Contents

ATIENZA v COMELEC.................................................................................................................... 2
ANG BAGONG BAYANI-OFW LABOR PARTY, petitioner, vs. COMMISSION ON ELECTIONS;..............6
SABDULLAH T. MACABAGO, petitioner, vs. COMMISSION ON ELECTIONS and JAMAEL M.
SALACOP, respondents............................................................................................................... 11
HADJI RASUL BATABOR, petitioner, vs. COMISSION ON ELECTIONS, BARANGAY BOARD OF
CANVASSERS, BOARD OF ELECTION INSPECTORS OF PRECINCTS NOS. 3A, 4A and 5A, BARANGAY
MAIDAN, TUGAYA, LANAO DEL SUR, and MOCASIM ABANGON BATONDIANG, respondents..............14
BAGO P. PASANDALAN, petitioner, vs. COMMISSION ON ELECTIONS and BAI SALAMONA L. ASUM,
respondents................................................................................................................................. 16
SULTAN MOHAMAD L. MITMUG, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF
CANVASSERS OF LUMBA-BAYABAO, LANAO DEL SUR, and DATU GAMBAI DAGALANGIT, respondents.
................................................................................................................................................... 19
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent.
................................................................................................................................................... 24
ERNESTO TAJANLANGIT, petitioner, vs. MANUEL L. CAZEAS, respondent.......................................28
MA. AMELITA C. VILLAROSA, petitioner, vs. THE HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL and RICARDO V. QUINTOS, respondents........................................................................32
SULTAN MOHAMAD L. MITMUG, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF
CANVASSERS OF LUMBA-BAYABAO, LANAO DEL SUR, and DATU GAMBAI DAGALANGIT, respondents.
................................................................................................................................................... 38
DATU ISRAEL SINSUAT and DATU JABERAEL SINSUAT, Petitioners, v. The HONORABLE COMMISSION
ON ELECTIONS........................................................................................................................... 40

ATIENZA v COMELEC
ABAD, J.:

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.
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 partys 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 Drilons 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 LPs 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
partys 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.
On the other hand, petitioner Atienza claimed that the majority of the LPs 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 Drilons 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, Drilons 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 Drilons 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 Drilons term as LP
president was to end only on November 30, 2007.
Subsequently, the LP held a NECO meeting to elect new party leaders before respondent Drilons 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 partys 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.
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. Atienzas 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 Atienzas 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 partys 60th Anniversary Souvenir Program could not be used for determining the NECO members because supervening events
changed the bodys 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 Drilons 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.
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.
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;
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 latters expulsion from the
party.

The Courts 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 Drilons railroading of election proceedings. Atienza, et al. attributed all these illegal and prejudicial acts to Roxas, et al.
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 plaintiffs
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.
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 Courts 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 partys 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 Courts 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 Courts ruling when they removed Atienza as party chairman and changed the NECOs composition.[10]
But the list of NECO members appearing in the partys 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 Courts resolution in the earlier cases implies that the NECO membership should be pegged to the partys 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.
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.
Petitioner Atienza claims that the Courts 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 Courts resolution. But the Courts 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 COMELECs 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.
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 Atienzas 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.
The COMELECs 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 COMELECs 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 COMELECs 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 COMELECs 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.
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 states powers thus, apply too, to administrative bodies.

The constitutional limitations on the exercise of the states 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 states 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.
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 COMELECs 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.
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.

EN BANC
[G.R. No. 147589. June 26, 2001]
ANG BAGONG BAYANI-OFW LABOR PARTY, petitioner, vs. COMMISSION ON ELECTIONS;
CITIZENS DRUG WATCH; MAMAMAYAN AYAW SA DROGA; GO! GO! PHILIPPINES; THE TRUE MARCOS LOYALIST ASSOCIATION OF THE
PHILIPPINES; PHILIPPINE LOCAL AUTONOMY; CITIZENS MOVEMENT FOR JUSTICE, ECONOMY, ENVIRONMENT AND PEACE; CHAMBER OF
REAL ESTATE BUILDERS ASSOCIATION; SPORTS & HEALTH ADVANCEMENT FOUNDATION, INC.; ANG LAKAS NG OVERSEAS CONTRACT
WORKERS (OCW); BAGONG BAYANI ORGANIZATION and others under Organizations/Coalitions of Omnibus Resolution No. 3785; PARTIDO NG
MASANG PILIPINO; LAKAS NUCD-UMDP; NATIONALIST PEOPLES COALITION; LABAN NG DEMOKRATIKONG PILIPINO; AKSYON
DEMOKRATIKO; PDP-LABAN; LIBERAL PARTY; NACIONALISTA PARTY; ANG BUHAY HAYAANG YUMABONG; and others under Political Parties of
Omnibus Resolution No. 3785. respondents.
[G.R. No. 147613. June 26, 2001]
BAYAN MUNA, petitioner, vs. COMMISSION ON ELECTIONS; NATIONALIST PEOPLES COALITION (NPC); LABAN NG DEMOKRATIKONG
PILIPINO (LDP); PARTIDO NG MASANG PILIPINO (PMP); LAKAS-NUCD-UMDP; LIBERAL PARTY; MAMAMAYANG AYAW SA DROGA; CREBA;
NATIONAL FEDERATION OF SUGARCANE PLANTERS; JEEP; and BAGONG BAYANI ORGANIZATION, respondents.
DECISION
PANGANIBAN, J.:
The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable
them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to
make the marginalized and the underrepresented not merely passive recipients of the States benevolence, but active participants in the mainstream of
representative democracy. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same
opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer
for traditional politics.
The Case
Before us are two Petitions under Rule 65 of the Rules of Court, challenging Omnibus Resolution No. 3785[1] 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.
The Factual Antecedents
With the onset of the 2001 elections, the Comelec received several Petitions for registration filed by sectoral parties, organizations and political parties.
According to the Comelec, [v]erifications were made as to the status and capacity of these parties and organizations and hearings were scheduled day
and night until the last party w[as] heard. With the number of these petitions and the observance of the legal and procedural requirements, review of
these petitions as well as deliberations takes a longer process in order to arrive at a decision and as a result the two (2) divisions promulgated a
separate Omnibus Resolution and individual resolution on political parties. These numerous petitions and processes observed in the disposition of
these petition[s] hinder the early release of the Omnibus Resolutions of the Divisions which were promulgated only on 10 February 2001.[2]
Thereafter, before the February 12, 2001 deadline prescribed under Comelec Resolution No. 3426 dated December 22, 2000, the registered parties and
organizations filed their respective Manifestations, stating their intention to participate in the party-list elections. Other sectoral and political parties and
organizations whose registrations were denied also filed Motions for Reconsideration, together with Manifestations of their intent to participate in the
party-list elections. Still other registered parties filed their Manifestations beyond the deadline.
The Comelec gave due course or approved the Manifestations (or accreditations) of 154 parties and organizations, but denied those of several others in
its assailed March 26, 2001 Omnibus Resolution No. 3785, which we quote:
We carefully deliberated the foregoing matters, having in mind that this system of proportional representation scheme will encourage multi-partisan [sic]
and enhance the inability of small, new or sectoral parties or organization to directly participate in this electoral window.
It will be noted that as defined, the party-list system is a mechanism of proportional representation in the election of representatives to the House of
Representatives from national, regional, and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections.
However, in the course of our review of the matters at bar, we must recognize the fact that there is a need to keep the number of sectoral parties,
organizations and coalitions, down to a manageable level, keeping only those who substantially comply with the rules and regulations and more
importantly the sufficiency of the Manifestations or evidence on the Motions for Reconsiderations or Oppositions.[3]
On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a Petition praying that the names of [some of herein respondents] be deleted
from the Certified List of Political Parties/Sectoral Parties/Organizations/Coalitions Participating in the Party List System for the May 14, 2001 Elections
and that said certified list be accordingly amended. It also asked, as an alternative, that the votes cast for the said respondents not be counted or
canvassed, and that the latters nominees not be proclaimed.[4] On April 11, 2001, Bayan Muna and Bayan Muna-Youth also filed a Petition for
Cancellation of Registration and Nomination against some of herein respondents.[5]
On April 18, 2001, the Comelec required the respondents in the two disqualification cases to file Comments within three days from notice. It also set the
date for hearing on April 26, 2001,[6] but subsequently reset it to May 3, 2001.[7] During the hearing, however, Commissioner Ralph C. Lantion merely
directed the parties to submit their respective memoranda.[8]
Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong Bayani-OFW Labor Party filed a Petition[9] before this Court on April 16, 2001. This
Petition, docketed as GR No. 147589, assailed Comelec Omnibus Resolution No. 3785. In its Resolution dated April 17, 2001,[10] the Court directed
respondents to comment on the Petition within a non-extendible period of five days from notice.[11]
On April 17, 2001, Petitioner Bayan Muna also filed before this Court a Petition,[12] docketed as GR No. 147613, also challenging Comelec Omnibus
Resolution No. 3785. In its Resolution dated May 9, 2001,[13] the Court ordered the consolidation of the two Petitions before it; directed respondents
named in the second Petition to file their respective Comments on or before noon of May 15, 2001; and called the parties to an Oral Argument on May

17, 2001. It added that the Comelec may proceed with the counting and canvassing of votes cast for the party-list elections, but barred the proclamation
of any winner therein, until further orders of the Court.
Thereafter, Comments[14] on the second Petition were received by the Court and, on May 17, 2001, the Oral Argument was conducted as scheduled. In
an Order given in open court, the parties were directed to submit their respective Memoranda simultaneously within a non-extendible period of five days.
[15]
Issues:
During the hearing on May 17, 2001, the Court directed the parties to address the following issues:
1. Whether or not recourse under Rule 65 is proper under the premises. More specifically, is there no other plain, speedy or adequate remedy in the
ordinary course of law?
2. Whether or not political parties may participate in the party-list elections.
3. Whether or not the party-list system is exclusive to marginalized and underrepresented sectors and organizations.
4. Whether or not the Comelec committed grave abuse of discretion in promulgating Omnibus Resolution No. 3785.[16]
The Courts Ruling
The Petitions are partly meritorious. These cases should be remanded to the Comelec which will determine, after summary evidentiary hearings,
whether the 154 parties and organizations enumerated in the assailed Omnibus Resolution satisfy the requirements of the Constitution and RA 7941, as
specified in this Decision.
First Issue:
Recourse Under Rule 65
Respondents contend that the recourse of both petitioners under Rule 65 is improper because there are other plain, speedy and adequate remedies in
the ordinary course of law.[17] The Office of the Solicitor General argues that petitioners should have filed before the Comelec a petition either for
disqualification or for cancellation of registration, pursuant to Sections 19, 20, 21 and 22 of Comelec Resolution No. 3307-A[18]dated November 9, 2000.
[19]
We disagree. At bottom, petitioners attack the validity of Comelec Omnibus Resolution 3785 for having been issued with grave abuse of discretion,
insofar as it allowed respondents to participate in the party-list elections of 2001. Indeed, under both the Constitution[20] and the Rules of Court, such
challenge may be brought before this Court in a verified petition for certiorari under Rule 65.
Moreover, the assailed Omnibus Resolution was promulgated by Respondent Commission en banc; hence, no motion for reconsideration was possible,
it being a prohibited pleading under Section 1 (d), Rule 13 of the Comelec Rules of Procedure.[21]
The Court also notes that Petitioner Bayan Muna had filed before the Comelec a Petition for Cancellation of Registration and Nomination against some
of herein respondents.[22] The Comelec, however, did not act on that Petition. In view of the pendency of the elections, Petitioner Bayan Muna sought
succor from this Court, for there was no other adequate recourse at the time. Subsequent events have proven the urgency of petitioners action; to this
date, the Comelec has not yet formally resolved the Petition before it. But a resolution may just be a formality because the Comelec, through the Office
of the Solicitor General, has made its position on the matter quite clear.
In any event, this case presents an exception to the rule that certiorari shall lie only in the absence of any other plain, speedy and adequate remedy.[23]
It has been held that certiorari is available, notwithstanding the presence of other remedies, where the issue raised is one purely of law, where public
interest is involved, and in case of urgency.[24] Indeed, the instant case is indubitably imbued with public interest and with extreme urgency, for it
potentially involves the composition of 20 percent of the House of Representatives.
Moreover, this case raises transcendental constitutional issues on the party-list system, which this Court must urgently resolve, consistent with its duty to
formulate guiding and controlling constitutional principles, precepts, doctrines, or rules.[25]
Finally, procedural requirements may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice x x x
when the decision sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.[26]
Second Issue:
Participation of Political Parties
In its Petition, Ang Bagong Bayani-OFW Labor Party contends that the inclusion of political parties in the party-list system is the most objectionable
portion of the questioned Resolution.[27] For its part, Petitioner Bayan Muna objects to the participation of major political parties.[28] On the other
hand, the Office of the Solicitor General, like the impleaded political parties, submits that the Constitution and RA No. 7941 allow political parties to
participate in the party-list elections. It argues that the party-list system is, in fact, open to all registered national, regional and sectoral parties or
organizations.[29]
We now rule on this issue. Under the Constitution and RA 7941, private respondents cannot be disqualified from the party-list elections, merely on the
ground that they are political parties. Section 5, Article VI of the Constitution provides that members of the House of Representatives may be elected
through a party-list system of registered national, regional, and sectoral parties or organizations.
Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be registered under the party-list system.
Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as
provided in this Constitution.

Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' registration boards,
boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with
law.[30]
During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod pointed out that the participants in the party-list system may be
a regional party, a sectoral party, a national party, UNIDO,[31] Magsasaka, or a regional party in Mindanao."[32] This was also clear from the following
exchange between Comms. Jaime Tadeo and Blas Ople:[33]
MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghati-hatian ng UNIDO, PDP-Laban, PNP, Liberal at Nacionalista?
MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga partido.
Indeed, Commissioner Monsod stated that the purpose of the party-list provision was to open up the system, in order to give a chance to parties that
consistently place third or fourth in congressional district elections to win a seat in Congress.[34] He explained: The purpose of this is to open the
system. In the past elections, we found out that there were certain groups or parties that, if we count their votes nationwide, have about 1,000,000 or
1,500,000 votes. But they were always third or fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would
have five or six representatives in the Assembly even if they would not win individually in legislative districts. So, that is essentially the mechanics, the
purpose and objectives of the party-list system.
For its part, Section 2 of RA 7941 also provides for a party-list system of registered national, regional and sectoral parties or organizations or coalitions
thereof, x x x. Section 3 expressly states that a party is either a political party or a sectoral party or a coalition of parties. More to the point, the law
defines political party as an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of
government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members
as candidates for public office.
Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in the party-list system. We quote the pertinent provision
below:
x x x

xxx

xxx

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.
x x x

xxx

x x x

Indubitably, therefore, political parties even the major ones -- may participate in the party-list elections.
Third Issue:
Marginalized and Underrepresented
That political parties may participate in the party-list elections does not mean, however, that any political party -- or any organization or group for that
matter -- may do so. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system, as laid down
in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as follows:
(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 through 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. (Emphasis supplied.)
Notwithstanding the sparse language of the provision, a distinguished member of the Constitutional Commission declared that the purpose of the partylist provision was to give genuine power to our people in Congress. Hence, when the provision was discussed, he exultantly announced: On this first
day of August 1986, we shall, hopefully, usher in a new chapter to our national history, by giving genuine power to our people in the legislature.[35]
The foregoing provision on the party-list system is not self-executory. It is, in fact, interspersed with phrases like in accordance with law or as may be
provided by law; it was thus up to Congress to sculpt in granite the lofty objective of the Constitution. Hence, RA 7941 was enacted. It laid out the
statutory policy in this wise:
SEC. 2. Declaration of Policy. -- 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.
The Marginalized and Underrepresented to Become Lawmakers Themselves
The foregoing provision mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which will
enable the election to the House of Representatives of Filipino citizens,
1. who belong to marginalized and underrepresented sectors, organizations and parties; and
2. who lack well-defined constituencies; but

3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.
The key words in this policy are proportional representation, marginalized and underrepresented, and lack [of] well-defined constituencies.
Proportional representation here does not refer to the number of people in a particular district, because the party-list election is national in scope.
Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation of the marginalized and
underrepresented as exemplified by the enumeration in Section 5 of the law; namely, labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.
However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim
and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in
Section 5.[36] Concurrently, the persons nominated by the party-list candidate-organization must be Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties.
Finally, lack of well-defined constituenc[y] refers to the absence of a traditionally identifiable electoral group, like voters of a congressional district or
territorial unit of government. Rather, it points again to those with disparate interests identified with the marginalized or underrepresented.
In the end, the role of the Comelec is to see to it that only those Filipinos who are marginalized and underrepresented become members of Congress
under the party-list system, Filipino-style.
The intent of the Constitution is clear: to give genuine power to the people, not only by giving more law to those who have less in life, but more so by
enabling them to become veritable lawmakers themselves. Consistent with this intent, the policy of the implementing law, we repeat, is likewise clear:
to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, x x x, to become members of the House
of Representatives. Where the language of the law is clear, it must be applied according to its express terms.[37]
The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA 7941, which states:
SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing
with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the
party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution,
by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided,
that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals.
While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law that not all sectors can
be represented under the party-list system. It is a fundamental principle of statutory construction that words employed in a statute are interpreted in
connection with, and their meaning is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the
meaning of a term in a statute may be limited, qualified or specialized by those in immediate association.[38]
The Party-List System Desecrated by the OSG Contentions
Notwithstanding the unmistakable statutory policy, the Office of the Solicitor General submits that RA No. 7941 does not limit the participation in the
party-list system to the marginalized and underrepresented sectors of society.[39] In fact, it contends that any party or group that is not disqualified
under Section 6[40]of RA 7941 may participate in the elections. Hence, it admitted during the Oral Argument that even an organization representing the
super rich of Forbes Park or Dasmarias Village could participate in the party-list elections.[41]
The declared policy of RA 7941 contravenes the position of the Office of the Solicitor General (OSG). We stress that the party-list system seeks to
enable certain Filipino citizens specifically those belonging to marginalized and underrepresented sectors, organizations and parties to be elected to
the House of Representatives. The assertion of the OSG that the party-list system is not exclusive to the marginalized and underrepresented disregards
the clear statutory policy. Its claim that even the super-rich and overrepresented can participate desecrates the spirit of the party-list system.
Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park.
The interests of these two sectors are manifestly disparate; hence, the OSGs position to treat them similarly defies reason and common sense. In
contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan[42] admitted during the Oral Argument that a group of bankers, industrialists and sugar
planters could not join the party-list system as representatives of their respective sectors.[43]
While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are neither marginalized nor underrepresented, for the
stark reality is that their economic clout engenders political power more awesome than their numerical limitation. Traditionally, political power does not
necessarily emanate from the size of ones constituency; indeed, it is likely to arise more directly from the number and amount of ones bank accounts.
It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who wallow in poverty, destitution and infirmity. 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. In its
noblest sense, the party-list system truly empowers the masses and ushers a new hope for genuine change. Verily, it invites those marginalized and
underrepresented in the past the farm hands, the fisher folk, the urban poor, even those in the underground movement to come out and participate,
as indeed many of them came out and participated during the last elections. The State cannot now disappoint and frustrate them by disabling and
desecrating this social justice vehicle.
Because the marginalized and underrepresented had not been able to win in the congressional district elections normally dominated by traditional
politicians and vested groups, 20 percent of the seats in the House of Representatives were set aside for the party-list system. In arguing that even
those sectors who normally controlled 80 percent of the seats in the House could participate in the party-list elections for the remaining 20 percent, the
OSG and the Comelec disregard the fundamental difference between the congressional district elections and the party-list elections.
As earlier noted, the purpose of the party-list provision was to open up the system,[44] in order to enhance the chance of sectoral groups and
organizations to gain representation in the House of Representatives through the simplest scheme possible.[45] Logic shows that the system has been
opened to those who have never gotten a foothold within it -- those who cannot otherwise win in regular elections and who therefore need the simplest

scheme possible to do so. Conversely, it would be illogical to open the system to those who have long been within it -- those privileged sectors that
have long dominated the congressional district elections.
The import of the open party-list system may be more vividly understood when compared to a student dormitory open house, which by its nature allows
outsiders to enter the facilities. Obviously, the open house is for the benefit of outsiders only, not the dormers themselves who can enter the dormitory
even without such special privilege. In the same vein, the open party-list system is only for the outsiders who cannot get elected through regular
elections otherwise; it is not for the non-marginalized or overrepresented who already fill the ranks of Congress.
Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the party-list system would not only dilute, but also
prejudice the chance of the marginalized and underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for the
benefit of the underprivileged; the law could not have given the same tool to others, to the prejudice of the intended beneficiaries.
This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who are neither marginalized nor underrepresented. It
cannot let that flicker of hope be snuffed out. The clear state policy must permeate every discussion of the qualification of political parties and other
organizations under the party-list system.
Refutation of the Separate Opinions
The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug and Vicente V. Mendoza, are anchored mainly on the supposed intent of
the framers of the Constitution as culled from their deliberations.
The fundamental principle in constitutional construction, however, is that the primary source from which to ascertain constitutional intent or purpose is
the language of the provision itself. The presumption is that the words in which the constitutional provisions are couched express the objective sought to
be attained.[46] In other words, verba legis still prevails. Only when the meaning of the words used is unclear and equivocal should resort be made to
extraneous aids of construction and interpretation, such as the proceedings of the Constitutional Commission or Convention, in order to shed light on
and ascertain the true intent or purpose of the provision being construed.[47]
Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in Civil Liberties Union v. Executive Secretary[48] that the debates and
proceedings of the constitutional convention [may be consulted] in order to arrive at the reason and purpose of the resulting Constitution x x x only when
other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional
convention are of value as showing the views of the individual members, and as indicating the reason for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of the mass or our fellow citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from what appears upon its face. The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the framers understanding thereof.
Section 5, Article VI of the Constitution, relative to the party-list system, is couched in clear terms: the mechanics of the system shall be provided by law.
Pursuant thereto, Congress enacted RA 7941. In understanding and implementing party-list representation, we should therefore look at the law first.
Only when we find its provisions ambiguous should the use of extraneous aids of construction be resorted to.
But, as discussed earlier, the intent of the law is obvious and clear from its plain words. Section 2 thereof unequivocally states that the party-list system
of electing congressional representatives was designed to enable 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 x x x.
The criteria for participation is well defined. Thus, there is no need for recourse to constitutional deliberations, not even to the proceedings of Congress.
In any event, the framers deliberations merely express their individual opinions and are, at best, only persuasive in construing the meaning and purpose
of the constitution or statute.
Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA 7941 is not an issue here. Hence, they remain parts of the law, which
must be applied plainly and simply.
Fourth Issue:
Grave Abuse of Discretion
From its assailed Omnibus Resolution, it is manifest that the Comelec failed to appreciate fully the clear policy of the law and the Constitution. On the
contrary, it seems to have ignored the facet of the party-list system discussed above. The OSG as its counsel admitted before the Court that any group,
even the non-marginalized and overrepresented, could field candidates in the party-list elections.
When a lower court, or a quasi-judicial agency like the Commission on Elections, violates or ignores the Constitution or the law, its action can be struck
down by this Court on the ground of grave abuse of discretion.[49] Indeed, the function of all judicial and quasi-judicial instrumentalities is to apply the
law as they find it, not to reinvent or second-guess it.[50]
In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright disqualification of the major political parties Respondents LakasNUCD, LDP, NPC, LP and PMP on the ground that under Comelec Resolution No. 4073, they have been accredited as the five (six, including PDPLaban) major political parties in the May 14, 2001 elections. It argues that because of this, they have the advantage of getting official Comelec Election
Returns, Certificates of Canvass, preferred poll watchers x x x. We note, however, that this accreditation does not refer to the party-list election, but,
inter alia, to the election of district representatives for the purpose of determining which parties would be entitled to watchers under Section 26 of
Republic Act No. 7166.
What is needed under the present circumstances, however, is a factual determination of whether respondents herein and, for that matter, all the 154
previously approved groups, have the necessary qualifications to participate in the party-list elections, pursuant to the Constitution and the law.
Bayan Muna also urges us to immediately rule out Respondent Mamamayan Ayaw sa Droga (MAD), because it is a government entity using
government resources and privileges. This Court, however, is not a trier of facts.

EN BANC
[G.R. No. 152163. November 18, 2002]
SABDULLAH T. MACABAGO, petitioner, vs. COMMISSION ON ELECTIONS and JAMAEL M. SALACOP, respondents.
DECISION
CALLEJO, SR., J.:
On May 22, 2001, petitioner Sabdullah T. Macabago was proclaimed by the Municipal Board of Canvassers as the winning candidate for the position of
Municipal Mayor of Saguiran, Lanao del Sur. Petitioner had a lead of 198 votes over his adversary, private respondent Jamael M. Salacop.
On June 1, 2001, private respondent filed a petition with the Commission on Elections (COMELEC) against petitioner and the proclaimed Vice-Mayor
and Municipal Councilors, as well as the members of the Municipal Board of Canvassers, docketed as SPC-01-234, to annul the elections and the
proclamation of candidates in the Municipality of Saguiaran, Lanao del Sur. Private respondent alleged that there was a massive substitution of voters,
rampant and pervasive irregularities in voting procedures in Precincts Nos. 19, 20, 28 and 29, and a failure of the Board of Election Inspectors (BEI) to
comply with Sections 28 and 29 of Comelec Resolution No. 3743 and Section 193 of the Omnibus Election Code, thus rendering the election process in
those precincts a sham and a mockery and the proclamation of the winning candidates a nullity. Private respondent further averred that if his petition
were to be given due course, he would win by a margin of one hundred ninety-four (194) votes over the votes of petitioner. He thus prayed:
WHEREFORE, foregoing premises considered, it is most respectfully prayed of this Honorable Commission that the election results in Precincts 19, 20,
28 and 29 be ordered set aside and considered excluded and the proclamation of the winning candidates in the said municipality be ANNULLED to
reflect the genuine desire of the majority of the people.
All other reliefs, deemed just and equitable under the circumstances are likewise prayed for.[1]
In support of his petition, private respondent appended thereto photocopies of random Voters Registration Records (VRRs) evidencing the fraud and
deceit that allegedly permeated the electoral process, as well as affidavits tending to prove that serious irregularities were committed in the conduct of
the elections in the subject precincts.[2]
In his answer, petitioner denied the truth of the material allegations in the petition and averred that it raised a pre-proclamation controversy. He further
alleged that the grounds relied upon by private respondent would be proper in an election protest but not in a pre-proclamation controversy.[3]
The COMELEC En Banc took cognizance of the petition and on February 11, 2002, issued an order directing the Election Officer of Saguiran, Lanao del
Sur, to bring to and produce before the COMELEC Office in Manila the original VRRs of the questioned precincts for technical examination:
WHEREFORE, premises considered, the Commission hereby RESOLVES to direct Mr. Ibrahim M. Macadato, the Election Officer of Saguiran, Lanao
del Sur to produce the subject original VRRs of the questioned precincts here in Manila for the appertaining technical examination.
SO ORDERED.[4]
In the same order, the COMELEC declared that contrary to petitioners claims, the petition did not allege a pre-proclamation controversy. The
Commission characterized the petition as one for the annulment of the election or declaration of failure of election in the municipality, a special action
covered by Rule 26 of the COMELEC Rules of Procedure. Accordingly, the COMELEC set aside the docketing of the petition as a Special Case (SPC)
and ordered the redocketing thereof as a Special Action (SPA). After its examination of the evidence submitted by petitioner, the COMELEC concluded
that there was convincing proof of massive fraud in the conduct of the elections in the four (4) precincts that necessitated a technical examination of the
original copies of the VRRs and their comparison with the voters signatures and fingerprints. The COMELEC further noted that since the lead of
Macabago was only 124 votes vis--vis the 474 voters of the contested precincts, the outcome of the petition would adversely affect the result of the
elections in the Municipality. In issuing said Order, the COMELEC relied on its broad powers under the 1987 Constitution and the pronouncement of this
Court in Pantaleon Pacis vs. Commission on Elections,[5] and Tupay Loong vs. Commission on Elections, et al.[6]
Forthwith, petitioner filed with this Court the instant special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended,
praying for the reversal of the February 11, 2002 order of the COMELEC En Banc. Petitioner alleged that:
6.1.
PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION WHEN IT TOOK COGNIZANCE OF AND PASSED UPON THE PETITION IN SPC NO. 01-234 IN VIOLATION OF SECTION 3, RULE 3
OF THE COMELEC RULES OF PROCEDURE.
6.2.
PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION WHEN IT ISSUED ITS ORDER ON FEBRUARY 11, 2002 FOR THE TECHNICAL EXAMINATION OF THE VOTERS REGISTRATION
RECORDS OF THE REGISTERED VOTERS OF PRECINCT NOS. 19, 20, 28 & 29 OF THE MUNICIPALITY OF SAGUIARAN, LANAO DEL SUR.[7]
The kernel issues posed in the case at bar are (a) whether petitioners recourse to this Court under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, is in order; and (b) whether the COMELEC acted without jurisdiction or committed a grave abuse of its discretion amounting to excess or lack
of jurisdiction in taking cognizance of the petition of private respondent and in issuing the assailed Order.
On the first issue, petitioner avers that he was impelled to file the instant petition without first filing with the COMELEC a motion for a reconsideration of
its order because under the COMELEC Rules of Procedure, a motion for a reconsideration of an interlocutory order of the COMELEC En Banc is a
prohibited pleading, and that the COMELEC acted with grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed order.
Private respondent on the other hand insists that under Rule 64 of the 1997 Rules of Civil Procedure, a special civil action for certiorari filed with this
Court is proper only for the nullification of a final order or resolution of the COMELEC and not of its interlocutory order or resolution such as the assailed
order in this case.
Section 1, Rule 64, as amended, reads:

SECTION 1. Scope. This Rule shall govern the review of judgments and final orders or resolutions of the Commission on Elections and the
Commission on Audit.[8]
Under Section 2 of the same Rule, a judgment or final order or resolution of the COMELEC may be brought by the aggrieved party to this Court on
certiorari under Rule 65, as amended, except as therein provided. We ruled in Elpidio M. Salva, et al. vs. Hon. Roberto L. Makalintal, et al.[9] that Rule
64 of the Rules applies only to judgments or final orders of the COMELEC in the exercise of its quasi-judicial functions. The rule does not apply to
interlocutory orders of the COMELEC in the exercise of its quasi-judicial functions or to its administrative orders. In this case, the assailed order of the
COMELEC declaring private respondents petition to be one for annulment of the elections or for a declaration of a failure of elections in the municipality
and ordering the production of the original copies of the VRRs for the technical examination is administrative in nature.[10] Rule 64, a procedural device
for the review of final orders, resolutions or decision of the COMELEC, does not foreclose recourse to this Court under Rule 65 from administrative
orders of said Commission issued in the exercise of its administrative function.[11]
It bears stressing that under Article VIII, Section 1 of the Constitution, judicial power is vested in the courts. Judicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Judicial
power is an antidote to and a safety net against whimsical, despotic and oppressive exercise of governmental power. The aggrieved party may seek
redress therefrom through the appropriate special civil action provided by the Rules of Court. As to acts of the COMELEC, the special civil action may
be one for certiorari pursuant to Article IX(A), Section 7 of the Constitution.
As a general rule, an administrative order of the COMELEC is not a proper subject of a special civil action for certiorari.[12] But when the COMELEC
acts capriciously or whimsically, with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such an order, the aggrieved party
may seek redress from this Court via a special civil action for certiorari under Rule 65 of the Rules.[13]
Private respondent cannot find solace in the pronouncement in Ruperto Ambil, Jr. vs. Commission on Elections, et al.[14] because the subject matter of
the petition therein was an interlocutory order of a Division of the COMELEC. This Court held that the remedy of the aggrieved party was first to file a
motion for a reconsideration of the order with the COMELEC En Banc. The raison detre therefor is that under Rule 3, Section 6(c) of the COMELEC
Rules of Procedure, any motion for a reconsideration of a decision, resolution, order or ruling of a Division of the COMELEC has to be referred to and
resolved by the Commission sitting En Banc. A motion for reconsideration filed with the COMELEC En Banc of an order, ruling or resolution of a Division
thereof is a plain, speedy and adequate remedy therefrom.
We now resolve the second issue. Irrefragably, the petition before the COMELEC does not pose a pre-proclamation controversy as defined in Article
XX, Section 241 of Republic Act No. 7166, 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.[15]
Pre-proclamation controversies are properly limited to challenges directed against the Board of Canvassers and proceedings before said Board relating
to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. The proceedings
are summary in nature; thus, the reception of evidence aliunde, e.g. the original copies of the VRRs, is proscribed. In fine, in pre-proclamation
proceedings, the COMELEC is not to look beyond or behind election returns which are on their face regular and authentic returns.[16] 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.[17]
In his petition with the COMELEC, private respondent alleged that fraud and irregularities allegedly perpetrated by unscrupulous individuals who
substituted for the registered voters and voted for the latter in the subject precincts, in conspiracy with the Board of Election Inspectors, or abetted by the
members thereof, attended the electoral process in the subject precincts. The fraud and the irregularities catalogued by private respondent required the
reception of evidence aliunde. As stated earlier, such grounds are not proper bases for a pre-proclamation controversy but are appropriate for a regular
election contest within the original jurisdiction of the Regional Trial Court. Indeed, the Court held in Dimangadap Dipatuan vs. Commission on Elections,
et al.:[18]
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).
Neither is private respondents petition before the COMELEC one for declaration of a failure of elections in Saguiran, Lanao del Sur. Section 6, Article 1
of R.A. No. 7166 provides when a failure of election occurs
SEC. 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 the 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 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 on a
date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or failure to elect (Sec. 7, 1978 EC).[19]
Under Section 5, Article 1 of the aforementioned law, the matter of the postponement or declaration of failure of election and the calling of a special
election as provided for in Section 6, shall be decided by the COMELEC sitting En Banc by a majority of its members:

SEC. 5. Postponement of election. The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5,
6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the
declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (Sec. 4, p. 1, RA 7166).[20]
Before the COMELEC can grant a verified petition seeking to declare a failure of election, the concurrence of two (2) conditions must be established,
namely: (a) 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; (b) the votes cast would affect the result of the election. The Court declared in Ricardo Canicosa vs. Commission on Elections, et
al.,[21] that there are only three (3) instances where a failure of election may be declared, namely:
x x x (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous
causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure,
violence, terrorism, fraud, or other analogous causes; (c) after the voting and during the preparation and transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous
causes.[22]
While fraud is a ground to declare a failure of election, such fraud must be one that prevents or suspends the holding of an election, including the
preparation and transmission of the election returns. Failure to elect must be understood in its literal sensewhich is, nobody emerges as a winner.
[23] The barefaced fact that a candidate has been proclaimed and has assumed office does not deprive the COMELEC of its authority to annul any
canvass and illegal proclamation.[24] A petition for the annulment of election is not the same as one involving a pre-proclamation controversy. In the
fairly recent case of Tomas T. Banaga, Jr. vs. Commission on Elections, et al.[25] with a factual backdrop similar to this case, the Court held:
We have painstakingly examined the petition filed by petitioner Banaga before the COMELEC. But we found that petitioner did not allege at all that
elections were either not held or suspended. Neither did he aver that although there was voting, nobody was elected. On the contrary, he conceded
that an election took place for the office of vice-mayor of Paraaque City, and that private respondent was, in fact, proclaimed elected to that post. While
petitioner contends that the election was tainted with widespread anomalies, it must be noted that to warrant a declaration of failure of election the
commission of fraud must be such that it prevented or suspended the holding of an election, or marred fatally the preparation and transmission, custody
and canvass of the election returns. These essential facts ought to have been alleged clearly by the petitioner below, but he did not.
Private respondent alleged in his petition with the COMELEC En Banc that the elections ensued in the subject precincts and that petitioner herein
emerged as the winner and was in fact proclaimed as such by the Board of Election Inspectors.
In sum then, the grounds alleged by private respondent in his petition before the COMELEC are those for a regular election protest and are not proper in
a pre-proclamation controversy; nor is such petition one for annulment of the elections or for a declaration of failure of elections in the municipality of
Saguiran, Lanao del Sur. The COMELEC should have ordered the dismissal of the petition instead of issuing the assailed order. The COMELEC thus
committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the same. The error is correctible by the special civil
action for certiorari.
PREMISES CONSIDERED, the petition is GRANTED. The assailed order is SET ASIDE. The petition of herein private respondent with the public
respondent is 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 Commission on Elections which gave rise to the petition at bar.
SO ORDERED.

EN BANC
[G.R. No. 160428. July 21, 2004]
HADJI RASUL BATABOR, petitioner, vs. COMISSION ON ELECTIONS, BARANGAY BOARD OF CANVASSERS, BOARD OF ELECTION
INSPECTORS OF PRECINCTS NOS. 3A, 4A and 5A, BARANGAY MAIDAN, TUGAYA, LANAO DEL SUR, and MOCASIM ABANGON BATONDIANG,
respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
The power to declare a failure of elections should be exercised with utmost care and only under circumstances which demonstrate beyond doubt that
the disregard of the law has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are
unlawful, or to arrive at any certain result whatsoever; or that the great body of voters have been prevented by violence, intimidation and threats from
exercising their franchise. There is failure of elections only when the will of the electorate has been muted and cannot be ascertained. If the will of the
people is determinable, the same must as far as possible be respected.[1]
Before us is a petition for certiorari[2] with application for a temporary restraining order and writ of preliminary injunction, assailing the Commission on
Elections (COMELEC) En Bancs Resolution dated October 9, 2003 in SPA No. 02-295 (Brgy.). In this Resolution, the COMELEC denied Hadji Rasul
Batabors petition seeking: (a) the declaration of failure of election in Precincts 3A, 4A and 5A of Barangay Maidan, Tugaya, Lanao del Sur; (b) the
annulment of the proclamation that Mocasin Abangon Batondiang is the duly elected Punong Barangay of Barangay Maidan; and (c) the holding of a
special election in the questioned precincts.
In the synchronized July 15, 2002 Barangay and Sangguniang Kabataan Elections, Hadji Rasul Batabor, petitioner, and Mocasim Abangon Batondiang,
private respondent, ran as opposing candidates for the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur. It was petitioners reelection bid being then the incumbent Punong Barangay.
The result of the election shows that private respondent won as Punong Barangay, garnering 123 votes, as against petitioners 94 votes, or a difference
of 29 votes.
In due time, private respondent was proclaimed the duly elected Punong Barangay of Barangay Maidan.
Bewailing the outcome of the election, petitioner filed with the COMELEC a petition to declare a failure of election in Precincts 3A, 4A and 5A of
Barangay Maidan, docketed as SPA No. 02-295 (Brgy.). The petition alleges that during the election, the voting started at around 8:30 oclock in the
morning. It was temporarily suspended during the lunch break and was to resume at 1:00 oclock in the afternoon of that day. But after lunch, the
Chairwoman of the Board of Election Inspectors (BEI) of Precincts 3A, 4A and 5A suddenly tore all the unused official ballots. Thus, the voting was not
continued. The BEI then padlocked the ballot boxes. At that time, petitioner was not present. Despite the note of Election Officer Taha Casidar
directing the BEI to resume the voting, the latter did not allow the remaining voters to vote. Thus, petitioners relatives and followers, numbering more
than 100, were not able to cast their votes.
In his comment, private respondent averred that petitioners allegations are not supported by substantial evidence. It was petitioner who padlocked the
ballot boxes as shown by the affidavit of Comini Manalastas. During the counting of votes, petitioners wife, daughter and son actually witnessed the
same. Besides, petitioners allegations can be properly ventilated in an election protest because the issues raised are not grounds for declaration of a
failure of election.
On October 9, 2003, the COMELEC En Banc issued the assailed Resolution[3] denying the petition.
Petitioner now contends in his petition for certiorari before us that the COMELEC committed grave abuse of discretion amounting to lack or excess of
jurisdiction in denying his petition in SPA No. 02-295 (BRGY.). He reiterates his allegations in his petition filed with the COMELEC showing there was
failure of election.
The Solicitor General, in his comment on the instant petition, vehemently disputes petitioners allegations and prays that the petition be dismissed for
lack of merit.
We dismiss the petition.
The power to declare a failure of election is vested exclusively upon the COMELEC.[4] Section 6 of the Omnibus Election Code[5] provides:
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 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 on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after
the cessation of the cause of such postponement or suspension of the election or failure to elect.
Explaining the above provisions, we held in Benito vs. Commission on Elections[6] that these two (2) conditions must exist before a failure of election
may be declared: (1) no voting has been held in any precinct or precincts due to fraud, force majeure, violence or terrorism; and (2) the votes not cast
therein are sufficient to affect the results of the election. The cause of such failure may arise before or after the casting of votes or on the day of the
election.
The familiar rule, as applied to this case, is that grave abuse of discretion exists when the questioned act of the COMELEC was exercised capriciously
and whimsically as is equivalent to lack or in excess of jurisdiction. Such exercise of judgment must be done in an arbitrary or despotic manner by
reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform
the duty enjoined or to act at all in contemplation of law.[7] It is not sufficient that the COMELEC, in the exercise of its power, abused its discretion; such
abuse must be grave.[8]

We find that the COMELEC did not commit any grave abuse of discretion in dismissing petitioners petition alleging a failure of election. While the
alleged 100 votes of petitioners relatives and supporters, if cast during the election, are sufficient to affect its result, however, he failed to prove that the
voting did not take place in precincts 3A, 4A and 5A. As found by the COMELEC, the Statement of Votes and the Certificate of Canvass of Votes show
that out of the 316 registered voters in the questioned precincts, at least 220 actually voted. This simply shows that there was no failure of election in
the subject precincts. Moreover, petitioners allegation that the voting was not resumed after lunch break, preventing 100 of his relatives and followers to
vote, is better ventilated in an election contest. The COMELEC, in its assailed Resolution, held:
In the first place, the petitioner failed to show with certainty that the voting did not push through in the questioned precincts. In fact, the Statement of
Votes by Precincts show that out of the three hundred sixteen (316) registered voters in the questioned precincts, two hundred twenty (220) or 69.62% of
the registered voters actually voted. This high turnout in the number of registered voters who actually voted is clearly not an indication of a failure of
elections.
We cannot also help but notice that the instant petition seeks to declare a failure of elections and to annul solely the proclamation of respondent
Batondiang, the elected punong barangay. The prayer for annulment of proclamation does not extend to all the elected and proclaimed candidates in
Barangay Maidan, Tugaya, Lanao del Sur. The Commission may not, on the ground of failure of elections, annul the proclamation of one candidate only,
and thereafter call a special election therefor, because failure of elections necessarily affects all the elective positions in the place where there has been
a failure of elections. To hold otherwise will be discriminatory and violative of the equal protection of the laws (See Loong vs. COMELEC, 305 SCRA 832
[1999]).
As pronounced by the Supreme Court in Mitmug vs. Commission on Elections (230 SCRA 54 [1994]), allegations of fraud and other election
irregularities are better ventilated in an election contest:
x x x, the question of whether there have been terrorism and other irregularities is better ventilated in an election contest. These irregularities may not
as a rule be invoked to declare a failure of election and to disenfranchise the electorate through the misdeeds of a relative few. Otherwise, elections will
never be carried out with the resultant disenfranchisement of innocent voters as losers will always cry fraud and terrorism.
There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined,
it must be accorded respect. After all, there is no provision in our election laws which requires that a majority of registered voters must cast their votes.
All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. Thus, even if
less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected. There is prima facie showing that private
respondent was elected through a plurality of valid votes of a valid constituency.[9]
We reiterate our ruling in Benito vs. COMELEC[10] that there is failure of elections only when the will of the electorate has been muted and cannot be
ascertained. In the case at bar, this incident is not present.
In sum, we find no reason to disturb the assailed Resolution of the COMELEC.
WHEREFORE, the instant petition is DISMISSED for lack of merit.
SO ORDERED.

EN BANC
[G. R. No. 150312. July 18, 2002]
BAGO P. PASANDALAN, petitioner, vs. COMMISSION ON ELECTIONS and BAI SALAMONA L. ASUM, respondents.
DECISION
CARPIO, J.:
A petition for declaration of failure of election must specifically allege the essential grounds that would justify the exercise of this extraordinary remedy.
Otherwise, the Comelec can dismiss outright the petition for lack of merit. No grave abuse of discretion can be attributed to the Comelec in such a
case because the Comelec must exercise with utmost circumspection the power to declare a failure of election to prevent disenfranchising voters and
frustrating the electorates will.
The Case
Before us is a petition for review on certiorari of the Resolution[1] of the Commission on Elections en banc dated October 12, 2001 dismissing petitioner
Bago P. Pasandalans (Pasandalan for brevity) petition to declare a failure of election.
Pasandalan and private respondent Bai Salamona L. Asum (Asum for brevity) were candidates for mayor in the Municipality of Lumbayanague, Lanao
del Sur during the May 14, 2001 elections.
On May 23, 2001, Pasandalan filed a petition[2] before public respondent Commission on Elections (Comelec for brevity) seeking to nullify the election
results in Barangay Cabasaran (Precinct Nos. 9A, 10A, 11A and 12A), Barangay Deromoyod (Precinct Nos. 24A, 25A and 26A), Lamin (Precinct Nos.
29A and 30A), Barangay Wago (Precinct Nos. 46A, 47A and 48A), Barangay Meniros (Precinct Nos. 32A, 33A and 34A), Barangay Bualan (Precinct
Nos. 6A, 7A and 8A) and Barangay Pantaon (Precinct Nos. 38A and 39A), all of Lumbayanague, Lanao del Sur.
Petitioner alleged that on May 14, 2001, while voting was going on, some Cafgus stationed near Sultan Gunting Elementary School indiscriminately
fired their firearms causing the voters to panic and leave the polling center without casting their votes. Taking advantage of the confusion, supporters of
Asum allegedly took the official ballots, filled them up with the name of Asum and placed them inside the ballot boxes. The incident allegedly marred the
election results in Precinct Nos. 9A-12A, 24A-26A and 29A-30A.
In Precinct Nos. 46A, 47 and 48A, the members of the Board of Election Inspectors (BEI for brevity) allegedly failed to sign their initials at the back of
several official ballots and to remove the detachable coupons. The BEI members allegedly affixed their initials only during the counting of votes.
In Precinct Nos. 6A-8A, 32A-34A and 38A-39A, Pasandalan claims that Asums supporters, taking advantage of the fistfight between Asums nephew
and the supporters of candidate Norania Salo, grabbed the official ballots and filled them up with the name of Asum.
Pasandalan contends that a technical examination of several official ballots from the contested precincts would show that only a few persons wrote the
entries.
On June 26, 2001, Asum filed an Answer denying Pasandalans allegation that the volley of shots fired on May 14, 2001 disrupted the voting. Private
respondent countered that the gunshots were heard around 2:35 p.m. and not at the start of the voting. On June 30, 2001, Asum was sworn into office
and assumed the position of municipal mayor of the Lumbayanague, Lanao del Sur.
On October 12, 2001, the Comelec issued a Resolution dismissing the petition for lack of merit.[3]
Hence, this petition.
The Comelecs Ruling
The Comelec ruled that the power to declare a failure of election, being an extraordinary remedy, could be exercised only in three instances: (1) the
election is not held; (2) the election is suspended; or (3) the election results in a failure to elect. The third instance is understood in its literal sense, that
is, nobody was elected.
The Comelec dismissed the petition because none of the grounds relied upon by Pasandalan falls under any of the three instances justifying a
declaration of failure of election. First, the elections in the questioned precincts were held as scheduled. Second, the gunshots heard during the casting
of votes did not suspend the election as the voting continued normally. Third, Asum was elected by a plurality of votes.
The authenticity and integrity of the election returns were left undisturbed throughout the preparation, transmission, custody and canvass of the returns.
Pasandalan alleges fraud and terrorism, in that there was massive substitution of voters, firing of guns to frighten the voters, and failure of the BEI
members to sign at the back of some official ballots and to remove the detachable coupons. The Comelec ruled that these allegations are better
ventilated in an election contest.
The Comelec did not give credence to Pasandalans evidence in support of his allegations of terrorism and fraud since the evidence consisted only of
affidavits executed by Pasandalans own poll watchers. The Comelec considered these affidavits self-serving and insufficient to annul the results of the
election. Thus, the Comelec dismissed the petition for lack of merit.
The Issues
Pasandalan now assails the Comelecs dismissal of his petition, raising the following issues:
1. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN DISMISSING THE PETITION IN SPA NO. 01-305 FOR ALLEGED LACK OF MERIT;
2. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN
NOT ANNULING THE ELECTION OR DECLARING A FAILURE OF ELECTION IN THE SIXTEEN (16) QUESTIONED PRECINCTS;

3. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN NOT DECLARING AS ILLEGAL, NULL AND VOID AB INITIO THE PROCLAMATION OF THE PRIVATE RESPONDENT AS THE DULY
ELECTED MAYOR OF LUMBAYANAGUE, LANAO DEL SUR IN THE LAST MAY 14, 2001 REGULAR ELECTIONS AND MAY 30, 2001 SPECIAL
ELECTIONS.[4]
The Courts Ruling
We rule that the petition is without merit. The Comelec correctly dismissed the petition for declaration of failure of election because the irregularities
alleged in the petition should have been raised in an election protest, not in a petition to declare a failure of election.
Under Republic Act No. 7166, otherwise known as The Synchronized Elections Law of 1991,[5] the Comelec en banc is empowered to declare a failure
of election under Section 6 of the Omnibus Election Code (B.P. Blg. 881). Section 6 of the Code prescribes the conditions for the exercise of this power,
thus:
SEC. 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 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 or failure to elect.
Based on the foregoing provision, three instances justify a declaration of failure of election. These are:
(a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous
causes;
(b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence,
terrorism, fraud or other analogous causes; or
(c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a
failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes.[6]
What is common in these three instances is the resulting failure to elect.[7] In the first instance, no election is held while in the second, the election is
suspended.[8] In the third instance, circumstances attending the preparation, transmission, custody or canvas of the election returns cause a failure to
elect. The term failure to elect means nobody emerged as a winner. [9]
Pasandalan asserts that the conditions for the declaration of failure of election are present in this case. The volley of shots from high-powered firearms
allegedly forced the voters to scamper away from the polling place, paving the way for Asums supporters to write the name of Asum on the ballots. The
gunfire also frightened Pasandalans poll watchers. The heavy firing allegedly suspended or prevented the holding of elections in the contested
precincts, resulting in failure to elect. The victory of Asum is thus put in serious doubt.
We do not agree. Pasandalans allegations do not fall under any of the instances that would justify the declaration of failure of election. The election
was held in the 16 protested precincts as scheduled. At no point was the election in any of the precincts suspended. Nor was there a failure to elect
because of force majeure, violence, terrorism, fraud or other analogous causes during the preparation, transmission, custody and canvass of the
election returns. The alleged terrorism was not of such scale and prevalence to prevent the holding of the election or to cause its suspension. In fact,
the casting and counting of votes, the preparation, transmission and canvassing of election returns and the proclamation of the winning candidate took
place in due course.
Courts exercise the power to declare a failure of election with deliberate caution so as not to disenfranchise the electorate.[10] The fact alone that actual
voting took place already militates against Pasandalans cause. Also, Pasandalans allegations of terrorism and fraud are not sufficient to warrant a
nullification of the election in the absence of any of the three instances justifying a declaration of failure of election. Terrorism may not be invoked to
declare a failure of election and to disenfranchise the greater number of the electorate through the misdeeds of only a few,[11] absent any of the three
instances specified by law.
To warrant a declaration of failure of election on the ground of fraud, the fraud must prevent or suspend the holding of an election, or mar fatally the
preparation, transmission, custody and canvass of the election returns.[12] The conditions for the declaration of failure of election are stringent.
Otherwise, elections will never end for losers will always cry fraud and terrorism.[13]
The allegations of massive substitution of voters, multiple voting, and other electoral anomalies should be resolved in a proper election protest[14] in the
absence of any of the three instances justifying a declaration of failure of election. In an election protest, the election is not set aside, and there is only a
revision or recount of the ballots cast to determine the real winner.[15]
The nullification of elections or declaration of failure of elections is an extraordinary remedy.[16] The party who seeks the nullification of an election has
the burden of proving entitlement to this remedy. It is not enough that a verified petition is filed. The allegations in the petition must make out a prima
facie case for the declaration of failure of election, and convincing evidence must substantiate the allegations.[17]
In the instant case, it is apparent that the allegations do not constitute sufficient grounds for the nullification of the election. Pasandalan even failed to
substantiate his allegations of terrorism and irregularities. His evidence consisted only of affidavits. Mere affidavits are insufficient,[18] more so in this
case since the affidavits were all executed by Pasandalans own poll watchers. Factual findings of the Comelec are binding on this Court.[19]
Accordingly, the following findings of the Comelec in the instant case must be respected:
xxx There was an allegation in the amended petition that while voting was taking place in Sultan Gunting Elementary School, gunshots were heard
causing the voters to scamper for safety and leave the polling center without having cast their votes. However, other than his bare allegation and the
pre-typed affidavits of his watchers, petitioner did not present substantial and convincing evidence to support his claim. On the other hand, 1 Lt.
Frederick Galang Pa of the 29th Infantry Battalion assigned in Lumbayanague categorically declared in his affidavit that despite the gunshots which were
heard at around 2:35 PM when the polls were about to close, the voting continued normally. This statement was bolstered by the narrative report of
Urangutan Mamailao, Election Officer of Lumbayanague, on the conduct of the election in said municipality. The report was spontaneously prepared
when the incident happened. Taken in the light of the presumption of regularity in the performance of official functions, these two affidavits carry great

weight. Third, the authenticity and integrity of the election returns are left undisturbed throughout the preparation, transmission, custody and canvass
thereof. There was no allegation, much less proof that the sanctity of the election returns was defiled.
xxx
A thorough examination of the affidavits reveals that they suffer from both extrinsic and intrinsic invalidity. The form and the contents of the affidavits
were pre-typed, and all the affiants had to do was to fill-up the blank spaces for their names and precinct assignments. This clearly shows that some
other person prepared the affidavits and it is doubtful whether the affiants understood the contents thereof before they signed them.
Also worth noting is the fact that the contents of the affidavits are identical. It is highly questionable why different persons have exactly the same
observation of different incidents. Even persons confronted with the same occurrence would have different observations of the same incident because
human perception is essentially affected by several factors like the senses, mental condition, personal disposition, environment, etc.
Moreover, the affidavits contain inconsistent statements and incredible allegations which bolster the conclusion that they were tailored to suit the needs
of the petitioner. For example, the joint-affidavit of Badjomura Calauto and Macaruog Ampuan states that they were in Barangay Cabasaran during the
May 14 election when they saw the men of respondent fill-up the ballots in Precinct Nos. 29A-30A of Barangay Lamin. The venue of voting for Barangay
Cabasaran was Sultan Gunting Central Elementary School while that of Barangay Lamin was Lamin Primary School. How they were able to witness
said incident when they were miles away from where it happened is mystifying. Besides, this is not the proper forum to challenge illegal voters. Even at
the precinct level, petitioners watchers are empowered to question any irregularity which they think may have been committed by any person or to
challenge the capacity of any person offering to vote. Failing to avail himself of this remedy, petitioner cannot now pass the burden to innocent voters by
calling for the annulment of the results of a validly held election.[20]
Pasandalan bewails the Comelecs dismissal of his petition without first conducting a technical examination of the questioned precincts. Pasandalan
claims that had the Comelec made a technical examination of the questioned precincts, the Comelec would have discovered massive substitution of
voters, terrorism, violence, threats, coercion, intimidation and other electoral frauds, resulting in a failure of election. Pasandalan insists that a technical
examination in this case would have been proper as in Typoco, Jr. v. Commission on Elections,[21] which is also a case of failure of election.
The Comelec is not mandated to conduct a technical examination before it dismisses a petition for nullification of election when the petition is, on its
face, without merit. In Typoco, petitioner Typoco buttressed his petition with independent evidence that compelled the Comelec to conduct a technical
examination of the questioned returns. Typoco filed a Motion to Admit Evidence to prove that a substantial number of election returns were
manufactured. Typoco claimed that the returns were prepared by only one person based on the report of Francisco S. Cruz, a licensed examiner of
questioned documents, who examined copies of the election returns of Lakas-NUCD. In the present case, Pasandalan failed to attach independent and
objective evidence other than the self-serving affidavits of his own poll watchers.
In Mitmug v. Commission on Elections,[22] we ruled that the Comelec could dismiss outright a petition for nullification of election if it is plainly groundless
and the allegations therein could be better ventilated in an election protest. In Banaga, Jr. v. Commission on Elections,[23] we reiterated this doctrine,
thus Finally, petitioner claims that public respondent gravely abused its discretion when it dismissed his petition motu propio. However, the fact that a
verified petition has been filed does not mean that a hearing on the case should first be held before Comelec can act on it. The petition to declare a
failure of election and/or to annul election results must show on its face that the conditions necessary to declare a failure to elect are present. In their
absence, the petition must be denied outright. Public respondent had no recourse but to dismiss the petition. Nor may petitioner now complain of denial
of due process, on this score, for his failure to properly file an election protest. The Comelec can only rule on what was filed before it. It committed no
grave abuse of discretion in dismissing his petition to declare failure of elections and/or for annulment of elections for being groundless, hence without
merit.
Clearly, the fact that a verified petition is filed with the Comelec does not necessarily mean that a technical examination or a hearing on the case should
be conducted first before the Comelec can act on the petition. There is no grave abuse of discretion if the Comelec dismisses the petition even without a
technical examination or hearing if the petition fails to show on its face the existence of any of the three instances required by law to declare a failure of
election. The Comelec in this case correctly dismissed the petition.
Pasandalan believes that notwithstanding the fact that actual voting took place in the questioned precincts, the election in this case, just like in Basher v.
Commission on Elections,[24] was illegal, irregular, and void.[25] Citing Basher, Pasandalan argues that the peculiar set of facts in this case do not
merely show a failure of election but the absence of a valid electoral exercise.[26]
The fact that an election is actually held prevents as a rule a declaration of failure of election. It is only when the election is attended by patent and
massive irregularities and illegalities that this Court will annul the election. Basher is an example of such a case.
In Basher, after a series of failed elections in Barangay Maidan, Municipality of Tugaya, Lanao del Sur during the 1997 barangay elections, the election
was reset to August 30, 1997. Due to the prevailing tension in the locality, the voting started only at around 9 p.m. and lasted until the early morning of
the following day. Basher filed a petition for the nullification of election. The Comelec ruled against a failure of election because actual voting had taken
place. However, we overturned the Comelec ruling because the election was unauthorized and invalid. The electorate was not given sufficient notice
that the election would push through after 9 p.m. of the same day. Moreover, the voting did not comply with the procedure laid down by law and by
Comelec rules as to the time and place of voting. Thus, we held that the election was illegal, irregular and void. Consequently, we annulled the
proclamation of the winning candidate and ordered a special election.
Basher does not apply to this case. Unlike in Basher, the election in this case proceeded as scheduled, in accordance with law and Comelec rules.
None of the extreme circumstances that marred the election in Basher is present in this case. We have ruled that there is failure of election only if the
will of the electorate is muted and cannot be ascertained.[27] If the will of the people is determinable, the same must be respected as much as possible.
[28] In this case, the will of the electorate is readily discernible. Pasandalan should have filed an election protest to substantiate his allegations of
electoral anomalies, not a petition to declare a failure of election.
WHEREFORE, the instant petition is DISMISSED. The assailed Resolution of public respondent Comelec is AFFIRMED. Costs against petitioner.
SO ORDERED.

Today is Wednesday, April 29, 2015

search
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 106270-73February 10, 1994

SULTAN MOHAMAD L. MITMUG, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO,
LANAO DEL SUR, and DATU GAMBAI DAGALANGIT, respondents.
Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.
Brillantes, Nachura, Navarro & Arcilla for private respondent.

BELLOSILLO, J.:
The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur, was abnormally low. As a result, several petitions were filed
seeking the declaration of failure of election in precincts where less than 25% of the electorate managed to cast their votes. But a special election was
ordered in precincts where no voting actually took place. The Commission on Elections (COMELEC) ruled that for as long as the precincts functioned
and conducted actual voting during election day, low voter turnout would not justify a declaration of failure of election. We are now called upon to review
this ruling.
Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI DAGALANGIT were among the candidates for the mayoralty
position of Lumba-Bayabao during the 11 may 1992 election. There were sixty-seven (67) precincts in the municipality.
As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49) precincts where the average voter turnout was 22.26%, i.e., only
2,330 out of 9,830 registered voters therein cast their votes. Five (5) of these precincts did not conduct actual voting at all. 1
Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the five (5) precincts which failed to function during election day.
On 30 July 1992 another special election was held for a sixth precinct. 2
In the interim, petitioner filed a petition seeking the annulment of the special election conducted on 30 May 1992 alleging various irregularities such as
the alteration, tampering and substitution of ballots. But on 13 July 1992, COMELEC considered the petition moot since the votes in the subject precincts
were already counted. 3
Other petitions seeking the declaration of failure of election in some or all precincts of Lumba-Bayabao were also filed with COMELEC by other
mayoralty candidates, to wit:
1.
SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an urgent petition praying for the holding of a special
election in Precinct No. 22-A alleging therein that when the ballot box was opened, ballots were already torn to pieces. On 14 July 1992, the petition was
granted and a special election for Precinct No. 22-A was set for 25 July 1992. 4
2.
SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate, filed a petition to declare failure of election in
twenty-nine (29) more precincts as a result of alleged tampering of ballots 5 and clustering of precincts. 6 On 16 July 1992, the petition was dismissed.
COMELEC ruled that there must be a situation where there is absolute inability to vote before a failure of election can be declared. 7 Since voting was
actually conducted in the contested precincts, there was no basis for the petition.
3.
SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time seeking to exclude from the counting the ballots cast in
six (6) precincts on the ground that the integrity of the ballot boxes therein was violated. 8 Again, on 14 July 1992, COMELEC considered the petition
moot, as the issue raised therein was related to that of SPA No. 92-311 which on 9 July 1992 was already set aside as moot. 9
4.
SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty candidate, filed a petition which in the main sought the
declaration of failure of election in all sixty-seven (67) precincts of
Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of voters. 10 On 9 July 1992, COMELEC dismissed the petition, ruling
that the allegations therein did not support a case of failure of election. 11
On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But COMELEC treated the same as a motion for reconsideration and
promptly denied it considering that under the COMELEC Rules of Procedure such motion was a prohibited pleading. 13
Thereafter, a new board of Election Inspectors was formed to conduct the special election set for 25 July 1992. Petitioner impugned the creation of this
Board. Nevertheless, on 30 July 1992, the new Board convened and began the canvassing of votes. Finally, on 31 July 1992, private respondent was
proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del Sur.
On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of failure of election in forty-nine (49) precincts where less than a
quarter of the electorate were able to cast their votes. He also prayed for the issuance of a temporary restraining order to enjoin private respondent from
assuming office.

On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of Lanao del Sur disputing the result not only of some but all the
precincts of Lumba-Bayabao, del Sur. 14
Respondents, on the other hand, assert that with the filing of an election protest, petitioner is already deemed to have abandoned the instant petition.
It may be noted that when petitioner filed his election protest with the Regional Trial Court of Lanao del Sur, he informed the trial court of the pendency of
these proceedings. Paragraph 3 of his protest states "[T]hat on August 3, 1992, your protestant filed a Petition for Certiorari with the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation of the herein protestee. . . ." 15 Evidently, petitioner did not
intend to abandon his recourse with this Court. On the contrary, he intended to pursue it. Where only an election protest ex abundante ad cautela is filed,
the Court retains jurisdiction to hear the petition seeking to annul an election. 16
The main issue is whether respondent COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in denying motu proprio and
without due notice and hearing the petitions seeking to declare a failure of election in some or all of the precincts in Lumba-Bayabao, Lanao del Sur.
After all, petitioner argues, he has meritorious grounds in support thereto, viz., the massive disenfranchisement of voters due to alleged terrorism and
unlawful clustering of precincts, which COMELEC should have at least heard before rendering its judgment.
Incidentally, a petition to annul an election is not a pre-proclamation controversy. Consequently, the proclamation of a winning candidate together with his
subsequent assumption of office is not an impediment to the prosecution of the case to its logical conclusion. 17
Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a verified petition to declare a failure to elect, notices to all
interested parties indicating therein the date of hearing should be served through the fastest means available. 18 The hearing of the case will also be
summary in nature. 19
Based on the foregoing, the clear intent of the law is that a petition of this nature must be acted upon with dispatch only after hearing thereon shall have
been conducted. Since COMELEC denied the other petitions 20 which sought to include forty-three (43) more precincts in a special election without
conducting any hearing, it would appear then that there indeed might have been grave abuse of discretion in denying the petitions.
However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2, Rule 26, thereof which was lifted from Sec. 6, B.P. 881,
otherwise known as the Omnibus Election Code of the Philippines, indicates otherwise. It reads
Sec. 2. Failure of election. If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any precinct 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 of 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 on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days
after the cessation of the cause of such postponement or suspension of the election or failure to elect.
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 precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect; and, second, the votes
not cast would affect the result of the election. 21
In the case before us, it is indubitable that the votes not cast will definitely affect the outcome of the election. But, the first requisite is missing, i.e., that
no actual voting took place, or even if there is, the results thereon will be tantamount to a failure to elect. Since actual voting and election by the
registered voters in the questioned precincts have taken place, the results thereof cannot be disregarded and excluded. 22 COMELEC therefore did not
commit any abuse of discretion, much less grave, in denying the petitions outright. There was no basis for the petitions since the facts alleged therein did
not constitute sufficient grounds to warrant the relief sought. For, the language of the law expressly requires the concurrence of these conditions to justify
the calling of a special election. 23
Indeed, the fact that a verified petition is filed does not automatically mean that a hearing on the case will be held before COMELEC will act on it. The
verified petition must still show on its face that the conditions to declare a failure to elect are present. In the absence thereof, the petition must be denied
outright.
Considering that there is no concurrence of the two (2) conditions in the petitions seeking to declare failure of election in forty-three (43) more, precincts,
there is no more need to receive evidence on alleged election irregularities.
Instead, the question of whether there have been terrorism and other irregularities is better ventilated in an election contest. These irregularities may not
as a rule be invoked to declare a failure of election and to disenfranchise the electorate through the misdeeds of a relative few. 24 Otherwise, elections
will never be carried out with the resultant disenfranchisement of innocent voters as losers will always cry fraud and terrorism.
There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined, it
must be accorded respect. After all, there is no provision in our election laws which requires that a majority of registered voters must cast their votes. All
the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. 25 Thus, even if
less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected. There is prima facie showing that private
respondent was elected through a plurality of valid votes of a valid constituency.
WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is DISMISSED.
SO ORDERED.

EN BANC
[G.R. No. 160428. July 21, 2004]
HADJI RASUL BATABOR, petitioner, vs. COMISSION ON ELECTIONS, BARANGAY BOARD OF CANVASSERS, BOARD OF ELECTION
INSPECTORS OF PRECINCTS NOS. 3A, 4A and 5A, BARANGAY MAIDAN, TUGAYA, LANAO DEL SUR, and MOCASIM ABANGON BATONDIANG,
respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
The power to declare a failure of elections should be exercised with utmost care and only under circumstances which demonstrate beyond doubt that
the disregard of the law has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are
unlawful, or to arrive at any certain result whatsoever; or that the great body of voters have been prevented by violence, intimidation and threats from
exercising their franchise. There is failure of elections only when the will of the electorate has been muted and cannot be ascertained. If the will of the
people is determinable, the same must as far as possible be respected.[1]
Before us is a petition for certiorari[2] with application for a temporary restraining order and writ of preliminary injunction, assailing the Commission on
Elections (COMELEC) En Bancs Resolution dated October 9, 2003 in SPA No. 02-295 (Brgy.). In this Resolution, the COMELEC denied Hadji Rasul
Batabors petition seeking: (a) the declaration of failure of election in Precincts 3A, 4A and 5A of Barangay Maidan, Tugaya, Lanao del Sur; (b) the
annulment of the proclamation that Mocasin Abangon Batondiang is the duly elected Punong Barangay of Barangay Maidan; and (c) the holding of a
special election in the questioned precincts.
In the synchronized July 15, 2002 Barangay and Sangguniang Kabataan Elections, Hadji Rasul Batabor, petitioner, and Mocasim Abangon Batondiang,
private respondent, ran as opposing candidates for the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur. It was petitioners reelection bid being then the incumbent Punong Barangay.
The result of the election shows that private respondent won as Punong Barangay, garnering 123 votes, as against petitioners 94 votes, or a difference
of 29 votes.
In due time, private respondent was proclaimed the duly elected Punong Barangay of Barangay Maidan.
Bewailing the outcome of the election, petitioner filed with the COMELEC a petition to declare a failure of election in Precincts 3A, 4A and 5A of
Barangay Maidan, docketed as SPA No. 02-295 (Brgy.). The petition alleges that during the election, the voting started at around 8:30 oclock in the
morning. It was temporarily suspended during the lunch break and was to resume at 1:00 oclock in the afternoon of that day. But after lunch, the
Chairwoman of the Board of Election Inspectors (BEI) of Precincts 3A, 4A and 5A suddenly tore all the unused official ballots. Thus, the voting was not
continued. The BEI then padlocked the ballot boxes. At that time, petitioner was not present. Despite the note of Election Officer Taha Casidar
directing the BEI to resume the voting, the latter did not allow the remaining voters to vote. Thus, petitioners relatives and followers, numbering more
than 100, were not able to cast their votes.
In his comment, private respondent averred that petitioners allegations are not supported by substantial evidence. It was petitioner who padlocked the
ballot boxes as shown by the affidavit of Comini Manalastas. During the counting of votes, petitioners wife, daughter and son actually witnessed the
same. Besides, petitioners allegations can be properly ventilated in an election protest because the issues raised are not grounds for declaration of a
failure of election.
On October 9, 2003, the COMELEC En Banc issued the assailed Resolution[3] denying the petition.
Petitioner now contends in his petition for certiorari before us that the COMELEC committed grave abuse of discretion amounting to lack or excess of
jurisdiction in denying his petition in SPA No. 02-295 (BRGY.). He reiterates his allegations in his petition filed with the COMELEC showing there was
failure of election.
The Solicitor General, in his comment on the instant petition, vehemently disputes petitioners allegations and prays that the petition be dismissed for
lack of merit.
We dismiss the petition.
The power to declare a failure of election is vested exclusively upon the COMELEC.[4] Section 6 of the Omnibus Election Code[5] provides:
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 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 on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after
the cessation of the cause of such postponement or suspension of the election or failure to elect.
Explaining the above provisions, we held in Benito vs. Commission on Elections[6] that these two (2) conditions must exist before a failure of election
may be declared: (1) no voting has been held in any precinct or precincts due to fraud, force majeure, violence or terrorism; and (2) the votes not cast
therein are sufficient to affect the results of the election. The cause of such failure may arise before or after the casting of votes or on the day of the
election.
The familiar rule, as applied to this case, is that grave abuse of discretion exists when the questioned act of the COMELEC was exercised capriciously
and whimsically as is equivalent to lack or in excess of jurisdiction. Such exercise of judgment must be done in an arbitrary or despotic manner by
reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform
the duty enjoined or to act at all in contemplation of law.[7] It is not sufficient that the COMELEC, in the exercise of its power, abused its discretion; such
abuse must be grave.[8]
We find that the COMELEC did not commit any grave abuse of discretion in dismissing petitioners petition alleging a failure of election. While the
alleged 100 votes of petitioners relatives and supporters, if cast during the election, are sufficient to affect its result, however, he failed to prove that the
voting did not take place in precincts 3A, 4A and 5A. As found by the COMELEC, the Statement of Votes and the Certificate of Canvass of Votes show

that out of the 316 registered voters in the questioned precincts, at least 220 actually voted. This simply shows that there was no failure of election in
the subject precincts. Moreover, petitioners allegation that the voting was not resumed after lunch break, preventing 100 of his relatives and followers to
vote, is better ventilated in an election contest. The COMELEC, in its assailed Resolution, held:
In the first place, the petitioner failed to show with certainty that the voting did not push through in the questioned precincts. In fact, the Statement of
Votes by Precincts show that out of the three hundred sixteen (316) registered voters in the questioned precincts, two hundred twenty (220) or 69.62% of
the registered voters actually voted. This high turnout in the number of registered voters who actually voted is clearly not an indication of a failure of
elections.
We cannot also help but notice that the instant petition seeks to declare a failure of elections and to annul solely the proclamation of respondent
Batondiang, the elected punong barangay. The prayer for annulment of proclamation does not extend to all the elected and proclaimed candidates in
Barangay Maidan, Tugaya, Lanao del Sur. The Commission may not, on the ground of failure of elections, annul the proclamation of one candidate only,
and thereafter call a special election therefor, because failure of elections necessarily affects all the elective positions in the place where there has been
a failure of elections. To hold otherwise will be discriminatory and violative of the equal protection of the laws (See Loong vs. COMELEC, 305 SCRA 832
[1999]).
As pronounced by the Supreme Court in Mitmug vs. Commission on Elections (230 SCRA 54 [1994]), allegations of fraud and other election
irregularities are better ventilated in an election contest:
x x x, the question of whether there have been terrorism and other irregularities is better ventilated in an election contest. These irregularities may not
as a rule be invoked to declare a failure of election and to disenfranchise the electorate through the misdeeds of a relative few. Otherwise, elections will
never be carried out with the resultant disenfranchisement of innocent voters as losers will always cry fraud and terrorism.
There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined,
it must be accorded respect. After all, there is no provision in our election laws which requires that a majority of registered voters must cast their votes.
All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. Thus, even if
less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected. There is prima facie showing that private
respondent was elected through a plurality of valid votes of a valid constituency.[9]
We reiterate our ruling in Benito vs. COMELEC[10] that there is failure of elections only when the will of the electorate has been muted and cannot be
ascertained. In the case at bar, this incident is not present.
In sum, we find no reason to disturb the assailed Resolution of the COMELEC.
WHEREFORE, the instant petition is DISMISSED for lack of merit.
SO ORDERED.

EN BANC
[G.R. No. 133486. January 28, 2000]
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent.
DECISION
PANGANIBAN, J.:
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. Hence, the Comelec cannot ban them 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. Narrowly tailored countermeasures may be
prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the
fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en banc Resolution No. 981419[1] dated April 21, 1998. In the said Resolution, the poll body
"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representatives from conducting such
exit survey and to authorize the Honorable Chairman to issue the same."
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project,
with PR groups, to conduct radio-TV coverage of the elections x x x and to make [an] exit survey of the x x x vote during the elections for national
officials particularly for President and Vice President, results of which shall be [broadcast] immediately."[2] The electoral body believed that such project
might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted
that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease and desist, until further
orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually conducted
and reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of
jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents or representatives from
conducting exit polls during the x x x May 11 elections."[3]
In his Memorandum,[4] the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2) prematurity, because of
petitioner's failure to seek a reconsideration of the assailed Comelec Resolution.
The Court's Ruling
The Petition[5] is meritorious.
Procedural Issues: Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held and done with.
Allegedly, there is no longer any actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the people's
fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its
very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in
future elections.[6]
In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees."[7] Since the fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of
posterity, whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies before the issuing forum,
specifically the filing of a motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice,[8] when the issue
involves the principle of social justice or the protection of labor,[9] when the decision or resolution sought to be set aside is a nullity,[10] or when the need
for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.[11]
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the election itself. Besides, the
petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a reconsideration
and to obtain a swift resolution in time for the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental
constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified.
Main Issue: Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result
of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The
results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling
individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced electionrelated data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."
It argues that the holding of exit polls and the nationwide reporting of their results are valid exercises of the freedoms of speech and of the press. It
submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and
grossly violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. It insists that the
issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and
"to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly confuse and
influence the voters," and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners and the
[losers] in the election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as the "voters are
lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution;[12] and relevant provisions of the Omnibus Election Code.
[13] It submits that the constitutionally protected freedoms invoked by petitioner "are not immune to regulation by the State in the legitimate exercise of
its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the credibility and
integrity of the electoral process," considering that they are not supervised by any government agency and can in general be manipulated easily. He
insists that these polls would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as
well as the quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comelec, in the
exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on the freedoms of speech and of
the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than
substantive economic or other liberties. x x x [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought
and speech is the indispensable condition of nearly every other form of freedom."[14]
Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.[15] In the landmark case Gonzales v.
Comelec,[16] this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter
of public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and
political decision-making, and of maintaining the balance between stability and change.[17] It represents a profound commitment to the principle that
debates on public issues should be uninhibited, robust, and wide open.[18] It means more than the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any matter of public consequence. And
paraphrasing the eminent justice Oliver Wendell Holmes,[19] we stress that the freedom encompasses the thought we hate, no less than the thought we
agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such freedoms could not
remain unfettered and unrestrained at all times and under all circumstances.[20] They are not immune to regulation by the State in the exercise of its
police power.[21] While the liberty to think is absolute, the power to express such thought in words and deeds has limitations.
In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests in determining the validity of restrictions to such freedoms, as
follows:
"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil
consequence of the comment or utterance must be 'extremely serious and the degree of imminence extremely high' before the utterance can be
punished. The danger to be guarded against is the 'substantive evil' sought to be prevented. x x x"[23]
"The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as follows: If the words uttered create a dangerous tendency which the state
has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be
advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite
persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to prevent."[24]
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso[25] and American
Bible Society v. City of Manila;[26] as well as in later ones, Vera v. Arca,[27] Navarro v. Villegas,[28] Imbong v. Ferrer,[29] Blo Umpar Adiong v.
Comelec[30] and, more recently, in Iglesia ni Cristo v. MTRCB.[31] In setting the standard or test for the "clear and present danger" doctrine, the Court
echoed the words of justice Holmes: "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 evils that Congress has a right to prevent. It is a question of proximity and
degree."[32]
A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in
the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be

probable but very likely to be inevitable.[33] 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.[34]
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise prior
restraint is not to be presumed; rather the presumption is against its validity.[35] And it is respondent's burden to overthrow such presumption. Any act
that restrains speech should be greeted with furrowed brows,[36] so it has been said.
To justify a restriction, the promotion of a substantial government interest must be clearly shown.[37] Thus:
"A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial
government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest."[38]
Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly, stifle fundamental
personal liberties, when the end can be more narrowly achieved.[39]
The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant to
add meaning to the equally vital right of suffrage.[40] We cannot support any ruling or order "the effect of which would be to nullify so vital a
constitutional right as free speech."[41] When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of
the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in
the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.[42]
True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It has the duty to
secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order to justify a restriction of the
people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate important research data which may be used to study influencing factors and
trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only
for election-day projections, but also for long-term research.[43]
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly,
honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] x x x an exercise of
press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a
dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which
further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the
Comelec x x x is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral
process."
Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at
random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled.
Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to
who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the
credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of
the results of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be
indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder and confusion in the voting centers -- does not justify a total
ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is
disruptive or not.[44] Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers.[45] There is no showing, however,
that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit
poll reporters near an election precinct tends to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could
be derived from them, based on the voters' answers to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained,
candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day
and other factors on voters' choices.
In Daily Herald Co. v. Munro,[46] the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcasting of early
returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the
least restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside influences is insufficient to justify speech
regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is
impermissible, so is regulating speech via an exit poll restriction.[47]
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the
type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end
of avoiding or minimizing disorder and confusion that may be brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed to conduct the same.
Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to voters that the latter may refuse to be
interviewed, and that the interview is not part of the official balloting process. The pollsters may further be required to wear distinctive clothing that would
show they are not election officials.[48] Additionally, they may be required to undertake an information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly
election.

For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province; (2) residences to
be polled in such communities are also chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are
interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to the public only on the day after the elections.[49] These
precautions, together with the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably
stilling the people's voice.
With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the
constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls -- properly conducted and
publicized -- can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other
electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner
does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the
contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also
proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted.
Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance
with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of
whom they have voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory,
but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as
to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people.
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed
Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.
SO ORDERED.

June 30, 1962

G.R. No. L-18894
ERNESTO TAJANLANGIT, petitioner, vs. MANUEL L. CAZEAS, respondent.
Bengzon, Villegas and Zarraga for petitioner.
Fornier and Pefianco for respondent.
BAUTISTA ANGELO, J.:
This is a petition for review of a decision of the Court of Appeals declaring respondent Manuel L. Cazeas duly elected Mayor of Dao, Antique, with a
total of 1,564 vote as against a total of 1,563 votes received by petitioner Ernesto Tajanlangit, or a plurality of one (1) vote.
Manuel L. Cazeas and Ernesto Tajanlangit were among the registered candidates for the office of mayor of the municipality of Dao, province of Antique,
in the general elections held on November 10, 1959, After the canvass of votes, the municipal board of canvassers certified that Tajanlangit received a
total of 1,570 votes and Cazeas a total of 1,567 votes. Accordingly, said board proclaimed Tajanlangit elected by a plurality of three (3) votes.
Not satisfied with the result of the election, Cazeas filed an election protest before the Court of First Instance of Antique contesting the results in seven
(7) precincts of Dao, to which Tajanlangit filed his answer and counter-protest impugning the result in five (5) precincts, two of which were later
withdrawn by him during the trial. After the trial, the court rendered decision on October 5, 1960, declaring Cazeas elected with a plurality of two (2)
votes over Tajanlangit. On appeal, the Court of Appeals rendered a decision on July 31, 1961, declaring Cazeas elected by a plurality of one (1) vote
over petitioner Tajanlangit.
Petitioner Tajanlangit interposed the present petition for review claiming that the Court of Appeals committed errors in its ruling over 16 ballots. On the
other hand, respondent Cazeas counter-assigned errors involving 19 ballots.
We shall first rule upon the ballots disputed by petitioner.
Ballots Exhibits T-119, T-120 and T-121. These three (3) ballots were rejected by the Court of Appeals as marked ballots on the strength of the evidence
aliunde presented to the effect that the writing of the name "Guimson" on these three ballots pertaining to Precinct No. 5 of Dao was part of a scheme to
identify the voters. It is a settled rule in election contests that "the findings of fact of the Court of Appeals with regard to the evidence aliunde submitted
by both parties are no longer open for review, the function of this court being limited to determining if the appreciation made of said ballots by the Court
of Appeals, apart from the evidence alluded to, was made in accordance with law and ruling of this Court" (Hilao V. Bernados, G.R. No. L-7704,
December 14, 1954). For this reason, this Court can no longer disturb the ruling of the Court of Appeals invalidating these three ballots.
Ballots Exhibits T-6 and T-94. These two (2) ballots were declared invalid by the Court of Appeals as marked ballots, the distinguishing mark consisting
of the names "Acsay" and "Lotilla" (Exh. T-6) and "Ledesma" (Exh. T-94) which were written in "big, printed, bold and shaded letters" on said ballots.
Petitioner contends that the writing of said names in printed letters and the other names in ordinary script should be considered as having been done
merely for clarity and emphasis and should not be considered as identifying marks.
Upon examination of the ballots in question, we agree with the conclusion made by the Court of Appeals that the writing of the aforesaid names "Acsay"
and "Lotilla" in ballot Exhibit T-6 clearly appears to have been intended by the voter to serve as identification marks. The names "Acsay" and "Lotilia"
were written in extraordinarily big printed letters which can no longer be considered as a mere variation of writing allowed in the preparation of a ballot.
They are so prominent that even from a distance the ballots are easily identified. The use of two kinds of writing appearing in this ballot is a good
example of the exception provided for in paragraph 18, Section 149 of the Revised Election Code, which provides that unless it should clearly appear
that it has been deliberately put by the voter to serve as identification mark, the use of two or more kinds of writing shall be considered innocent and
shall not invalidate the ballot. A ballot should be rejected where the manner in which the candidate's name is written gives the impression of an intention
to mark or identify the ballot (Villavert v. Lim, 62 Phil., 178).
The following authority in which the candidate's name was written in big Gothic letters is in point:
In this ballot all the names of the candidates voted for were written in ordinary writing with the exception of the name of "Teodulo Bernados" which was
written in big Gothic letters with a flower drawn underneath in the space for mayor. The Court of Appeals declared this ballot to be valid vote for
Bernados saying that such Gothic lettering merely shows the desire of the voter to attain greater clearness and emphasis on his favorite candidate. This
we consider to be error because such Gothic lettering can be considered used in writing names on diplomas, certificates of merit, or other documents
evidencing meritorious award, but not in ordinary documents. When the voter wrote the name of Bernados in Gothic letters he must have done it with the
evident intention of placing a distinguishing mark on his ballot which necessarily invalidates it. This ballot should therefore be rejected. (Sec. 149, Rule
18, R.E.C.) (Hilao v. Bernados, G.R. No. L-7704, December 14, 1954).
Exhibit T-6 was, therefore, properly rejected as marked ballot.
We are however of the opinion that the ballot Exhibit T-94 wherein the name "Ledesma" was written in big printed letters can be validated as being
merely the expression of the voter to clarify or emphasize his vote in favor of Ledesma. As that word appears written, it cannot be reasonably inferred
that the intention of the voter was to mark the ballot. This is an instance where it can be said that the two kinds of writing can be anchored under
paragraph 8, Section 149, of the Revised Election Code, because the intention to mark does not appear clear. The following authority supports this view:
Protestee objects to these ballots as marked for the reason that certain name or names of candidates were written in printed form or writing, while the
rest of the names were written in ordinary script. The objection is untenable because Rule 18, Section 149, of the Revised Election Code, provides that
the use of two or more kinds of writing shall be considered innocent and shall not invalidate the ballots, unless it clearly appears that such kind of writing
his been deliberately used by the voter to serve as identifying mark. Here such intention does not appear (Hilao v. Bernados, G.R. No. L-7704 [1954]; De
Alban vs. Ferrer, G.R. No. L-12083, promulgated July 31, 1957). These ballots were, therefore, correctly admitted. (Gutierrez v. Aquino, G.R. No. L14252, February 28, 1959).
Ballot Exhibit T-11. This ballot was invalidated by the Court of Appeals as a marked ballot because the names Bernardino Dabandan, Alfredo Fernandez
and Delfin Saymo, who were not candidates for any office and the last named person a registered voter in the precinct where the ballot was cast, were
written on the ballot. Petitioner claims that the Court of Appeals erred in rejecting this ballot invoking the provision of paragraph 13, section 149 of the
Revised Election Code, which provides that any vote in favor of a person who has not filed a certificate of candidacy shall be void and counted as a stray
vote but shall not invalidate the whole ballot.

We do not agree with the conclusion reached by the Court of Appeals. There is no showing that this ballot was cast by registered voter Delfin Saymo or
that he wrote or signed his name thereon, which would have been sufficient to invalidate the same (Ferrer v. De Alba, 54 O.G. 4255). In the absence of
evidence aliunde that the aforementioned names of non-candidates were intended for purposes of identification, the same shall be considered a stray
votes which shall not invalidate the whole ballot (Par. 13, Section 149, supra). This ballot should be counted a favor of petitioner who was voted thereon
for the office of mayor.
Ballot Exhibit T-25. This ballot was rejected by the Court of Appeals as an illegal ballot for having been prepared by two persons, affirming the conclusion
made by the lower court that the names appearing on the 4th line for senators and on the lines for governor and vice-governor were written by one
person while the other names appearing therein were written by another. The Court of Appeals also reasoned that the different spelling of the name
"Lopez" on the 4th line for senators and that of "Lopez" on the 2nd line for councilors shows they were written by two different persons.
Upon examination of the ballot, we have noted that the names appearing on the 4th line for senators and on the lines for governor and vice-governor
were written with different pencil. The uphill alignment, pen pressure, slant as well as sizes of the letters in said names are dissimilar with those of the
other names written on the ballot. We agree with the conclusion reached by the Court of Appeal that this ballot is null and void for having been filled by
two distinct persons (Par. 23, Section 149, Revised Election Code).
Ballot Exhibits C-6, C-49, C-61, C-65, C-75 and C-76. These six (6) ballots were declared valid for respondent Cazeas by the lower court and this ruling
had not been assigned as error by petitioner in this appeal to the Court of Appeals. Petitioner now questions the validity of these ballots for the first time
on appeal before this Court. Following our ruling in the case of Salalima v. Sabater (G.R. No. L-14829, May 29, 1959), the validity of these ballots can no
longer be questioned before this Court after the ruling of the lower court was not included in petitioner's appeal to the Court of Appeals. To allow the
petitioner to contest the validity of these ballots now would be unfair not only to the respondent but also the Court of Appeals, both of whom were
deprived, the former, of an opportunity to present proof to destroy petitioner's claim, and the latter, to pass judgment upon the same (Quintia v. Bautista,
49 O.G., 2339). Petitioner's assignment of error on these ballots cannot, therefore, be entertained.
Ballot Exhibit C-60. Immediately below the sixth line for councilors after the name "Secuban" which was written on said line, there appears initials "FS" or
"ES", which petitioner claims to be an identifying mark of this ballot. The Court of Appeals admitted this ballot for respondent concluding that the letters
"ES", which are the correct initials of candidate Eulalio Secuban, do not constitute a distinguishing mark sufficient to invalidate the ballot. In the absence
of any showing that the initials "FS" or "ES" were that of the voter who cast this ballot or that said initials were placed thereon as an identification mark,
this ballot was properly admitted for respondent (Gutierrez v. Aquino, G.R. No. L-14252, February 28, 1959).
Ballot Exhibit C-86. This ballot contains the name "Dimas Portillo Batring" written on the last line for councilors. Petitioner contends that the word or
nickname "Batring" which is not the nickname of candidate Dimas Postillo is a distinguishing mark sufficient to invalidate this ballot. On the basis of the
evidence presented by the Court of Appeals concluded that there was "no clear identification of an intention to mark the ballot"; hence, it admitted the
said ballot in favor of respondent. This Court can no longer disturb this conclusion of the Court of Appeals which was based upon the evidence on record
(Hilao v. Bernados, supra).
Ballot Exhibit T-4. On this ballot, the voter wrote the name "Juan C. Bajo" on the last line for councilors. The Court of Appeals rejected this ballot as
marked affirming the conclusion made the lower court that the writing of the name "Juan C. Bajo" a disparagement of senatorial candidate Juan C. Pajo
because "the voter probably meant the term "bajo" in a figurative sense to express his opinion of Mr. Pajo." The Court of Appeals further stated that the
word "bajo" is impertinent and offensive because in Visayan dialect it means "bad smell."
We believe that this ruling is incorrect. In the first place, it is admitted that the word "bajo" has two meanings in Visayan dialect, i.e., "bad smell" and "a
musical instrument." In the second place, an identification mark on a ballot cannot be presumed (Jaucian v. Gallos, 55 O.G., 10394). In the third place,
there is no evidence that the name "Juan C. Bajo" was deliberately written on the ballot as a means to identify the voter. And in the fourth place, there
being no candidate for councilor by the name of Juan C. Bajo, said name shall be considered as a stray vote which shall not invalidate the whole ballot
(Par 13, Section 149, Revised Election Code). This ballot should, therefore, be counted in favor of petitioner who was voted thereon for the office of the
mayor.
We shall now take up the ballots included in the counter-assignment of errors submitted by respondent.
Ballots Exhibits C-11, C-58, C-59, and C-85. These four (4) ballots were rejected by the Court of Appeals on the ground that the words appearing on the
line for Mayor on the first two ballots are, "totally undecipherable" and on the last two ballots, the words written an said line do not sufficiently identify the
respondent. Respondent claims that the Court of Appeals committed error in not counting these four ballots in his favor under the rule of idem sonans.
On Exhibit C-11, except for the letters, "Ma", the rest of the letters composing the word appearing on the line for mayor are illegible. We agree with the
ruling of the Court of Appeals that the vote contained on this ballot cannot be counted in favor of the respondent. On Exhibit C-59, while the capital letter
"M" was clearly written on the line for mayor the word following it is also illegible. The voter appears to be illiterate. We agree with the Court of Appeals
that the vote on this ballot cannot be counted in favor of respondent.
On Exhibits C-58 rind C-85, the words "Cadia" and "Cuans" appearing on the line for mayor, respectively, do not sufficiently identify the candidate for
whom the vote was intended. The rule of idem sonans, the test of which is whether the sound of the variant spelling is the same or similar, does not
apply to these two ballots. We agree with the ruling of the Court of Appeals that these last two ballots cannot be counted in favor of the respondent.
Ballot Exhibit T-144. This ballot was admitted by the Court of Appeals as valid for petitioner under the rule of idem sonans. Respondent contends that the
word "Tafangu" written on the line for mayor does not fall under the idem sonans rule, and should be rejected and discounted from petitioner.
We have examined the vote in question and found that although at first glance, the word written on the line for mayor may be read as "Tafangu" a careful
examination of the last two strokes shows that they were intended for the letters "i" and "t" after considering the dot above the letter "i" and the failure of
the writer to cross the letter "t" which has relatively a short stem. Thus, the word may he read as "Tafangit". With a liberal application of the rule of idem
sonans, we agree with the ruling of the Court of Appeals that the vote is valid for the petitioner.
Ballot Exhibit C-27. This ballot was declared invalid by the Court of Appeals as having been prepared by two persons upon the theory that the name
"Cazeas" was written by a person other than the one that wrote the other names written thereon. After an examination of the ballot, we agree with the
conclusion reached by the Court of Appeals because this ballot clearly appears to have been filed by two distinct persons (Par. 13, Section 149, Revised
Election Code). This ballot is totally null and void.

Ballot Exhibit C-77. This ballot contains the name of a non-candidate, Julia Valdelion, written on the second line for senators. Rejecting this ballot as
marked, the Court of Appeals stated that the writings of the name "Julia Valdelion" after crossing out the name "E. Cea" clearly indicates an intention to
mark the ballot. Respondent contends that said court committed error in invalidating this ballot invoking the provision on paragraph 13, section 149 of
the Revised Election Code.
It appears that no evidence was presented to show that writing of the name Julia Valdelion was used as a means to identify this ballot. There is no
evidence that this ballot was cast by Julia Valdelion or that she wrote or signed her name thereon. This Court has consistently held that where there is
no evidence that the name of a person or persons, not candidates, were written on the ballot for purposes of identification, said name or names shall be
counted as stray vote but shall not invalidate the whole ballot in accordance with the express provision of paragraph 13, section 149, of the Revised
Election Code. We, therefore, hold that this ballot is valid and should be counted in favor of respondent who was voted thereon for the office of mayor.
Ballot Exhibit T-139. This ballot contains the word "ietin" or "ilting" on the line for mayor. The Court of Appeals admitted this ballot in favor of Ernesto
Tajanlangit on the ground that the word is idem sonans with Esting, nickname of the petitioner, citing the cases of Abrea vs. Lloren (81 Phil., 809,
October 28, 1948) and Perez v. Bimeda (G.R. No. L-8495, April 27, 1955) to support its conclusion. Respondent claims that the Court Appeals
committed error in declaring a mere nickname as a valid vote for petitioner. In support of his contention, he cites the recent case of Tabiana v. Abordo
(Case No. 111, September 27, 1961), where the House Electoral Tribunal held that a nickname alone without being accompanied with the name or
surname of the candidate is an invalid vote.
Examining the ratio decidendi in the case of Abrea v. Lloren, supra, the reason why this Court admitted ballots containing only a nickname was because
602 of the total number of 1,010 votes counted for Isabelo Lloren were cast by writing his nickname "Beloy"; and it had no alternative than to brush aside
legal technicalities for the sake of "giving effect to the will of the people as freely and clearly expressed on the ballots." In justifying the admission of 602
ballots containing the nickname "Beloy," this Court took into consideration certain proven facts, to wit: (a) that in his certificate of candidacy candidate
Lloren stated that he was known by the nickname Beloy; (b) that Lloren distributed sample ballots containing only his nickname Beloy on the line for
Municipal Mayor (c) that the ballots containing only his nickname represent 60% of the total number of votes received by Lloren; and (d) that no
objection was interposed by the against the evidence presented by Lloren he was properly and commonly known by the nickname Beloy; and no other
candidate for mayor bears the same nickname. We believe, however that the Lloren case was an exception to the general rule that in isolated ballots
where a nickname only is written, without being accompanied by the name or surname of the candidate, should not be given effect in accordance with
paragraph 9, Section 149, in connection with Section 34 of the Revised Election Code, which expressly provides that "certificates of candidacy shall not
contain nickname of candidates." Thus, in a later case, citing the case of Abrea v. Lloren, supra, it held that "As a general rule, isolated rotes in favor of a
candidate designated by his nickname only, that is, not accompanied by his name or surname, are invalid (paragraph 9, Section 149 of the Revised
Election Code (Campaner v. Alano, 46 O.G., 5029, December 16, 1948). This is the doctrine enunciated in the case of Tabiana v. Abordo, supra, which
we believe is applicable to the ballot in question. In view of the circumstances mentioned above obtaining in the case of Abrea v. Lloren, supra, we
believe that the doctrine laid down therein regarding nickname is inapplicable to the instant case. The same is true with the case of Perez v. Bemida,
supra, which was based on the Lloren case doctrine.
Moreover, in Section 149, paragraph 1, of the Revised, Election Code, it is provided that "any ballot where only the Christian name or only his surname
appears is valid (paragraph 1). In paragraph 9 of said section, it is also provided that the use of nicknames, if accompanied by the name or surname of
the candidate, does not annul such vote, except when such nicknames are used as a means to identify the voters. From these provisions it may be
inferred that the use of nickname only as a vote is not allowed or permitted otherwise the vote would be invalid. Therefore, the present ballot (Exh. T139) containing only the nickname of petitioner is not a valid vote for him. This ballot should be discounted from petitioner.
Ballots Exhibits T-129, T-130 and T-131. These three (3) ballots contain printed stickers of senatorial candidate Jesus Cuenco pasted on the spaces for
senators. The Court of Appeals, however, declared these three ballots valid for petitioner upon its conclusion, based on the evidence aliunde presented
by the parties, that "the stickers were placed on the ballots after they were read during the canvass and before the ballot boxes and election documents
were finally turned in to the Municipal Treasurer sometime in the afternoon of the following day." This finding of fact is no longer open for review by this
Court; hence, the ruling of the Court of Appeals admitting these three ballots in favor of petitioner should be upheld (Hilao v. Bernados, supra).
In connection with the three ballots referred to above, respondent makes mention of ballot Exhibit C-1, which was declared null and void under the
provision of paragraph 14, section 149 of the Revised Election Code, for containing a printed sticker of candidate Angel V. Sanchez pasted on the line
for vice-governor. Respondent contends that, applying the same ruling, ballots Exhibits T-129, T-130 and T-131 should also be declared null and void.
Respondent's contention is untenable because in this particular ballot, Exhibit C-1, no evidence was presented to prove that the printed sticker was
pasted on the ballot by some other person after the voter had delivered the same to the election inspectors. It was, therefore, properly rejected.
Ballot Exhibit T-78. Respondent objected to this ballot as marked with the name "Jose de la Cruz" written on the 5th line for senators. He contends that
Jose de la Cruz was not a candidate for any office but was a registered voter in the precinct where this ballot was cast. The Court of Appeals ruled that
said name is only a stray vote and does not invalidate the whole ballot. In the absence of evidence that the name Jose de la Cruz was used as a means
to identify the ballot, or that the ballot was cast by him where he wrote or signed his name thereon, we agree with the ruling of the Court of Appeals
admitting this ballot under the provision of paragraph 13, section 149, of the Revised Election Code.
Ballots Exhibits T-83, T-84 and T-89. These ballots were objected to by respondent as marked ballots, the alleged distinguishing mark consisting of the
word "olo" written on the right hand margin of each ballot. Upon the evidence aliunde presented by the parties, the Court of Appeals concluded "that the
mark "olo" appearing on these ballots was placed thereon by some other person after they had been cast by their respective voters." It ruled that the
ballots are valid for petitioner. This finding of fact made by the Court of Appeals based upon the evidence presented by the parties is no longer open for
review by this Court (Hilao v. Bernados, supra).
It is a well settled rule in election contests that the marks which shall be considered sufficient to invalidate the ballot are those which the voter himself
deliberately replaced on his ballot for the purpose of identifying it thereafter (Valenzuela v. Carlos and Lopez de Jesus, 42 Phil., 428). In other words, a
mark placed on the ballot by a person other than the voter himself does not invalidate the ballot as marked. We, therefore, uphold the ruling of the Court
of Appeals admitting these three ballots for petitioner.
Ballots Exhibits T-48, T-50, T-91 and T-107. These four (4) ballots were admitted by the Court of Appeals overruling the objection interposed by
respondent that the same were each prepared by two distinct persons. We have carefully examined the ballots in question and we agree with the
conclusion reached by the Court of Appeals upholding the validity of these four ballots.
In resume, we find that three (3) ballots (Exhs. T-4, T-11 and T-94) were improperly rejected and should be counted in favor of petitioner. One ballot
(Exh. T-139) was, however, improperly admitted in favor of petitioner and should be deducted from him. With these changes, petitioner received a total
of 1,565 valid votes. We also find that one (1) ballot (Exh. C-77) was improperly rejected and should be counted in favor of respondent. This will give him
a total of 1,565 valid votes.

Since the result of this protest is a tie, it is necessary that lots be drawn between the two candidates as provide for in Section 170 of the Revised
Election Code.
WHEREFORE, the decision of the Court of Appeals is hereby modified in the sense that petitioner and respondent should draw lots to solve the tie as
provided for in said section, without pronouncement as to costs.
Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera,

EN BANC
[G.R. No. 143351. September 14, 2000]
MA. AMELITA C. VILLAROSA, petitioner, vs. THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and RICARDO V. QUINTOS,
respondents.
[G.R. No. 144129. September 14, 2000]
MA. AMELITA C. VILLAROSA, petitioner, vs. THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and RICARDO V. QUINTOS,
respondents.
DECISION
DAVIDE, JR., C.J.:
These cases, which were ordered consolidated on 15 August 2000, have their genesis in HRET Case No. 98-030,[1] an election protest case filed by
private respondent Ricardo V. Quintos (hereafter QUINTOS) against petitioner Amelita C. Villarosa (hereafter VILLAROSA) before the House of
Representatives Electoral Tribunal (hereafter HRET).
VILLAROSA and QUINTOS were the only candidates for the office of Representative of the Lone Legislative District of Occidental Mindoro in the 11 May
1998 synchronized national and local elections. On 27 May 1998 the Provincial Board of Canvassers proclaimed VILLAROSA as the winning candidate
with a margin of 3,032 votes.
On 4 June 1998 QUINTOS filed an election protest against VILLAROSA[2] contesting the results of the election in all the 882 precincts in the eleven
municipalities of Occidental Mindoro on the following grounds: (1) the ballots were misread and counted in favor of protestee; (2) there was rampant
substitute voting, i.e., persons other than the registered voters voted; (3) violence and intimidation were committed by protestee and her followers
against known supporters of protestant to enhance protestees candidacy; 4) previously prepared ballots for the protestee were deposited in the ballot
boxes; and (5) illiterate Mangyan voters voting for protestant were assisted by self-appointed assistors of protestee, who wrote JTV on the ballots
contrary to the instruction of said illiterate voters.
On 6 July 1998 VILLAROSA filed her Answer with Counter-Protest and Counterclaim.[3] She counter-protested the results of the election in 497
precincts.
During the preliminary conference conducted by the HRET on 6 August 1998, QUINTOS and VILLAROSA agreed on the following facts:
1. Protestant and Protestee were registered candidates for and voted as Representatives, Lone Legislative District of Occidental Mindoro in the May 11,
1998 elections;
2. On May 27, 1998, after canvass of returns, the Provincial Board of Canvassers proclaimed Protestee Villarosa as the winning candidate for having
obtained fifty-five thousand four hundred (55,400) votes, or a margin of three thousand thirty-two (3,032) votes over Protestant Quintos who was credited
fifty-two thousand three hundred sixty-eight (52,368) votes;
3. All the precints in the Lone Legislative District of Occidental Mindoro functioned in the elections;
4. Protestant contests the results of the elections in all the precints of the eleven (11) municipalities comprising the Lone Legislative District of Occidental
Mindoro; upon the other hand, Protestee counter-protests the results of the elections in four hundred ninety-seven (497) precints;
5. Protestee is wife of JOSE T. VILLAROSA, who was Representative of the District in question for two terms, the last of which ended on June 30, 1998;
in his certificate of candidacy for the election of May 8, 1995, JOSE T. VILLAROSA wrote as his nickname or stage name: JOE-JTV.
6. In her certificate of candidacy, Protestee wrote JTV as her nickname/stage name.
7. In her affidavit dated April 16, 1998 sent to the Office of the Provincial Election Supervisor, Occidental Mindoro, Protestee asked that she be allowed
to insert in her certificate of candidacy the name GIRLIE such that her name should read in full as MA. AMELITA Girlie C. VILLAROSA as in every
barangays [sic] of the Province of Occidental Mindoro she is known as Girlie Villarosa;
8. In a letter dated March 27, 1998 sent by Provincial Election Supervisor (PES) Arsenio Guste of Occidental Mindoro to Director Jose B. Balbuena, Law
Department, COMELEC, the former notified the latter that the nickname of protestee in her certificate of candidacy is JTV;
9. In his Memorandum dated May 10, 1998 to all Election Officers, PES Guste informed them that JTV is the authorized nickname or stage name of
protestee and that henceforth JTV, for all intents and purposes, in the appreciation of official ballots, should be counted in her favor;
10. One Atty. Dan Restor of San Jose, Occidental Mindoro, had filed with the COMELEC a petition to invalidate/cancel JTV as the official nickname of
the protestee; the petition was docketed as Election Matter No. 98-044; both Protestant and Protestee were not made formal parties thereto;
11. In its Resolution of May 11, 1998, the COMELEC en banc unanimously granted the petition in Election Matter No. 98-044; it ruled that the Protestee
cannot use the nickname JTV considering that the same is not her nickname to which she is popularly known. Protestees motion to reconsider the
resolution was denied by the COMELEC in its Order of May 13, 1998; Protestee thereafter filed with the Supreme Court a Special Civil Action for
Certiorari to challenge the resolution and order, which was docketed as G.R. No. 133927, which is still pending therein;
12. Per joint affidavit of Ms. Michelle Vizcarra and Mrs. Carmen Antonio (Annex D of Petition) a copy of the COMELEC Resolution of May 11, 1998 in
Election Matter No. 98-044 was received by PES Guste at around 4:00 p.m., but were seen by him at 4:20 p.m. of May 11, 1998;
13. Before the filing of this protest, Protestant filed with the COMELEC a petition to disqualify Protestee, which was docke[te]d therein as SPA No. 98342, on the grounds that protestee had given money or material consideration to influence, induce or corrupt the voters or public officials performing
electoral functions and committed acts of terrorism to enhance her candidacy. The case is still pending.[4]
The parties further agreed and stipulated on the following issues:
1. Whether or not the votes JTV should be counted in favor of Protestee;

2. Recount and appreciation of ballots;

3. Damages, attorneys fees and litigation expenses as alleged and prayed for by Protestee, and according to Protestant, as indicated in prayer for
other relief, just and equitable.[5]
The HRET thereafter required the parties to designate 25% of the protested and counter-protested precincts as their respective pilot precincts pursuant
to Rule 68 of the HRET Rules of Procedure.
During the revision, ballots bearing JTV, JTB, GTV, GTB, Jitivi, Gitivi, Jitibi and Gitibi on the line for Representative were classified as ballots
for VILLAROSA, which the revisors of QUINTOS objected to. Likewise, ballots bearing Girlie on the line for Representative were classified as votes for
VILLAROSA.
On 5 August 1999, QUINTOS filed a Motion to Withdraw Remaining Non-Pilot Protested Precincts.[6]
On 7 October 1999, after granting this motion, the HRET promulgated a resolution[7]stating that with QUINTOS withdrawal of the remaining non-pilot
protested precincts, QUINTOS impliedly limited the issue to
WHETHER OR NOT THE JTV VOTES SHOULD BE COUNTED IN FAVOR OF PROTESTEE AMELITA C. VILLAROSA
On 9 December 1999 the HRET conducted an oral argument and heard QUINTOS and VILLAROSA on the aforestated issue.[8]
On 18 May 2000, the HRET promulgated Resolution No. 00-65[9] wherein it resolved to PROCEED with the revision of the ballots in the remaining
75%; and DIRECT the Secretariat to continue with the revision. This resolution prompted VILLAROSA to file an Omnibus Motion[10] praying for (1) the
suspension of the revision of the ballots pursuant to HRET Resolution No. 00-65; (2) a categorical ruling that all ballots cast for JTV are valid votes for
VILLAROSA; and (3) the dismissal of the protest.
On 8 June 2000 the HRET issued Resolution No. 00-82[11] informing the parties that the Tribunal ruled on May 18, 2000, by [a] vote of 5-4 of its
members, not to count JTV and its variations as valid votes for Protestee Amelita C. Villarosa, the same being considered stray ballots... [and that it]
directed that the revision of ballots proceed with respect to the 75% counter-protest precincts.
On 14 June 2000, VILLAROSA filed with this Court a petition for certiorari docketed as G.R. No. 143351. She alleged therein that the HRET gravely
abused its discretion in (a) issuing the above-mentioned resolutions of 18 May and 8 June 2000 in that it violated her right to due process when it
disposed by a 5-4 ruling a vital election incident without stating therein the findings of fact and law on which the resolutions were based; and (b) treating
JTV votes as stray and invalid, resulting in the disenfranchisement of the voters of Occidental Mindoro. She argued that JTV was her designated
nickname in the official list of candidates submitted by the provincial election supervisor to the COMELEC in Manila; it was the nickname she used in her
posters, handbills and other election propaganda throughout the campaign period. In her speeches during the rallies, she urged the voters who might
have found her full name difficult to write to simply vote JTV, as she had decided to use that nickname as a shortcut of her name as a married woman
under Article 370 of the Civil Code. Under this Article, a married woman may use (1) her maiden first name and surname and add her husbands
surname; (2) her maiden first name and her husbands surname; or (3) her husbands full name, but prefixing a word indicating that she is his wife, such
as Mrs.
VILLAROSA then prayed that this Court issue a temporary restraining order (TRO) or a writ of preliminary injunction in G.R. No. 143351 to enjoin the
HRET from resuming the revision of the remaining ballots in HRET Case No. 98-030. The Court, however, did not issue a TRO but required the HRET
and QUINTOS to file a comment on the petition.
In his Comment, QUINTOS alleged that the petition in G.R. No. 143351 is premature because the HRET had not yet rendered a decision on the election
protest. The assailed resolutions of the HRET are not decisions or formal resolutions which, as mandated by the Constitution, should set out the facts
and the law on which they are based; nor are they acts which may be reviewed by certiorari under Rule 65 of the Rules of Court. As to the use of JTV
as VILLAROSAs nickname, QUINTOS claims that the HRETs ruling on the matter should be maintained because under Section 211 of the Omnibus
Election Code any vote containing initials only shall be considered a stray vote. Moreover, VILLAROSAs use of such nickname was attended by bad
faith, fraud and misrepresentation, and could have been for no other purpose than to make voters believe that they are voting for her husband, who was
the Congressman of Occidental Mindoro for two terms and the incumbent Congressman at the time of the elections on 11 May 1998.
The Office of the Solicitor General submitted a Manifestation in Lieu of Comment and took the position that JTV votes should be declared valid and
counted in favor of VILLAROSA, and to declare otherwise would frustrate the sovereign will of the people of Occidental Mindoro.
No TRO having been issued by this Court, the revision of the ballots of the remaining 75% of the counter-protested precincts went on and was
completed on 28 June 2000. Because of the ruling that JTV votes or votes consisting of variations of JTV are stray votes, VILLAROSA lost 1,842
votes in the 75% counter-protested precincts and 4,336 votes in the 25% pilot precincts.
Accordingly, in its decision promulgated on 27 July 2000,[12] the HRET, by a vote of 5-4, (1) ruled that QUINTOS obtained 51,465 votes, while
VILLAROSA garnered 48,617 votes; (2) declared QUINTOS as the duly elected Representative of the Lone District of Occidental Mindoro, having
obtained the highest number of votes with a margin of 2,848 votes over VILLAROSA; and (3) ordered VILLAROSA to vacate her office at the House of
Representatives.
The HRET maintained that the issue of whether to count in favor of VILLAROSA votes for JTV or its variations necessitated a determination of whether
VILLAROSA was in fact generally or popularly known as such in the locality of Occidental Mindoro.
The HRET held against VILLAROSA for various reasons. First, in her affidavit asking for the insertion of GIRLIE between her given name and surname
she stated that she was known as GIRLIE in every barangay of the Province of Occidental Mindoro. This is an admission that, indeed, her nickname is
not JTV but GIRLIE. In fact, votes cast for GIRLIE were credited in her favor. Hence, the counting in her favor of ballots bearing JTV votes on the
line for Representative would be tantamount to injustice because that would allow VILLAROSA to use two nicknames, GIRLIE and JTV, which would
be in violation of the second paragraph of Section 74 of the Omnibus Election Code allowing candidates to use only one nickname or stage name by
which they are generally or popularly known in the locality. Moreover, Rule 13, Section 211 of the Omnibus Election Code on appreciation of ballots
provides:
The use of nicknames and appellations of affection and friendship, if accompanied by the first name or surname of the candidate, does not annul such
vote, except when they were used as a means to identify the voter, in which case the whole ballot is invalid; Provided, That if the nickname used is

unaccompanied by the name or surname of a candidate and it is the one by which he is generally or popularly known in the locality, the name shall be
counted in favor of said candidate, if there is no other candidate for the same office with the same nickname.
The HRET thus agreed with the COMELEC in its resolution[13] that disallowed VILLAROSA to use JTV as a nickname because the same was not her
nickname with which she was popularly known. In other cases the COMELEC en banc in its Resolution No. 95-0707 of 9 February 1995 required the
following senatorial candidates in the 8 May 1995 elections to submit other names considering that the nicknames or stage names they submitted were
not acceptable under the law for purposes of their candidacy:
1. Juan Flavier, who submitted the nickname Lets DOH it, which is a slogan of the Department of Health and not the nickname of a person;
2. Rodolfo Biazon, who submitted the nickname General, which cannot refer to Rodolfo Biazon only;
3. Gloria Macapagal-Arroyo, who submitted the nickname GMA, which is more associated with Channel 7; and
4. Sergio Osmea III, who submitted the nickname OK Eskapo, which is a title of a recent movie and not a general or popular nickname of Osmea.
Finally, the HRET invoked Rule 14 of Section 211 of the Omnibus Election Code, which provides that any vote containing initials only or which does
not sufficiently identify the candidate for whom it is intended shall be considered stray vote. The letters JTV and its derivatives do not adequately
describe the identity of VILLAROSA considering that they are part of the JOE-JTV nickname of Jose Tapales Villarosa who had been the
representative of the district in question for two terms, the last of which ended on 30 June 1998. The letters JTV could not definitely impress upon the
voters that the person running for election was indeed petitioner VILLAROSA.
Her motion for the reconsideration of the decision having been denied, VILLAROSA filed in G.R. No. 143351 a Supplemental Manifestation with Urgent
Motion to Act on a Pending Prayer and pleaded that this Court issue a temporary restraining order or a status quo order pending deliberation on, and
resolution of, the petition.
On 8 August 2000 this Court required QUINTOS to comment on the Supplemental Manifestation, and set the case for oral argument on 15 August 2000.
On 11 August 2000 VILLAROSA filed a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, which was docketed as G.R. No.
144129, (1) assailing the HRET decision; (2) reiterating the issue of the validity of the JTV votes; and (3) charging the HRET with grave abuse of
discretion in dispensing with the hearings and appreciation of ballots in the remaining 75% counter-protested precincts, thereby depriving her of the right
to due process.
QUINTOS filed his Comment on the Supplemental Manifestation in G.R. No. 143351. Later, in his Addendum to Comment he informed the Court that on
12 August 2000, following the denial by the HRET of VILLAROSAs motion for reconsideration, he took his oath of office as Representative of the Lone
Legislative District of Occidental Mindoro. He then prayed that the petition in G.R. No. 14335 be dismissed for having been rendered moot and
academic.
At the oral argument on 15 August 2000, the parties argued on the following issues:
(1) Whether or not due process was observed by the HRET in rendering the decision in question.
(2) Whether or not the HRET committed grave abuse of discretion in not counting in favor of VILLAROSA the votes for JTV or derivatives thereof.
(3) Whether or not this Court can still sustain the enforcement of the decision of the HRET considering its rules on finality of judgment and the fact that
QUINTOS has taken his oath of office.
By a vote of 7-4, the Court resolved to issue a Status Quo Order allowing VILLAROSA to continue holding her office until 29 August 2000.
On 29 August 2000, by a vote of 7-4, with Davide, Jr., C.J.; Bellosillo; Kapunan; Quisumbing; Purisima; Buena and Santiago, JJ., voting in favor of the
dismissal of these petitions; and with Puno, Panganiban, Reyes and De Leon, JJ., dissenting, the Court resolved to dismiss the petitions in these cases,
without prejudice to an extended opinion. We also ordered the immediate lifting of the status quo order issued on 15 August 2000.
This ponencia is an extended opinion.
The first two issues revolve on the ruling of the HRET limiting the issue to the validity of the votes for JTV or derivatives thereof and in dispensing with
the hearings and appreciation of ballots in the remaining 75% of the counter-protested precincts.
We hold that VILLAROSA was not denied due process in this regard. As to the limitation of the issue, VILLAROSA has herself to blame. First, she
sought no reconsideration of the pronouncement of the HRET in its 7 October 1999 Resolution that [w]ith Protestants withdrawal of the remaining nonpilot protested precincts, Protestant impliedly limited the issue to whether or not JTV votes should be counted in favor of protestee Amelita C. Villarosa.
Second, at the oral argument before the HRET on 9 December 1999, VILLAROSAs counsel did not object to, but instead concurred with, QUINTOS
submission that the case would rise or fall on how the Tribunal would rule on the JTV votes.
The assailed decision of the HRET quotes the statements of Atty. Felizmea, counsel for QUINTOS, and Atty. Makalintal, counsel for VILLAROSA,
during the oral argument, thus:
Atty. Felizmea: x x x Our case will rise or fall on JTV on whether or not it is valid or not x x x (TSN of December 9, 1999, Part I, p. 10)
xxx
Atty. Felizmea: x x x if this Tribunal will validate JTV ballots, I have no case. (Ibid, ibid, p. 14)
xxx
Atty. Felizmea: x x x as I said earlier, I already withdrew the balance of our protest, Your Honor, and I will only submit for resolution on the precincts so
revised, referring to the pilot precincts of both parties. Now, even in the pilot precincts of the protestee, Your Honor, there were 865 ballots containing

JTV and its derivatives so it will increase even the lead of the protestant should the Hon. Tribunal rule[ ] that JTV is null and void. However, if the rule
is valid, I have no more case (Ibid, Part II, p. 10)
xxx
Atty. Felizmea: x x x And finally, Your Honors, there are sufficient ballots containing JTV and its derivatives including Girlie which will offset the
winning margin of the protestee by more than one thousand eight hundred (1,800). And the protestee, in the remaining non-pilot counter-protested
[precincts] will not anymore recover what she had lost here in the pilot precincts because the pilot precincts are supposedly the precincts where the
anomaly is more notorious. So, there is no more chance for the protestee to recover what she had lost if JTV ballots are considered stray. (Ibid, Part III,
p. 23)
xxx
Atty. Felizmea: x x x we already withdrew our remaining non-pilot protested precincts. What is now left for the Tribunal is to decide whether or not it will
continue the revision of the non-pilot counter-protested precincts x x x We submit, Your Honors, that if this Honorable Tribunal will consider as stray
JTV ballots, we will sufficiently overcome the winning margin. And the protestee cannot overcome our winning margin in the non-pilot counter-protested
precincts. So that, therefore, Your Honors, there is no need anymore to go though [sic] and this case could be decided without anymore revising. That is
why we withdrew, as we stated earlier, our case will rise and fall on JTV. x x x (Ibid, ibid, pp. 24-25)
xxx
Atty. Macalintal: x x x Well, I have nothing more to discuss, Your Honors, because I think the only issue here is whether we could validate the use[ ] of
initials, Your Honors. (Ibid, Part IV, p. 25).[14] (underscoring supplied for emphasis)
Finally, after the HRET promulgated its resolution of 18 May 2000 directing the revision of the ballots in the remaining 75% precincts, VILLAROSA filed
an Omnibus Motion, praying for, inter alia, a categorical ruling that all ballots cast for JTV are valid votes for her. In its resolution of 8 June 2000 the
HRET ruled by a 5-4 vote not to count JTV and its variations as valid votes for VILLAROSA.
In the 1918 case of Banco Espaol-Filipino v. Palanca[15] this Court held:
As applied to a judicial proceeding, however, it may be laid down with certainty that the requirement of due process is satisfied if the following conditions
are present, namely; (1) there must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be
lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an
opportunity to be heard; and (4) judgment must be rendered upon the lawful hearing.
The essence of due process is the reasonable opportunity to be heard and submit evidence in support of ones defense. To be heard does not only
mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings,
is accorded, there is no denial of due process.[16]
From the foregoing, it is too plain and obvious that not only was VILLAROSA heard on the issue, she even moved that the HRET make a categorical
ruling that all ballots cast for JTV are valid ballots for her. VILLAROSA cannot now be heard to complain that she was denied due process.
With the ruling that the only issue left for determination was whether to count in favor of VILLAROSA votes cast for JTV or variations thereof, it logically
follows that a hearing or appreciation of ballots other than those cast for JTV or variations thereof in the remaining 75% counter-protested precincts
was unnecessary. All that was to be done was to segregate therefrom ballots bearing JTV or variations thereof.
Concretely then, the only issue that can justify our taking cognizance of these cases is to determine, pursuant to our duty under Section 1 of Article VIII
of the Constitution, whether the HRET committed grave abuse of discretion amounting to lack or excess of jurisdiction in declaring the JTV votes as
stray votes. It should not be forgotten that under the Constitution the HRET is the sole judge of all contests relating to the election, returns and
qualifications of the Members of the House of Representatives.[17] Grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction; or, in other words, where the power is exercised in an arbitrary manner by reason of passion or personal
hostility. It must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[18]
If the HRET had committed grave abuse of discretion amounting to lack or excess of jurisdiction, then the aggrieved party may come to us for redress by
way of a special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure even if by the HRET Rules of Procedure the assailed
judgment has become final and the prevailing party has taken his oath of office or assumed his position. The HRET rule on finality of its judgment cannot
divest the Supreme Court of its power and duty under Section 1 of Article VIII of the Constitution to determine in a proper case whether there has been
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of HRET.
Explaining this duty of the courts, then Commissioner Roberto R. Concepcion, former Chief Justice, stated:
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its offices. In other words,
the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.[19]
The facts established in this case, strengthened by the admission of the parties at the preliminary conference conducted by the HRET on 6 August 1998
and during the oral argument before the Court on 15 August 2000, lead us to no other conclusion than that the use by VILLAROSA of JTV as her
nickname or stage name, as indicated in her Certificate of Candidacy, was a clever ruse or ploy to make a mockery of the election process. Therefore,
the HRET did not commit any grave abuse of discretion in ruling that JTV votes should not be counted in favor of VILLAROSA. They are stray votes.
Here are the facts:
1. The husband of petitioner is Jose Tapales Villarosa.
2. Jose Tapales Villarosa was elected Representative of the Lone Legislative District of Occidental Mindoro in the 1992 and 1995 elections, thereby
serving two full terms.

3. During the election and campaign periods for the 11 May 1998 elections Jose Tapales Villarosa was the incumbent Representative of the Lone
Legislative District of Occidental Mindoro.
4. In his certificate of candidacy for the May 1995 elections Jose Tapales Villarosa entered as his nickname JOE-JTV. As stated by counsel for
VILLAROSA during the 15 August 2000 oral argument, JOE and JTV are two nicknames of Jose Tapales Villarosa.
5. Per admission of VILLAROSAs counsel during the oral argument on 15 August 2000, JTV was used by Jose Tapales Villarosa as his nickname in
both the 1992 and 1995 elections, and the public was publicly informed thereof.[20]
6. JTV refers actually to the initials of Jose Tapales Villarosa.
7. Before VILLAROSA filed her certificate of candidacy on 27 March 1998 for the 11 May 1998 elections, VILLAROSA never used JTV as her nickname
or stage name. Her nickname was GIRLIE. In her affidavit dated 16 April 1998 which she filed with the Provincial Election Supervisor, she requested
that she be allowed to insert in her Certificate of Candidacy the name GIRLIE between her given name Amelita and the initial of her maiden surname C
so that her name would read in full as follows: MA. AMELITA Girlie C. VILLAROSA.
8. In said affidavit of 16 April 1998, VILLAROSA solemnly declared under oath that she was known as GIRLIE Villarosa in every barangay of the
Province of Occidental Mindoro.
9. During the campaign period for the 11 May 1998 elections, VILLAROSAs campaign streamers (e.g., Annex P-1 of Petition in G.R. No. 144129) and
handbills (e.g., Annex P-2, id.) did not at all show that JTV was her nickname. She earlier wanted her real nickname GIRLIE to be placed between
AMELITA and VILLAROSA per the request in her affidavit of 16 April 1998, which request was not acted upon.
From the foregoing, the following conclusions are beyond dispute:
First, JTV represents either the initials or the nickname of Jose Tapales Villarosa.
Second, VILLAROSA was never generally or popularly known as JTV. She was generally or popularly known as GIRLIE. Clearly then, since JTV
remains to be either the initials or nickname of Jose Tapales Villarosa, who was the incumbent Congressman during the election and campaign periods
for the 11 May 1998 elections, votes entered or written as JTV cannot be considered as votes for petitioner. The votes JTV or any variations thereof
are, therefore, stray votes.
It would be the height of naivety to believe that, indeed, JTV is petitioners nickname, or that she used it for any other purpose than to ride on the
popularity of her husband to mislead the voters, especially the less informed.
The plea that the voters intention must prevail is misplaced. It assumes that those who wrote JTV actually intended to vote for petitioner. This could be
true only if the person who actually owns the nickname or the initials JTV were not (a) VILLAROSAs husband, (b) the incumbent Representative who
had won as such in both the 1992 and 1995 elections, (c) generally and popularly known as JTV when he ran and campaigned for Representative in
both elections in the same legislative district where VILLAROSA ran in the May 1998 elections. But since these were the immutable facts, the voters who
wrote JTV or variations thereof had no other person in mind except the then incumbent Representative, Jose Tapales Villarosa, or the very person
whom they have known for a long time as JTV.
The foregoing facts distinguish these cases from those relied upon by VILLAROSA and in the concurring and dissenting opinion of Mme. Justice
Gonzaga-Reyes.
Since JTV undoubtedly refers to the initials or nickname of VILLAROSAs husband, Jose Tapales Villarosa, who was, let it be stressed again, the
incumbent Representative of the district in question at the time of the election for his successor, neither reason nor rhyme can support or justify a claim
that JTV votes were intended for petitioner VILLAROSA.
Article 370 of the Civil Code, which VILLAROSA invokes, provides no relief for her. The article enumerates the names which a married woman may use.
One of them is her husbands full name, but prefixing a word indicating that she is his wife, such as Mrs. If VILLAROSA had availed herself of this, as
she suggested in her petition and during the oral argument, then her name would be MRS. JOSE TAPALES VILLAROSA. If for expediency and
convenience she would use the initials of her husband, then her name, in initials would be MRS. JTV. Yet, on this point, VILLAROSA even attempted to
confuse us. During the oral argument on 15 August 2000 she tried to convince us that MRS. JTV is also her nickname, thus:
CHIEF JUSTICE:
And before 1995 can you inform the Court if Mrs. Villarosa the petitioner here had ever used the nickname JTV?
ATTY. DE LIMA BOHOL:
As Mrs. JTV, yes, but not purely as JTV. I am not aware of any instance where she used purely as JTV but as Mrs. JTV.
CHIEF JUSTICE:
Do you have evidence to show that before 1995 elections JTV was the nickname of Mrs. Villarosa or the petitioner now?
ATTY. DE LIMA BOHOL:
We dont have evidence, Your Honor.
CHIEF JUSTICE:
Can you tell the Court if at any time before the filing of the certificate of candidacy of the petitioner before the May 11, 1998 election she ever used the
nickname JTV?
ATTY. DE LIMA BOHOL:

As Mrs. JTV, yes.

CHIEF JUSTICE:
So, before the filing of the certificate of candidacy for the May 11, 1998 election the petitioner here used the nickname Mrs. JTV?
ATTY. DE LIMA BOHOL:
Yes, Your Honor.
CHIEF JUSTICE:
Meaning, I stress Mrs. JTV?
ATTY. DE LIMA BOHOL:
Yes, your Honor.[21] (Emphasis supplied)
This attempt further proves beyond doubt that, indeed, JTV had never been VILLAROSAs nickname.
Even if VILLAROSA decided to use JTV as her nickname for purposes of the 11 May 1998 elections, one must never forget that she never used it as a
nickname before she filed her certificate of candidacy. The nickname which the second paragraph of Section 74 of the Omnibus Election Code allows to
be included in the certificate of candidacy is that by which [the candidate] is generally or popularly known. This clearly means the nickname by which
one has been generally or popularly known BEFORE the filing of the certificate of candidacy, but NOT what the candidate wants to THEREAFTER use.
By her own statement under oath in her affidavit of 16 April 1998, VILLAROSA solemnly declared that she was generally and popularly known in every
barangay in Occidental Mindoro as GIRLIE BEFORE and AFTER she filed her certificate of candidacy. And, as asserted by her counsel during the oral
argument on 15 August 2000, her other nickname before she filed her certificate of candidacy was MRS. JTV, not JTV.
Rule 13 of Section 211 of the Omnibus Election Code cannot be applied in favor of VILLAROSA. That rule allows the use of (a) a nickname and
appellation of affection and friendship, provided that it is accompanied by the first name or surname of the candidate, unless the nickname or appellation
is used to identify the voter; and (b) a nickname, which is not accompanied by the name or surname of a candidate, provided that it is the one by which
the candidate is generally or popularly known in the locality. In both instances, the vote cast for the nickname is a valid vote for the candidate concerned.
The JTV votes are unaccompanied by her first name or surname; and JTV is not, to repeat, a nickname by which VILLAROSA was generally and
popularly known in the Legislative District of Occidental Mindoro. The HRET then committed no error in not applying in favor of VILLAROSA Rule 13,
Section 211 of the Omnibus Election Code.
Significantly, VILLAROSAs original counsel admitted during the oral argument on 9 December 1999 that JTV are mere initials, thus:
Atty. Macalintal: xxx Well, I have nothing more to discuss, Your Honors, because I think the very issue here is whether, we could validate the used [sic] of
initials, Your Honors.
The HRET was thus correct in applying Rule 14 of Section 211 of the Omnibus Election Code, which provides:
14. Any vote containing initials only or which is illegible or which does not sufficiently identify the candidate for whom it is intended shall be considered as
a stray vote but shall not invalidate the whole ballot.
Under this rule three kinds of votes are considered stray: (1) a vote containing initials only, (2) a vote which is illegible, and (3) a vote which does not
sufficiently identify the candidate for whom it is intended. The only error of the HRET is its ruling that if the votes are in initials only, they are to be
considered stray votes if they do not sufficiently identify the candidate for whom the votes are intended. The first category of stray votes under this rule is
not to be qualified by the third category in the sense that votes in initials only may be counted for a candidate provided that the initials would sufficiently
identify the candidate voted for. Such construction of the rule fails to give meaning to the disjunctive conjunction OR separating the first category from
the second, and the second from the third.
Furthermore, since votes for GIRLIE written in the space for Representative were in fact claimed by VILLAROSA and credited in her favor, then the
HRET correctly ruled that JTV votes or variations thereof, under the idem sonans rule, cannot be counted for VILLAROSA because only one nickname
or stage name is allowed.
From all the foregoing, bad faith or malice on the part of VILLAROSA was evident when, in her certificate of candidacy and campaign materials, she
appropriated the initials or nickname of her husband, the incumbent Representative of the district in question whom she wanted to succeed in office. She
tried to make a mockery of a process whose credibility is essential in preserving democracy. Nullus commodum potest de injuria sua propia. No one
should be allowed to take advantage of his own wrong.
Howsoever viewed, public respondent HRET did not commit any abuse of discretion in holding that the only issue for its determination was whether
JTV votes or variations thereof should be counted in favor of VILLAROSA and in ruling that such votes are stray votes.
WHEREFORE, the petitions in these cases are DISMISSED for lack of merit.
SO ORDERED.

G.R. No. 106270-73February 10, 1994

SULTAN MOHAMAD L. MITMUG, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO,
LANAO DEL SUR, and DATU GAMBAI DAGALANGIT, respondents.
Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.
Brillantes, Nachura, Navarro & Arcilla for private respondent.

BELLOSILLO, J.:
The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur, was abnormally low. As a result, several petitions were filed
seeking the declaration of failure of election in precincts where less than 25% of the electorate managed to cast their votes. But a special election was
ordered in precincts where no voting actually took place. The Commission on Elections (COMELEC) ruled that for as long as the precincts functioned
and conducted actual voting during election day, low voter turnout would not justify a declaration of failure of election. We are now called upon to review
this ruling.
Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI DAGALANGIT were among the candidates for the mayoralty
position of Lumba-Bayabao during the 11 may 1992 election. There were sixty-seven (67) precincts in the municipality.
As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49) precincts where the average voter turnout was 22.26%, i.e., only
2,330 out of 9,830 registered voters therein cast their votes. Five (5) of these precincts did not conduct actual voting at all. 1
Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the five (5) precincts which failed to function during election day.
On 30 July 1992 another special election was held for a sixth precinct. 2
In the interim, petitioner filed a petition seeking the annulment of the special election conducted on 30 May 1992 alleging various irregularities such as
the alteration, tampering and substitution of ballots. But on 13 July 1992, COMELEC considered the petition moot since the votes in the subject precincts
were already counted. 3
Other petitions seeking the declaration of failure of election in some or all precincts of Lumba-Bayabao were also filed with COMELEC by other
mayoralty candidates, to wit:
1.
SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an urgent petition praying for the holding of a special
election in Precinct No. 22-A alleging therein that when the ballot box was opened, ballots were already torn to pieces. On 14 July 1992, the petition was
granted and a special election for Precinct No. 22-A was set for 25 July 1992. 4
2.
SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate, filed a petition to declare failure of election in
twenty-nine (29) more precincts as a result of alleged tampering of ballots 5 and clustering of precincts. 6 On 16 July 1992, the petition was dismissed.
COMELEC ruled that there must be a situation where there is absolute inability to vote before a failure of election can be declared. 7 Since voting was
actually conducted in the contested precincts, there was no basis for the petition.
3.
SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time seeking to exclude from the counting the ballots cast in
six (6) precincts on the ground that the integrity of the ballot boxes therein was violated. 8 Again, on 14 July 1992, COMELEC considered the petition
moot, as the issue raised therein was related to that of SPA No. 92-311 which on 9 July 1992 was already set aside as moot. 9
4.
SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty candidate, filed a petition which in the main sought the
declaration of failure of election in all sixty-seven (67) precincts of
Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of voters. 10 On 9 July 1992, COMELEC dismissed the petition, ruling
that the allegations therein did not support a case of failure of election. 11
On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But COMELEC treated the same as a motion for reconsideration and
promptly denied it considering that under the COMELEC Rules of Procedure such motion was a prohibited pleading. 13
Thereafter, a new board of Election Inspectors was formed to conduct the special election set for 25 July 1992. Petitioner impugned the creation of this
Board. Nevertheless, on 30 July 1992, the new Board convened and began the canvassing of votes. Finally, on 31 July 1992, private respondent was
proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del Sur.
On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of failure of election in forty-nine (49) precincts where less than a
quarter of the electorate were able to cast their votes. He also prayed for the issuance of a temporary restraining order to enjoin private respondent from
assuming office.
On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of Lanao del Sur disputing the result not only of some but all the
precincts of Lumba-Bayabao, del Sur. 14
Respondents, on the other hand, assert that with the filing of an election protest, petitioner is already deemed to have abandoned the instant petition.
It may be noted that when petitioner filed his election protest with the Regional Trial Court of Lanao del Sur, he informed the trial court of the pendency of
these proceedings. Paragraph 3 of his protest states "[T]hat on August 3, 1992, your protestant filed a Petition for Certiorari with the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation of the herein protestee. . . ." 15 Evidently, petitioner did not
intend to abandon his recourse with this Court. On the contrary, he intended to pursue it. Where only an election protest ex abundante ad cautela is filed,
the Court retains jurisdiction to hear the petition seeking to annul an election. 16

The main issue is whether respondent COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in denying motu proprio and
without due notice and hearing the petitions seeking to declare a failure of election in some or all of the precincts in Lumba-Bayabao, Lanao del Sur.
After all, petitioner argues, he has meritorious grounds in support thereto, viz., the massive disenfranchisement of voters due to alleged terrorism and
unlawful clustering of precincts, which COMELEC should have at least heard before rendering its judgment.
Incidentally, a petition to annul an election is not a pre-proclamation controversy. Consequently, the proclamation of a winning candidate together with his
subsequent assumption of office is not an impediment to the prosecution of the case to its logical conclusion. 17
Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a verified petition to declare a failure to elect, notices to all
interested parties indicating therein the date of hearing should be served through the fastest means available. 18 The hearing of the case will also be
summary in nature. 19
Based on the foregoing, the clear intent of the law is that a petition of this nature must be acted upon with dispatch only after hearing thereon shall have
been conducted. Since COMELEC denied the other petitions 20 which sought to include forty-three (43) more precincts in a special election without
conducting any hearing, it would appear then that there indeed might have been grave abuse of discretion in denying the petitions.
However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2, Rule 26, thereof which was lifted from Sec. 6, B.P. 881,
otherwise known as the Omnibus Election Code of the Philippines, indicates otherwise. It reads
Sec. 2. Failure of election. If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any precinct 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 of 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 on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days
after the cessation of the cause of such postponement or suspension of the election or failure to elect.
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 precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect; and, second, the votes
not cast would affect the result of the election. 21
In the case before us, it is indubitable that the votes not cast will definitely affect the outcome of the election. But, the first requisite is missing, i.e., that
no actual voting took place, or even if there is, the results thereon will be tantamount to a failure to elect. Since actual voting and election by the
registered voters in the questioned precincts have taken place, the results thereof cannot be disregarded and excluded. 22 COMELEC therefore did not
commit any abuse of discretion, much less grave, in denying the petitions outright. There was no basis for the petitions since the facts alleged therein did
not constitute sufficient grounds to warrant the relief sought. For, the language of the law expressly requires the concurrence of these conditions to justify
the calling of a special election. 23
Indeed, the fact that a verified petition is filed does not automatically mean that a hearing on the case will be held before COMELEC will act on it. The
verified petition must still show on its face that the conditions to declare a failure to elect are present. In the absence thereof, the petition must be denied
outright.
Considering that there is no concurrence of the two (2) conditions in the petitions seeking to declare failure of election in forty-three (43) more, precincts,
there is no more need to receive evidence on alleged election irregularities.
Instead, the question of whether there have been terrorism and other irregularities is better ventilated in an election contest. These irregularities may not
as a rule be invoked to declare a failure of election and to disenfranchise the electorate through the misdeeds of a relative few. 24 Otherwise, elections
will never be carried out with the resultant disenfranchisement of innocent voters as losers will always cry fraud and terrorism.
There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined, it
must be accorded respect. After all, there is no provision in our election laws which requires that a majority of registered voters must cast their votes. All
the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. 25 Thus, even if
less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected. There is prima facie showing that private
respondent was elected through a plurality of valid votes of a valid constituency.
WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is DISMISSED.
SO ORDERED.

Today is Saturday, May 02, 2015

search
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 84843-44 January 22, 1990

NURHUSSEIN A. UTUTALUM, petitioner,
vs.
COMMISSION ON ELECTIONS and ARDEN S. ANNI, respondents.
Pedro Q. Quadra for petitioner.
Brillantes, Nachura, Navarro & Arcilla Law Offices for private respondent.

MELENCIO-HERRERA, J.:
Petitioner, Nurhussein A. Ututalum, prays for the reversal, on the ground of grave abuse of discretion, of the 19 April and 31 August 1988 Resolutions of
public respondent Commission on Elections (COMELEC), in Case Nos. SP 87-469 and 87-497, which declined to reject the election returns from all the
precincts of the Municipality of Siasi, Sulu, in the last 30 May 1987 Congressional elections and to annul respondent Arden S. Anni's proclamation.
The undisputed facts follow:
1.
Petitioner Ututalum and private respondent, Arden S. Anni, were among the candidates in the last 30 May 1987 Congressional elections for
the Second District of Sulu. 30 May was the date reset by the COMELEC from the 11 May 1987 elections.
2.
The election returns from Siasi showed that Petitioner Ututalum obtained four hundred and eighty-two (482) votes while respondent Anni
received thirty-five thousand five hundred and eighty-one (35,581) votes out of the thirty-nine thousand eight hundred and one (39,801) registered voters
(pp. 13, 187, Rollo). If the returns of Siasi were excluded, Petitioner Ututalum would have a lead of 5,301 votes.
3.
On 4 June 1987, during the canvass of votes, Petitioner Ututalum, without availing of verbal objections, filed written objections to the returns
from Siasi on the ground that they "appear to be tampered with or falsified" owing to the "great excess of votes" appearing in said returns. He then
claimed that multiplying the 42 precincts of Siasi by 300 voters per precinct, there should have been only 12,600 registered voters and not 36,663 voters
who cast their votes, thereby exceeding the actual authorized voters by 23,947 "ghost voters." (In his Petition, however, he admits that an error was
committed since "in the May 30,1987 elections, Siasi had 148 precincts" (p. 6, Rollo). He then prayed for the exclusion from the canvass of any election
returns from Siasi.
4.
On the same day, 4 June, the Provincial Board of Canvassers of Sulu dismissed petitioner's objections because they had been "filed out of
time or only after the Certificate of Canvass had already been canvassed by the Board and because the grounds for the objection were not one of those
enumerated in Section 243 of the Election Code" (See Order, p. 155, Rollo). Also on the same day, 4 June 1987, petitioner filed with the Board of
Canvassers his Notice of Appeal from said Resolution to the COMELEC.
5.
On 5 June 1987, petitioner filed his first Petition with the COMELEC seeking a declaration of failure of elections in the Municipality of Siasi and
other mentioned municipalities; that the COMELEC annul the elections in Siasi and conduct another election thereat; and order the Provincial Board of
Canvassers to desist from proclaiming any candidate pending a final determination of the Petition.
6.
On 8 June 1987, the Provincial Board of Canvassers forwarded Petitioner's appeal as well as its Order dismissing the written objections to the
COMELEC, with the request for authority to proclaim Respondent Anni as the winning candidate.
7.
On 11 June l987, in Case No. SPC 87-180, the COMELEC resolved that there was no failure of elections in the 1st and 2nd Districts of Sulu
except in specified precincts in the 1st District.
8.
On 14 June 1987, the Sulu Provincial Board of Canvassers proclaimed respondent Anni as the winner. He subsequently took his oath of office
and entered upon the discharge of its functions in July 1987.
9.
On 16 June 1987, petitioner filed a second Petition with the COMELEC praying for the annulment of Respondent Anni's proclamation and for
his own proclamation as Congressman for the Second District of Sulu.
10.
While those two petitions were pending, one Lupay Loong, a candidate for Governor of Sulu, filed a verified Petition with the COMELEC to
annul the List of Voters of Siasi, for purposes of the election of local government officials (docketed as SPC Case No. 87-624, p. 9, Rollo). This Petition
was opposed by Respondent Anni. Petitioner Ututalum was not a party to this proceeding.
On 16 January 1988, the COMELEC issued, in said SPC 87-624, a Resolution annulling the Siasi List of Voters "on the ground of massive irregularities
committed in the preparation thereof and being statistically improbable", and ordering a new registration of voters for the local elections of 15 February
1988 (p. 41 Rollo).

Said Resolution was affirmed by this Court in Anni vs. COMELEC, G.R. No. 81398, 26 January 1988 (p. 43, Rollo). A new Registry List was
subsequently prepared yielding only 12,555 names (p. 228, Rollo).
11.
Immediately after having been notified of the annulment of the previous Siasi List of Voters, Petitioner Ututalum filed a supplemental pleading
with the COMELEC entreating that such annulment be considered and applied by the Commission in resolving his two Petitions against Respondent
Anni (p. 319, Rollo).
12.
On 19 April 1988, in a consolidated Per Curiam Resolution, the COMELEC (First Division) denied Petitioner Ututalum's two Petitions "for lack
of merit, with the advise (sic) that he may file an election contest before the proper forum, if so desired." Declared the COMELEC inter alia:
While we believe that there was padding of the registry list of voters in Siasi, yet to annul all the votes in this municipality for purposes of the May 30,
1987 elections would disenfranchise the good or valid votes. As held in Espaldon vs. Comelec (G.R. No. L-78987, August 25, 1987), this Commission is
not the proper forum nor is it a proper ground in a pre-proclamation controversy, to wit:
Padded voter's list, massive fraud and terrorism is clearly not among the issues that may be raised in a pre-proclamation controversy. They are proper
grounds for an election protest.
Petitioner Ututalum is now before us assailing the foregoing Resolution.
Petitioner contends that the issue he raised before the COMELEC actually referred to "obviously manufactured returns," a proper subject matter for a
pre-proclamation controversy and, therefore, cognizable by the COMELEC, in accordance with Section 243 of the Omnibus Election Code, which
provides:
Sec 243. The following shall be the issues that may be raised in a pre-proclamation controversy:
xxx

xxx

xxx

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

xxx

xxx

Further, that the election returns from Siasi should be excluded from the canvass of the results since its original List of Voters had already been finally
annulled; and, lastly, that there is no need to re-litigate in an election protest the matter of annulment of the Registry List, this being already a "fait
accompli."
It is our considered view, however, that given the factual setting, it can not justifiably be contended that the Siasi returns, per se, were "obviously
manufactured" and, thereby, a legitimate issue in a pre-proclamation controversy. It is true that in Lagumbay vs. COMELEC (L-2544, 31 January 1966,
16 SCRA 175), relied upon heavily by Petitioner Ututalum, this Court ruled that the returns are obviously manufactured where they show a great excess
of votes over what could have been legally cast. The Siasi returns however, do not show prima facie that on the basis of the old List of Voters, there is
actually a great excess of votes over what could have been legally cast considering that only 36,000 persons actually voted out of the 39,801 voters.
Moreover, the Lagumbay case dealt with the "manufacture" of returns by those charged with their preparation as shown prima facie on the questioned
returns themselves. Not so in this case which deals with the preparation of the registry list of voters, a matter that is not reflected on the face of said
returns.
Basically, therefore, petitioner's cause of action is the padding of the Siasi List of Voters, which, indeed, is not a listed ground for a pre- proclamation
controversy.
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.
As pointed out in Espaldon vs. COMELEC, L-78987, 25 August 1987:
Padded voters' list, massive fraud, and terrorism are clearly not among the issues that may be raised in a pre-proclamation controversy. They are proper
grounds for an election protest.
And as held in the case of Bautista vs. COMELEC, G.R. No. 78994, March 10, 1988:
The scope of pre-proclamation controversy is limited to the issues enumerated under Section 243 of the Omnibus Election Code. The enumeration
therein of the issues that may be raised in a pre-proclamation controversy is restrictive and exclusive (see also Sanchez vs. COMELEC, G.R. No. L78461, 12 August 1987, 153 SCRA 67).
But petitioner insists that the new Registry List should be considered and applied by the COMELEC as the legal basis in determining the number of
votes which could be legally cast in Siasi. To allow the COMELEC to do so retroactively, however, would be to empower it to annul a previous election
because of the subsequent annulment of a questioned registry in a proceeding where petitioner himself was not a party. This cannot be done. In the
case of Bashier vs. COMELEC (L-33692, 24 February 1972, 43 SCRA 238), this Court categorically ruled:

The subsequent annulment of the voting list in a separate proceeding initiated motu proprio by the Commission and in which the protagonists here were
not parties, cannot retroactively and without due process result in nullifying accepted election returns in a previous election simply because such returns
came from municipalities where the precinct books of voters were ordered annulled due to irregularities in their preparation.
Besides, the List of Voters used in the 1987 Congressional elections was then a validly existing and still unquestioned permanent Registry List. Then, it
was the only legitimate roster which could be used as basis for voting. There was no prior petition to set it aside for having been effected with fraud,
intimidation, force, or any other similar irregularity in consonance with Section 145 of the Omnibus Election Code. 1 That list must then be considered
conclusive evidence of persons who could exercise the right of suffrage in a particular election (Abendante vs. Relato 94 Phil. 8; Medenilla vs. Kayanan,
L-28448-49, 30 July 1971, 40 SCRA 154).
Moreover, the preparation of a voter's list is not a proceeding before the Board of Canvassers. A pre-proclamation controversy is limited to challenges
directed against the Board of Canvassers, not the Board of Election Inspectors (Sanchez vs. COMELEC, ante), and such challenges should relate to
specified election returns against which petitioner should have made specific verbal objections (Sec. 245, Omnibus Election Code; Pausing vs. Yorac, et
al., G.R. No. 82700, 4 August 1988, Endique vs. COMELEC, G.R. Nos. 82020-21, 22 November 1988), but did not.
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).
Petitioner Ututalum's other submission is that the Siasi returns should be excluded since the List of Voters on which it was based has been conclusively
annulled. He thus asks for the application of the rule on res judicata. This is neither possible. Aside from the fact that the indispensable requisites of res
judicata, namely, identity of parties, of subject matter, and of cause of action are not all present, the ruling desired would, as the COMELEC had opined,
disenfranchise the good and valid votes in the Congressional elections of 30 May 1987.
Finally, this Petition has to fail if only on the basis of the equally important doctrine enunciated in Padilla vs. COMELEC (L-68351-52, 9 July 1985, 137
SCRA 424), reiterated in Baldo vs. COMELEC (G.R. No. 83205,14 July 1988) that:
Where the respondent had already been proclaimed as the elected representative of the contested congressional district, and has long assumed office
and has been exercising the powers, functions, and duties appurtenant to said office, the remedy of the petitioner lies with the House of Representatives
Electoral Tribunal. The pre-proclamation controversy becomes moot and academic.
and in the more recent case of Antonio vs. COMELEC (G.R. No. 84678, 29 March 1989):
Where the winning candidates have been proclaimed, the pre-proclamation controversies cease. A pre-proclamation controversy is no longer viable at
this point in time and should be dismissed. The proper remedy thereafter is an election protest before the proper forum. Recourse to such remedy would
settle the matter in controversy conclusively and once and for all.
Having arrived at the foregoing conclusions, a discussion of the other peripheral issues raised has been rendered unnecessary.
WHEREFORE, this Petition for Certiorari is hereby DISMISSED and the assailed Resolutions are AFFIRMED. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Corts, Grio-Aquino, Medialdea and Regalado, JJ.,
concur.

Footnotes
1
Sec. 145. Annulment of permanent lists of voters.Any book of voters not prepared in accordance with the provisions of this Code or the
preparation of which has been effected with fraud, bribery, forgery, impersonation, intimidation, force, or any other similar irregularity or which list is
statistically improbable may, upon verified petition of any voter or election registrar, or duly registered political party, and after notice and hearing, be
annulled by the Commission; Provided, That no order, ruling or decision annuling a book of voters shall be executed within sixty days before an election.
The Lawphil Project - Arellano Law Foundation

[G.R. NO. 169106 : June 23, 2006]

DATU ISRAEL SINSUAT and DATU JABERAEL SINSUAT, Petitioners, v. The HONORABLE COMMISSION ON ELECTIONS
and the SPECIAL MUNICIPAL BOARD OF CANVASSERS OF SOUTH UPI, MAGUINDANAO, as Public Respondents, ANTONIO GUNSI, SR. &
JOVITO MARTIN, ABDULLAH CAMPONG, ROLAND MOENDEG, RICARTE BETITA & ARISTON CATALINO, and ELINDA ERESE, MARIA SARGAN,
LYDIA ARON, BIENVENIDO YAP, SR., RODRIGO TORIALES, WARLITO PINUELA, VICENTE BETITA, JAIME USMAN, all as Private Respondents,
Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari and prohibition with application for the issuance of a temporary restraining order and/or preliminary prohibitory injunction or
status quo order assails the Order1 dated August 16, 2005 of the Commission on Elections (COMELEC) in SPC No. 04-247. The COMELEC denied
petitioners' motions to suspend the reconvening of the Special Board of Canvassers (SBOC) and the proclamation of winning candidates for South Upi,
Maguindanao.
The facts are undisputed.
Petitioner Datu Israel C. Sinsuat (Israel) was a mayoralty candidate in the May 2004 Local Elections in South Upi, Maguindanao, while petitioner Datu
Jaberael R. Sinsuat (Jaberael), a vice mayoralty candidate. Before the elections, Israel filed a complaint docketed as SPA No. 04-202 for the
cancellation of the certificate of candidacy for mayor of Antonio B. Gunsi, Sr. (Gunsi).
Upon canvassing of votes, the Municipal Board of Canvassers proclaimed as winners, on different dates, three candidates for mayor, two candidates for
vice-mayor and different sets of members of the Sangguniang Bayan.
Atty. Clarita Callar, Regional Election Director, Region XII, Cotabato City, filed a report on the multiple proclamations in South Upi. In a Resolution2 dated
June 29, 2004, the COMELEC First Division, finding that all proclamations were based on incomplete canvass, annulled the proclamations. The
COMELEC en banc, in a Resolution3 dated September 8, 2004, denied Israel's motion for reconsideration4 and ordered the appointment of the SBOC.
The SBOC was directed to convene and re-canvass all election returns from all 35 precincts of South Upi, and proclaim the winners for mayor, vicemayor and members of the Sangguniang Bayan. However, the SBOC was unable to canvass votes from four of the 35 precincts. Thus, in a resolution
dated March 8, 2005, the SBOC was also directed to act as Special Board of Election Inspectors for Precincts Nos. 3A,5 10A, 15A and 17A, count the
ballots therein, and proceed with the canvassing.
Meanwhile, the COMELEC Second Division, in SPA No. 04-202, disqualified Gunsi to run for mayor for not being a registered resident of South Upi.6 On
June 9, 2005, the COMELEC en banc denied Gunsi's motion for reconsideration.7
The SBOC, on the other hand, submitted its report8 dated May 16, 2005 with the following results:
[For Mayor]
Antonio B. Gunsi - 1,954
Jovito B. Martin - 1,617
Israel C. Sinsuat - 1,643
For Vice-Mayor
Catalino M. Ariston Ricardo F. Betita - 872
Abdullah A. Campong Roland B. Moendeg Jaberael R. Sinsuat For Councilors
Jose N. Alvarez - 1,307
Doming L. Angit - 653
Lencio A. Arig 859
Lydia B. Aron 1,652
Armando S. Babas Antonio B. Batitao - 623
Rene T. Batitao 447
Vicente F. Betita - 1,384
Manuel L. Compleza Abogado K. Dida - 1,105
Mohamad D. Diocolano Francilino B. Dizon Alimudin S. Edzil - 1,166
Linda L. Erese 2,061
Florentino M. Fantingan Leo T. Galangan - 1,002
Manuel B. Gunsi - 1,026
Joselito C. Insoy - 968
Amil B. Kamid 308
Adnan K. Karim - 1,290
Gems S. Kudteg - 902
Ronnie K. Omar - 1,284
Sanny M. Piang - 1,155
Warlito D. Pinuela - 1,477
Raymundo L. Quinlat, Jr. Calbeno P. Rawadin Maria A. Sargan - 1,868
Manuel B. Gunsi - 1,026

387
1,352
1,296
1,229

214

839
761
508
19

1,356
1,041

Alfredo A. Tenorio - 1,046

Rodrigo S. Toriales 1,481
Zainal S. Tumambiling 23
Armando B. Untal - 747
Jaime T. Usman - 1,364
Bienvenido W. Yap, Sr. 1,609
9
Jaberael questioned 95 ballots from Precincts Nos. 15A and 17A which would affect the results of the election. It appeared that in 48 ballots from
Precinct No. 15A and 47 ballots from Precinct No. 17A, the name "Jay" or "Sinsuat" written on the space for vice-mayor was "erased" by a single line
and beside it was the name "Campong" or "Beds" which is the nickname of respondent Abdullah Campong (Campong). In view of this, the SBOC
suggested that the commission check these ballots which it counted in favor of Campong. It wanted the commission to "ascertain whether or not the
Board's determination of the integrity and validity of the ballots" from said precincts "must be reversed and set aside."10
In an Order11 dated July 26, 2005, the COMELEC en banc ordered the SBOC to reconvene and proclaim Campong for vice-mayor, and Erlinda L.
Erese, Maria A. Sargan, Lydia B. Aron, Bienvenido W. Yap, Sr., Rodrigo S. Toriales, Warlito D. Pinuela, Vicente B. Betita and Jaime T. Usman, for
councilors. It also held that no candidate shall be proclaimed mayor due to the disqualification of Gunsi, the winning candidate for mayor. Instead, it
referred the matter to the Department of Interior and Local Government 'ARMM for the implementation of the rules on succession.
Consequently, petitioners filed the following: (1) Motion to suspend implementation of order promulgated on July 26, 2005; (2) Very urgent motion to
suspend reconvening of the SBOC; and (3) Very urgent motion to recall notice to reconvene issued by the SBOC. On August 2, 2005, the COMELEC
suspended the reconvening of the SBOC and required the other parties to comment.
In its assailed order dated August 16, 2005, the COMELEC denied the cited motions holding that they were actually motions for reconsideration of an en
banc resolution which is not allowed in special cases under Section 1, Rule 13 of the 1993 COMELEC Rules of Procedure. It added that the SBOC had
already considered the contested ballots from Precincts Nos. 15A and 17A as valid, and counted them in favor of Campong. It ratiocinated that the case
before it was not an election protest where election documents may be examined and evidence aliunde may be presented to prove that the contested
ballots were written by two persons.
Hence, this petition where petitioners raise the following issues:
1. WHETHER OR NOT THE NINETY-FIVE (95) VOTES ORIGINALLY AND OBVIOUSLY CAST FOR DATU JABERAEL SINSUAT, VICE MAYORALTY
CANDIDATE, BUT WAS ILLEGALLY ERASED AND TAMPERED IN FAVOR OF ABDULLAH "BEDS" CAMPONG SHOULD BE COUNTED IN FAVOR
OF DATU JABERAEL SINSUAT;
2. WHETHER OR NOT DATU ISRAEL SINSUAT, MAYORALTY CANDIDATE, AS THE CANDIDATE WHO RECEIVED THE NEXT HIGHEST NUMBER
OF VOTES, [SHOULD] BE PROCLAIMED AS THE DULY ELECTED MUNICIPAL MAYOR OF SOUTH UPI, MAGUINDANAO CONSIDERING THAT
THE DISQUALIFICATION OF THE CANDIDATE WHO RECEIVED THE HIGHEST NUMBER OF VOTES, ANTONIO GUNSI, SR., BECAME FINAL AND
EXECUTORY PRIOR TO THE PROCLAMATION OF ANY WINNING CANDIDATE;
3. THE PRIMORDIAL CONSIDERATION IS WHETHER OR NOT THE AUGUST 16, 200[5] ORDER IS PROPER OR REVERSIBLE.12
Simply, the issues in this case are: (1) Did the COMELEC gravely abuse its discretion when it did not count the contested ballots in favor of Jaberael?
(2) Should petitioner Israel be proclaimed mayor?cralawlibrary
On the first issue, petitioners contend that the COMELEC gravely abused its discretion when it did not consider the contested ballots as votes for
Jaberael despite the SBOC's recommendation. They aver that had the 95 contested ballots been counted in favor of Jaberael, the latter would have won
the elections with 1,324 votes since Campong would only have 1,257 votes. They also maintain that the COMELEC should have inspected and
examined the contested ballots and made a definite ruling thereon. On the second issue, petitioners claim that the COMELEC should have proclaimed
Israel as the duly elected mayor since Gunsi's votes should have been considered stray votes. They also aver that Gunsi's disqualification became final
and executory before the proclamation of any winning candidate.
Respondent Campong claims that the case is now moot and academic as the order sought to be annulled had become final and executory. Further, he
argues that he already took his oath as vice-mayor and assumed his office on August 25, 2005. Thereafter, he succeeded as mayor in view of Gunsi's
disqualification.
He also contends that petitioners are guilty of forum-shopping considering Jaberael also filed an election protest, docketed as Case No. 2005-19, now
pending in the Regional Trial Court of Cotabato City, Branch XIV.13 He argues that the appreciation of the contested ballots and election documents is
best left to the trial court hearing the election protest.
Considering the circumstances in this case, we find that no grave abuse of discretion was committed by the respondent COMELEC.
Note that this petition stemmed from a pre-proclamation controversy where the proclamations of Israel and Jaberael were annulled due to an incomplete
canvass.14 A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter
raised under Sections 233, 234, 235, and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody and
appreciation of election returns.15 The proceedings are summary in nature in that there is no room for the presentation of evidence aliunde, the
inspection of voluminous documents, and for meticulous technical examinations which take up considerable time.16
In this case, Jaberael challenged, not the election returns, but the 95 ballots reflected in the returns of Precincts Nos. 15A and 17A. Well-settled is the
rule that issues relative to the appreciation of ballots cannot be raised in a pre-proclamation controversy.17 Appreciation of ballots is the task of the
board of election inspectors, not the board of canvassers, and questions related thereto are proper only in election protests.18 In a regular election
protest, the parties may litigate all the legal and factual issues raised by them in as much detail as they may deem necessary or appropriate.19
Moreover, the COMELEC en banc's decision directing the proclamation of the winning candidates becomes final and executory after five days from
promulgation unless restrained by the Supreme Court.20 Since this Court did not issue a restraining order, the winning candidates must be proclaimed.
Upon such proclamation, the action ceases to be a pre-proclamation controversy. But the losing party may still file an election contest within ten (10)
days following the date of proclamation.21

As a rule, the filing of an election protest (1) precludes the subsequent filing of a pre-proclamation controversy or (2) amounts to the abandonment of
one earlier filed, 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, all questions relative thereto will have to be
decided in the case itself and not in another proceeding to prevent confusion and conflict of authority.22
While this rule admits exceptions, circumstances of this case do not warrant their application. Records reveal that, indeed, Jaberael filed an election
protest23 with the trial court assailing the results in all 35 precincts of South Upi including the 95 contested ballots from Precincts Nos. 15A and 17A.
Hence, such election protest amounts to his abandonment of the pre-proclamation controversy.
On the second issue, should petitioner Israel be proclaimed mayor?cralawlibrary
It is now settled doctrine that the COMELEC cannot proclaim as winner the candidate who obtains the second highest number of votes in case the
winning candidate is ineligible or disqualified.24 This rule admits an exception. But this exception is predicated on the concurrence of two requisites,
namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's
disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate.25
The facts warranting the exception do not obtain in this case.
The complaint for disqualification of Gunsi was filed before the elections but the COMELEC en banc disqualified him subsequent to the election. Thus,
when the electorate voted Gunsi for mayor on May 10, 2004, it was under the belief that he was qualified. There is no presumption that the electorate
agreed to the invalidation of their votes as stray votes in case of Gunsi's disqualification. The Court cannot adhere to petitioner Israel's contention that
the votes cast in favor of Gunsi are stray votes. The subsequent finding of the COMELEC en banc that Gunsi is ineligible cannot retroact to the date of
elections so as to invalidate the votes cast for him.26 At the time, he was not notoriously known by the public to be ineligible to run for mayor.27
Conformably then, the rules on succession under the Local Government Code shall apply, thus,
SECTION 44. Permanent Vacancies in the Office of the Governor, Vice-Governor, Mayor, and Vice-Mayor.' If a permanent vacancy occurs in the office of
the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. . . .
xxxx
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to
qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.
x x x x28 (Emphasis added)
Considering Gunsi failed to qualify as mayor of South Upi, the proclaimed vice-mayor shall then succeed him as mayor.
WHEREFORE,the petition is DISMISSED for lack of merit, without prejudice to the election protest filed in the Regional Trial Court of Cotabato City,
Branch XIV. The order dated August 16, 2005 of the Commission on Elections in SPC No. 04-247 is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.