterests" test, was more appropriate. He observed: However useful the "clear and present danger" formulation was in the appraisal of a specific type of situation, there is fairly extensive recognition that it is not a rule of universal applicability and validity, not an automatic mechanism that relives a court of the need for careful scrutiny of the features of a given situation and evaluation of the competing interests involved. EIaDHS 3. POLITICAL LAW; LEGISLATIVE DEPARTMENT; POWER OF CONGRESS TO ENACT LAWS RELATIVE TO THE CONDUCT OF ELECTIONS. It is my considered opinion that given the apparent conflict between petitioners' rights of speech and press rights enshrined in the Constitution, and the inherent power of Congress to legislate on matters public interest and welfare, and in pursuance of the constitutional policy of ensuring of "free, orderly, honest, peaceful and credible elections," it is ultimately this Court's function and duty to undertake the delicate and difficult task of weighing and balancing the circumstances to determine whether public interest is served by the regulation of the free enjoyment of the rights. I believe that Congress did not exceed constitutional limitations in enacting Section 5.4. Indisputably, the State has a legitimate interest in fostering an informed electorate. It has a compelling interest in protecting voters from confusion and undue influence and, generally, in preserving the integrity of its election process. In furtherance of these State interests, Congress is empowered to enact laws relative to the conduct of elections. It may not only regulate the time, manner and place of the holding of the elections but may likewise regulate the election campaigns and other activities relative thereto. 4. ID.; ID.; ID.; SECTION 5.4, R.A. NO. 9006 (FAIR ELECTION ACT); LIMITING IMPACT THEREOF ON THE RIGHTS OF FREE SPEECH AND OF THE PRESS NOT UNDULY REPRESSIVE OR UNREASONABLE; RATIONALE. In enacting the Fair Election Act, Congress declared that the State "shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the

operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply for public information campaigns and fora among candidates and assure free, orderly, honest, peaceful and credible elections." Further, said law aims to "ensure that bona fide candidates for any public office shall be free from any form of harassment and discrimination. Towards these ends, Section 5,4 was incorporated specifically to prevent the evils brought about by election surveys published immediately before an election. Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. The reasons advanced in support of Section 5.4, far from being matters of mere legislative preferences or beliefs regarding the evils sought to be remedied, sufficiently justify the restriction on such vital rights as the freedoms of speech and of the press. It bears stressing that it is Congress, not this Court, which is primarily charged with the determination of the need for regulation of such activities. Thus, insofar as the need for regulation of the publication of election surveys within the periods laid down in Section 5.4 is concerned, this Court is in no position to substitute its judgment as to the necessity or desirability of the same for that of Congress. HCSEcI DECISION MENDOZA, J p: Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features newsworthy items of information including election surveys. aSDHCT Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. The term "election surveys" is defined in 5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as "Survey"). To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14, 2001. Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to the voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys which are relatively objective. ETHaDC

Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require

timeliness. Respondent claims that in National Press Club v. COMELEC, 1 a total ban on political advertisements, with candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in 5.4 of R.A. No. 9006 is much more limited. For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. 2 Indeed, "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government 'thus carries a heavy burden of showing justification for the enforcement of such restraint.'" 3 There is thus a reversal of the normal presumption of validity that inheres in every legislation. Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use of such media facilities for "public information campaigns and forums among candidates." 4 This Court stated: The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press. 5 MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v. COMELEC, 6 this test was originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger

as basis for curtailing free speech, which is not the case of 5.4 and similar regulations. Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the free enjoyment of the rights" (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the "junking" of weak and "losing" candidates by their parties, and the form of election cheating called "dagdag-bawas" and invoking the State's power to supervise media of information during the election period (pages 11-16), the dissenting opinion simply concludes: ACTEHI Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18) The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. Instead, reliance is placed on Art. IXC, 4. As already stated, the purpose of Art. IX-C, 4 is to "ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates." Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a plausible justification forward can easily show a rational connection between the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC, 7 from which the dissent in this case takes its cue, was a strong one resulting in his conclusion that 50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression.

Nor can the ban on election surveys be justified on the ground that there are other countries 78, according to the Solicitor General, while the dissent cites 28 which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election survey results. What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. O'Brien: cADEIa [A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest. 8 This is so far the most influential test for distinguishing content-based from contentneutral regulations and is said to have "become canonical in the review of such laws." 9 It is noteworthy that the O'Brien test has been applied by this Court in at least two cases. 10 Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not unrelated to the suppression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. Our inquiry should accordingly focus on these two considerations as applied to 5.4. First. Sec. 5.4 fails to meet criterion [3] of the O'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not unrelated to the suppression of free expression." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, 5.4 shows a bias for a particular subject

matter, if not viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." 11 The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire, 12 thus: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v. Minnesota, 13 it was held: [The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government . . . . ACcaET Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid in National Press Club v. COMELEC 14 and Osmea v. COMELEC. 15 For the ban imposed by R.A. No. 6646, 11(b) is not only authorized by a specific constitutional provision, 16 but it also provided an alternative so that, as this Court pointed out in Osmea, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of the O'Brien test, namely,

that the restriction be not greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987, 17 the COMELEC is given the power: To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the "winners." Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has been held that "[mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions." 18 To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. TAacIE On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a "decision, order, or resolution" within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintains that Resolution 3636 was "rendered" by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELEC's claim that this petition for prohibition is inappropriate. Prohibition has been found appropriate for testing the constitutionality of various election laws, rules, and regulations. 19

WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and 24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional. SO ORDERED. G.R. No. 107852. October 20, 1993.] GREGORIO N. ARUELO, JR., petitioner, vs. THE COURT OF APPEALS, PRESIDING JUDGE, REGIONAL TRIAL COURT OF BULACAN, BRANCH 17, MALOLOS, BULACAN, and DANILO F. GATCHALIAN, respondents. Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner. Venustiano S. Roxas & Associates for private respondent. SYLLABUS 1. ELECTION LAW; ELECTION PROTEST; PROCEEDINGS THEREIN, GOVERNED BY THE RULES OF COURT. Petitioner filed the election protest (Civil Case No. 343-M92) with the Regional Trial Court, whose proceedings are governed by the Revised Rules of Court. Section 1, Rule 13, Part III of the COMELEC Rules of Procedure is not applicable to proceedings before the regular courts. As expressly mandated by Section 2, Rule 1, Part I of the COMELEC Rules of Procedure, the filing of motions to dismiss and bill of particulars, shall apply only to proceedings brought before the COMELEC. It must be noted that nowhere in Part VI of the COMELEC Rules of Procedure is it provided that motions to dismiss and bill of particulars are not allowed in election protests or quo warranto cases pending before the regular courts. 2. ID.; ID.; DISTINGUISHED FROM PRE-PROCLAMATION CONTROVERSY. The instant case is different from a pre-proclamation controversy which the law expressly mandates to be resolved in a summary proceeding (B.P. Blg. 881, Art. XX, Sec. 2; Dipatuan v. Commission on Elections, 185 SCRA 86 [1990]). Preproclamation controversies should be summarily decided, consistent with the legislators' desire that the canvass of the votes and the proclamation of the winning candidate be done with dispatch and without unnecessary delay. Questions as those involving the appreciation of the votes and the conduct of the balloting, which require more deliberate and necessarily longer consideration, are left for examination in the corresponding election protest (Abella v. Larrazabal, 180 SCRA 509 [1989]; Alonto v. Commission on Elections, 22 SCRA 878 [1968]). An election protest does not merely concern the personal interests of rival candidates for an office. Over and above the desire of the candidates to win, is the deep public interest to determine the true choice of the people. For this reason, it is a wellestablished principle that laws governing election protests must be liberally construed to the end that the popular will, expressed in the election of public

officers, will not, by purely technical reasons, be defeated (Unda v. Commission on Elections, 190 SCRA 827 [1990]; De Leon v. Guadiz, Jr., 104 SCRA 591 [1981]; Macasundig v. Macalanga, 13 SCRA 577 [1965]; Corocoro v. Bascara, 9 SCRA 519 [1963]). 3. ID.; COMMISSION ON ELECTION; NO POWER TO PROHIBIT THE FILING OF CERTAIN PLEADINGS IN THE REGULAR COURTS. Constitutionally speaking, the COMELEC can not adopt a rule prohibiting the filing of certain pleadings in the regular courts. The power to promulgate rules concerning pleadings, practice and procedure in all courts is vested on the Supreme Court (Constitution, Art. VIII, Sec. 5 [5]). 4. REMEDIAL LAW; CIVIL PROCEDURE; BILL OF PARTICULARS; ANSWER IN CASE OF DENIAL THEREOF; WHEN TO FILE; RULE. Private respondent received a copy of the order of the Regional Trial Court denying his motion for a bill of particulars on August 6, 1992. Under Section 1 (b), Rule 12 of the Revised Rules of Court, a party has at least five days to file his answer after receipt of the order denying his motion for a bill of particulars. Private respondent, therefore, had until August 11, 1992 within which to file his answer. The Answer with Counter-Protest and Counterclaim filed by him on August 11, 1992 was filed timely. DECISION QUIASON, J p: This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court, to set aside the Decision of the Court of Appeals dated November 24, 1992 in CA-G.R. SP No. 28621, which ruled that the answer and counter-protest of respondent Danilo F. Gatchalian was filed timely and ordered the Regional Trial Court, Branch 17, Malolos, Bulacan to continue with the proceedings in Civil Case No. 343-M-92, the protest case filed by petitioner Gregorio N. Aruelo, Jr. Aruelo and Gatchalian were rival candidates in the May 11, 1992 elections for the office of Vice-Mayor of the Municipality of Balagtas, Province of Bulacan. Gatchalian won over Aruelo by a margin of four votes, such that on May 13, 1992, the Municipal Board of Canvassers proclaimed him as the duly elected Vice-Mayor of Balagtas, Bulacan. On May 22, 1992, Aruelo filed with the Commission on Elections (COMELEC) a petition docketed as SPC No. 92-130, seeking to annul Gatchalian's proclamation on the ground of "fraudulent alteration and tampering" of votes in the tally sheets and the election returns. On June 2, 1992, Aruelo filed with the Regional Trial Court, Branch 17, Malolos, Bulacan, a petition docketed as Civil Case No. 343-M-92 protesting the same

election. Aruelo, however, informed the trial court of the pendency of the preproclamation case before the COMELEC. On June 10, 1992, Gatchalian was served an Amended Summons from the trial court, giving him five days within which to answer the petition. Instead of submitting his answer, Gatchalian filed on June 15, 1992 a Motion to Dismiss claiming that: (a) the petition was filed out of time; (b) there was a pending protest case before the COMELEC; and (c) Aruelo failed to pay the prescribed filing fees and cash deposit on the petition. Meanwhile in SPC Case No. 92-130, the COMELEC on June 16, 1992 denied Aruelo's petition for non-compliance with Section 20 of R.A. No. 7166, which requires the submission of the evidence and documents in support of the petition to annul Gatchalian's proclamation (Rollo, p. 42). The trial court on the other hand, issued an order dated July 10, 1992, denying Gatchalian's Motion to Dismiss and ordering him to file his answer to the petition within five days from notice, otherwise, "a general denial shall be deemed to have been entered" (Rollo, p. 45). The trial court also directed Aruelo to pay the deficiency in his filing fees, which the latter complied with. Gatchalian filed a Motion for Reconsideration of the order but the trial court denied the same on August 3, 1992. On August 6, 1992, Gatchalian filed before the Court of Appeals, a petition for certiorari docketed as CA-G.R. SP No. 28621, which alleged grave abuse of discretion on the part of the trial court in denying his Motion to Dismiss and his Motion for Reconsideration. Earlier, that is on July 23, 1992 Gatchalian filed before the trial court a Motion for Bill of Particulars, which was opposed by Aruelo. The trial court denied Gatchalian's motion in an order dated August 5, 1992, a copy of which was received by him on August 6, 1992. On August 11, 1992, Gatchalian submitted before the trial court his Answer with Counter-Protest and Counterclaim, alleging inter alia, that Aruelo was the one who committed the election fraud and that were it not for the said fraud, Gatchalian's margin over Aruelo would have been greater. Gatchalian prayed for the dismissal of the petition, the confirmation of his election and the award of damages. On the day the answer was filed, the trial court issued an order admitting it, and without Gatchalian's specific prayer, directed the revision of ballots in the precincts enumerated in Gatchalian's Counter-Protest and Construction. For this purpose, the trial court ordered the delivery of the contested ballot boxes to the Branch Clerk of Court. On August 14, 1992, Aruelo filed with the trial court a Motion to Reconsider As Well As To Set Aside "Answer with Counter-Protest and Counterclaim" Filed Out of Time

by Protestee. The trial court, on September 2, 1992, denied Aruelo's motion and forthwith scheduled the constitution of the revision committee. On September 28, 1992, Aruelo prayed before the Court of Appeals for the issuance of a temporary restraining order or a writ of preliminary injunction to restrain the trial court from implementing the Order of August 11, 1992, regarding the revision of ballots. The Court of Appeals belatedly issued a temporary restraining order on November 9, 1992, after actual revision of the contested ballots ended on October 28, 1992. Meanwhile, Gatchalian filed with the Court of Appeals on September 21, 1992 another petition for certiorari (CA-G.R. SP No. 28977), again alleging grave abuse of discretion on the part of the trial court in issuing the Order dated August 5, 1992, which denied his Motion for Bill of Particulars. The Court of Appeals, in its Resolution dated September 28, 1992, dismissed this petition for lack of merit. On November 24, 1992, the Court of Appeals rendered a decision in CA-G.R. SP No. 28621, denying Gatchalian's petition, but declared, at the same time, that Gatchalian's Answer With Counter-Protest and Counterclaim was timely filed. The appellate court also lifted the temporary restraining order and ordered the trial court to "proceed with dispatch in the proceedings below" (Rollo, p. 212). Hence, this petition. Aruelo claims that in election contests, the COMELEC Rules of Procedure gives the respondent therein only five days from receipt of summons within which to file his answer to the petition (Part VI, Rule 35, Sec. 7) and that this five-day period had lapsed when Gatchalian filed his answer. According to him, the filing of motions to dismiss and motions for bill of particulars is prohibited by Section 1, Rule 13, Part III of the COMELEC Rules of Procedure; hence, the filing of said pleadings did not suspend the running of the five-day period, or give Gatchalian a new five-day period to file his answer. We do not agree. Petitioner filed the election protest (Civil Case No. 343-M-92) with the Regional Trial Court, whose proceedings are governed by the Revised Rules of Court. Section 1, Rule 13, Part III of the COMELEC Rules of Procedure is not applicable to proceedings before the regular courts. As expressly mandated by Section 2, Rule 1, Part I of the COMELEC Rules of Procedure, the filing of motions to dismiss and bill of particulars, shall apply only to proceedings brought before the COMELEC. Section 2, Rule 1, Part I provides: "SEC. 2. Applicability. These rules, except Part VI, shall apply to all actions and proceedings brought before the Commission. Part VI shall apply to election

contests and quo warranto cases cognizable by courts of general or limited jurisdiction." It must be noted that nowhere in Part VI of the COMELEC Rules of Procedure is it provided that motions to dismiss and bill of particulars are not allowed in election protests or quo warranto cases pending before the regular courts. Constitutionally speaking, the COMELEC can not adopt a rule prohibiting the filing of certain pleadings in the regular courts. The power to promulgate rules concerning pleadings, practice and procedure in all courts is vested on the Supreme Court (Constitution, Art VIII, Sec. 5 [5]). Private respondent received a copy of the order of the Regional Trial Court denying his motion for a bill of particulars on August 6, 1992. Under Section 1 (b), Rule 12 of the Revised Rules of Court, a party has at least five days to file his answer after receipt of the order denying his motion for a bill of particulars. Private respondent, therefore, had until August 11, 1992 within which to file his answer. The Answer with Counter-Protest and Counterclaim filed by him on August 11, 1992 was filed timely.

The instant case is different from a pre-proclamation controversy which the law expressly mandates to be resolved in a summary proceeding (B.P. Blg. 881, Art. XX, Sec. 246; COMELEC Rules of Procedure, Part V, Rule 27, Sec. 2; Dipatuan v. Commission on Elections, 185 SCRA 86 [1990]). Pre-proclamation controversies should be summarily decided, consistent with the legislators' desire that the canvass of the votes and the proclamation of the winning candidate be done with dispatch and without unnecessary delay. Questions as those involving the appreciation of the votes and the conduct of the balloting, which require more deliberate and necessarily longer consideration, are left for examination in the corresponding election protest (Abella v. Larrazabal, 180 SCRA 509 [1989]; Alonto v. Commission on Elections, 22 SCRA 878 [1968]). An election protest does not merely concern the personal interests of rival candidates for an office. Over and above the desire of the candidates to win, is the deep public interest to determine the true choice of the people. For this reason, it is a well-established principle that laws governing election protests must be liberally construed to the end that the popular will, expressed in the election of public officers, will not, by purely technical reasons, be defeated (Unda v. Commission on Elections, 190 SCRA 827 [1990]; De Leon v. Guadiz, Jr., 104 SCRA 591 [1981]; Macasundig v. Macalangan, 13 SCRA 577 [1965]; Corocoro v. Bascara, 9 SCRA 519 [1963]). We find no grave abuse of discretion on the part of the Court of Appeals.

WHEREFORE, the petition is hereby DISMISSED. SO ORDERED. G.R. No. 105214. August 30, 1993.] FRANCISCO JAVIER O. CARAM and the LABAN NG DEMOKRATIKONG PILIPINO, petitioners, vs. COMMISSION ON ELECTIONS and ILOILO PROVINCIAL BOARD OF CANVASSERS, respondents. Josephine Abad for petitioner. The Solicitor General for respondents. DECISION QUIASON, J .: This is a petition for mandamus to compel the Commission on Elections (COMELEC) to conduct special elections for the Sub-province of Guimaras, Province of Iloilo and in areas in the Second Congressional District of Iloilo, which were directly affected by the conversion of the Sub-province of Guimaras into a full-fledged province, for the purpose of electing the Governor, Vice-Governor, Members of the Sangguniang Panlalawigan representing the Second District of the Province of Iloilo and the Congressman for the Second Congressional District of said province. The petition also asked for the issuance of a temporary restraining order to stop the Provincial Board of Canvassers of the Province of Iloilo from canvassing and proclaiming the results of the elections for the Office of the Governor, Vice-Governor, Members of the Sangguniang Panlalawigan representing the Second District of the Province of Iloilo and the Congressman of the Second Congressional District of said province (Rollo, pp. 2-7). The petition, in substance, alleged that the COMELEC had no authority to exclude the voters of the Sub-province of Guimaras to vote for the Governor, Vice-Governor and the Members of the Sangguniang Panlalawigan of the Province of Iloilo. It also alleged that the COMELEC failed to properly disseminate information regarding the right of the Sub-province of Guimaras to vote for a Congressman for the Second Congressional District of Iloilo with the result that almost one-third of the registered voters of the sub-province were not able to exercise the right to vote. cdphil The Local Government Code, which took effect on January 1, 1992, provided, inter alia, for the conversion of the Sub-province of Guimaras into a province and the holding of the plebiscite, wherein voters of the Province of Iloilo and the Subprovince of Guimaras were asked to resolve the issue of the conversion of the subprovince to a regular province, simultaneously with the national elections on May 11, 1992.

On May 11, 1992, when the official ballots of the three municipalities were distributed for the purpose of the 1992 national elections, the ballots did not contain any provisions for the election of the Governor, Vice-Governor and the Members of the Sangguniang Panlalawigan representing the Second District of the Province of Iloilo. Section 462 of the Local Government Code, providing for the conversion of the then existing sub-provinces into regular provinces, reads: "Sec. 462. Existing Sub-provinces. Existing sub-provinces are hereby converted into regular provinces upon approval by a majority of the votes cast in a plebiscite to be held in the said sub-provinces and the original provinces directly affected. The plebiscite shall be conducted by the Comelec simultaneously with the national elections following the effectivity of this Code. LLpr The new legislative districts created as a result of such conversion shall continue to be represented in Congress by the duly-elected representatives of the original districts out of which said new provinces or districts were created until their own representatives shall have been elected in the next regular congressional elections and qualified. The incumbent elected officials of the said sub-provinces converted into regular provinces shall continue to hold office until June 30, 1992. Any vacancy occurring in the offices occupied by said incumbent elected officials, or resulting from expiration of their terms of office in case of a negative vote in the plebiscite results, shall be filled by appointment by the President. The appointees shall hold office until their successors shall have been elected in the regular local elections following the plebiscite mentioned herein and qualified. After effectivity of such conversion, the President shall fill up the position of governor of the newly-created province through appointment if none has yet been appointed to the same as herein before provided, and shall also appoint a vice-governor and the other members of the sangguniang panlalawigan, all of whom shall likewise hold office until their successors shall have been elected in the next regular local elections and qualified. All qualified appointive officials and employees in the career service of the said subprovinces at the time of their conversion into regular provinces shall continue in office in accordance with civil service law, rules and regulations." On April 15, 1992, the COMELEC promulgated Resolution No. 2410, providing the rules and regulations to govern the conduct of the plebiscite in the Province of Iloilo and Sub-province of Guimaras. Pursuant to Section 4 of the said Resolution, the official ballots used in the elections in the Province of Iloilo and Sub-province of Guimaras included at the bottom thereof the following question:

"DO YOU VOTE FOR THE APPROVAL OF THE CONVERSION OF THE SUB-PROVINCE OF GUIMARAS INTO A REGULAR PROVINCE, PURSUANT TO SECTION 462, REPUBLIC ACT NO. 7160?" The official ballots also provided an appropriate space for the voter's response to the question. The Provincial Board of Canvassers of Iloilo issued a certificate dated May 22, 1992, proclaiming that the conversion of the Sub-province of Guimaras to a regular province was ratified and approved by the voters in a plebiscite held in the Province of Iloilo and the Sub-province of Guimaras on May 11, 1992 by a vote of 283,224 against 42,524. cdll In Grino v. Commission on Elections, 213 SCRA 672, we held that the COMELEC had no authority to exclude the voters of the Sub-province of Guimaras from voting for the positions of the Governor, Vice-Governor, and Members of the Sangguniang Panlalawigan representing the Second District of the Province of Iloilo because under Section 462 of the Local Government Code, it was only in the case where the voters ratified the conversion of the Sub-province of Guimaras to a regular province that the President was empowered to appoint the officials of the newly created province. The Court noted that the lawmakers failed to foresee that in the event the negative vote in the plebiscite prevailed, the Sub-province of Guimaras would continue to be a part of the Province of Iloilo and be represented by the officials of the province elected in the May 11, 1992 elections. However, considering that the "Yes" votes in the plebiscite prevailed, we ruled that it would serve no useful purpose to undo what the COMELEC had done and that there would be no legal basis to call special elections to give a chance to the voters of the Sub-province of Guimaras to vote for the provincial officials of the Province of Iloilo. Petitioners have not shown the basis of their claim that about one-third of the voters in the Sub-province of Guimaras were not able to vote for a Congressman. The official ballots used in the Sub-province of Guimaras contained a space for the voting of a Congressman for the Second Congressional District of Iloilo. That was a clear indication that the Guimaras voters could vote for said official. In allowing the voters in the Sub-province of Guimaras to vote for a Congressman for the Second Congressional District of Iloilo, the COMELEC merely followed to the letter the provisions of Section 462 of R.A. 7160 that: "The new legislative districts created as a result of such conversion shall continue to be represented in congress by the duly-elected representatives of the original districts out of which said new provinces or districts were created until their own representatives shall have been elected in the next regular congressional elections and qualified."

There was no evidence to show that one-third of the voters of the Sub-province of Guimaras were not able to vote for a Congressman for the Second Congressional District of Iloilo due to the lack of dissemination of information that they could do so. In the absence of such evidence, the only conclusion that can be deduced was that those who did not vote for the position of congressman, merely abstained from voting for the said position. The right to abstain from voting for a position deserves the same respect as the exercise of the right to vote. To compel the COMELEC to conduct a special election for the position of congressman as demanded by petitioners would be to nullify the decision of the voters who cast their votes in the May 1992 elections and who, according to petitioner constituted two-thirds of the voters in the sub-province. WHEREFORE, the petition is DISMISSED, with costs against petitioner. SO ORDERED. G.R. No. 80007. January 25, 1988.] CARMELO F. LAZATIN, petitioner, vs. THE COMMISSION ON ELECTIONS, FRANCISCO R. BUAN, JR., and LORENZO G. TIMBOL, respondents. SYLLABUS 1. POLITICAL LAW; ELECTION LAW; PROCLAMATION AS CONGRESSMAN; ANNULMENT BY COMELEC IMPROPER; ISSUE WITHIN SOUND JUDGMENT OF ELECTORAL TRIBUNAL. Petitioner filed the instant petition assailing the jurisdiction of the COMELEC to annul his proclamation after he had taken his oath of office, assumed office, and discharged the duties of Congressman of the First District of Pampanga. The petitioner claims that the House Electoral Tribunal and not the COMELEC is the sole judge of all election contests. (Sec. 17 Art. 6 of the 1987 Constitution) The petition is impressed with merit because petitioner has been proclaimed winner of the Congressional elections in the first district of Pampanga, has taken his oath of office as such, and assumed his duties as Congressman. For this Court to take cognizance of the electoral protest against him would be to usurp the functions of the House Electoral Tribunal. The alleged invalidity of the proclamation (which had been previously ordered by the COMELEC itself) despite alleged irregularities in connection therewith, and despite the pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the Electoral Tribunal. DECISION PARAS, J p: Petitioner filed the instant petition assailing the jurisdiction of the COMELEC to annul his proclamation after he had taken his oath of office, assumed office, and discharged the duties of Congressman of the First District of Pampanga. The

petitioner claims that the House Electoral Tribunal and not the COMELEC is the sole judge of all election contests. (Sec. 17 Art. 6 of the 1987 Constitution) In the Comments of candidates Buan, Jr., and Timbol, they allege that the instant petition has become moot and academic because the assailed COMELEC Resolution had already become final and executory when the Supreme Court issued a temporary restraining order on October 6, 1987. They also allege that the COMELEC hastily proclaimed petitioner Lazatin without first resolving their separate written protests against the Election returns in Pampanga, docketed as SPC Nos. 87-234, 87-358, 87-351 In the COMMENT of the Solicitor General, he alleges that the instant petition should be given due course because the proclamation was valid. The Telex Order issued by the COMELEC directing the canvassing board to proclaim the winner if warranted under Section 245 of the Omnibus Election Code," was in effect a grant of authority by the COMELEC to the canvassing board, to proclaim the winner. A Separate Comment was filed by the COMELEC, alleging that the proclamation of petitioner was illegal and void because the board simply corrected the returns contested by the petitioner without waiting for the final resolutions of the petitions of candidates Timbol, Buan, Jr., and the petitioner himself, against certain election returns. The Consolidated Reply filed by the petitioner, reiterates previous arguments. The Supreme Court, in a Resolution dated November 17, 1987 resolved to give due course to the petition. cdll The petition is impressed with merit because petitioner has been proclaimed winner of the Congressional elections in the first district of Pampanga, has taken his oath of office as such, and assumed his duties as Congressman. For this Court to take cognizance of the electoral protest against him would be to usurp the functions of the House Electoral Tribunal. The alleged invalidity of the proclamation (which had been previously ordered by the COMELEC itself) despite alleged irregularities in connection therewith, and despite the pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the Electoral Tribunal. WHEREFORE, the revocation by the COMELEC of petitioner's proclamation is hereby SET ASIDE. SO ORDERED. G.R. No. 84297. December 8, 1988.] CARMELO F. LAZATIN, petitioner, vs. THE HOUSE ELECTORAL TRIBUNAL and LORENZO G. TIMBOL, respondents.

Angara, Abello, Concepcion, Regala & Cruz for petitioner. The Solicitor General for respondents. SYLLABUS 1. CONSTITUTIONAL LAW; ELECTION CONTEST; JURISDICTION OF THE COMELEC AND THE ELECTORAL TRIBUNALS. That Sec. 250 of the Omnibus Election Code, as far as contests regarding the election, returns and qualifications of Members of the Batasang Pambansa is concerned, had ceased to be effective under the 1987 Constitution is readily apparent. First, the Batasang Pambansa has already been abolished and the legislative power is now vested in a bicameral Congress. Second, the Constitution vests exclusive jurisdiction over all contests relating to the election, returns and qualifications of the Members of the Senate and the House of Representatives in the respective Electoral Tribunals [Art. VI, Sec. 17]. The exclusive original jurisdiction of the COMELEC is limited by constitutional fiat to election contests pertaining to elective regional, provincial and city offices and its appellate jurisdiction to those involving municipal and barangay offices [Art. IX-C, Sec. 2(2)]. 2. ID.; ID.; HOUSE ELECTORAL TRIBUNAL; POWERS. The power of the HRET, as the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives, to promulgate rules and regulations relative to matters within its jurisdiction, including the period for filing election protests before it, is beyond dispute. Its rule-making power necessarily flows from the general power granted it by the Constitution. 3. ID.; ID.; HISTORICAL BACKGROUND REGARDING THE GRANT OF POWER TO A BODY TO JUDGE ELECTION PROTESTS. A short review of our constitutional history reveals that, except under the 1973 Constitution, the power to judge all contests relating to the election, returns and qualifications of the members of the legislative branch has been exclusively granted either to the legislative body itself or to an independent, impartial and non-partisan body attached to the legislature. Except under the 1973 Constitution, the power granted is that of being the sole judge of all contests relating to the election, returns and qualifications of the members of the legislative body. The 1935 and 1987 Constitutions, which separate and distinctly apportion the powers of the three branches of government, lodge the power to judge contests relating to the election, returns and qualifications of members of the legislature in an independent, impartial and non-partisan body attached to the legislature and specially created for that singular purpose (i.e., the Electoral Commission and the Electoral Tribunals) [see Suanes v. Chief Accountant of the Senate, 81 Phil. 818]. It was only under the 1973 Constitution where the delineation between the powers of the Executive and the Legislature was blurred by constitutional experimentation that the jurisdiction over election contests involving

members of the Legislature was vested in the COMELEC, an agency with general jurisdiction over the conduct of elections for all elective national and local officials. 4. ID.; ID.; JURISDICTION OF COMELEC TO HEAR AND DECIDE ELECTION CONTESTS TRIMMED DOWN UNDER THE 1987 CONSTITUTION; HOUSE ELECTORAL TRIBUNAL HAS POWER TO PRESCRIBE PERIOD TO FILE PROTESTS. With regard to the jurisdiction of the COMELEC to hear and decide election contests. This has been trimmed down under the 1987 Constitution. Whereas the 1973 Constitution vested the COMELEC with jurisdiction to be the sole judge of all contests relating to the elections, returns and qualifications of all Members of the Batasang Pambansa and elective provincial and city officials [Art. XII(C), Sec. 2(2)], the 1987 Constitution, while lodging in the COMELEC exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial and city officials and appellate jurisdiction over contests relating to the election of municipal and barangay officials [Art. IX(C), Sec. 2(2)], expressly makes the Electoral Tribunals of the Senate and the House of Representatives the sole judge of all contests relating to the election, returns and qualifications of their respective Members [Art. VI, Sec. 17]. The inescapable conclusion from the foregoing is that it is well within the power of the HRET to prescribe the period within which protests may be filed before it. This is founded not only on historical precedents and jurisprudence but, more importantly, on the clear language of the Constitution itself. 5. ID.; ID.; HOUSE ELECTORAL TRIBUNAL; HAS DISCRETIONARY POWER TO ISSUE RESTRAINING ORDER OR WRIT OF PRELIMINARY INJUNCTION. The matter of whether or not to issue a restraining order or a writ of preliminary injunction during the pendency of a protest lies within the sound discretion of the HRET as sole judge of all contests relating to the election, returns and qualifications of the members of the House of Representatives. Necessarily, the determination of whether or not there are indubitable grounds to support the prayer for the aforementioned ancillary remedies also lies within the HRET's sound judgment. 6. ID.; SUPREME COURT; CANNOT GENERALLY REVIEW FINAL ACTION OF THE ELECTORAL TRIBUNAL ON MATTERS WITHIN ITS JURISDICTION. So long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court. As stated earlier, the power granted to the Electoral Tribunal is full, clear and complete and "excludes the exercise of any authority on the part of this Court that would in any wise restrict or curtail it or even affect the same." 7. ID.; ID.; MAY INTERFERE WITH THE ELECTORAL TRIBUNAL'S JUDGMENT WHICH WAS RENDERED WITH GRAVE ABUSE OF DISCRETION. Under the 1987 Constitution, the scope of the Court's authority is made explicit. The power granted to the Court includes the duty "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" [Art. VIII, Sec. 1]. Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the HRET's judgment. DECISION CORTES, J p: Petitioner and private respondent were among the candidates for Representative of the first district of Pampanga during the elections of May 11, 1987. During the canvassing of the votes, private respondent objected to the inclusion of certain election returns. But since the Municipal Board of Canvassers did not rule on his objections, he brought his case to the Commission on Elections. On May 19, 1987, the COMELEC ordered the Provincial Board of Canvassers to suspend the proclamation of the winning candidate for the first district of Pampanga. However, on May 26, 1987, the COMELEC ordered the Provincial Board of Canvassers to proceed with the canvassing of votes and to proclaim the winner. On May 27, 1987, petitioner was proclaimed as Congressman-elect. Private respondent thus filed in the COMELEC a petition to declare petitioner's proclamation void ab initio. Later, private respondent also filed a petition to prohibit petitioner from assuming office. The COMELEC failed to act on the second petition so petitioner was able to assume office on June 30, 1987. On September 15, 1987, the COMELEC declared petitioner's proclamation void ab initio. Petitioner challenged the COMELEC resolution before this Court in a petition entitled "Carmelo F. Lazatin v. The Commission on Elections, Francisco R. Buan, Jr. and Lorenzo G. Timbol," docketed as G.R. No. 80007. In a decision promulgated on January 25, 1988, the Court set aside the COMELEC's revocation of petitioner's proclamation. On February 8, 1988, private respondent filed in the House of Representatives Electoral Tribunal (hereinafter referred to as "HRET") an election protest, docketed as Case No. 46. LLjur Petitioner moved to dismiss private respondent's protest on the ground that it had been filed late, citing Sec. 250 of the Omnibus Election Code (B.P. Blg. 881). However, the HRET ruled that the protest had been filed on time in accordance with Sec. 9 of the HRET Rules. Petitioner's motion for reconsideration was also denied. Hence, petitioner has come to this Court, challenging the jurisdiction of the HRET over the protest filed by private respondent. A. The Main Case This special civil action for certiorari and prohibition with prayer for the issuance of a writ of preliminary injunction and/or restraining order seeks the annulment and setting aside of (1) the resolution of the HRET, dated May 2, 1988, in Case No. 46, holding that the protest filed by private respondent had been filed on time, and (2) its July 29, 1988 resolution denying the motion for reconsideration.

Without giving due course to the petition, the Court required the respondents to comment on the petition. The Solicitor General filed a comment in behalf of the HRET while the private respondent filed his comment with a motion to admit counter/cross petition and the petitioner filed his consolidated reply. Thereafter, the Court resolved to give due course to the petition, taking the comments filed as the answers to the petition, and considered the case submitted for decision. Resolution of the instant controversy hinges on which provision governs the period for filing protests in the HRET. Should Sec. 250 of the Omnibus Election Code be held applicable, private respondent's election protest would have been filed out of time. On the other hand, if Sec. 9 of the HRET Rules is applicable, the filing of the protest would be timely. Succinctly stated, the basic issue is whether or not private respondent's protest had been seasonably filed. cdphil To support his contention that private respondent's protest had been filed out of time and, therefore, the HRET did not acquire jurisdiction over it, petitioner relies on Sec. 250 of the Omnibus Election Code, which provides: Sec. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. A sworn petition contesting the election of any Member of the Batasang Pambansa or any regional, provincial or city official shall be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. [Emphasis supplied]. Petitioner argues that even assuming that the period to file an election protest was suspended by the pendency of the petition to annul his proclamation, the petition was filed out of time, considering that he was proclaimed on May 27, 1987 and therefore private respondent had only until June 6, 1987 to file a protest; that private respondent filed a petition to annul the proclamation on May 28, 1987 and the period was suspended and began to run again on January 28, 1988 when private respondent was served with a copy of the decision of the Court in G.R. No. 80007; that private respondent therefore only had nine (9) days left or until February 6, 1988 within which to file his protest; but that private respondent filed his protest with the HRET only on February 8, 1988. On the other hand, in finding that the protest was filed on time, the HRET relied on Sec. 9 of its Rules, to wit: Election contests arising from the 1987 Congressional elections shall be filed with the Office of the Secretary of the Tribunal or mailed at the post office as registered matter addressed to the Secretary of the Tribunal, together with twelve (12) legible copies thereof plus one (1) copy for each protestee, within fifteen (15) days from the effectivity of these Rules on November 22, 1987 where the proclamation has been made prior to the effectivity of these Rules, otherwise, the same may be filed within fifteen (15) days from the date of the proclamation. Election contests arising

from the 1987 Congressional elections filed with the Secretary of the House of Representatives and transmitted by him to the Chairman of the Tribunal shall be deemed filed with the Tribunal as of the date of effectivity of these Rules, subject to payment of filing fees as prescribed in Section 15 hereof. [Emphasis supplied.] Thus, ruled the HRET: On the basis of the foregoing Rule, the protest should have been filed within fifteen (15) days from November 22, 1987, or not later than December 7, 1987. However, on September 15, 1987, the COMELEC, acting upon a petition filed by the Protestant (private respondent herein), promulgated a Resolution declaring the proclamation void ab initio. This resolution had the effect of nullifying the proclamation, and such proclamation was not reinstated until Protestant received a copy of the Supreme Court's decision annulling the COMELEC Resolution on January 28, 1988. For all intents and purposes, therefore, Protestee's (petitioner herein) proclamation became effective only on January 28, 1988, and the fifteen-day period for Protestant to file his protest must be reckoned from that date. Protestant filed his protest on February 8, 1988, or eleven (11) days after January 28. The protest, therefore, was filed well within the reglementary period provided by the Rules of this Tribunal. (Rollo, p. 129.]. The Court is of the view that the protest had been filed on time and, hence, the HRET acquired jurisdiction over it. Petitioner's reliance on Sec. 250 of the Omnibus Election Code is misplaced. Sec. 250 is couched in unambiguous terms and needs no interpretation. It applies only to petitions filed before the COMELEC contesting the election of any Member of the Batasang Pambansa, or any regional, provincial or city official. Furthermore, Sec. 250 should be read together with Sec. 249 of the same code which provides that the COMELEC "shall be the sole judge of all contests relating to the elections, returns and qualifications of all Members of the Batasang Pambansa, elective regional, provincial and city officials," reiterating Art. XII-C, Sec. 2(2) of the 1973 Constitution. It must be emphasized that under the 1973 Constitution there was no provision for an Electoral Tribunal, the jurisdiction over election contests involving Members of the Batasang Pambansa having been vested in the COMELEC. cdrep That Sec. 250 of the Omnibus Election Code, as far as contests regarding the election, returns and qualifications of Members of the Batasang Pambansa is concerned, had ceased to be effective under the 1987 Constitution is readily apparent. First, the Batasang Pambansa has already been abolished and the legislative power is now vested in a bicameral Congress. Second, the Constitution vests exclusive jurisdiction over all contests relating to the election, returns and qualifications of the Members of the Senate and the House of Representatives in the respective Electoral Tribunals [Art. VI, Sec. 17]. The exclusive original jurisdiction of the COMELEC is limited by constitutional fiat to election contests pertaining to

elective regional, provincial and city offices and its appellate jurisdiction to those involving municipal and barangay offices [Art. IX-C, Sec. 2(2)]. Petitioner makes much of the fact that the provisions of the Omnibus Election Code on the conduct of the election were generally made applicable to the congressional elections of May 11, 1987. It must be emphasized, however, that such does not necessarily imply the application of all the provisions of said code to each and every aspect of that particular electoral exercise, as petitioner contends. On the contrary, the Omnibus Election Code was only one of several laws governing said elections. ** An examination of the Omnibus Election Code and the executive orders specifically applicable to the May 11, 1987 congressional elections reveals that there is no provision for the period within which to file election protests in the respective Electoral Tribunals. Thus, the question may well be asked whether the rules governing the exercise of the Tribunals' constitutional functions may be prescribed by statute. The Court is of the considered view that it may not. The power of the HRET, as the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives, to promulgate rules and regulations relative to matters within its jurisdiction, including the period for filing election protests before it, is beyond dispute. Its rule-making power necessarily flows from the general power granted it by the Constitution. This is the import of the ruling in the landmark case of Angara v. Electoral Commission [63 Phil. 139 (1936)], where the Court, speaking through Justice Laurel, declared in no uncertain terms: . . . [T]he creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character to limit the time within which protests intrusted to its cognizance should be filed. It is a settled rule of construction that where a general power is conferred or duly enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley, Constitutional Limitations, eighth ed., vol. I, pp. 138, 139). In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests relating to the election, returns and qualifications of members of the National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission. [At p. 177; emphasis supplied.] A short review of our constitutional history reveals that, except under the 1973 Constitution, the power to judge all contests relating to the election, returns and qualifications of the members of the legislative branch has been exclusively granted either to the legislative body itself [i.e., the Philippine Assembly under the Philippine

Bill of 1902 and the Senate and the House of Representatives under the Philippine Autonomy Act (Jones Law)] or to an independent, impartial and non-partisan body attached to the legislature [i.e., the Electoral Commission under the 1935 Constitution and the Electoral Tribunals under the amended 1935 and the 1987 Constitutions]. Cdpr Except under the 1973 Constitution, the power granted is that of being the sole judge of all contests relating to the election, returns and qualifications of the members of the legislative body. Article VI of the 1987 Constitution states it in this wise: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred [Angara v. Electoral Commission, supra, at 162]. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as "intended to be as complete and unimpaired as if it had remained originally in the legislature" [Id. at 175]. Earlier, this grant of power to the legislature was characterized by Justice Malcolm as " full, clear and complete" [Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886 (1919)]. Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal [Suanes v. Chief Accountant of the Senate, 81 Phil. 818 (1948)] and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission [Lachica v. Yap, G.R. No. L-25379, September 25, 1968, 25 SCRA 140]. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution. The 1935 and 1987 Constitutions, which separate and distinctly apportion the powers of the three branches of government, lodge the power to judge contests relating to the election, returns and qualifications of members of the legislature in an independent, impartial and non-partisan body attached to the legislature and specially created for that singular purpose (i.e., the Electoral Commission and the Electoral Tribunals) [see Suanes v. Chief Accountant of the Senate, supra]. It was only under the 1973 Constitution where the delineation between the powers of the Executive and the Legislature was blurred by constitutional experimentation that the jurisdiction over election contests involving members of the Legislature was

vested in the COMELEC, an agency with general jurisdiction over the conduct of elections for all elective national and local officials. That the framers of the 1987 Constitution intended to restore fully to the Electoral Tribunals exclusive jurisdiction over all contests relating to the election, returns and qualifications of its Members, consonant with the return to the separation of powers of the three branches of government under the presidential system, is too evident to escape attention. The new Constitution has substantially retained the COMELEC's purely administrative powers, namely, the exclusive authority to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall; to decide, except those involving the right to vote, all questions affecting elections; to deputize law enforcement agencies and government instrumentalities for election purposes; to register political parties and accredit citizens' arms; to file in court petitions for inclusion and exclusion of voters and prosecute, where appropriate, violations of election laws [Art. IX(C), Sec. 2(1), (3)-(6)], as well as its rule-making power. In this sense, and with regard to these areas of election law, the provisions of the Omnibus Election Code are fully applicable, except where specific legislation provides otherwise. But the same cannot be said with regard to the jurisdiction of the COMELEC to hear and decide election contests. This has been trimmed down under the 1987 Constitution. Whereas the 1973 Constitution vested the COMELEC with jurisdiction to be the sole judge of all contests relating to the elections, returns and qualifications of all Members of the Batasang Pambansa and elective provincial and city officials [Art. XII(C), Sec. 2(2)], the 1987 Constitution, while lodging in the COMELEC exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial and city officials and appellate jurisdiction over contests relating to the election of municipal and barangay officials [Art. IX(C), Sec. 2(2)], expressly makes the Electoral Tribunals of the Senate and the House of Representatives the sole judge of all contests relating to the election, returns and qualifications of their respective Members [Art. VI, Sec. 17]. LLpr The inescapable conclusion from the foregoing is that it is well within the power of the HRET to prescribe the period within which protests may be filed before it. This is founded not only on historical precedents and jurisprudence but, more importantly, on the clear language of the Constitution itself. Consequently, private respondent's election protest having been filed within the period prescribed by the HRET, the latter cannot be charged with lack of jurisdiction to hear the case. B. Private Respondent's Counter/Cross Petition

Private respondent in HRET Case No. 46 prayed for the issuance of a temporary restraining order and/or writ of preliminary injunction to enjoin petitioner herein from discharging his functions and duties as the Representative of the first district

of Pampanga during the pendency of the protest. However, on May 5, 1988, the HRET resolved to defer action on said prayer after finding that the grounds therefor did not appear to be indubitable. Private respondent moved for reconsideration, but this was denied by the HRET on May 30, 1988. Thus, private respondent now seeks to have the Court annul and set aside these two resolutions and to issue a temporary restraining order and/or writ of preliminary injunction on the premise that the grounds therefor are too evident to be doubted. The relief prayed for in private respondent's counter/cross petition is not forthcoming. The matter of whether or not to issue a restraining order or a writ of preliminary injunction during the pendency of a protest lies within the sound discretion of the HRET as sole judge of all contests relating to the election, returns and qualifications of the members of the House of Representatives. Necessarily, the determination of whether or not there are indubitable grounds to support the prayer for the aforementioned ancillary remedies also lies within the HRET's sound judgment. Thus, in G.R. No. 80007, where the Court declined to take cognizance of the private respondent's electoral protest, this Court said: The alleged invalidity of the proclamation (which had been previously ordered by the COMELEC itself) despite alleged irregularities in connection therewith, and despite the pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the Electoral Tribunal. Moreover, private respondent's attempt to have the Court set aside the HRET's resolution to defer action on his prayer for provisional relief is undeniably premature, considering that the HRET had not yet taken any final action with regard to his prayer. Hence, there is actually nothing to review or annul and set aside. But then again, so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court. As stated earlier, the power granted to the Electoral Tribunal is full, clear and complete and "excludes the exercise of any authority on the part of this Court that would in any wise restrict or curtail it or even affect the same." [Lachica v. Yap, supra, at 143.] As early as 1938 in Morrero v. Bocar [66 Phil. 429, 431 (1938)], the Court declared that "[t]he judgment rendered by the Electoral] Commission in the exercise of such an acknowledged power is beyond judicial interference, except, in any event, upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law." Under the 1987 Constitution, the scope of the Court's authority is made explicit. The power granted to the Court includes the duty "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" [Art. VIII, Sec. 1]. Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the HRET's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no grave abuse of discretion that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed for has been clearly shown. llcd WHEREFORE, the instant Petition is hereby DISMISSED. Private respondent's Counter/Cross Petition is likewise DISMISSED. SO ORDERED. G.R. No. 167499. September 15, 2005.] MILES ANDREW MARI ROCES, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and MARIA ZENAIDA B. ANG PING, respondents. Romulo B. Macalintal for petitioner. Sixto S. Brillantes, Jr. for private respondent. SYLLABUS 1. POLITICAL LAW; CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL; EXCLUSIVE JURISDICTION. The HRET is the sole judge of all contests relating to the election, returns, and qualifications of the members of the House of Representatives and has the power to promulgate procedural rules to govern proceedings brought before it. This exclusive jurisdiction includes the power to determine whether it has the authority to hear and determine the controversy presented, and the right to decide whether that state of facts exists which confers jurisdiction, as well as all other matters which arise in the case legitimately before it. Accordingly, it has the power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction. One of the three essential elements of jurisdiction is that proper parties must be present. Consequently, the HRET merely exercised its exclusive jurisdiction when it ruled that Mrs. Ang Ping was a proper party to contest the election of Roces. HSaCcE 2. ID.; ID.; COMMISSION ON ELECTION; RULES OF PROCEDURE; MOTIONS FOR RECONSIDERATION OF THE DIVISION'S DECISIONS, RESOLUTIONS, ORDERS OR RULINGS MUST FIRST BE FILED IN THE DIVISION BEFORE THE COMMISSION EN BANC MAY TAKE COGNIZANCE THEREOF; CASE AT BAR. To make matters worse, the COMELEC en banc usurped the jurisdiction of the COMELEC First Division when it issued Resolution No. 6823 on May 8, 2004 which ordered the deletion of Mr. Ang Ping's name from the Certified List of Candidates and denied the spouses Ang Ping's motions to withdraw and substitute despite the fact that: (1) the reglementary period of Mr. Ang Ping to appeal had not yet expired; and (2) Mr. Ang Ping had filed

a motion for reconsideration of the preceding order on May 10, 2004 within the fiveday reglementary period. Nowhere is it provided in the law that the COMELEC en banc has the power to assume jurisdiction motu proprio over a petition to deny due course pending before a division of the Commission. Diametrically opposed thereto are the provisions of the Constitution and COMELEC Rules of Procedure which provide that motions for reconsideration of the COMELEC division's decisions, resolutions, orders or rulings must first be filed in the Divisions before the Commission en banc may take cognizance thereof. . . . 3. ID.; ID.; ID.; RESOLUTIONS THEREOF CONSIDERED VOID AB INITIO IN CASE AT BAR FOR VIOLATING THE PARTY'S CONSTITUTIONAL RIGHT TO DUE PROCESS; EFFECTS OF A VOID JUDGMENT. There is no iota of doubt that the COMELEC's resolutions are void ab initio for violating Mrs. Ang Ping's constitutional right to due process. Judgments entered in a proceeding failing to comply with procedural due process are void, as is one entered by a court acting in a manner inconsistent with due process. A void judgment is defined as one that, from its inception, is a complete nullity and without legal effect. A void judgment is not entitled to the respect accorded to, and is attended by none of the consequences of, a valid adjudication. Indeed, a void judgment need not be recognized by anyone, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It has no legal or binding force or efficacy for any purpose or at any place. It cannot affect, impair, or create rights, nor can any rights be based on it. All proceedings founded on the void judgment are themselves regarded as invalid and ineffective for any purpose. Needless to stress, the HRET did not commit grave abuse of discretion in assuming jurisdiction over the election protest as the COMELEC Resolution dated April 30, 2004, Order of May 5, 2004, and Resolution No. 6823 were void ab initio. aTSEcA 4. ID.; ID.; ID.; ID.; ID.; A VOID JUDGMENT OR DECREE IS SUBJECT TO COLLATERAL ATTACK AT ANY TIME. Petitioner contends that the HRET cannot review decisions of the COMELEC and that COMELEC decisions, orders, or rulings may be solely reviewed by the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. It is true that generally, the method of assailing a judgment or order of the COMELEC is via petition for certiorari. As aforestated, however, it was petitioner who submitted these resolutions to the HRET as proofs that Mrs. Ang Ping was not a proper party. These same resolutions were collaterally attacked by Mrs. Ang Ping before the HRET when she alleged that these violated her right to due process. A void judgment or resolution may be impeached through collateral attack. A direct attack on a judgment or resolution is defined as an attempt to avoid or correct it in some manner provided by law, in a proceeding instituted for that very purpose, in the same action and in the same tribunal. Conversely, a collateral attack is an attempt to impeach the judgment or resolution by matters dehors the record, before a tribunal other than the one in which it was rendered, in an action other than that in

which it was rendered; an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it; any proceeding which is not instituted for the express purpose of annulling, correcting, or modifying such decree; an objection, incidentally raised in the course of the proceeding, which presents an issue collateral to the issues made by the pleadings. The rule that a void judgment or decree is subject to collateral attack at any time is based upon a court's inherent authority to expunge void acts from its records. The void resolutions of the COMELEC, especially the April 30, 2004 resolution issued by its First Division, cannot oust the HRET of its jurisdiction over the case at bar. 5. ID.; ID.; ID.; ID.; ID.; JUDGMENTS, ORDERS AND RESOLUTIONS SHOULD ONLY BE DECLARED VOID IN THE MOST EXCEPTIONAL CIRCUMSTANCES; CASE AT BAR. We hasten to add that judgments, orders and resolutions should only be declared void in the most exceptional circumstances due to detrimental effects on the doctrine of finality of judgments. The circumstances of this case, however, are unique in that the private respondent was denied due process and was forced to seek justice in the HRET. In fact, it was this Court that referred the private respondent to the HRET when it dismissed the latter's petition in G.R. No. 163259 on the ground of the pendency of HRET Case No. 04-004. To grant the petition now would effectively foreclose the private respondent's access to any remedy despite violation of her right to due process. SAHIDc AUSTRIA-MARTINEZ, J., dissenting opinion: 1. POLITICAL LAW; CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL; RULE; ANY FINAL ACTION TAKEN BY THE TRIBUNAL ON A MATTER WITHIN ITS JURISDICTION SHALL NOT BE REVIEWED. The mandate of the HRET to be the sole judge of all contests relating to the election, returns and qualifications of its members is constitutionally endowed. So long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns, and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court. 2. ID.; ID.; ID.; ID.; NO JURISDICTION TO REVIEW RESOLUTIONS OR DECISIONS OF THE COMMISSION ON ELECTIONS. More importantly, it is beyond the HRET's jurisdiction to review, whether as a preliminary matter or not, resolutions or decisions of the COMELEC, as it rests with this Court by constitutional fiat, to wit: SEC. 7. . . . Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. In Codilla vs. De Venecia, the Court, citing the HRET case of Puzon vs. Cua, stated that: . . . even the HRET ruled that the "doctrinal ruling that once a proclamation has been made and a candidate-elect has assumed office, it is this Tribunal that has

jurisdiction over an election contest involving members of the House of Representatives, could not have been immediately applicable due to the issue regarding the validity of the very COMELEC pronouncements themselves." This is because the HRET has no jurisdiction to review resolutions or decisions of the COMELEC, whether issued by a division or en banc. 3. ID.; ID.; ID.; ID.; ELECTION PROTEST, WHO MAY FILE. Under Rule 16 of the 1988 Rules of the House of Representatives Electoral Tribunal, as amended, "an election protest shall be filed by any candidate who has duly filed a certificate of candidacy. . . ." Consequently, Zenaida cannot be deemed a proper party to file the election protest, as there was no valid substitution of candidates given that Harry's certificate of candidacy was already denied due course by the COMELEC at the time the substitution was made. AcICHD 4. ID.; ID.; ID.; ID.; DECISION THEREOF MAY BE REVIEWED BY THE SUPREME COURT WHERE THE SAME WAS RENDERED WITHOUT OR IN EXCESS OF ITS JURISDICTION, OR WITH GRAVE ABUSE OF DISCRETION OR UPON A SHOWING OF CAPRICIOUS, ARBITRARY AND WHIMSICAL EXERCISE OF ITS POWER. In exceptional cases, the Court had to exercise its power of judicial review, as when the HRET's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or upon a clear showing of capricious, arbitrary and whimsical exercise of its power. I believe this case falls under the exception. It should be emphasized that the dismissal of the petition, in effect, sustains the HRET's finding regarding the invalidity of the COMELEC orders, which virtually gives authority to the HRET to rule upon the COMELEC's issuances, a matter that is exclusively lodged with this Court. 5. ID.; ID.; COMMISSION ON ELECTIONS; ORDERS THEREOF ENJOY THE PRESUMPTION OF GOOD FAITH AND REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTY. It is my opinion that the HRET exceeded its jurisdiction in ruling upon the COMELEC (First Division) May 5, 2004 Order in SPA No. 04-224, which considered the Order denying due course to and canceling the Certificate of Candidacy of Harry as having been promulgated on April 30, 2004, as well as on the COMELEC Resolution No. 6823, which considered the affidavit of withdrawal of Harry as moot and academic and denied Zenaida's bid to be a substitute candidate. In the first place, these COMELEC orders enjoy the presumption of good faith and regularity in the performance of official duty. Absent palpable evidence, the HRET cannot impute bad faith, collusion, or irregularity in the issuance of these COMELEC orders. 6. ID.; ID.; ID.; EXTRAORDINARY POWER OF THE SUPREME COURT TO PASS UPON AN ORDER OR DECISION THEREOF SHOULD BE EXERCISED RESTRICTIVELY, WITH CARE AND CAUTION, WHILE GIVING IT THE HIGHEST REGARD AND RESPECT DUE A CONSTITUTIONAL BODY. It was not necessary for the HRET to make any ruling on the substantial merits of the COMELEC orders. It could have resolved the

question of Zenaida's standing to file the election protest simply by applying the rule on finality of COMELEC decisions. In fact, even the Court cannot make any declaration on these COMELEC issuances, as these are not properly before the Court in the present petition. It should be stressed that the extraordinary power of this Court to pass upon an order or decision of the COMELEC should be exercised restrictively, with care and caution, while giving it the highest regard and respect due a constitutional body. DTAaCE 7. ID.; ID.; ID.; FINALITY OF DECISIONS ON DISQUALIFICATION CASES. The COMELEC's jurisdiction over petitions to deny due course to or cancel a certificate of candidacy is beyond question. Such jurisdiction continues even after the elections, if for any reason no final judgment of disqualification is rendered before the elections, and the candidate facing disqualification is voted for and receives the highest number of votes, and provided further that the winning candidate has not been proclaimed or taken his oath of office. A decision by the COMELEC to disqualify a candidate shall become final and executory only after a period of five days: . . . . 8. ID.; ID.; ID.; FILING OF A MOTION FOR RECONSIDERATION SUSPENDS THE EXECUTION OR IMPLEMENTATION OF THE DECISION THEREOF; CASE AT BAR. Moreover, Section 2, Rule 19 of the 1988 COMELEC Rules of Procedure explicitly states that the filing of a motion for reconsideration suspends the execution or implementation of the decision, resolution, order, or ruling. In this case, the cancellation of Harry's certificate of candidacy and Zenaida's substitution as candidate in his stead, was yet to attain finality at the time Zenaida filed her ad cautelam election protest before the HRET on May 24, 2004. When it was converted into a regular election protest on September 9, 2004, the motion for reconsideration and supplemental motion for reconsideration of the COMELEC (First Division) Order dated April 30, 2004 was still pending before the COMELEC En Banc. As such, the enforcement of the COMELEC's order denying due course and canceling Harry's certificate of candidacy is deemed suspended. While the COMELEC En Banc already denied respondents' motion for reconsideration in SPA No. 04-224 on April 28, 2005, it is premature to rule that it is a final and executory order of disqualification, considering that respondents may then still assail the COMELEC's issuances to this Court. 9. ID.; ID.; ID.; PRESUMPTION OF REGULARITY OF THE ORDERS THEREOF PREVAILS UNLESS SHOWN TO BE INVALID. To stress, at the time Zenaida filed the election protest, Harry's motion for reconsideration of the COMELEC (First Division) April 30, 2004 Order canceling his certificate of candidacy, was yet to be resolved by the COMELEC En Banc, and Harry's disqualification cannot yet be enforced. Hence, at the time of the filing of the election protest ad cautelam, Zenaida could have been presumed to be a proper party as substitute candidate; but her legal personality to file a protest is made clear in the advent of the April 28, 2005 Order of the COMELEC En Banc which denied Harry's motion for reconsideration of the Order dated April 30, 2004. As of even date, records do not show whether the Ang

Pings timely questioned the COMELEC (First Division) Order dated May 5, 2004 denying Harry's motion to cancel the scheduled promulgation and to dismiss the petition to deny due course and cancel his certificate of candidacy and the COMELEC En Banc Resolution dated April 28, 2005, denying his motion for reconsideration, before this Court. The April 30, 2004 Resolution of the COMELEC (First Division) denied due course and cancelled Harry's certificate of candidacy. Resolution No. 6823 issued by the COMELEC En Banc considered as moot and academic Harry's withdrawal of candidacy and denied Zenaida's bid to be the substitute candidate of their political party. Hence, given the presumption of regularity of these COMELEC orders and until it is shown that these orders are invalid in the proper forum, the same must prevail. SAcaDE DECISION PUNO, J p: If there is a right, there must be a remedy is an old legal adage. The case at bar provides the perfect setting for the application of this adage which is a demand for simple justice. The facts will show how the respondent's right to run for a public office has been frustrated by unscrupulous officials in charge of the sanctity of our electoral process. aEHAIS Petitioner Miles Roces (Roces) and former Congressman Harry Ang Ping (Mr. Ang Ping) filed their respective certificates of candidacy (COCs) for the position of Representative for the 3rd Congressional District of Manila in the May 2004 elections. On January 5, 2004, a registered voter of Manila named Alejandro Gomez questioned Mr. Ang Ping's candidacy before the COMELEC through a petition to deny due course or cancel his COC. 1 The petition alleged that Mr. Ang Ping misrepresented himself to be a natural-born citizen, hence was disqualified for the position. Acting for the COMELEC First Division, Commissioner Virgilio O. Garcilliano issued an order on April 30, 2004 scheduling the promulgation of its resolution on May 5, 2004. 2 Two days before the scheduled promulgation or on May 3, 2004, Mr. Ang Ping filed with the COMELEC a Sworn Declaration of Withdrawal of his COC. 3 The next day, May 4, 2004, the General Counsel for the Nationalist Peoples Coalition, the political party of Mr. Ang Ping, sought that Mr. Ang Ping's wife, Ma. Zenaida Ang Ping (Mrs. Ang Ping), substitute for him. 4 Mr. Ang Ping also filed a motion to cancel the scheduled promulgation and dismiss the petition to deny due course or cancel his COC on the same date. 5 On May 5, 2004, Commissioner Resurreccion Z. Borra deferred the promulgation for lack of quorum as he was the sole Commissioner in attendance. 6

Despite all these developments, the COMELEC First Division, through Commissioners Rufino S.B. Javier, Resurreccion Z. Borra, and Virgilio O. Garcilliano, issued a resolution granting the petition to deny due course to Mr. Ang Ping's COC and ordering the Board of Election Inspectors of Manila not to count any vote cast in his favor. 7 It ruled that the resolution which was originally scheduled for promulgation by Commissioner Garcilliano on May 5, 2004 was instead promulgated on April 30, 2004, the same date that the notice of promulgation was issued. 8 The resolution was served on Mr. Ang Ping's counsel on May 8, 2004. 9 Compounding the woes of Mr. Ang Ping, and despite the deferment of the promulgation by Commissioner Borra at a hearing on May 5, 2004, the COMELEC First Division issued on the same date an order denying Mr. Ang Ping's motion to dismiss. It held that the motion to dismiss was filed after the "promulgation" of the April 30, 2004 resolution granting the petition to deny due course to Mr. Ang Ping's COC. 10 On May 9, 2004, and before the expiration of the five-day reglementary period, 11 Mr. Ang Ping moved for reconsideration of the April 30, 2004 resolution and the case was elevated to the COMELEC en banc. 12 While the case was still with the COMELEC First Division, or on May 8, 2004, the COMELEC en banc issued Resolution No. 6823, declaring moot Mr. Ang Ping's Affidavit of Withdrawal, denying due course to the substitute COC of Mrs. Ang Ping and ordering the Regional Election Director to delete Mr. Ang Ping's name from the certified list of candidates. 13 Among the signatories to the Resolution were Commissioners Javier, Borra, and Garcilliano of the COMELEC First Division before which the petition to deny due course was still pending. 14 Mr. Ang Ping had no knowledge of the resolution. aAEIHC Racing against time or on May 11, 2004, the spouses Ang Ping repaired to this Court and filed a petition for certiorari with prayer for temporary restraining order, status quo order and/or writ of preliminary injunction docketed as G.R. No. 163259, assailing COMELEC Resolution No. 6823. 15 The next day or on May 12, 2004, this Court issued a resolution requiring Roces to comment and denied the issuance of an order suspending the proclamation. 16 On the election day itself, the Manila City Board of Canvassers resolved not to canvass the votes for Mr. or Mrs. Ang Ping citing COMELEC Resolution No. 6823. 17 On May 15, 2004, after counting only 6,347 votes out of the 150,387 registered voters in the district, it proclaimed Roces winner. 18 The spouses Ang Ping appealed the Board resolution to the COMELEC en banc 19 and filed a petition to annul the proclamation 20 but these were dismissed by COMELEC's Resolution No. 7257 and Omnibus Order of July 6, 2004. 21 On May 19, 2004, Roces filed his Comment to the petition of spouses Ang Ping with this Court. 22 On May 25, 2004, this Court required the spouses Ang Ping to file their consolidated reply to the Comment. 23

On May 24, 2004, Mrs. Ang Ping filed an Election Protest Ad Cautelam with the House of Representatives Electoral Tribunal (HRET), which was docketed as HRET Case No. 04-004. 24 In her election protest, Mrs. Ang Ping alleged, among others, that COMELEC Resolution No. 6823 was a "glaring case of deprivation" of Mr. and Mrs. Ang Ping's right to "elevate SPC 04-224 to the Commission en banc" and that the COMELEC's April 30, 2004 resolution was irregularly promulgated. Roces filed his answer alleging, among others, that the HRET has no jurisdiction over the case. 25 On July 16, 2004, the spouses Ang Ping filed their consolidated reply with this Court. 26 On July 27, 2004, we required Mrs. Ang Ping to show cause why the petition in G.R. No. 163259 should not be dismissed in view of the filing and pendency of HRET Case No. 04-004. 27 In her Compliance filed on July 30, 2004, Mrs. Ang Ping explained that the issue of whether the COMELEC gravely abused its discretion in issuing the COMELEC Resolution No. 6823 may be ventilated as one of the issues to be settled in the HRET Election Protest since the non-canvassing of the "Ang Ping votes" and the proclamation of petitioner Roces were founded on COMELEC Resolution No. 6823 and were raised as the principal issues in the HRET Election Protest. This notwithstanding, the spouses Ang Ping manifested that they will "submit to any disposal which this Honorable Court may find appropriate under the above circumstances" and "would defer and will accept any order/resolution of the Honorable Court that would resolve to dismiss the instant petition/controversy, but allowing them to pursue and concentrate their time and effort in the abovementioned Ad Cautela HRET Election Protest Case, which they intend to convert to a REGULAR PROTEST case, in such an event." 28 On August 10, 2004, this Court dismissed G.R. No. 163259 in view of the pending HRET protest filed by Mrs. Ang Ping. 29 The resolution eventually became final and executory. 30 Thereafter, Mrs. Ang Ping filed in the HRET a motion to convert the ad cautelam protest to a regular protest. The HRET granted the motion on September 9, 2004. 31 In the HRET, Roces filed a motion to dismiss the protest, assailing in the main the personality of Mrs. Ang Ping to file the protest. It also raised the following issues: (1) whether the HRET has jurisdiction to review COMELEC Resolution No. 6823; (2) whether Mrs. Ang Ping can validly substitute for Mr. Ang Ping; (3) whether the protest may be resolved by mere canvass of election returns; (4) whether the proceeding is a "protest" considering that it questions proceedings held before the Manila City Board of Canvassers; (5) whether Mrs. Ang Ping could claim any right to the ballots cast considering she was not listed in the certified list of COMELEC candidates; (6) whether the petition is sufficient in form and substance despite failing to state the specific precincts protested; and (7) whether forum shopping was committed. aSCHcA

After extensive oral arguments, the HRET denied Roces's motion to dismiss on March 3, 2005. It ruled that Mrs. Ang Ping was a proper party to file the protest against Roces since: (1) there was no final COMELEC resolution disqualifying or denying due course to the COC of Mr. Ang Ping, thus her substitution for the latter was legally permissible under the Omnibus Election Code; 32 (2) she was one of the candidates voted for during election day in the 3rd District of Manila; 33 and (3) the COMELEC Order of May 5, 2004 was of questionable validity for the reason that: (a) it was issued in violation of its April 30, 2004 resolution setting the promulgation for May 5, 2004 and despite the fact that the records had not yet reached the COMELEC en banc; 34 and (b) there was no prior notice and hearing in violation of Section 78 of the Omnibus Election Code. 35 Roces's motion for reconsideration of the HRET order was denied on March 21, 2005. Roces then filed the present petition for certiorari assailing the two preceding resolutions of the HRET. 36 The issues for resolution are: (1) whether or not the HRET committed grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled that Mrs. Ang Ping is a proper party to file the election protest despite the denial in due course and cancellation of her COC under COMELEC Resolution No. 6823; and (2) whether or not HRET has jurisdiction to review a resolution or order of the COMELEC and/or declare the same as void and disregard or set it aside. After several months or on April 28, 2005, the COMELEC en banc issued a resolution denying Mr. Ang Ping's motion for reconsideration of the COMELEC's April 30, 2004 resolution for being moot and academic due to the petitioner's proclamation, Mr. Ang Ping's withdrawal of his candidacy and Mrs. Ang Ping's attempt to substitute for her husband. 37 We hold that the HRET did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the petitioner's motion to dismiss for the following reasons: First. The HRET is the sole judge of all contests relating to the election, returns, and qualifications of the members of the House of Representatives 38 and has the power to promulgate procedural rules to govern proceedings brought before it. 39 This exclusive jurisdiction includes the power to determine whether it has the authority to hear and determine the controversy presented, and the right to decide whether that state of facts exists which confers jurisdiction, as well as all other matters which arise in the case legitimately before it. 40 Accordingly, it has the power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction. 41 One of the three essential elements of jurisdiction is that proper parties must be present. 42 Consequently, the HRET merely exercised its exclusive

jurisdiction when it ruled that Mrs. Ang Ping was a proper party to contest the election of Roces. HACaSc Second. There is no dispute that to support his motion to dismiss, Roces offered as evidence the COMELEC resolutions denying due course to Mrs. Ang Ping's COC. In doing so, Roces submitted to the HRET the admissibility and validity of these resolutions and the HRET cannot be faulted in reviewing the said resolutions especially for the purpose of determining whether Roces was able to discharge his burden of proving that Mrs. Ang Ping is not the proper party to assail his election. In passing upon the COMELEC resolutions especially for that purpose, it cannot be said that the HRET usurped the jurisdiction of the COMELEC. On the merits of the HRET ruling, we hold that the HRET did not abuse its discretion in holding that Mrs. Ang Ping is a proper party to contest the election of Roces. Under COMELEC rules, the procedure of promulgation of a decision or resolution is as follows: SECTION 5. Promulgation. The promulgation of a decision or resolution of the Commission or a Division shall be made on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram. 43 Promulgation is important because it determines when the reglementary period begins to toll. In the case at bar, Commissioner Garcilliano fixed the promulgation of its resolution whether to give due course to the candidacy of Mr. Ang Ping on May 5, 2004. For mysterious reasons, the COMELEC First Division of Commissioner Garcillano did not promulgate the resolution on May 5, 2004 in accordance with its notice of promulgation. In violation of the abovecited rule, and despite the deferment of the promulgation by Commissioner Borra to a date to be set by the COMELEC First Division, the resolution was deemed "promulgated" by the COMELEC on April 30, 2004 when it was filed with the clerk of court. The April 30, 2004 COMELEC resolution was received by Mr. Ang Ping's counsel only on May 8, 2004. 44 The mysterious April 30, 2004 resolution was thereafter used to run roughshod over the rights of the Ang Pings. Thus, on May 5, 2004, the COMELEC First Division of Commissioner Garcilliano denied Mr. Ang Ping's motion to dismiss. Allegedly, Mr. Ang Ping's motion was filed after the April 30, 2004 resolution. TaDSCA To make matters worse, the COMELEC en banc usurped the jurisdiction of the COMELEC First Division when it issued Resolution No. 6823 on May 8, 2004 which ordered the deletion of Mr. Ang Ping's name from the Certified List of Candidates and denied the spouses Ang Ping's motions to withdraw and substitute despite the fact that: (1) the reglementary period of Mr. Ang Ping to appeal had not yet expired; and (2) Mr. Ang Ping had filed a motion for reconsideration of the preceding order

on May 10, 2004 within the five-day reglementary period. Nowhere is it provided in the law that the COMELEC en banc has the power to assume jurisdiction motu proprio over a petition to deny due course pending before a division of the Commission. Diametrically opposed thereto are the provisions of the Constitution and COMELEC Rules of Procedure which provide that motions for reconsideration of the COMELEC division's decisions, resolutions, orders or rulings must first be filed in the Divisions before the Commission en banc may take cognizance thereof, viz.: SECTION 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. 45 SECTION 3. The Commission Sitting in Divisions. The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens' arms of the Commission. 46 SECTION 5. How Motion for Reconsideration Disposed Of. Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. IAaCST SECTION 6. Duty of Clerk of Court of Commission to Calendar Motion for Resolution. The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification thereof. (Emphases supplied) 47 This premature COMELEC Resolution No. 6823 was then used on May 12, 2004, or on the election day itself, by the Manila City Board of Canvassers as the basis of its resolution not to canvass the votes for Mr. or Mrs. Ang Ping. It then proclaimed Roces the winner despite having counted only 6,347 votes out of the 150,387 registered voters of the district. 48 Following these highly suspect resolutions, Roces was proclaimed winner on May 15, 2004. All told, it cannot be denied that the effect of COMELEC en banc Resolution No. 6823 was to execute the April 30, 2004 resolution of its First Division which, at that time, had not yet become final and executory. These irregularities cannot be swept away by the belated COMELEC en banc's April 28, 2005 resolution denying Mr. Ang Ping's motion for reconsideration dated May 10, 2004. 49 It is argued that Mrs. Ang Ping's motions for reconsideration and appeals "cured" whatever defects occurred at the COMELEC. Citing T.H. Valderama & Sons, Inc. v. Drilon, 50 Roces points to the petition for certiorari filed with this Court on May 11, 2004 by Mrs. Ang Ping assailing COMELEC Resolution No. 6823 and her

acquiescence to any "appropriate action taken (by the Court) including the dismissal of the above petition." Contrary to Roces's posture, Valderama and its kin required that the aggrieved party be given an opportunity to be heard. In the case at bar, it ought to be emphasized that the private respondent was systematically denied the opportunity to be heard. The resolution of the COMELEC's First Division was made before its priorily set date of promulgation, deemed final and executory by the COMELEC en banc in Resolution No. 6823 before expiry of the reglementary period, and executed by the Manila City Board of Canvassers. The petition for certiorari filed by Mrs. Ang Ping challenged these resolutions and could not have cured these blatant violations of her right to due process. In truth, this Court referred the case of Mrs. Ang Ping to the HRET where she has filed a protest ad cautelam. DAaEIc There is no iota of doubt that the COMELEC's resolutions are void ab initio for violating Mrs. Ang Ping's constitutional right to due process. Judgments entered in a proceeding failing to comply with procedural due process are void, as is one entered by a court acting in a manner inconsistent with due process. 51 A void judgment is defined as one that, from its inception, is a complete nullity and without legal effect. A void judgment is not entitled to the respect accorded to, and is attended by none of the consequences of, a valid adjudication. Indeed, a void judgment need not be recognized by anyone, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It has no legal or binding force or efficacy for any purpose or at any place. It cannot affect, impair, or create rights, nor can any rights be based on it. All proceedings founded on the void judgment are themselves regarded as invalid and ineffective for any purpose. 52 Needless to stress, the HRET did not commit grave abuse of discretion in assuming jurisdiction over the election protest as the COMELEC Resolution dated April 30, 2004, Order of May 5, 2004, and Resolution No. 6823 were void ab initio. Third. Petitioner contends that the HRET cannot review decisions of the COMELEC and that COMELEC decisions, orders, or rulings may be solely reviewed by the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. 53 It is true that generally, the method of assailing a judgment or order of the COMELEC is via petition for certiorari. 54 As aforestated, however, it was petitioner who submitted these resolutions to the HRET as proofs that Mrs. Ang Ping was not a proper party. These same resolutions were collaterally attacked by Mrs. Ang Ping before the HRET when she alleged that these violated her right to due process. 55 A void judgment or resolution may be impeached through collateral attack. 56 A direct attack on a judgment or resolution is defined as an attempt to avoid or correct it in some manner provided by law, in a proceeding instituted for that very purpose, in the same action and in the same tribunal. Conversely, a collateral attack is an attempt to impeach the judgment or resolution by matters dehors the record, before a tribunal other than the one in which it was rendered, in an action other than that in which it was rendered; an attempt to avoid, defeat, or

evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it; any proceeding which is not instituted for the express purpose of annulling, correcting, or modifying such decree; an objection, incidentally raised in the course of the proceeding, which presents an issue collateral to the issues made by the pleadings. 57 The rule that a void judgment or decree is subject to collateral attack at any time is based upon a court's inherent authority to expunge void acts from its records. 58 The void resolutions of the COMELEC, especially the April 30, 2004 resolution issued by its First Division, cannot oust the HRET of its jurisdiction over the case at bar. HSTAcI Fourth. We hasten to add that judgments, orders and resolutions should only be declared void in the most exceptional circumstances due to detrimental effects on the doctrine of finality of judgments. The circumstances of this case, however, are unique in that the private respondent was denied due process and was forced to seek justice in the HRET. In fact, it was this Court that referred the private respondent to the HRET when it dismissed the latter's petition in G.R. No. 163259 on the ground of the pendency of HRET Case No. 04-004. To grant the petition now would effectively foreclose the private respondent's access to any remedy despite violation of her right to due process. IN VIEW WHEREOF, the petition is dismissed. The temporary restraining order previously issued by the Court is lifted. CaDATc SO ORDERED. G.R. No. 188308. October 15, 2009.] JOSELITO R. MENDOZA, petitioner, vs. COMMISSION ON ELECTIONS and ROBERTO M. PAGDANGANAN, respondents. DECISION BRION, J p: The present case involves a clash between the power under the Philippine Constitution of the respondent Commission on Elections (COMELEC) in the handling of a provincial election contest, and the claimed due process rights of a party to the contest. The petitioner Joselito R. Mendoza (the petitioner) essentially asserts in his petition for certiorari 1 that the COMELEC conducted proceedings in the election contest for the gubernatorial position of the Province of Bulacan, between him and the respondent Roberto M. Pagdanganan (the respondent), without due regard to his fundamental due process rights. The COMELEC, on the other hand, claims that its decision-making deliberations are internal, confidential and do not require notice to and the participation of the contending parties. EcHIDT THE ANTECEDENTS

The petitioner and the respondent vied for the position of Governor of the Province of Bulacan in the May 14, 2007 elections. The petitioner was proclaimed winning candidate and assumed the office of Governor. The respondent seasonably filed an election protest with the COMELEC, which was raffled to the Second Division and docketed as EPC No. 2007-44. Revision of ballots involving the protested and counter-protested precincts in Angat, Bocaue, Calumpit, Doa Remedios Trinidad, Guiginto, Malolos, Meycauayan, Norzagaray, Pandi, Paombong, Plaridel, Pulilan, San Rafael and San Jose del Monte soon followed. The revision was conducted at the COMELEC's office in Intramuros. After revision, the parties presented their other evidence, leading to the parties' formal offer of their respective evidence. The COMELEC approved the parties' formal offer of evidence and then required the parties to submit their respective memoranda. The parties complied with the COMELEC's order. The case was thereafter submitted for resolution. On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes, including those involved in the provincial election contest, to the Senate Electoral Tribunal (SET) in connection with the protest filed by Aquilino Pimentel III against Juan Miguel Zubiri. In light of this development, the petitioner moved to suspend further proceedings. DSETcC The COMELEC's Second Division denied the petitioner's motion in its Order of April 29, 2009, ruling that the COMELEC has plenary powers to find alternative methods to facilitate the resolution of the election protest; thus, it concluded that it would continue the proceedings after proper coordination with the SET. The petitioner moved to reconsider this Order, but the COMELEC's Second Division denied the motion in its Order of May 26, 2009. These inter-related Resolutions led to the COMELEC's continued action specifically, the appreciation of ballots on the provincial election contest at the SET offices. Allegedly alarmed by information on COMELEC action on the provincial election contest within the SET premises without notice to him and without his participation, the petitioner's counsel wrote the SET Secretary, Atty. Irene Guevarra, a letter dated June 10, 2009 to confirm the veracity of the reported conduct of proceedings. 2 The SET Secretary responded on June 17, 2009 as follows: . . . please be informed that the conduct of proceedings in COMELEC EPC No. 200744 (Pagdanganan vs. Mendoza) within the Tribunal Premises was authorized by then Acting Chairman of the Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of Commissioner Lucenito N. Tagle. EDCcaS Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17 October 1995, stating that "(t)he Tribunals, the Commission and the Courts shall coordinate and make arrangement with each other so as not to delay or interrupt the revision

of ballots being conducted. The synchronization of revision of ballots shall be such that the expeditious disposition of the respective protest case shall be the primary concern". While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested. [emphasis supplied] 3 THE PETITION The SET Secretary's response triggered the filing of the present petition raising the following ISSUES A. WHETHER OR NOT THE COMELEC VIOLATED DUE PROCESS BY CONDUCTING PROCEEDINGS WITHOUT GIVING DUE NOTICE TO THE PETITIONER. B. WHETHER OR NOT THE COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO AN EXCESS OF JURISDICTION IN APPRECIATING BALLOTS WHICH ARE NOT IN ITS OFFICIAL CUSTODY AND ARE OUTSIDE ITS OWN PREMISES, AUTHORITY AND CONTROL. caADSE The petitioner argues that the election protest involves his election as Governor; thus, its subject matter involves him and the people of the Province of Bulacan who elected him. On this basis, he claims entitlement to notice and participation in all matters that involve or are related to the election protest. He further asserts that he had the legitimate expectation that no further proceedings would be held or conducted in the case after its submission for decision. Citing the commentaries of Father Joaquin Bernas, 4 the petitioner argues that the proceedings before the COMELEC in election protests are judicial in nature and character. Thus, the strictures of judicial due process specifically, (a) opportunity to be heard and (b) that judgment be rendered only after lawful hearing apply. Notices in judicial dispute, he claims, are not really just a matter of courtesy; they are elementary fundamental element of due process, they are part and parcel of a right of a party to be heard. He further cites Justice Isagani A. Cruz, 5 who wrote: . . . Every litigant is entitled to his day in court. He has a right to be notified of every incident of the proceeding and to be present at every stage thereof so that he may be heard by himself and counsel for the protection of his interest. IcSEAH The petitioner claims that without notice to him of the proceedings, the due process element of the right to have judgment only after lawful hearing is absent. There is no way, he claims, that a judicial proceeding held without notice to the parties could be described as a lawful hearing, especially a proceeding which has as its subject matter the sovereign will of an entire province. He was therefore denied his day in court, he claims, when the COMELEC conducted the examination and appreciation of ballots. The proceedings should be stopped and declared null and void; its future results, too, should be nullified, as nothing

derived from the anomalous and unconstitutional clandestine and unilateral proceedings should ever be part of any decision that the COMELEC may subsequently render. The poisonous fruits (derived from the proceedings) should have no part and should not be admitted for any purpose and/or in any judicial proceeding. Other than his due process concern, the petitioner takes issue with the COMELEC's appreciation of ballots even when the ballots and other election materials were no longer in its official custody and were outside its premises, authority and control. He asserts that an important element of due process is that the judicial body should have jurisdiction over the property that is the subject matter of the proceedings. In this case, the COMELEC has transferred possession, custody and jurisdiction over the ballots to the SET, a tribunal separate and independent from the COMELEC and over which the COMELEC exercises no authority or jurisdiction. For the COMELEC to still conduct proceedings on property, materials and evidence no longer in its custody violates the principle of separation of powers. aHTEIA The petitioner also points out that the COMELEC's unilateral appreciation of the ballots in the SET premises deviates from the Commission's usual and time honored practice and procedure of conducting proceedings within its premises and while it has custody over the ballots. There is no precedent, according to the petitioner, for this deviation, nor is there any compelling reason to make the present case an exception. Citing Cabagnot v. Commission on Elections (G.R. No. 124383, August 9, 1996) which involves a transfer or change of venue of the revision of ballots, the petitioner alleges that this Court has been very emphatic in denouncing the COMELEC for its departure from its own rules and usual practice; while Cabagnot involves the issue of change of venue, the petitioner finds parallel applicability in the present case which also involves a deviation from COMELEC rules and usual practice. The petitioner adds that the act of the Second Division is effectively an arrogation of the authority to promulgate rules of procedure a power that solely belongs to the COMELEC en banc. After a preliminary finding of a genuine due process issue, we issued a Status Quo Order on July 14, 2009. cDSaEH THE RESPONDENTS' COMMENTS In his Comment to the Petition with Extremely Urgent Motion to Lift/Dissolve Status Quo Ante Order, the private respondent asserts that the petition contains deliberate falsehoods and misleading allegations that led the Court to grant the injunctive relief the petitioner had asked. He asserts that the "proceeding" the petitioner stated in his petition was actually the COMELEC's decision-making process, i.e., the appreciation of ballots, which is a procedure internal to the Members of the Second Division of the COMELEC and their staff members; no revision of ballots took place as revision had long been finished. What was therefore undertaken within the SET's

premises was unilateral COMELEC action that is exclusive to the COMELEC and an internal matter that is confidential in nature. In this light, no due process violation ever arose. The private respondent also asserts that the petitioner cannot claim that he was not notified of and denied participation in the revision proceedings, as the petitioner himself is fully aware that the revision of the ballots was completed as early as July 28, 2008 and the petitioner was present and actively participated in the entire proceedings, all the way to the filing of the required memoranda. Thus, the petitioner's right to due process was duly satisfied. HcSDIE The private respondent implores us to commence contempt proceedings against the petitioner who, the respondent claims, has not been forthright in his submissions and was not guided by the highest standards of truthfulness, fair play and nobility in his conduct as a party and in his relations with the opposing party, the other counsel and the Court. Lastly, the private respondent posits that the present petition was filed out of time i.e., beyond the reglementary period provided under Rule 64. All these reasons, the petitioner argues, constitute sufficient basis for the lifting of the status quo order and the dismissal of the petition. Public respondent COMELEC, for its part, claims that the petition is without basis in fact and in law and ought to be dismissed outright. Given the possibility of simultaneous election contests involving national and local officials, it has institutionalized an order of preference in the custody and revision of ballots in contested ballot boxes. The established order of preference is not without exception, as the expeditious disposition of protest cases is a primary concern. Additionally, the order of preference does not prevent the COMELEC from proceeding with pending protest cases, particularly those already submitted for decision. It claims that it has wide latitude to employ means to effectively perform its duty in safeguarding the sanctity of the elections and the integrity of the ballot. TCaEIc The COMELEC further argues that in the absence of a specific rule on whether it can conduct appreciation of ballots outside its premises or official custody, the issue boils down to one of discretion the authority of the COMELEC to control as it deems fit the processes or incidents of a pending election protest. Under Section 4 of the COMELEC Rules of Procedure, the COMELEC may use all auxiliary writs, processes and other means to carry into effect its powers or jurisdiction; if the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or the Rules of Procedure, any suitable process or proceeding not prohibited by law or by its rules may be adopted. The COMELEC lastly submits that while due process requires giving the parties an opportunity to intervene in all stages of the proceedings, the COMELEC in the

present case is not actually conducting further proceedings requiring notice to the parties; there is no revision or correction of the ballots, as the election protest had already been submitted for resolution. When the COMELEC coordinated with the SET, it was simply for purposes of resolving the submitted provincial election contest before it; the parties do not take part in this aspect of the case which necessarily requires utmost secrecy. On the whole, the petitioner was afforded every opportunity to present his case. To now hold the election protest hostage until the conclusion of the protest pending before the SET defeats the COMELEC's mandate of ensuring free, orderly and honest election. ADSTCI THE COURT'S RULING We review the present petition on the basis of the combined application of Rules 64 and 65 of the Rules of Court. While COMELEC jurisdiction over the Bulacan election contest is not disputed, the legality of subsequent COMELEC action is assailed for having been undertaken with grave abuse of discretion amounting to lack or excess of jurisdiction. Thus, our standard of review is "grave abuse of discretion", a term that defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility". 6 Mere abuse of discretion is not enough; the abuse must be grave to merit our positive action. 7 After due consideration, we find the petition devoid of merit. The petition is anchored on the alleged conduct of proceedings in the election protest following the completed revision of ballots at the SET premises without notice to and without the participation of the petitioner. Significantly, "the conduct of proceedings" is confirmed by the SET Secretary in the letter we quoted above. 8 As the issues raised show the petitioner's focus is not really on the COMELEC Orders denying the suspension of proceedings when the ballot boxes and other election materials pertinent to the election contest were transferred to the SET; the focus is on what the COMELEC did after to the issuance of the Resolutions. We read the petition in this context as these COMELEC Orders are now unassailable as the period to challenge them has long passed. 9 cDECIA The substantive issue we are primarily called upon to resolve is whether there were proceedings within the SET premises, entitling the petitioner to notice and participation, which were denied to him; in other words, the issue is whether the petitioner's right to due process has been violated. A finding of due process violation, because of the inherent arbitrariness it carries, necessarily amounts to grave abuse of discretion.

As a preliminary matter, we note that the petitioner has claimed that COMELEC exercises judicial power in its action over provincial election contests and has argued its due process position from this view. We take this opportunity to clarify that judicial power in our country is "vested in one Supreme Court and in such lower courts as may be established by law". 10 This exclusive grant of authority to the Judiciary is reinforced under the second paragraph of Section 1, Article VIII of the Constitution which further states that "Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable . . .," thus constitutionally locating the situs of the exercise of judicial power in the courts. In contrast with the above definitions, Section 2, Article IX (C) of the Constitution lists the COMELEC's powers and functions, among others, as follows: SCDaET (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay officials shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. Under these terms, the COMELEC under our governmental structure is a constitutional administrative agency and its powers are essentially executive in nature (i.e., to enforce and administer election laws), 11 quasi-judicial (to exercise original jurisdiction over election contests of regional, provincial and city officials and appellate jurisdiction over election contests of other lower ranking officials), and quasi-legislative (rulemaking on all questions affecting elections and the promulgation of its rules of procedure). SHIETa Historically, the COMELEC has always been an administrative agency whose powers have been increased from the 1935 Constitution to the present one, to reflect the country's awareness of the need to provide greater regulation and protection to our electoral processes to ensure their integrity. In the 1935 Constitution, the powers and functions of the COMELEC were defined as follows:

SECTION 2. The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest election. The decisions, orders, and rulings of the Commission shall be subject to review by the Supreme Court. [emphasis supplied] These evolved into the following powers and functions under the 1973 Constitution: DTAHEC (1) Enforce and administer all laws relative to the conduct of elections.

(2) Be the sole judge of all contests relating to the elections, returns, and qualifications of all members of the National Assembly and elective provincial and city officials. (3) Decide, save those involving the right to vote, administrative questions affecting elections, including the determination of the number and location of polling places, the appointment of election officials and inspectors, and the registration of voters. These powers have been enhanced in scope and details under the 1987 Constitution, but retained all the while the character of an administrative agency. The COMELEC's adjudicative function is quasi-judicial since it is a constitutional body, other than a court, vested with authority to decide election contests, and in the course of the exercise of its jurisdiction, to hold hearings and exercise discretion of a judicial nature; 12 it receives evidence, ascertain the facts from these submissions, determine the law and the legal rights of the parties, and on the basis of all these decides on the merits of the case and renders judgment. 13 Despite the exercise of discretion that is essentially judicial in character, particularly with respect to election contests, COMELEC is not a tribunal within the judicial branch of government and is not a court exercising judicial power in the constitutional sense; 14 hence, its adjudicative function, exercised as it is in the course of administration and enforcement, is quasi-judicial. SDHCac As will be seen on close examination, the 1973 Constitution used the unique wording that the COMELEC shall "be the sole judge of all contests", thus giving the appearance that judicial power had been conferred. This phraseology, however, was changed in the 1987 Constitution to give the COMELEC "exclusive jurisdiction over all contests", thus removing any vestige of exercising its adjudicatory power as a court and correctly aligning it with what it is a quasi-judicial body. 15 Consistent

with the characterization of its adjudicatory power as quasi-judicial, the judicial review of COMELEC en banc decisions (together with the review of Civil Service Commission decisions) is via the prerogative writ of certiorari, not through an appeal, as the traditional mode of review of quasi-judicial decisions of administrative tribunals in the exercise the Court's supervisory authority. This means that the Court will not supplant the decision of the COMELEC as a quasijudicial body except where a grave abuse of discretion or any other jurisdictional error exists. The appropriate due process standards that apply to the COMELEC, as an administrative or quasi-judicial tribunal, are those outlined in the seminal case of Ang Tibay v. Court of Industrial Relations, 16 quoted below: (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. . . . CTaSEI (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached. (4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be "substantial". "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. IDCcEa (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it. These are now commonly referred to as cardinal primary rights in administrative proceedings.

The first of the enumerated rights pertain to the substantive rights of a party at hearing stage of the proceedings. The essence of this aspect of due process, we have consistently held, is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. 17 A formal or trialtype hearing is not at all times and in all instances essential; in the case of COMELEC, Rule 17 of its Rules of Procedure defines the requirements for a hearing and these serve as the standards in the determination of the presence or denial of due process. The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are reinforcements of the right to a hearing and are the inviolable rights applicable at the deliberative stage, as the decision-maker decides on the evidence presented during the hearing. These standards set forth the guiding considerations in deliberating on the case and are the material and substantial components of decision-making. Briefly, the tribunal must consider the totality of the evidence presented which must all be found in the records of the case (i.e., those presented or submitted by the parties); the conclusion, reached by the decision-maker himself and not by a subordinate, must be based on substantial evidence. 18 AHCETa Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial body, further complements the hearing and decision-making due process rights and is similar in substance to the constitutional requirement that a decision of a court must state distinctly the facts and the law upon which it is based. 19 As a component of the rule of fairness that underlies due process, this is the "duty to give reason" to enable the affected person to understand how the rule of fairness has been administered in his case, to expose the reason to public scrutiny and criticism, and to ensure that the decision will be thought through by the decision-maker. In the present case, the petitioner invokes both the due process component rights at the hearing and deliberative stages and alleges that these component rights have all been violated. We discuss all these allegations below. The Right to Notice and to be Heard. a. At the Hearing and Revision of Ballots.

Based on the pleadings filed, we see no factual and legal basis for the petitioner to complain of denial of his hearing stage rights. In the first place, he does not dispute that he fully participated in the proceedings of the election protest until the case was deemed submitted for resolution; he had representation at the revision of the ballots, duly presented his evidence, and summed up his case through a memorandum. These various phases of the proceedings constitute the hearing proper of the election contest and the COMELEC has more than satisfied the opportunity to be heard that the Ang Tibay hearing stage rights require. In these

proceedings, the petitioner stood head-to-head with the respondent in an adversarial contest where both sides were given their respective rights to speak, make their presentations, and controvert each other's submission, subject only to established COMELEC rules of procedures. Under these undisputed facts, both parties had their day in court, so to speak, and neither one can complain of any denial of notice or of the right to be heard. HDIATS b. At the "Proceedings" at the SET.

A critical question to be answered in passing upon due process questions at this stage of the election contest is the nature of the so-called "proceedings" after the ballots and other materials pertinent to the provincial election contest were transferred to the SET. In the petition, the petitioner alleged that there were "strange proceedings" 20 which were "unilateral, clandestine and surreptitious" within the premises of the SET, on "documents, ballots and election materials whose possession and custody have been transferred" to the SET, and the "petitioner was NEVER OFFICIALLY NOTIFIED of the strange on-goings" at the SET. 21 Attached to the petition was the letter of the Secretary of the SET confirming the "conduct of proceedings" in the provincial election contest, and citing as basis the authority of Acting SET Chairman, Justice Antonio T. Carpio, upon the formal request of the Office of Commissioner Lucenito N. Tagle, and citing Section 3, COMELEC Resolution No. 2812 dated 17 October 1995 on the coordination envisioned among the COMELEC, the SET and the courts "so as not to delay or interrupt the revision of ballots being conducted". While the SET letter made the reservation that "While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested", no mention whatsoever was made of the kind of proceedings taking place. aEHADT It was at this point that this Court intervened, in response to the petitioner's prayer for the issuance of temporary injunctive relief, through the issuance of a Status Quo Order with a non-extendible directive for the respondents to file their comments on the petition; for indeed, any further revision of ballots or other adversarial proceedings after the case has been submitted for resolution, would not only be strange and unusual but would indicate a gross violation of due process rights. After consideration of the respondents' Comments and the petitioner's petition and Reply, we hold that the contested proceedings at the SET (contested proceedings) are no longer part of the adversarial aspects of the election contest that would require notice of hearing and the participation of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim in the petitioner's Reply: 22

"However, contrary to the claim of petitioner, public respondent in the appreciation of the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting "further proceedings" requiring notice to the parties. There is no revision or correction of the ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making process is supposed to be conducted only by the designated members of the Second Division of the public respondent in strict confidentiality." cADSCT In other words, what took place at the SET were the internal deliberations of the COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial election contest on the merits. These deliberations are no different from judicial deliberations which are considered confidential and privileged. 23 We find it significant that the private respondent's Comment fully supported the COMELEC's position and disavowed any participation in the contested proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that the private respondent was ever present in any proceeding at the SET relating to the provincial election contest. To conclude, the rights to notice and to be heard are not material considerations in the COMELEC's handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed. TIHDAa Alleged Violations of Deliberation Stage Rights. On the basis of the above conclusion, we see no point in discussing any alleged violation of the deliberative stage rights. First, no illegal proceeding ever took place that would bear the "poisonous fruits" that the petitioner fears. Secondly, in the absence of the results of the COMELEC deliberations through its decision on the election protest, no basis exists to apply the Ang Tibay deliberative stage rights; there is nothing for us to test under the standards of the due process deliberative stages rights before the COMELEC renders its decision. Expressed in terms of our

standard of review, we have as yet no basis to determine the existence of any grave abuse of discretion. Conduct of COMELEC Deliberations at the SET Premises We turn to the issue of the propriety of the COMELEC's consideration of the provincial election contest (specifically its appreciation of the contested ballots) at the SET premises and while the same ballots are also under consideration by the SET for another election contest legitimately within the SET's own jurisdiction. HSDCTA We state at the outset that the COMELEC did not lose jurisdiction over the provincial election contest, as the petitioner seems to imply, because of the transmittal of the provincial ballot boxes and other election materials to the SET. The Constitution conferred upon the COMELEC jurisdiction over election protests involving provincial officials. The COMELEC in this case has lawfully acquired jurisdiction over the subject matter, i.e., the provincial election contest, as well as over the parties. After its jurisdiction attached, this jurisdiction cannot be ousted by subsequent events such as the temporary transfer of evidence and material records of the proceedings to another tribunal exercising its own jurisdiction over another election contest pursuant to the Constitution. This is the rule of adherence of jurisdiction.