3y1s Election f

8/12/2019 3y1s Election f

1/133

G.R. No. 139357 May 5, 2000

ABDULMADID P.B. MARUHOM,petitioner,vs.

COMMISSION ON ELECTIONS an HAD!I !AMILDIMAPORO,respondents.

"NARES#SANTIAGO, J.:

Whether or not a motion to dismiss, filed after an answer has been filed, is aprohibited pleading in an election protest pending before the Regional TrialCourt is the issue posed in this petition for certiorariwith prayer forpreliminary injunction challenging the Resolution of the Commission on

Elections (C!E"EC# dated $uly %, &'''

&

dismissing Comelec Case )R *o.+-'.

The C!E"EC/s challenged order summari0es the relevant facts of thecontroversy thus1

&. )etitioner and private respondent were bothcandidates for !ayor in the !unicipality of !arogong,"anao del ur and voted as such in the last !ay &&,&'' national and local election (sic#. )etitioner is a re-electionist and a veteran politician2

. The election in !arogong functioned on !ay &&, &'',and after the voting the ballot bo3es were transmitted tothe 4alimodan 5all, )rovincial Capitol of "anao del ur at!arawi City where the automated counting of votes andcanvass of election returns were centrali0ed2

6. 7uring the counting of votes, serious irregularities,anomalies and electoral frauds were committed at theinstance of petitioner or his followers in that votesactually casted (sic# for the private respondent were not

counted and credited in his favor thru (sic# the concertedacts, conspiracy and manipulation of the 8oard ofElection 9nspectors, military, Election fficer and the!achine perator who happens to be a nephew of thepetitioner2

:. 9n )recincts *os. &;-&;&,


2/133

counting machine which the private respondent/swatchers or representatives have re>uested and insistedto be re-fed to the automated machine for the secondand third times pursuant to the provisions of ComelecResolution *o. 6=6= but their re>uests were not heeded

by the Election fficer and the !achine perator,olaiman Rasad, who is a close ?in of the )etitioner, andinstead considered the said ballots as finally rejected,while in )recincts *os. &;, 6;& and %;, around +%ballots were found therein which were not drawn from theofficial ballots and were included in the counting of votesover the objection of the private respondent/s watchers orrepresentatives2

+. 8efore the termination of the counting of votes and theconsolidation of the results, the machine operator and the

Election fficer carried away from the 4alimodan 5all thedis?ette and brought the same to the down town withoutthe ?nowledge of the private respondent/s watchers orrepresentatives2

%. ;s a result of the foregoing irregularities, anomaliesand electoral frauds, the petitioner was illegallyproclaimed as winner because he appeared to haveobtained ,== votes while the private respondentgarnered ,=== votes with a slight margin of only =votes2


3/133

duly elected !ayor of !arogong, "anao del ur doc?etedas )C *o. '-%.

. ;s precautionary measure to avoid any technicality,private respondent filed on !ay +, &'', an ordinary

BProtest ad CautelamB against the petitioner before theRegional Trial Court, 8ranch &&, !alabang, "anao delur entitled B5adji $amil 7. 7imaporo vs. ;bdulmadid!aruhomB for election protest (!anual $udicial Recount,revision and reappreciation of ballots# doc?eted asElection Case *o. &&-&


4/133

*o. &&-&< for hearing (a# for the creation of theCommittee on Revision and appointment of the Chairmanand !embers thereof2 (b# ma?ing of the cash deposit andpayment of the revisor/s compensation2 (c# partialdetermination of the case, etc. on eptember &, &'', at

16= o/cloc? in the morning.

. When the case was called for hearing on eptember ,&'', a Revision Committee was created and itsmembership were duly appointed in open court whichcommittee was directed by the respondent court to finishthe revision of ballots, if possible, within = days from thecommencement of the revision.'. . . .

'. ;fter the Revision Committee was directed by therespondent to commence the revision of ballots, the

petitioner ;bdulmadid !aruhom thru counsel orallymoved for the dismissal of the protest on the groundsthat ( The ballot bo3es containing the ballots in theprotested and counter-protested precincts have beenviolated2 (# ;utomated counting of ballots does notcontemplate a manual recount of the ballots2 and (6#)rotestant is guilty of forum shopping warrantingsummary dismissal of the petitioner of the protest.

&=. The private respondent thru (sic# undersignedcounsel, vigorously opposed the said oral motion to

dismiss and orally argued that the motion is clearlydilatory having been made only after the RevisionCommittee has been ordered to commence the revisionof ballots on eptember &, &'' and maintained that (The motion to dismiss is not allowed in an electionprotest2 (# The sanctity and integrity of the ballot bo3essubject matter of the protest and counter-protest havebeen preserved and never violated2 (6# The automatedcounting of ballots does not preclude the filing of theelection protest for the judicial recount and revision ofballots2 and (:# The private respondent is not guilty offorum shopping because his petition of protest is clearlyand e3plicitly a )rotestAd Cautelamin view of thependency of his petition before this 5onorableCommission which was withdrawn by the privaterespondent before it could be set for hearing or actedupon by this 5onorable Commission.
http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt8http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt9http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt8http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt9


5/133

&&. ;fter the oral arguments of both parties, thepetitioner/s counsel as?ed that he be given ample time tofile a written mnibus !otion to 7ismiss and therespondent court thru then ;cting )residing $udge Rasad8alindong, issued an order dated eptember , &'',

giving ten (&=# days to ;tty. Tingcap T. !ortaba to file anmnibus !otion in substantiation of all the oral motionshe made, furnishing a copy thereof to the undersignedcounsel for the private respondent who was li?ewisegiven an e>ual period of time to comment. &=

&. n eptember &&, &'', petitioner filed his motion todismiss &&and on eptember &, &'', the privaterespondent filed a vigorous opposition to motion todismiss. &

&6. 7uring the hearing on the motion to dismiss and theopposition thereto on eptember &, &'', thepetitioner/s counsel re>uested for ample time to file arejoinder to the vigorous opposition to motion to dismisssubmitted by the private respondent which was grantedby the court and on eptember , &'', petitioner filedhis rejoinder &and on ctober +, &'' private respondentfiled his comment &:thereto and thereafter all incidentswere submitted for resolution of the court.

&:. n *ovember &=, &'', the respondent court thru

5onorable )residing $udge !oslemen T. !acarambon,issued the assailed order denying the petitioner/s motionto dismiss for lac? of merit and ordering the RevisionCommittee to report to the court on *ovember &', &'',at 16= o/cloc? in the morning for their oath ta?ing and toreceive the instruction of the court in the revision of theballots and other allied matters. &+

&+. n *ovember &, &'', the petitioner filed a motionfor reconsideration of the order dated *ovember &=,&'', &%and on *ovember 6, &'', private respondentfiled a vigorous opposition to motionF forreconsideration. &uisitesof popular government. The Commission on Elections, byconstitutional mandate must do everything in its power to securea fair and honest canvass of the votes cast in the elections. 9nthe performance of its duties, the Commission must be given a

considerable latitude in adopting means and methods that willinsure the accomplishment of the great objective for which itwas created G to promote free, orderly and honest elections.The choice of means ta?en by the Commission on Elections,unless they are clearly illegal or constitute grave abuse ofdiscretion, should not be interfered with. &
http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt21http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt21


8/133

ec. ( of ;rticle 9H of the Constitution gives the C!E"EC the broadpower to Benforce and administer all laws and regulations relative to theconduct of an election, plebiscite, initiative, referendum and recall.B There canhardly be any doubt that the te3t and intent of this constitutional provision is togive C!E"EC all the necessary and incidental powers for it to achieve the

holding of free, orderly, honest, peaceful and credible elections.

9n accordance with this intent, the Court has been liberal in defining theparameters of the C!E"EC/s powers in conducting elections. Sumulong v.COMELEC aptly points out that G

)olitics is a practical matter, and political >uestions must bedealt with realistically G not from the standpoint of pure theory.The Commission on Elections, because of its fact-findingfacilities, its contacts with political strategists, and its ?nowledgederived from actual e3perience in dealing with political

controversies, is in a peculiarly advantageous position to decidecomple3 political >uestions . . . . There are no ready madeformulas for solving public problems. Time and e3perience arenecessary to evolve patterns that will serve the ends of goodgovernment. 9n the matter of the administration of laws relativeto the conduct of election . . . we must not by any e3cessive 0ealta?e away from the Commission on Elections that initiativewhich by constitutional and legal mandates properly belongs toit.

uccinctly stated, laws and statutes governing election contests especially

the appreciation of ballots must be liberally construed to the end that the willof the electorate in the choice of public officials may not be defeated bytechnical infirmities. ;n election protest is imbued with public interest somuch so that the need to dispel uncertainties which becloud the real choice ofthe people is imperative, :much more so in this case considering that a meretwenty (=# votes separates the winner from the loser of the contestedelection results.

The primordial issue to be resolved herein is whether or not the C!E"ECgravely abused its discretion in dismissing )R *o. +-'.

9n support of his cause, petitioner insists that there is Bnothing irregular oranomalous in the filing of the motion to dismissB after the filing of the answerbecause in effect he is merely insisting on a preliminary hearing of his specialand affirmative defenses. Thus, he claims that the summary dismissal of hismotion to dismiss is tainted with grave abuse of discretion amounting to lac?or e3cess of jurisdiction.

We disagree.
http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt22http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnthttp://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt24http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt24http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt22http://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnthttp://www.lawphil.net/judjuris/juri2000/may2000/gr_139357_2000.html#fnt24


9/133

The filing of the motion to dismiss, in fact, appears to be part of a perfidiousplot to prevent the early termination of the proceedings in Election Case *o.::< as evidenced by a confluence of events clearly showing a pattern ofdelay employed by petitioner to avert the revision ballots. These events,pointed out by private respondent +and borne by the record, show

that G

&. 9t was only on eptember &, &''' after the creation of theRevision Committee and the appointment of its Chairman and!embers and after the said committee was ordered by the trialcourt to commence the revision and to render its report within= days that the petitioner orally moved for the dismissal of thecase on the flimsy grounds that ( the ballot bo3es subject ofthe protest and counter G protest have been violated2 (# theautomated counting of ballots does not contemplate a manualrecount of ballots2 and (6# protestant is guilty of forum-shopping

warranting summary dismissal of the protest2

. ;fter the oral arguments on the oral motion to dismiss thepetitioner re>uested for ample time within which to file anmnibus !otion to 7ismiss and over the vigorous opposition ofthe private respondent the same was granted by the court andthe petitioner was given a period of ten (&=# days to file thesame and the private respondent was li?ewise given a period often (&=# days to file his comment2

6. n eptember &&, &'', the motion to dismiss %and during

the hearing on the said motion and the opposition

uires immediate investigation, but in the public interest, theCommission,

RE"IE7 to grant the )etition dated !ay &,&'' and to rder that the counting of votes shallbe done manually in the !unicipality of );T;, theonly place in ulu where the automated machinefailed to read the ballots, subject to notice to allparties concerned.


19/133

8efore midnight of !ay &, &'', ;tty. Tolentino, $r. was able to sendto the C!E"EC en banchis report and recommendation, urging theuse of the manual count in the entire )rovince of ulu, vi/1

The undersigned stopped the counting in the municipality of

)ata since he discovered that votes for a candidate for mayorwas credited in favor of the other candidate. Ierification with theulu Technical taff, including )at >uires of E L , revealsthat the cause of the errors is the way the ballot was printed.

;side from misalignment of the ovals and use of codesassigned to another municipality (which caused the rejection ofall local ballots in one precinct in Talipao#, error messagesappeared on the screen although the actual condition of theballots would have shown a different message. 8ecause ofthese, the undersigned directed that counting for all ballots inulu be stopped to enable the Commission to determine the

problem and rectify the same. 9t is submitted that stopping thecounting is more in consonance with the Commission/s mandatethan proceeding with an automated but inaccuratecount.01#phi0.n2t

9n view of the error discovered in )ata and the undersigned/sorder to suspend that counting, the following documents weresubmitted to him.

&. Dnsigned letter dated !ay &,&'' submitted by Congressman

Tulawie for manual counting andcanvassing2

. )etition of Aovernor a?ur Tan formanual counting2

6. )osition paper of Tupay "oong,8enjamin "oong, and ;sani Tamangfor automated count2

:. !*" )osition for automated

count2 and

+. Recommendation of Aeneral E.I.Espinosa, Aeneral )! ubala, and)7 C ;lejandrino for manual count2


20/133

;dditional marines have been deployed at the C. Theundersigned is not sure if it is merely intended to tame adisorderly crowd, inside and outside C, or a show of force.

9t is submitted that since an error was discovered in a machine

which is supposed to have an error rate of &1 &,===,===, not afew people would believe that this error in )ata would e3tend tothe other municipalities. Whether or not this true, it would bemore prudent to stay away from a lifeless thing that has sowntension and an3iety among and between the voters of ulu.

Respectfully submitted1

& !ay &''

(gd.# $E !. T"E*T9*, $R.

The ne3t day, !ay &6, &'', C!E"EC issued Resolution *o. '-&uoted as follows1

9n connection with !in. Res. *o. '-&


21/133

Edgardo Espinosa, Aeneral )ercival ubla,)@upt. Charlemagne ;lejandrino for manualcounting. The position paper of former AovernorTupay "oong, !r. 8enjamin "oong and !r. ;sani. Tammang, who are candidates for Aovernor

and Congressman of &st and nd 7istrictsrespectively, who wanted the continuation of theautomated counting.

While the forces of ;) are ready to provide arm (sic# securityto our Comelec officials, 8E9s and other deputies, the politicaltensions and imminent violence and bloodshed may not beprevented, as per report received, the !*" forces arereadying their forces to surround the venue for automatedcounting and canvassing in ulu in order that the automationprocess will continue.

7irector 8orra recommends, that while he supports !inuteResolution *o. '-&


22/133


23/133


24/133

!s. !a. Carmen"lamas

e# 7irector Estrella ). de !esa

!s. Teresita Ielasco

!s. *elly $aena

:. ;dditional pecial 8oard of9nspectors may be created whennecessary.

+. The )rovincial 8oard ofCanvassers which by standingResolution is headed by the Tas?

orce ulu 5ead shall consolidatethe manual and automated results assubmitted by the !unicipal 8oards ofCanvassers of the whole provincewith two members composed of7irectors Estrella ). de !esa andEster ". Iillaflor-Ro3as2

%. The political parties and thecandidates in ulu as well as the)arty-"ist Candidates are authori0ed

to appoint their own watchers uponapproval of the Commission/,

RE"IE7 to approve the foregoingrecommendations in the implementation of !in.Resolution *o. '-&


25/133

n !ay &, &'', petitioner filed his objection to !inute Resolution *o. '-&


26/133

approached the watchers of petitioners to allow the retrival ofthe ballots, saying Btayo, tayo lang mga watchers, pag-usapannatin,B clearly indicating overtures of possible bribery of thewatchers of petitioner (;**EH E#.

(c# With the creation by the C!E"EC of only 8oards ofElection 9nspectors to manually count the &,&': precincts, themanipulators are given sufficient time to change and tamper theballots to be manually counted.

(d# There is the opportunity of delaying the proclamation of thewinning candidates through the usually dilatory moves in a pre-proclamation controversy because the returns and certificates ofcanvass are already human (sic# made. 9n the automatedcounting there is no room for any dilatory pre-proclamationcontroversy because the returns and the !8C and )8C

certificates of canvass are machine made and immediateproclamation is ordained thereafter.

)etitioner then prayed1

W5ERERE, it is most especially prayed of the 5onorableCourt that1

&. upon filing of this petition, a temporary restraining order beissued enjoining the C!E"EC from conducting a manualcounting of the ballots of the &,&': precincts of the &

municipalities of the )rovince of ulu but instead proceed withthe automated counting of the ballots, preparation of theelection returns and !8C, )8C certificates of canvass andproclaim the winning candidates on the basis of the automatedcounting and consolidation of results2

. this petition be given due course and the respondents bere>uired to answer2

6. after due hearing, the >uestioned C!E"EC En Banc!inuteResolutions of !ay &, &6, &+, and &


27/133

333 333 333

n $une , &'', private respondents Tan was proclaimed governor-elect ofulu on the basis of the manual count. 1))rivate respondents garnered:6,+uired the respondents to file their Commentto the petition and directed the parties Bto maintain the status -uo prevailing atthe time of the filing of the petition.B 15The vice-governor elect was allowed totemporarily discharge the powers and functions of governor.

n ;ugust =, &'', Jusop $i?iri, the ";4;-*DC7-D!7)-!*" candidatefor governor filed a motion for intervention and a !emorandum in9ntervention. 1$The result of the manual count showed he received 6,''6votes and placed second. imilarly, he alleged denial of due process, lac? of

factual basis of the C!E"EC resolutions and illegality of manual count inlight of R.;. *o. :6%. The Court noted his intervention. 17; similar petitionfor intervention filed by ;bdulwahid ahidulla, a candidate for vice-governor,on ctober


28/133


29/133

ballots in the municipalities of )ata, Talipao, iasi,9ndanan, Tapal and $olo.

c. These flaws in the automated counting of localballots in the municipalities of )ata, Talipao, iasi,

9ndanan, Tapal and $olo were carefully analy0edby the technical e3perts of C!E"EC and thesupplier of the automated machines. ;ll of themfound nothing wrong the automated machines.They traced the problem to the printing of localballots by he *ational )rinting ffice. 9n the caseof the of the municipality of )ata, it was discoveredthat the ovals of the local ballots were misalignedand could not be read correctly by the automatedmachines. 9n the case of the municipalities ofTalipao, iasi, 9ndanan, Tapal and $olo, it turned

out that the local ballots contained the wrongse>uence code. Each municipality was assigned ase>uence code as a security measure. 8allots withthe wrong se>uence code were programmed to berejected by the automated machines.

9t is plain that to continue with the automated count in these five (+#municipalities would result in a grossly erroneous count. 9t cannot also begainsaid that the count in these five (+# municipalities will affect the localelections in ulu. There was no need for more sampling of locals ballots inthese municipalities as they suffered from the same defects. ;ll local ballots

in )ata with misaligned ovals will be erroneously read by the automatedmachines. imilarly, all local ballots in Talipao, iasi, 9ndanan, Tapal and $olowith wrong se>uence codes are certain to be rejected by the automatedmachines. There is no showing in the records that the local ballots in thesefive (+# municipalities are dissimilar which could justify the call for their greatersampling.

Third. These failures of automated counting created post election tension inulu, a province with a history of violent elections. C!E"EC had to actdesively in view of the fast deteriorating peace and order situation caused bythe delay in the counting of votes. The evidence of this fragile peace andorder cannot be downgraded. 9n his handwritten report to the C!E"ECdated !ay &, &'', ;tty. Tolentino, $r. stated1

333 333 333

;dditional marines have been deployed at the C. Theundersigned is not sure if it is merely intended to tame adisorderly crowd inside and outside C, or a show of force.


30/133

9t is submitted that since an error was discovered in a machinewhich is supposed to have an error rate of &1&,===,===, not afew people would believe that this error in )ata would e3tend tothe other municipalities. Whether or not this is true, it would bemore prudent to stay away from a lifeless thing that has shown

tension and an3iety among and between the voters of ulu.

E3ecutive 7irector Resurreccion M. 8orra, Tas? orce 5ead, ;R!! inhis !ay &6, &'' !emorandum to the C!E"EC li?ewise stated1

333 333 333

While the forces of ;) are ready to provide arm (sic# securityto our C!E"EC officials, 8E9/s and other deputies, the politicaltensions and imminent violence and bloodshed may not beprevented, as per report received, the !*" forces are

readying their forces to surround the venue for automatedcounting and canvassing in ulu in order that automationprocess will continue.

"ast but not the least, the military and the police authoritiesunanimously recommended manual counting to preserve peace andorder. 8rig. Aen. Edgardo I. Espinosa, Commanding Aeneral, !arineorces outhern )hilippines, 8rig. Aen. )ercival !. ubala,Commanding Aeneral, 6rd !arine 8rigade, and upt. Charlemagne .

;lejandrino, )rovincial 7irector, ulu )*) Command e3plained that itB.. . will not only serve the interest of majority of the political parties

involved in the electoral process but also serve the interest of themilitary and police forces in maintaining peace and order throughoutthe province of ulu.B

;n automated count of the local votes in ulu would have resulted in a wrongcount, a travesty of the sovereignty of the electorate. 9ts aftermath could havebeen a bloodbath. C!E"EC avoided this imminent probality by ordering amanual count of the votes. 9t would be the height of irony if the Courtcondemns C!E"EC for aborting violence in the ulu elections.

3ourth. We also find that petitioner "oong and intervenor $i?iri were not

denied process. The Tolentino memorandum clearly shows that they weregiven every opportunity to oppose the manual in count of the local ballots inulu. They were orally heard. They later submitted written position papers.Their representatives escorted the transfer of the ballots and the automatedmachines from ulu to !anila. Their watchers observed the manual countfrom beginning to end. We >uote the Tolentino memorandum, vi/1

333 333 333


31/133

n or about %1== a.m. of !ay &, &'', while automatedcounting of all the ballots for the province of ulu was beingconducted at the counting center located at the ulu tateCollege, the C!E"EC ulu Tas? orce 5ead (T 5ead#proceeded to the room where the counting machine assigned to

the municipality of )ata was installed to verify the cause of thecommotion therein.

7uring the interview conducted by the T 5ead, the members ofthe 8oard of Election 9nspectors (8E9# and watchers present insaid room stated that the counting machine assigned to themunicipality of )ata did not reflect the true results of the votingthereat. The members of the 8E9 complained that their voteswere not reflected in the printout of the election returns sinceper election returns of their precincts, the candidate they votedfor obtained B0eroB. ;fter verifying the printout of some election

returns as against the official ballots, the T 5ead discoveredthat votes cast in favor of a mayoralty candidate were creditedin favor of his opponent.

9n his attempt to remedy the situation, the T 5ead suspendedthe counting of all ballots for said municipality to enableC!E"EC field technicians to determine the cause of thetechnical error, rectify the same, and thereafter proceed withautomated counting. 9n the meantime, the counting of the ballotsfor the other municipalities proceeded under the automatedsystem.

Technical e3perts of the supplier based in !anila were informedof the problem and after numerous consultations through longdistance calls, the technical e3perts concluded that the cause ofthe error was in the manner the ballots for local positions wereprinted by the *ational )rinting ffice (*)#, namely, that theovals opposite the names of the candidates were not properlyaligned. ;s regards the ballots for national positions, no errorwas found.

ince the problem was not machine-related, it was obvious thatthe use of counting machines from other municipalities to countthe ballots of the municipality of )ata would still result in thesame erroneous count. Thus, it was found necessary todetermine the e3tent of the error in the ballot printing processbefore proceeding with the automated counting.

To avoid a situation where proceeding with automation willresult in an erroneous count, the T 5ead, on or about &&1:+


32/133

a.m. ordered the suspension of the counting of all ballots in theprovince to enable him to call a meeting with the heads of thepolitical parties which fielded candidates in the province, informthem of the technical error, and find solutions to the problem.

n or about &16= p.m., the T 5ead presided over aconference at Camp Aeneral 8autista (6rd !arine 8rigade# todiscuss the process by which the will of the electorate could bedetermined. )resent during the meeting were1

&. 8rig. Aen. Edgardo Espino0a

!arine orces, outhern )hilippines.

. 8rig. Aen. )ercival ubala

6rd !arine 8rigade

6. )rovincial 7ir. Charlemagne ;lejandrino

ulu )*) Command

:. Aubernatorial Candidate Tupay "oong

";4;-*DC7 "oong Wing

+. Aubernatorial Candidate ;bdusa?ur Tan

";4;-*DC7 Tan Wing

%. Aubernatorial Candidate Jusop $i?iri

";4;-*DC7 Tan Wing


33/133

&. 8rig. Aen. Edgardo Espino0a

. 8rig. Aen. )ercival ubala

6. )rovincial 7ir. Charlemagne ;lejandrino

:. Aubernatorial Candidate ;bdusa?ur Tan

+. Aubernatorial Candidate 4imar Tulawie

%. Congressional Candidate 8ensaudi Tulawie

and those in favor of an automated count were1

&. Aubernatorial Candidate Tupay "oong

. Aubernatorial Candidate Jusop $i?iri

aid parties were then re>uested by the T 5ead to submit theirrespective position papers so that the same map be forwardedto the Commission en banc, together with the recommendationsof the T 5ead.

The T 5ead returned to the counting center at the ulu tateCollege and called his technical staff to determine the e3tent ofthe technical error and to enable him to submit the appropriaterecommendation to the Commission en banc.

Dpon consultation with the technical staff, it was discovered thatin the !unicipality of Talipao, some of the local ballots wererejected by the machine. Ierification showed that while theballots were genuine, ballot paper bearing a wrong Bse>uencecodeB was used by the *) during the printing process.

8riefly, the following is the manner by which a Bse>uence codeBdetermined genuineness of a ballot. ; municipality is assigned aspecific (e3cept for $olo, which assigned two (# machines, andsharing of one ( machine by two (# municipalities, namely,

5.). Tahil and !aimbung, ;pandami and 4. Caluang, )ata andTong?il and )anamao and "ugus#. ; machine is then assigneda specific Bse>uence codeB as one of the security features todetect whether the ballots passing through it are genuine. incea counting machine is programmed to read the specificBse>uence codeB assigned to it, ballots which bear a Bse>uencecodeB assigned to another machine@municipality, even if saidballots were genuine will be rejected by the machine.


34/133

ther municipalities, such as iasi, 9ndanan, Tapul and $oloalso had the same problem of rejected ballots. 5owever, sincethe operators were not aware that one of the reasons forrejection of ballots is the use of wrong Bse>uence codeB, theyfailed to determine whether the cause for rejection of ballots for

said municipalities was the same as that for the municipality ofTalipao.

9n the case of Bmisaligned ovalsB, the counting machine will notreject the ballot because all the security features, such asBse>uence codeB, are present in the ballot, however, since theoval is misaligned or not placed in its proper position, themachine will credit the shaded oval for the position where themachine is programmed to BreadB the oval. Thus, instead ofrejecting the ballot, the machine will credit the votes of acandidate in favor of his opponent, or in the adjacent space

where the oval should be properly placed.

9t could not be determined if the other municipalities also hadthe same technical error in their official ballots since theBmisaligned ovalsB were discovered only after members of the8oard of Election 9nspectors of the !unicipality of )atacomplained that their votes were not reflected in the printout ofthe election results.

;s the e3tent or coverage of the technical errors could not bedetermined, the T 5ead, upon consultation with his technical

staff, was of the belief that it would be more prudent to count theballots manually than to proceed with an automated systemwhich will result in an erroneous count.

The T 5ead thus ordered the indefinite suspension of countingof ballots until such time as the Commission shall have resolvedthe petition@position papers to be submitted by the parties. TheT 5ead and his staff returned to Camp Aeneral 8autista toawait the submission of the position papers of the partiesconcerned.

Dpon receipt of the position papers of the parties, the T 5eadfa3ed the same in the evening of !ay &, &'', together withhis handwritten recommendation to proceed with a manualcount. ;ttached are copies of the recommendations of the T5ead (;nne3 B&B#, and the position papers of the )hilippine!arines and )hilippine *ational )olice (;nne3 BB#, ";4;-*DC7 Tan Wing ;nne3 (;nne3 B6B#, "a?as-*DC7 "oong Wing(;nne3 B:B#, ";4;-*DC7-!*" Wing (;nne3 B+B# and


35/133

";!!) (;nne3 B%B#. aid recommendations and positionpapers were the bases for the promulgation of C!E"EC!inute Resolution *o. '-&


36/133

3ifth. The evidence is clear that the integrity of the local ballots wassafeguarded when they were transferred from ulu to !anila and when theywere manually counted.

; shown by the Tolentino memorandum, representatives of the political

parties escorted the transfer of ballots from ulu to )9CC. 9ndeed, in his !ay&:, &'' letter to ;tty. Tolentino, $r., petitioner Tupay "oong himselfsubmitted the names of his representative who would company the ballotbo3es and other election paraphernalia,vi/1 20

7ear ;tty. Tolentino1

ubmitted herewith are the names of escort(s# to accompanythe ballot bo3es and other election pharaphernalia to betransported to C!E"EC, !anila, to wit1

&. $olo G $oseph "u

. )ati?ul G athie 8. "oong

6. 9ndanan G 7i3on $adi

:. iasi G $amal 9smael

+. 4. 4aluang G Enjimar ;bam

%. )ata G !arvin 5assan


37/133

&%. ). Estino G Jasir 9bba

&


38/133

9n fine, petitioner/s charge that the ballots could have been tampered withbefore the manual counting is totally unfounded.

Si4th. The evidence also reveals that the result of the manual count isreliable.

9t bears stressing that the ballots used in the case at bar were specially madeto suit an automated election. The ballots were uncomplicated. They hadfairly large ovals opposite the names of candidates. ; voter needed only tochec? the oval opposite the name of his candidate. When the C!E"ECordered a manual count of the votes, it issued special rules as the countinginvolved a different ?ind of ballot, albeit, more simple ballots. The mnibusElection Code rules on appreciation of ballots cannot apply for they only applyto elections where the names of candidates are handwritten in the ballots.The rules were spelled out in !inute Resolution '-&


39/133

the IRRs to determine the numberof voters who actually voted.

9f there are more ballots than thenumber of voters who actually voted,

the poll cler? shall draw out as manylocal and national ballots as may bee>ual to the e3cess and place themin the envelope for e3cess ballots.

99. Counting of Iotes

;. *ational 8allots1

&. 9f the national ballots have alreadybeen counted, return the same

inside the envelope for countedballots, reseal and place theenvelope inside the ballot bo32

. 9f the national ballots have not yetbeen counted, place them inside anenvelope and give the envelopethrough a liaison officer to themachine operator concerned forcounting and printing of the electionreturns2

6. The machine operator shall affi3his signature and thumbmar?thereon, and return the same to themembers of the 8E9 concerned fortheir signatures and thumbmar?s2

:. The said returns shall then beplaced in corresponding envelopesfor distribution2

8. "ocal 8allots1

&. Aroup the local ballots in piles offifty (+=#2

. The Chairman shall read the voteswhile the poll cler? and the thirdmember shall simultaneously


40/133


41/133

6. To consolidate the provincialresults, the ! shall load all thedis?ettes used in the scanner to theERs2

:. The ! shall print the provincialcertificate of canvass and the Iby municipality2

+. 9n case there is system failure inthe counting and@or consolidation ofthe results, the )8C@!8C shallrevert to manual consolidation.

8. "ocal 8allots

&. The consolidation of votes shall bedone manually by the)rovincial@!unicipal 8oard ofCanvassers2

. The proclamation of winningcandidates shall be based manualconsolidation.

RE"IE7, moreover that the pertinentprovisions of C!E"EC Resolution *os. '


42/133

c# ;tty. Menaida . oriano

!s. $ocelyn Auiang

!a. $ocelyn Tan

d# ;tty. Erlinda C. Echavia

!s. Teresa ;. Torralba

!s. !a. Carmen "lamas

e# 7irector Estrella ). de !esa

!s. Teresita Ielasco

!s. *elly $aena

"ater, the C!E"EC utili0ed the services of %== public schoolteachers from )asay City to do the manual counting. ive (+#elementary schools served as the venues of the counting, vi/1 25

&. Aotamco Elementary chool,Aotamco treet, )asay City G forthe municipalities of 9ndanan,)angutaran, )anglima Tahil,!aimbung2

. Mamora Elementary chool,Mamora treet, )asay City G for themunicipalities of $olo, Talipao,)anglima Estino, and Tapul2

6. Epifanio Elementary chool,Tramo treet, )asay City G for themunicipalities of )arang, "ugus,)anamao2

:. 8urgos Elementary chool,8urgos treet, )asay City G for themunicipalities of "uu? and Tong?il2

+. )alma Elementary chool G forthe municipalities of iasi and4alingalang Caluang.


43/133

rom beginning to end, the manual counting was done with the watchers ofthe parties concerned in attendance. Thereafter, the certificates of canvasswere prepared and signed by the City@!unicipal 8oard of Canvasserscomposed of the Chairman, Iice-Chairman, and ecretary. They were alsosigned by the parties/ watchers. 2$

The correctness of the manual count cannot therefore be doubted. There wasno need for an e3pert to count the votes. The na?ed eye could see thechec?mar?s opposite the big ovals. 9ndeed, nobody complained that the votescould not be read and counted. The C!E"EC representatives had nodifficulty counting the votes. The %== public school teachers of )asay Cityhad no difficulty. The watchers of the parties had no difficulty. )etitioner didnot object to the rules on manual count on the ground that the ballots cannotbe manually counted. 9ndeed, in his original )etition, petitioner did notcomplain that the local ballots could not be counted by a layman. *either didthe intervenor complain in his petition for intervention. The allegation that it

will ta?e a trained eye to read the ballots is more imagined than real.

This is not all. ;s private respondent Tan alleged, the manual count could nothave been manipulated in his favor because the results shows that most ofhis political opponents won. Thus, Bthe official results show that the twocongressional seats in ulu were won by Congressman 5ussin ;min of the";4;-!*" Wing for the &st 7istrict and Congressman ;sani Tammang ofthe ";4;-"oong Wing for the nd 7istrict. 9n the provincial level, of the eight(# seats for the angguniang )anlalawigan, two (# were won by the camp ofrespondent Tan2 three (6# by the camp of petitioner "oong2 two (# by the!*"2 and one ( by ";!!). 9n the mayoral race, seven (


44/133


45/133

9n the case at bar, the C!E"EC order for a manual count was notreasonable. 9t was the only way to count the decisive local votes in thesi3 (%# municipalities of )ata, Talipao, iasi, Tudanan, Tapul and $olo.The bottom line is that by means of the manual count, the will of thevoters of ulu was honestly determined. We cannot ?ic? away the will

of the people by giving a literal interpretation to R.;. :6%. R.;. :6%did not prohibit manual counting when machine count does not wor?.Counting is part and parcel of the conduct of an election which is underthe control and supervision of the C!E"EC. 9t ought to be self-evident that the Constitution did not envision a C!E"EC that cannotcount the result of an election.

5inth. ur elections are not conducted under laboratory conditions. 9n runningfor public offices, candidates do not follow the rules of Emily )ost. Too often,C!E"EC has to ma?e snap judgments to meet unforeseen circumstancesthat threaten to subvert the will of our voters. 9n the process, the actions of

C!E"EC may not be impeccable, indeed, may even be debatable. Wecannot, however, engage in a swivel chair criticism of these actions oftenta?en under very difficult circumstances. Even more, we cannot order aspecial election unless demanded by e3ceptional circumstances. Thus, theplea for this Court to call a special election for the governorship of ulu iscompletely off-line. The plea can only be grounded on failure of election.ection % of the mnibus Election Code tells us when there is a failure ofelection, vi/1

ec. %.ailure of election. G 9f, on account offorce ma,eure,terrorism, fraud, or other analogous causes, the election in any

polling place has not been held on the date fi3ed, or had beensuspended before the hour fi3ed by law for the closing of thevoting, or after the voting and during the preparation and thetransmission of the election returns or in the custody or canvassthereof, such election results in a failure to elect, and in any ofsuch cases the failure or suspension of election would affect theresult of the election, the Commission shall on the basis of averified petition by any interested party and after due notice andhearing, call for the holding or continuation of the election, notheld, suspended or which resulted in a failure to elect but notlater than thirty days after the cessation of the cause of suchpostponement or suspension of the election or failure to elect.

To begin with, the plea for a special election must be addressed to theC!E"EC and not to this Court. ection % of the mnibus ElectionCode should be read in relation to ection : of R.;. *o.


46/133

ec. :. )ostponement, ailure of Election and pecialElections. G The postponement, declaration of failure ofelections and the calling of special elections as provided inections +, %, and < of the mnibus Election Code shall bedecided by the Commission en bancby a majority vote of its

members. The causes for the declaration of a failure of electionmay occur before or after casting of votes or on the day of theelection.

The grounds for failure of election Gforce ma,eure, terrorism, fraud orother analogous causes G clearly involve >uestions of fact. 9t is for thisreason that they can only be determined by the C!E"EC enbancafter due notice and hearing to the parties. 9n the case at bar,petitioner never as?ed the C!E"EC en bancto call for a specialelection in ulu. Even his original petition with this Court, petitioner didnot pray for a special election. 5is plea for a special election is a mere

afterthought. Too late in the day and too unprocedural. Worse, thegrounds for failure of election are ine3istent. The records show that thevoters of ulu were able to cast their votes freely and fairly. Their voteswere counted correctly, albeit manually. The people have spo?en.Their sovereign will has to be obeyed.

There is another reason why a special election cannot be ordered by thisCourt. To hold a special election only for the position of Aovernor will bediscriminatory and will violate the right of private respondent to e>ualprotection of the law. The records show that all elected officials in ulu havebeen proclaimed and are now discharging their powers and duties. Thus, two

(# congressmen, a vice-governor, eight (# members of the angguniang)anlalawigan and eighteen ( mayors, numerous vice-mayors andmunicipal councilors are now serving in their official capacities. These officialswere proclaimed on the basis of the same manually counted votes of ulu. 9fmanual counting is illegal, their assumption of office cannot also becountenanced. )rivate respondent/s election cannot be singled out as invalidfor ali?es cannot be treated unali?es.

A final #ord. ur decision merely reinforces our collective efforts to endowC!E"EC with enough power to hold free, honest, orderly and credibleelections. ; >uic? flashbac? of its history is necessary lest our efforts be lostin the labyrinth of time.

The C!E"EC was organi0ed under Commonwealth ;ct *o. %=< enacted on;ugust , &':=. The power to enforce our election laws was originallyvested in the )resident and e3ercised through the 7epartment of 9nterior.

;ccording to 7ean inco, 29the view ultimately that an independent bodycould better protect the right of suffrage of our people. 5ence, the


47/133

enforcement of our election laws, while an e3ecutive power, was transferredto the C!E"EC.

rom a statutory creation, the C!E"EC was transformed to a constitutionalbody by virtue of the &':= amendments to the &'6+ Constitution which too?

effect on 7ecember , &':=. C!E"EC was generously granted the powerto Bhave e3clusive charge of the enforcement and administration of all lawsrelative to the conduct of elections . . .. 30

Then came the &'


48/133

dissent, for all its depth, is out of step with this movement. 9t condemnsC!E"EC for e3ercising its discretion to resort to manual count whenthis was its only viable alternative. 9t would set aside the results of themanual count even when the results are free from fraud andirregularity. Worse, it would set aside the judgment of the people

electing the private respondent as Aovernor. Dpholding thesovereignty of the people is what democracy is all about. When thesovereignty of the people e3pressed thru the ballot is at sta?e, it is notenough for this Court to ma?e a statement but it should do everythinghave that sovereignty obeyed by all. Well done is always better thanwell said.

9* I9EW W5ERE, the petition of Tupay "oong and the petition inintervention of Jusop $i?iri are dismissed, there being no showing that publicrespondent gravely abused its discretion in issuing !inute Resolution *os.'-&


49/133

BW5ERERE, premises considered, the instant petition is herebyAR;*TE7. The results of special elections held on 6= !ay ==& covering)recincts *os. ;, ;&@; in 8arangay 8ang?o, )recinct *o. 6; in8arangay Cabasaran and clustered )recinct *o. &=;@&=;& in 8arangay"iangan are hereby ;**D""E7.

;ccordingly, the proclamation of all winning candidates insofar as the resultsin the four (:# contested precincts affect the standing of candidates is herebyET ;97E until the choice of the people is finally determined throughanother special election to be authori0ed, conducted and supervised by thisCommission as soon as possible unless restrained.

inally, the "aw 7epartment is hereby directed to investigate the electionirregularities that transpired in the !unicipality of *unungan, "anao del *orteinvolving the ffice of the Election fficer and thereafter, file election offensecase@s should there be finding of probable cause and other appropriate cases

if warranted under the circumstances.

R7ERE7.B6

The acts

7uring the !ay &:, ==& elections, petitioner $un Rascal Cawasa (BpetitionerCawasaB for brevity# and private respondent ;dbulmali? !. !anamparan(Bprivate respondent !anamparanB for brevity# were among the candidatesfor mayor in the !unicipality of *unungan, "anao del *orte (B*ununganB forbrevity#. ut of the forty (:=# precincts in *unungan, only thirty-si3 (6%#

functioned, as there was a failure of election in the remaining four (:#precincts. The following were the precincts, barangays, polling places andnumber of registered voters where there was a failure of election1

)REC9*CT*.

8;R;*A;J

)""9*A)";CE

REA.ITER

; 8ang?o8ang?o )rimchool

==

;&@; 8ang?o -do- +:

6;Cabasaran

Cabasaran )rim.ch. &++

&=;@&=;& "iangan"iangan )rim.ch.

6%

Total :+
http://www.lawphil.net/judjuris/juri2002/jul2002/gr_150469_2002.html#fnt3http://www.lawphil.net/judjuris/juri2002/jul2002/gr_150469_2002.html#fnt3


50/133

;fter canvassing the election returns from the 6% precincts, the !unicipal8oard of Canvassers of *unungan deferred the proclamation of all winningcandidates due to the failure of the said : precincts to function. pecialelections were set on !ay 6=, ==& considering that the number of registeredvoters in the remaining four precincts would affect the election results. The

Comelec promulgated Resolution *o. :6%= on !ay &, ==& authori0ing theconduct of special elections in the affected areas, including barangays8ang?o, Cabasaran and "iangan in *unungan, the pertinent portion of whichstates1

BI99. !emorandum of Commissioner !ehol 4. adain dated &' !ay ==&.

REA9* !D*9C9);"9TJ@)RI9*CE

Region H99 *unu(n#gan, "anao del *orte

8arangays1

&. 8angco

. Cabasaran

6. "iangan

RE;* 1 disagreement of venue of election, tension of 8E9s, forcibleta?ing of the ballot bo3es and other election paraphernalia.

cheduled date1 !ay 6=, ==&

3 3 3

9n view of the foregoing the Commission RE"IE7, as it herebyRE"IE7, as follows1

&. To schedule the special elections in the foregoing areas on !ay % and 6=,==& as herein specified2

3 3 3

"et the E3ecutive 7irector, 7eputy E3ecutive 7irectors for perations and allthe wor?ing Committees implement this resolution.

R7ERE7.B:

;s scheduled, the special elections covering the : precincts were conductedon !ay 6=, ==&. The special elections for )recincts *os. ;, ;&@; of


51/133

8arangay 8ang?o were conducted in the !unicipality of ultan *aga7imaporo, "anao del *orte. The special elections for )recinct *o. 6; of8arangay Cabasara and )recinct *os. &=;@&=;& of 8arangay "iangan wereconducted in the !unicipality of apad, "anao del *orte.

The !unicipal 8oard of Canvassers of *unungan canvassed the electionreturns of the : precincts on !ay 6&, ==&. ;fter the canvassing of theelection returns, the !unicipal 8oard of Canvassers proclaimed the winningcandidates on the basis of the earlier 6% election returns of the !ay &:, ==&regular elections and the : election returns of the : precincts subject of thespecial elections.

The !ay &:, ==& regular elections and the !ay 6=, ==& special electionsshow the following results with respect to the position of mayor1

ub-Total of Iotes ub-Total of votes Arand

btained !ay &:, ==& btained !ay 6=, TotalRegular Elections ==& pecial Elections)rivate Respondent !anamparan &,&'< +


52/133

;s mentioned at the outset, on ctober :, ==&, the Comelec enbancpromulgated a resolution annulling the results of the special elections ofthe : precincts ()recinct *os. ;, ;&@;, 6;, &=;@&=; held on !ay 6=,==& conducted in the municipalities of ultan *aga 7imaporo and apad.The Comelec en bancalso annulled the proclamation of all winning

candidates insofar as the results in the : contested precincts affect thestanding of candidates.

The Comelec Ruling

9n granting the petition, the Comelec held that Bthe special elections in the :contested precincts were not genuinely held and resulted in failure to elect onaccount of fraud. B The ComelecOs ruling is summari0ed as follows1

First. The Comelec clarified that the Comelec en banccan ta?e cogni0anceof the petition for annulment of election results in accordance with ection :

of R;


53/133

as?ing the permission of this Commission and in violation of the due processrule, thereby, ma?ing the afore->uoted ection &+6 inutile.

Considering these unwarranted acts of the official of this Commission, thesanctity of the special elections therefore is suspect. No+'n 'n + &o&4

o/( 4o +a+ no+' a4 '-n +o + %o('+'a( an'a+4 an +o +&'4+& -o+&4 a66+ y + 4%'a( (+'on4 o6 + 4a' +&an46& o6%o(('n %(a4. o +&6o& -o+ on + a44a'( 4%'a( (+'on4'-n +4 '&/84+an4 T'4 '44/ a4 n-& n 4:/a&(ya&44 y + &4%onn+4.

+a;

&=

Third.The Comelec found that the !unicipal 8oard of Canvassers, headedby !ario ;llan 8allesta, preposterously feigned ignorance of the fact thatduring the said special elections, members of the )hilippine ;rmy %th9nfantry 8attalion served as election inspectors without authority from theComelec.

5ence, the instant petition.

The 9ssues

)etitioners argue that the C!E"EC en bancResolution was issued withoutjurisdiction and@or with grave abuse of discretion amounting to lac? ofjurisdiction for the following reasons1

B&. The proclamation of the si3 (%# petitioners !aasiral 7ampa, 5. ;c?il!amantuc, !omolawan !acali, ;ndar Tali, ;llan anayon, and ;minangaran were annulled and set aside in violation of due process oflaw. They were not impleaded as respondents in the petition to annulthe election. They were not notified of the proceedings. 3 3 3.

. The transfer of the venue of the special elections at ultan *aga7imaporo and apad and the appointment of military personnel asmembers of the 8oard of election 9nspectors of the four (:# precinctswere agreed upon by the private respondent and the municipalcandidates and their respective political parties.

6. The election officer in the e3ercise of his discretion has authority totransfer the venue of the special elections in view of the agreement of


54/133


55/133

)etitioners insist on the validity of the conduct of the special electionsclaiming that the political parties and the municipal candidates were notifiedand in fact agreed on the transfer of venue and the appointment of militarypersonnel as members of the 8E9. They contend that there is substantialcompliance with the provisions of ection &+6 of the mnibus Election Code

considering that the election officer as the representative of the Comelecreported the matter to the )rovincial Election upervisor of "anao del *orteand the transfer was not disapproved by the Comelec. )etitioners claim thatan Belection officer has authority to transfer the polling places even four daysbefore the scheduled electionB citing Balindong vs. Comelec&andAlonto vs.Comelec.&6

)etitioners fail to persuade. ections &+, &+6 and &+: of the mnibusElection Code shed light on this matter, to wit1

EC. &+. Po(('n P(a. P ; polling place is the building or place where the

board of election inspectors conducts its proceedings and where the votersshall cast their votes.

EC. &+6. D4'na+'on o6 %o(('n %(a4. P The location of polling placesdesignated in the preceding regular election shall continue with such changesas the Commission may find necessary, after notice to registered politicalparties and candidates in the political unit affected, if any, and hearing1provided, That no location shall be changed within forty-five days before aregular election and thirty days before a special election or a referendum orplebiscite, e3cept in case it is destroyed or it cannot be used.

EC. &+:. R:/'&8n+4 6o& %o(('n %(a4. PEach polling place shall be,as far as practicable, a ground floor and shall be of sufficient si0e to admitand comfortably accommodate forty voters at one time outside the guard railfor the board of election inspectors. The polling place shall be located withinthe territory of the precinct as centrally as possible with respect to theresidence of the voters therein and whenever possible, such location shall bealong a public road. No 4'na+'on o6 %o(('n %(a4 4a(( an=%+ /%on &'++n %+'+'on o6 + 8a


56/133

majority of the voters of the precinct or agreement of all the political parties orby resolution of the Comelec after notice and hearing. 8ut ultimately, it is theComelec which determines whether a change is necessary after notice andhearing.

The Comelec has une>uivocally stated that Bnothing in the records showedthat notice was given to the political candidates and registered voters affectedby the transfer.B )rivate respondent !anamparan has categorically deniedpetitionersO claim that all the political parties and municipal candidates agreedto the transfer of venue. The Court discerns no substantiation of petitionersOclaim regarding the agreement to transfer. There is then no cogent reason forus to disturb the findings of the Comelec on this matter. 9ndeed, the factualfindings of the Comelec supported by substantial evidence shall be final andnon-reviewable.&+Thus, it has been held that findings of fact of the Comelecbased on its own assessments and duly supported by evidence, areconclusive upon this Court, more so, in the absence of a substantiated attac?

on the validity of the same.

&%

!oreover, there is no >uestion that the transferof venue was made within the prohibited period of thirty days before thespecial election.

Reliance on Balindong vs. Comelec&


57/133

provisions of the mnibus Election Code regarding the composition,appointments and substitution of the members of the 8E9 are >uoted asfollows1

EC. &%:. Co8%o4'+'on an a%%o'n+8n+4 o6 oa& o6 (+'on

'n4%+o&4. - ;t least thirty days before the date when the voters list is to beprepared in accordance with this Code, in the case of a regular election orfifteen days before a special election, + Co88'44'on 4a((, '&+(y o&+&o/ '+4 /(y a/+o&'? &%&4n+a+'-4, on4+'+/+ a oa& o6(+'on 'n4%+o&4 6o& a %&'n+ +o o8%o4 o6 a a'&8an ana %o(( (&; o 8/4+ %/(' 4oo( +a&4, %&'o&'+y +o '-n +o'-'( 4&-' (''(4, an +o 88&4, a &%&4n+'n + +oa&'+ %o('+'a( %a&+'4.The appointment shall state the precinct towhich they are assigned and the date of the appointment.

EC. &%+. Oa+ o6 + 88&4 o6 + oa& o6 (+'on 'n4%+o&4 . - The

members of the board of election inspectors, whether permanent, substituteor temporary, shall before assuming their office, ta?e and sign an oath uponforms prepared by the Commission, before an officer authori0ed to administeroaths or, in his absence, before any other member of the board of electioninspectors present, or in case no one is present, they shall ta?e it before anyvoter. The oaths shall be sent immediately to the city or municipal treasurer.(ec. &+ualified from acting as such

members, e3cept for cause and after due hearing.

3 3 3

ection &6 of Republic ;ct *o. %%:%=modified ection &%: of the mnibusElection Code. aid section reads1


58/133

EC. &6. Board of Election ;nspectors. P The board of election inspectors tobe constituted by the Commission under ection &%: of 8atas )ambansa 8lg.& shall be composed of a chairman and two (# members, one of whomshall be designated as poll cler?, all of whom shall be public school teachers,giving preference to those with permanent appointments. 9n case there are

not enough public school teachers, teachers in private schools, employees inthe civil service, or other citi0ens of ?nown probity and competence who areregistered voters of the city or municipality may be appointed for electionduty.

Clearly, the 8E9 shall be composed of a chairman and two members, all ofwhom are public school teachers. 9f there are not enough public schoolteachers, teachers in private schools, employees in the civil service or otherciti0ens of ?nown probity and competence may be appointed. 9t was highlyirregular to replace the duly constituted members of the 8E9, who were publicschool teachers. *othing in petitionersO pleadings would even suggest that the

substitution was made for cause and after hearing. The importance of theconstitution of the 8E9 to the conduct of free, honest and orderly electionscannot be overemphasi0ed. The Court has held that, Bthe members of theboard of election inspectors are the front line election officers. They performsuch duties and discharge such responsibilities that ma?e them, in a realsense, foot soldiers who see to it that elections are free, honest and orderly.They are essential to the holding of elections.B&

Second ;ssue< :enial of :ue Process

)etitioners claim that there was a clear violation of due process of law

because a hearing was not conducted on the circumstances of the specialelection. )etitioners further claim that the Comelec rendered the assailedresolution without re>uiring its field officers, specifically, the election officer,provincial election supervisor and the regional election director to e3plain thetransfer of the polling places. "astly, petitioners point out that none of theeight (# proclaimed members of the angguniang 8ayanof *unungan,"anao del *orte and the proclaimed Iice !ayor were notified and impleadedas respondents in the petition to annul the election results citing =elao vs.Commission on Elections.6

ection : of Republic ;ct *o.


59/133

fi3ed by law for the closing of the voting, or after the voting and during thepreparation and the transmission of the election returns or in the custody orcanvass thereof, such election results in a failure to elect, and in any of suchcases the failure or suspension of election would affect the result of theelection, the Commission shall, on the basis of a verified petition by any

interested party and after due notice and hearing, call for the holding orcontinuation of the election not held, suspended or which resulted in a failureto 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 daysafter the cessation of the cause of such postponement or suspension of theelection or failure to elect.B

; prayer to annul election results, as in the instant case, and a prayer todeclare failure of elections based on allegations of fraud, terrorism, violenceor analogous causes, are actually of the same nature and the Election Codedenominates them similarly.:The Comelec may e3ercise the power to annul

election results or declare a failure of election motu proprio

+

or upon averified petition.%The hearing of the case shall be summary in nature.


60/133

9n =elao vs. Commission of Elections"6&the Court held that Bthe non-inclusion of a proclaimed winner as respondent in a pre-proclamationcontroversy and his lac? of notice of the proceedings in the Comelec whichresulted in the cancellation of his proclamation constitute clear denial of dueprocess.B 9n the =elaocase, the proclaimed mayor and the members of the

!unicipal 8oard of Canvassers were not impleaded in the pre-proclamationcases brought before the Comelec. 5owever, in this case, petitioner Cawasaand the members of the !unicipal 8oard of Canvassers were in factimpleaded, notified and even heard by the Comelec in )C *o. =&-


61/133

Ernesto . !ercado &==,':

Aabriel I. 7a0a 999 +:,ualification filed by a certain Ernesto !amaril who alleged thatprivate respondent was not a citi0en of the )hilippines but of the Dnitedtates.

9n its resolution, dated !ay ualified from running for any elective position. The C!E"EC/second 7ivision said1

What is presented before the Commission is a petition fordis>ualification of Eduardo 8arrios !an0ano as candidate forthe office of Iice-!ayor of !a?ati City in the !ay &&, &''elections. The petition is based on the ground that therespondent is an ;merican citi0en based on the record of the8ureau of 9mmigration and misrepresented himself as a natural-born ilipino citi0en.

9n his answer to the petition filed on ;pril ualified from running for anyelective local position.


62/133

W5ERERE, the Commission hereby declares therespondent Eduardo 8arrios !an0ano 79QD;"99E7 ascandidate for Iice-!ayor of !a?ati City.

n !ay , &'', private respondent filed a motion for reconsideration. 3The

motion remained pending even until after the election held on !ay &&, &''.

;ccordingly, pursuant to mnibus Resolution *o. 6=::, dated !ay &=, &'',of the C!E"EC, the board of canvassers tabulated the votes cast for vicemayor of !a?ati City but suspended the proclamation of the winner.

n !ay &', &'', petitioner sought to intervene in the case fordis>ualification. ))etitioner/s motion was opposed by private respondent.

The motion was not resolved. 9nstead, on ;ugust 6&, &'', theC!E"EC en bancrendered its resolution. Ioting : to &, with one

commissioner abstaining, the C!E"EC en banc reversed the ruling of itsecond 7ivision and declared private respondent >ualified to run for vicemayor of the City of !a?ati in the !ay &&, &'' elections. 5The pertinentportions of the resolution of the C!E"EC en banc read1

;s aforesaid, respondent Eduardo 8arrios !an0ano was born inan rancisco, California, D..;. 5e ac>uired D citi0enship byoperation of the Dnited tates Constitution and laws under theprinciple of,us soli.

5e was also a natural born ilipino citi0en by operation of the

&'6+ )hilippine Constitution, as his father and mother wereilipinos at the time of his birth. ;t the age of si3 (%#, his parentsbrought him to the )hilippines using an ;merican passport astravel document. 5is parents also registered him as an alienwith the )hilippine 8ureau of 9mmigration. 5e was issued analien certificate of registration. This, however, did not result inthe loss of his )hilippine citi0enship, as he did not renounce)hilippine citi0enship and did not ta?e an oath of allegiance tothe Dnited tates.

9t is an undisputed fact that when respondent attained the age of

majority, he registered himself as a voter, and voted in theelections of &'', &''+ and &'', which effectively renouncedhis D citi0enship under ;merican law. Dnder )hilippine law, heno longer had D.. citi0enship.

;t the time of the !ay &&, &'' elections, the resolution of theecond 7ivision, adopted on !ay


63/133

among the candidates for vice-mayor of !a?ati City, garneringone hundred three thousand eight hundred fifty three (&=6,+6#votes over his closest rival, Ernesto . !ercado, who obtainedone hundred thousand eight hundred ninety four (&==,':#votes, or a margin of two thousand nine hundred fifty nine

(,'+'# votes. Aabriel 7a0a 999 obtained third place with fifty fourthousand two hundred seventy five (+:,


64/133

. 5e renounced his D.. citi0enship when he(merely# registered himself as a voter and voted inthe elections of &'', &''+ and &''.

8. !an0ano is >ualified to run for and or hold the elective office

of Iice-!ayor of the City of !a?ati2

C. ;t the time of the !ay &&, &'' elections, the resolution ofthe econd 7ivision adopted on < !ay &'' was not yet final sothat, effectively, petitioner may not be declared the winner evenassuming that !an0ano is dis>ualified to run for and hold theelective office of Iice-!ayor of the City of !a?ati.

We first consider the threshold procedural issue raised by private respondent!an0ano G whether petitioner !ercado his personality to bring this suitconsidering that he was not an original party in the case for dis>ualification

filed by Ernesto !amaril nor was petitioner/s motion for leave to intervenegranted.

9. )ET9T9*ER/ R9A5T T 8R9*A T59 D9T

)rivate respondent cites the following provisions of Rule of the Rules of)rocedure of the C!E"EC in support of his claim that petitioner has no rightto intervene and, therefore, cannot bring this suit to set aside the rulingdenying his motion for intervention1

ec. &. When proper and when may be permitted to intervene.

G ;ny person allowed to initiate an action or proceeding may,before or during the trial of an action or proceeding, bepermitted by the Commission, in its discretion to intervene insuch action or proceeding, if he has legal interest in the matterin litigation, or in the success of either of the parties, or aninterest against both, or when he is so situated as to beadversely affected by such action or proceeding.

333 333 333

ec. 6. 7iscretion of Commission. G 9n allowing or disallowing a

motion for intervention, the Commission or the 7ivision, in thee3ercise of its discretion, shall consider whether or not theintervention will unduly delay or prejudice the adjudication of therights of the original parties and whether or not the intervenor/srights may be fully protected in a separate action or proceeding.

)rivate respondent argues that petitioner has neither legal interest inthe matter in litigation nor an interest to protect because he is Ba


65/133

defeated candidate for the vice-mayoralty post of !a?ati City whoFcannot be proclaimed as the Iice-!ayor of !a?ati City if the privaterespondent be ultimately dis>ualified by final and e3ecutory judgment.B

The flaw in this argument is it assumes that, at the time petitioner sought to

intervene in the proceedings before the C!E"EC, there had already been aproclamation of the results of the election for the vice mayoralty contest for!a?ati City, on the basis of which petitioner came out only second to privaterespondent. The fact, however, is that there had been no proclamation at thattime. Certainly, petitioner had, and still has, an interest in ousting privaterespondent from the race at the time he sought to intervene. The rule in Labov. COMELEC,$reiterated in several cases,7only applies to cases in whichthe election of the respondent is contested, and the >uestion is whether onewho placed second to the dis>ualified candidate may be declared the winner.9n the present case, at the time petitioner filed a B!otion for "eave to ile9nterventionB on !ay =, &'', there had been no proclamation of the winner,

and petitioner/s purpose was precisely to have private respondent dis>ualifiedBfrom running for anF elective local positionB under :=(d# of R.;. *o. ualification proceedings#, aregistered voter of !a?ati City, was competent to bring the action, so waspetitioner since the latter was a rival candidate for vice mayor of !a?ati City.

*or is petitioner/s interest in the matter in litigation any less because he filed amotion for intervention only on !ay =, &'', after private respondent hadbeen shown to have garnered the highest number of votes among thecandidates for vice mayor. That petitioner had a right to intervene at thatstage of the proceedings for the dis>ualification against private respondent is

clear from % of R.;. *o. %%:%, otherwise ?nown as the Electoral Reform "awof &'ualified shall not be voted for, and the votes cast for himshall not be counted. 9f for any reason a candidate is notdeclared by final judgment before an election to be dis>ualifiedand he is voted for and receives the winning number of votes insuch election, the Court or Commission shall continue with thetrial and hearing of action, in>uiry, or protest and, upon motionof the complainant or any intervenor, may during the pendencythereof order the suspension of the proclamation of suchcandidate whenever the evidence of guilt is strong.

Dnder this provision, intervention may be allowed in proceedings fordis>ualification even after election if there has yet been no final judgmentrendered.


66/133

The failure of the C!E"EC en banc to resolve petitioner/s motion forintervention was tantamount to a denial of the motion, justifying petitioner infiling the instant petition for certiorari. ;s the C!E"EC en banc insteaddecided the merits of the case, the present petition properly deals not onlywith the denial of petitioner/s motion for intervention but also with the

substantive issues respecting private respondent/s alleged dis>ualification onthe ground of dual citi0enship.

This brings us to the ne3t >uestion, namely, whether private respondent!an0ano possesses dual citi0enship and, if so, whether he is dis>ualifiedfrom being a candidate for vice mayor of !a?ati City.

99. 7D;" C9T9ME*59) ; ; ARD*7 R 79QD;"99C;T9*

The dis>ualification of private respondent !an0ano is being sought under :=of the "ocal Aovernment Code of &''& (R.;. *o. ualified from running for any elective local position1 . . . (d# Those withdual citi0enship.B This provision is incorporated in the Charter of the City of!a?ati.

9nvo?ing the ma3im dura le4 sed le4, petitioner, as well as the olicitorAeneral, who sides with him in this case, contends that through :=(d# of the"ocal Aovernment Code, Congress has BcommandedF in e3plicit terms theineligibility of persons possessing dual allegiance to hold local elective office.B

To begin with, dual citi0enship is different from dual allegiance. The formerarises when, as a result of the concurrent application of the different laws of

two or more states, a person is simultaneously considered a national by thesaid states.9or instance, such a situation may arise when a person whoseparents are citi0ens of a state which adheres to the principle of,ussanguinisis born in a state which follows the doctrine of,us soli. uch aperson, ipso factoand without any voluntary act on his part, is concurrentlyconsidered a citi0en of both states. Considering the citi0enship clause (;rt.9I# of our Constitution, it is possible for the following classes of citi0ens of the)hilippines to possess dual citi0enship1

( Those born of ilipino fathers and@or mothers in foreigncountries which follow the principle of,us soli2

(# Those born in the )hilippines of ilipino mothers and alienfathers if by the laws of their father/s/ country such children areciti0ens of that country2

(6# Those who marry aliens if by the laws of the latter/s countrythe former are considered citi0ens, unless by their act or


67/133

omission they are deemed to have renounced )hilippineciti0enship.

There may be other situations in which a citi0en of the )hilippines may,without performing any act, be also a citi0en of another state2 but the above

cases are clearly possible given the constitutional provisions on citi0enship.

7ual allegiance, on the other hand, refers to the situation in which a personsimultaneously owes, by some positive act, loyalty to two or more states.While dual citi0enship is involuntary, dual allegiance is the result of anindividual/s volition.

With respect to dual allegiance, ;rticle 9I, + of the Constitution provides1B7ual allegiance of citi0ens is inimical to the national interest and shall bedealt with by law.B This provision was included in the &'< Constitution at theinstance of Commissioner 8las . ple who e3plained its necessity as

follows1

10

. . . 9 want to draw attention to the fact that dual allegiance is notdual citi0enship. 9 have circulated a memorandum to the 8ernasCommittee according to which a dual allegiance G and 9reiterate a dual allegiance G is larger and more threateningthan that of mere double citi0enship which is seldom intentionaland, perhaps, never insidious. That is often a function of theaccident of mi3ed marriages or of birth on foreign soil. ;nd so, 9do not >uestion double citi0enship at all.

What we would li?e the Committee to consider is to ta?econstitutional cogni0ance of the problem of dual allegiance. ore3ample, we all ?now what happens in the triennial elections ofthe ederation of ilipino-Chinese Chambers of Commercewhich consists of about %== chapters all over the country. Thereis a )e?ing tic?et, as well as a Taipei tic?et. *ot widely ?nown isthe fact chat the ilipino-Chinese community is represented inthe "egislative Juan of the Republic of China in Taiwan. ;nduntil recently, sponsor might recall, in !ainland China in the)eople/s Republic of China, they have the ;ssociated"egislative Council for overseas Chinese wherein all of

outheast ;sia including some European and "atin countrieswere represented, which was dissolved after several yearsbecause of diplomatic friction. ;t that time, the ilipino-Chinesewere also represented in that verseas Council.

When 9 spea? of double allegiance, therefore, 9 spea? of thisunsettled ?ind of allegiance of ilipinos, of citi0ens who arealready ilipinos but who, by their acts, may be said to be bound


68/133

by a second allegiance, either to )e?ing or Taiwan. 9 also too?close note of the concern e3pressed by some Commissionersyesterday, including Commissioner Iillacorta, who wereconcerned about the lac? of guarantees of thoroughassimilation, and especially Commissioner Concepcion who has

always been worried about minority claims on our naturalresources.

7ull allegiance can actually siphon scarce national capital toTaiwan, ingapore, China or !alaysia, and this is alreadyhappening. ome of the great commercial places in downtownTaipei are ilipino-owned, owned by ilipino-Chinese G it is ofcommon ?nowledge in !anila. 9t can mean a tragic capitaloutflow when we have to endure a capital famine which alsomeans economic stagnation, worsening unemployment andsocial unrest.

;nd so, this is e3actly what we as? G that the Committee ?indlyconsider incorporating a new section, probably ection +, in thearticle on Citi0enship which will read as follows1 7D;"

;""EA9;*CE 9 9*9!9C;" T C9T9ME*59) ;*7 5;"" 8E7E;"T W9T5 ;CCR79*A T ";W.

9n another session of the Commission, ple spo?e on the problem of theseciti0ens with dual allegiance, thus1 11

. . . ; significant number of Commissioners e3pressed their

concern about dual citi0enship in the sense that it implies adouble allegiance under a double sovereignty which some of uswho spo?e then in a freewheeling debate thought would berepugnant to the sovereignty which pervades the Constitutionand to citi0enship itself which implies a uni>ueness and whichelsewhere in the Constitution is defined in terms of rights andobligations e3clusive to that citi0enship including, of course, theobligation to rise to the defense of the tate when it isthreatened, and bac? of this, Commissioner 8ernas, is, ofcourse, the concern for national security. 9n the course of thosedebates, 9 thin? some noted the fact that as a result of the waveof naturali0ations since the decision to establish diplomaticrelations with the )eople/s Republic of China was made in &'


69/133

with its attendant ris? of double allegiance which is repugnant toour sovereignty and national security. 9 appreciate what theCommittee said that this could be left to the determination of afuture legislature. 8ut considering the scale of the problem, thereal impact on the security of this country, arising from, let us

say, potentially great numbers of double citi0ens professingdouble allegiance, will the Committee entertain a proposedamendment at the proper time that will prohibit, in effect, orregulate double citi0enshipN

Clearly, in including + in ;rticle 9I on citi0enship, the concern of theConstitutional Commission was not with dual citi0ensper sebut withnaturali0ed citi0ens who maintain their allegiance to their countries of origineven after their naturali0ation. 5ence, the phrase Bdual citi0enshipB in R.;.*o. ualification. Dnli?e those with dual allegiance, who must,therefore, be subject to strict process with respect to the termination of theirstatus, for candidates with dual citi0enship, it should suffice if, upon the filingof their certificates of candidacy, they elect )hilippine citi0enship to terminatetheir status as persons with dual citi0enship considering that their condition isthe unavoidable conse>uence of conflicting laws of different states. ;s$oa>uin A. 8ernas, one of the most perceptive members of the ConstitutionalCommission, pointed out1 B7Fual citi0enship is just a reality imposed on usbecause we have no control of the laws on citi0enship of other countries. Werecogni0e a child of a ilipino mother. 8ut whether she is considered a citi0enof another country is something completely beyond our control.B 12

8y electing )hilippine citi0enship, such candidates at the same time forswearallegiance to the other country of which they are also citi0ens and therebyterminate their status as dual citi0ens. 9t may be that, from the point of view ofthe foreign state and of its laws, such an individual has not effectivelyrenounced his foreign citi0enship. That is of no moment as the followingdiscussion on :=(d# between enators Enrile and )imentel clearly shows113

E*;TR E*R9"E. !r. )resident, 9 would li?e to as?clarification of line :&, page &ualified to run for any elective local position.Dnder the present Constitution, !r. )resident, someone whosemother is a citi0en of the )hilippines but his father is a foreigneris a natural-born citi0en of the Republic. There is no re>uirementthat such a natural born citi0en, upon reaching the age ofmajority, must elect or give up )hilippine citi0enship.

n the assumption that this person would carry two passports,one belonging to the country of his or her father and one


70/133


71/133

WFhen a person applying for citi0enship by naturali0ation ta?esan oath that he renounce, his loyalty to any other country orgovernment and solemnly declares that he owes his allegianceto the Republic of the )hilippines, the condition imposed by lawis satisfied and compiled with. The determination whether such

renunciation is valid or fully complies with the provisions of our*aturali0ation "aw lies within the province and is an e3clusiveprerogative of our courts. The latter should apply the law dulyenacted by the legislative department of the Republic. *oforeign law may or should interfere with its operation andapplication. 9f the re>uirement of the Chinese "aw of *ationalitywere to be read into our *aturali0ation "aw, we would beapplying not what our legislative department has deemed it wiseto re>uire, but what a foreign government has thought orintended to e3act. That, of course, is absurd. 9t must be resistedby all means and at all cost. 9t would be a bra0en encroachment

upon the sovereign will and power of the people of thisRepublic.

999. )ET9T9*ER/ E"ECT9* )59"9))9*E C9T9ME*59)

The record shows that private respondent was born in an rancisco,California on eptember :, &'++, of ilipino parents. ince the )hilippinesadheres to the principle of,us sanguinis, while the Dnited tates follows thedoctrine of,us soli, the parties agree that, at birth at least, he was a nationalboth of the )hilippines and of the Dnited tates. 5owever, the C!E"EC enbanc held that, by participating in )hilippine elections in &'', &''+, and

&'', private respondent Beffectively renounced his D.. citi0enship under;merican law,B so that now he is solely a )hilippine national.

)etitioner challenges this ruling. 5e argues that merely ta?ing part in)hilippine elections is not sufficient evidence of renunciation and that, in anyevent, as the alleged renunciation was made when private respondent wasalready 6< years old, it was ineffective as it should have been made when hereached the age of majority.

9n holding that by voting in )hilippine elections private respondent renouncedhis ;merican citi0enship, the C!E"EC must have in mind 6:' of the9mmigration and *ationality ;ct of the Dnited tates, which provided that B;person who is a national of the Dnited tates, whether by birth ornaturali0ation, shall lose his nationality by1 . . . (e# Ioting in a political electionin a foreign state or participating in an election or plebiscite to determine thesovereignty over foreign territory.B To be sure this provision was declaredunconstitutional by the D.. upreme Court inAfroim v.%us$1$as beyondthe power given to the D.. Congress to regulate foreign relations. 5owever,by filing a certificate of candidacy when he ran for his present post, private


72/133


73/133

abandoned and renounced his D citi0enship but before he wasrepatriated to his ilipino citi0enship.B

n this point, we >uote from the assailed Resolution dated7ecember &', &''+1

8y the laws of the Dnited tates, petitionerrivaldo lost his ;merican citi0enship when hetoo? his oath of allegiance to the )hilippineAovernment when he ran for Aovernor in &', in&'', and in &''+. Every certificate of candidacycontains an oath of allegiance to the )hilippineAovernment.

These factual findings that rivaldo has lost his foreignnationality long before the elections of &''+ have not been

effectively rebutted by "ee. urthermore, it is basic that suchfindings of the Commission are conclusive upon this Court,absent any showing of capriciousness or arbitrariness or abuse.

There is, therefore, no merit in petitioner/s contention that the oath ofallegiance contained in private respondent/s certificate of candidacy isinsufficient to constitute renunciation that, to be effective, such renunciationshould have been made upon private respondent reaching the age of majoritysince no law re>uires the election of )hilippine citi0enship to be made uponmajority age.

inally, much is made of the fact that private respondent admitted that he isregistered as an ;merican citi0en in the 8ureau of 9mmigration and7eportation and that he holds an ;merican passport which he used in his lasttravel to the Dnited tates on ;pril , &''


74/133

citi0enship must be Be3press,B it stands to reason that there canbe no such loss of )hilippine citi0enship when there is norenunciation, either Be3pressB or Bimplied.B

To recapitulate, by declaring in his certificate of candidacy that he is a ilipino

citi0en2 that he is not a perma

Documents

3y1s Election f