Election Jurisprudence Page 56

AD INTERIM APPOINTMENT

An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. Matibag v. Benipayo et al. G.R. No. 149036, April 2, 2002

An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee. Matibag v. Benipayo et al. G.R. No. 149036, April 2, 2002

It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Matibag v. Benipayo et al. G.R. No. 149036, April 2, 2002 ADMINISTRATIVE FUNCTION, CHAIRMAN OF THE COMELEC

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc. Matibag v. Benipayo et al. G.R. No. 149036, April 2, 2002 ADMINISTRATIVE FUNCTION VS. QUASI-JUDICIAL

The denial of due course or cancellation of ones certificate of candidacy is not within the administrative powers of the Commission, but rather calls for the exercise of its quasi-judicial functions. Cipriano v. Comelec, et al., G.R. No. 158830, August 10, 2004 The term administrative connotes, or pertains, to administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things. It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon.

While a quasi-judicial function is a term which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. Bautista v. Comelec, G.R. Nos. 154796-97. October 23, 2003

Reynato Baytan, Reynaldo Baytan and Adrian Baytan vs. The Commission on Elections, G.R. No. 153945. February 4, 2003

AFFIDAVITS AS EVIDENCE

The Resolution of the COMELEC Second Division cannot be considered to be based on substantial evidence. It relied merely on affidavits of witnesses attached to the petition for disqualification. As stressed, the COMELEC Second Division gave credence to the affidavits without hearing the affiants. Codilla v. De Venecia, Locsin G.R. No. 150605. December 10, 2002

It is settled that no undue importance should be given to a sworn statement or an affidavit as a piece of evidence because, being taken ex-parte, an affidavit is almost always incomplete and often inaccurate. But, it is equally settled that when there is an omission in an affidavit concerning a very important detail, the omission can affect the affiant's credibility. PEOPLE OF THE PHILIPPINES vs. FIDEL RAGAY y DE ROSAS, DANILO ODANI y NATALON, DOMINGO TUMAGOS y DINGLE and ZOSIMO GONZAGA y AGENSI, G.R. No. 108234, 1997 Aug 11

Obviously, the evidence relied upon mainly by petitioners to support their charges of fraud and irregularities in the election returns and in the canvassing consisted of Affidavits prepared by their own representatives. The self-serving nature of the said Affidavits cannot be discounted. As this Court has pronounced, reliance should not be placed on mere affidavits. (Underscoring ours.) OHara v. Comelec, 428 Phil. 1051, G.R. Nos. 148941-42March 12, 2002Indeed, as this Court pointedly observed in Velayo v. COMELEC20 [G.R. No. 135613, 9 March 2000, p. 28, citing Casimiro v. COMELEC, 171 SCRA 468 (1989)] the "self-serving nature of said Affidavits cannot be discounted. As this Court has pronounced, reliance should not be placed on mere affidavits." Domalanta v. Comelec , G.R. No. 125586, 2000 Jun 29; 334 SCRA 555 ANNULMENT OF ELECTION/FAILURE OF ELECTION

In Loong v. Commission on Elections we ruled that a pre-proclamation controversy is not the same as an action for annulment of election results, or failure of elections. Ampatuan et al. v. Comelec, G.R. No. 149803, January 31, 2002

ANNULMENT OF PROCLAMATION & ELECTION PROTEST

Moreover, not all actions seeking the annulment of proclamation suspend the running of the period for filing an election protest or a petition for quo warranto. Villamor v. Comelec, G. R. No. 169865, July 21, 2006For it is not the relief prayed for which distinguishes actions under 248 from an election protest or quo warranto proceedings, but the grounds on which they are based. Villamor v. Comelec, G. R. No. 169865, July 21, 2006 ANNULMENT OF PROCLAMATION & MANIFEST ERROR

The COMELEC likewise did not commit grave abuse of discretion when it treated private respondent Cos petition as one for annulment of proclamation although it was denominated as also for correction of manifest errors. In fact, it finds support in several cases decided by the Court. For example, in Mentang v. COMELEC, we held that where the relief sought is the correction of mathematical errors which are not attributable to incorrect entries in any of the election returns, statement of votes and certificate of canvass but in the mere computation of the votes reflected in those election documents, it is a petition for annulment/declaration of nullity of proclamation, not a petition to correct manifest errors. Alejandro v. Comelec & Co, G.R. No. 167101, January 31, 2006

In Milla v. Balmores-Laxa, (G.R. No. 151216, July 18, 2003, 401 SCRA 679) we sustained the power of the COMELEC to annul the proclamation, due to an alleged error in the tabulation of the statement of votes, of a winning candidate for municipal councilor who had taken his oath and assumed office as such. Alejandro v. Comelec & Co, G.R. No. 167101, January 31, 2006

ANNULMENT OF PROCLAMATION, WITHOUT NOTICE & HEARING

Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of any candidate, we also ruled in Farias vs. Commission on Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing. Namil, et al., vs. Comelec, Kapina, et al., [G.R. No. 150540. October 28, 2003]

We held that, as the case involved a manifest error, although the COMELEC erred in annulling the proclamation of petitioner without notice and hearing, the expedient course of action was for the Municipal Board of Canvassers to reconvene and, after notice and hearing in accordance with Rule 27, 7 of the COMELEC Rules of Procedure, to effect the necessary corrections on the certificate of canvass and proclaim the winning candidate or candidates on the basis thereof. Castromayor v. COMELEC,12 [250 SCRA 298 (1995) as cited in Angelia vs. Commission on Elections and Tan, G.R. No. 135468. May 31, 2000

APPEAL, PERFECTION of

The subsequent payment of the filing fee on 28 January 2003 did not relieve Zamoras of his mistake. A case is not deemed duly registered and docketed until full payment of the filing fee. Otherwise stated, the date of the payment of the filing fee is deemed the actual date of the filing of the notice of appeal. Zamoras v. Comelec, et al., G.R. No. 158610; November 12, 2004Perfection of an appeal within the statutory or reglementary period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory, and deprives the appellate court or body of jurisdiction to alter the final judgment much less to entertain the appeal. Zacate v. Comelec et Baldado , G.R. No. 144678. March 1, 2001

It is axiomatic that the perfection of an appeal in the manner and within the period laid down by the COMELEC Rules of Procedure is not only mandatory but also jurisdictional. As a consequence, the failure to perfect an appeal within the prescribed period as required by the Rules has the effect of defeating the right of appeal of a party and precluding the appellate court from acquiring jurisdiction over the case. So the High Court rules in Villanueva vs. Court of Appeals, et.al. (205 SCRA 537). And so, it should also be in the case at bar. Antonio v. Comelec, G.R. No. 135869, September 22, 1999

The COMELEC Rules of Procedure (Rule 37 Section 21) provides that from the decision rendered by the court, the aggrieved party may appeal to the Commission on Elections within five (5) days after the promulgation of the decision. Rule 22 Section 9 (d) of Our Rules of Procedure further provides that an appeal from decisions of courts in election protest cases may be dismissed at the instance of the Commission for failure to file the required notice of appeal within the prescribed period. Antonio v. Comelec, G.R. No. 135869, September 22, 1999 APPEAL, RIGHT TO

The right to appeal is merely a statutory privilege and a litigant may exercise such right to appeal only in the manner prescribed by law. The requirement of an appeal fee is by no means a mere technicality of law or procedure. It is an essential requirement without which the decision appealed from would become final and executory as if there was no appeal filed at all. Zamoras v. Comelec, et al., G.R. No. 158610; November 12, 2004

Suffice it to state that the period for filing an appeal is by no means a mere technicality of law or procedure. It is an essential requirement without which the decision appealed from would become final and executory as if no appeal was filed at all. The right of appeal is merely a statutory privilege and may be exercised only in the manner prescribed by, and in accordance with, the provisions of the law. Antonio v. Comelec, G.R. No. 135869, September 22, 1999

APPRECIATION OF BALLOTS

The appreciation of the contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country, as it is the constitutional commission vested with the exclusive original jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election protests involving elective municipal and barangay officials. In the absence of grave abuse of discretion or any jurisdictional infirmity or error of law, the factual findings, conclusions, rulings, and decisions rendered by the said Commission on matters falling within its competence shall not be interfered with by this Court. Balingit v. Comelec et al, G.R. No. 170300, Feb. 9, 2007 The 7,966 votes were correctly invalidated as written by one person because aside from the observation that the ballots bore similar/identical handwritings, the Minutes of Voting in numerous precincts had no entries as to the names of the illiterate voters and their respective assistors, contrary to the aforecited rule applied by HRET. Abbubakar v. HRET et al. G.R. No. 173609, March 7, 2007 A ballot indicates the voters will. There is no requirement that the entries in the ballot be written nicely or that the name of the candidate be spelled accurately. In the reading and appreciation of ballots, every ballot is presumed valid unless there is a clear reason to justify its rejection. The object in the appreciation of ballots is to ascertain and carry into effect the intention of the voter, if it can be determined with reasonable certainty. Dojillo v. Comelec, G.R. No. 166542, July 25, 2006We relied on the descriptions of the ballots given by the parties, the trial court, and the COMELEC, and weighed their assertions. Dojillo v. Comelec, G.R. No. 166542, July 25, 2006

Marked ballots, idem sonans, stray ballots. Dojillo v. Comelec, G.R. No. 166542, July 25, 2006It is well to remember the basic principle that the cardinal objective of ballot appreciation is to discover and give effect to, rather than frustrate the intention of the voters, thus, every ballot shall be presumed valid unless clear and good reasons justify its rejection. Extreme caution should be observed before any ballot is invalidated and doubts in the appreciation of ballots are resolved in favor of their validity. Thus, it is a well-founded rule ensconced in our jurisprudence that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. De Guzman v. Comelec & Pulido G.R. No. 159713. March 31, 2004

[U]pholding the sovereignty of the people is what democracy is all about. When the sovereignty of the people expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it should do everything to have that sovereignty obeyed by all. Well done is always better than well said. Corollarily, laws and statutes governing election contests especially the appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. De Guzman v. Comelec & Pulido, G.R. No. 159713. March 31, 2004

Even assuming that the respondent judge erred in the appreciation of the documentary evidence, the extraordinary writ of certiorari will not lie, as no grave abuse of discretion may be attributed to a court simply because of its alleged wrongful appreciation of facts and evidence. Tadena v. Comelec, G.R. No. 162882. April 27, 2004While Section 24 of Republic Act No. 7166, otherwise known as An Act Providing For Synchronized National and Local Elections and For Electoral Reforms, requires the BEI chairman to affix his signature at the back of the ballot, the mere failure to do so does not invalidate the same although it may constitute an election offense imputable to said BEI chairman. Nowhere in said provision does it state that the votes contained therein shall be nullified. Punzalan v. Comelec G.R. No. 126669. April 27, 1998The appreciation of the contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country. It is the constitutional commission vested with the exclusive original jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election protests involving elective municipal and barangay officials. Punzalan v. Comelec G.R. No. 126669. April 27, 1998

It is axiomatic that the COMELEC need not conduct an adversarial proceeding or a hearing to determine the authenticity of ballots or the handwriting found thereon. Neither does it need to solicit the help of handwriting experts in examining or comparing the handwriting. In fact, even evidence aliunde is not necessary to enable the Commission to determine the authenticity of the ballots and the genuineness of the handwriting on the ballots as an examination of the ballots themselves is already sufficient Punzalan v. Comelec G.R. No. 126669. April 27, 1998

APPRECIATION OF BALLOTS, MARKED BALLOTS

There are 34 marked ballots in the case at bar. Fourteen (14) ballots are marked with the word Joker; six (6) ballots with the word Alas; seven (7) ballots with the word Queen; and, seven (7) ballots with the word Kamatis. These ballots were all deducted by the trial court from the votes of petitioner. While each of these words appears in more than one ballot and may not identify a particular voter, it is not necessary that the marks in a ballot should be able to specifically identify a particular voter. We have ruled that the distinction should always be between marks that were apparently carelessly or innocently made, which do not invalidate the ballot, and marks purposely placed thereon by the voter with a view to possible future identification, which invalidates it. The marks which shall be considered sufficient to invalidate the ballot are those which the voter himself deliberately placed on his ballot for the purpose of identifying it thereafter. Villagracia v. Comelec, G.R. No. 168296, January 31, 2007 AUTOPTIC PROFERENCE

Autoptic proference, in legal parlance, simply means a tribunal's self-perception, or autopsy, of the thing itself. Balingit v. Comelec et al, G.R. No. 170300, Feb. 9, 2007

BILLBOARDS, ADVERTISEMENTS

It is true that when petitioner entered into the contracts or agreements to endorse certain products, he acted as a private individual and had all the right to lend his name and image to these products. However, when he filed his certificate of candidacy for Senator, the billboards featuring his name and image assumed partisan political character because the same indirectly promoted his candidacy. Chavez v. Comelec, G.R. No. 162777, August 31, 2004 BOARD OF CANVASSERS, POWER OF COMELEC

It should be added that the COMELEC possesses the power of supervision and control over Angangan, as Chairperson of the MBC, and the MBC. Alejandro v. Comelec & Co, G.R. No. 167101, January 31, 2006

BOARD OF CANVASSERS, JURISDICTION ON CORRECTION OF MANIFEST ERRORThe Board of Canvassers may correct manifest errors committed under the circumstances enumerated therein before proclamation of the winning candidate. In this case, therefore, either the Municipal Board of Canvassers of Patikul, Sulu or the ProvincialBoard of Canvassers of Sulu hasjurisdiction to take cognizance of respondent Loongs Petition For Correction of Manifest Error. Since the canvassing proceedings for the subject position were already before respondent Provincial Board of Canvassers of Sulu and the petition for correction was filed before it, respondent Provincial Board of Canvassers correctly took cognizance of the petition. Baddiri v. Comelec & PBOC of Sulu, G.R. No. 165677, June 8, 2005 BROAD POWERS OF THE COMMISSION

It bears emphasis that the COMELEC has broad powers to ascertain the true results of an election by means available to it. In the case at bar, it was well within the COMELECs discretion to avail of the means it deemed effective, such as requiring the parties to present their side through position papers and memoranda and conducting a clarificatory hearing wherein the members of the BOC were required to shed light on the two proclamations made. Besides, it is a settled rule that the COMELECs judgment cannot be overturned by this Court unless it is clearly tainted with grave abuse of discretion. ARADAIS V. COMELEC, G.R. No. 157863. April 28, 2004

BURDEN OF PROOF

In administrative proceedings, the complainant has the burden of proving the charge against the respondent by substantial evidence - that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. Villarin v. Florido, A.C. No. 6046, February 13, 2007 CANDIDATE

Under Section 79(a), a candidate is one who has filed a certificate of candidacy to an elective public office. Unless one has filed his certificate of candidacy, he is not a candidate. Lanot v. Comelec & Eusebio, G.R. No. 164858, November 16, 2006 CANDIDATE AND PREMATURE CAMPAIGNING

Under Section 3(b) of the Omnibus Election Code, the applicable law prior to RA 8436, the campaign period for local officials commences 45 days before election day. For the 2004 local elections, this puts the start of the campaign period on 24 March 2004. This also puts the last day for the filing of certificate of candidacy, under the law prior to RA 8436, on 23 March 2004. Eusebio is deemed to have filed his certificate of candidacy on this date for purposes other than the printing of ballots because this is the interpretation of Section 80 of the Omnibus Election Code most favorable to one charged of its violation. Since Section 80 defines a criminal offense, its provisions must be construed liberally in favor of one charged of its violation. Thus, Eusebio became a candidate only on 23 March 2004 for purposes other than the printing of ballots. Lanot v. Comelec & Eusebio, G.R. No. 164858, November 16, 2006 CAUSE OF ACTION

What determine a cause of action are the facts or combination of facts alleged in a partys pleading. Sison v. COMELEC, 304 SCRA 170

CERTIFICATE OF CANDIDACY, DENIAL OR CANCELLATION

The Commission may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. Cipriano v. Comelec, et al., G.R. No. 158830, August 10, 2004

It is therefore clear that the law mandates that the candidate must be notified of the petition against him and he should be given the opportunity to present evidence in his behalf. This is the essence of due process. Cipriano v. Comelec, et al., G.R. No. 158830, August 10, 2004

As early as 1918, this Court, has pronounced that the rules and regulations for the conduct of elections are mandatory before the election but after the elections, they become merely directory. Corollarily, defects in the certificates of candidacy should be questioned on or before the election and not after the will of the people has been expressed through the ballot. The reason for this is because innocent voters will be deprived of their votes without any fault on their part. Thus, after the termination of the election, public interest must prevail over that of the defeated candidate. Gonzales v. HRET, G.R. No. 158001. June 10, 2003At the very outset, it must be made clear that the Comelec has jurisdiction to deny due course to or cancel a certificate of candidacy. Such jurisdiction continues even after the elections, if for any reason no final judgment of disqualification is rendered before the elections, and the candidate facing disqualification is voted for and receives the highest number of votes, and provided further that the winning candidate has not been proclaimed or taken his oath of office. Saya-ang v. Comelec, G.R. No. 155087 November 28, 2003

A petition to cancel a certificate of candidacy shall be heard summarily after due notice. Saya-ang v. Comelec, G.R. No. 155087 November 28, 2003

In Lambonao v. Tero, the Court held that defects in the certificates of candidacy should have been questioned on or before the election and not after the will of the people has been expressed through the ballots. It was further held in the said case that while provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of interpretation as regards election laws, that mandatory provisions requiring certain steps before elections will be construed as directory after the elections, to give effect to the will of the electorate. The rationale for this principle was explained in Lino Luna v. Rodriguez, where the Court said that these various and numerous provisions were adopted to assist the voters in their participation in the affairs of the government and not to defeat that object. When voters have honestly cast their ballots, the same should not be nullified simply because the officers tasked under the law to direct the elections and guard the purity of the ballot did not do their duty. Saya-ang v. Comelec, G.R. No. 155087 November 28, 2003

CERTIFICATE OF CANDIDACY, DENIAL AFTER PROCLAMATION

These various and numerous provisions were adopted to assist the voters in their participation in the affairs of the government and not to defeat that object. When voters have honestly cast their ballots, the same should not be nullified simply because the officers tasked under the law to direct the elections and guard the purity of the ballot did not do their duty. Saya-ang v. Comelec, G.R. No. 155087 November 28, 2003

CERTIFICATE OF CANDIDACY, FILING NOT IPSO FACTO RESIGNATION

Section 14 of Republic Act No. 9006 (The Fair Election Act), expressly repealing Section 67 of Batas Pambansa Blg. 881 (The Omnibus Election Code) which provides:

SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

is constitutional. Rodolfo C. Farias, et al. vs. The Executive Secretary, Commission on Elections, et al., [GR No. 147387. December 10, 2003]; Cong. Gerry A. Salapuddin, vs. Commission on Elections,[G.R. No. 152161. December 10, 2003] See Dimaporo v. Mitra, 202 SCRA 779 (1991) CERTIFICATE OF CANDIDACY, SUBSTITUTION

Junaid, having been nominated by REPORMA only after the expiration of the period for filing of certificates of candidacy, could not be considered as officially nominated by the latter. Consequently he could not be substituted by petitioner, a nominee of REPORMA, since the law requires that the candidate to be substituted and the substitute should come from the same party. Bacaraman vs. Comelec [G.R. No. 148153. November 18, 2003]

CERTIFICATE OF VOTES

Apparently, respondent Reyes, Jr. is counting on the certificate of votes to establish that he is the second highest winning candidate. As we have pointed out earlier, a certificate of votes is not sufficient to establish the true and genuine results of the election. A certificate of canvass issued on the basis of the election returns is required to proclaim the elected candidate. KAISER B. RECABO, JR., petitioner, vs. THE COMMISSION ON ELECTIONS and FRANCISCO R. REYES, JR., respondents., G.R. No. 134293, 1999 Jun 21, En Banc)Certificates of Votes are issued by Boards of Election Inspectors (BEI) to watchers, pursuant to 215 of the Omnibus Election Code (OEC). While such certificates are useful for showing tampering, alteration, falsification or any other irregularity in the preparation of election returns, 16 there is no reason for their use in this case since the integrity of the election returns is not in question. On the other hand, in the canvass of votes, the MBC is directed to use the election returns. 17 Accordingly, in revising the Statement of Votes supporting the Certificate of Canvass, the MBC should have used the election returns from the precincts in question although in fairness to the MBC, it proposed the use of election returns but the COMELEC en banc rejected the proposal. The Statement of Votes is a tabulation per precinct of votes garnered by the candidates as reflected in the election returns. ([1997V261E] JOSE C. RAMIREZ, petitioner vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF GIPORLOS, EASTERN SAMAR and ALFREDO I. GO, respondents., G.R. No. 122013, 1997 Mar 26, En Banc) CERTIORARI

The office of a petition for certiorari is not to correct simple errors of judgment but capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. Pedragoza v. Comelec & Sumulong, G.R. No. 169885 July 25, 2006Rule 18, Section 13 of the COMELEC Rules of Procedure requires that a timely motion for reconsideration of a COMELEC Division decision has to be filed with the COMELEC en banc before a special civil action for certiorari may be filed with this Court. Consequently, the filing of the instant petition was premature. Petitioner failed to exhaust adequate administrative remedies available before the COMELEC. Vicente v. Comelec & Sonza [G.R. No. 170255. January 31, 2006]

As a general rule, any decision, order or ruling of the COMELEC in the exercise of its quasi-judicial functions may be brought to the Supreme Court on certiorari under Rules 64 and 65 of the Revised Rules of Court within thirty days from receipt of a copy thereof. However, these decisions or rulings refer to the decision or final order of the COMELEC en banc and not of any division thereof. A motion for reconsideration of a decision of the COMELEC Division has to be filed first, which is resolved by the COMELEC en banc, whose decision on the motion for reconsideration may then be the subject of a petition for certiorari with this Court. Vicente v. Comelec & Sonza [G.R. No. 170255. January 31, 2006]In accordance with Rule 65 and other related provisions of the 1997 Rules of Civil Procedure, as amended, governing petitions for certiorari, prohibition and mandamus filed with the Supreme Court, only petitions which are accompanied by or which comply strictly with the requirements specified therein shall be entertained. On the basis thereof, the Court Resolved to DISMISS the instant petition for certiorari for non-compliance therewith, particularly for failure to fully pay the legal fees in violation of Rule 46, Section 3 in relation to Rule 56, Section 2. Andueza vs. Bravo & HRET, G.R. No. 166187, January 25, 2005.Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. There must be capricious, arbitrary and whimsical exercise of power for it to prosper. Aggabao v. Miranda G.R. No. 163756 January 26, 2005Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. The grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law. San Juan v. HRET & Cerilles, G.R. No. 160939. July 6, 2004 Generally, a motion for reconsideration is a pre-requisite to the viability of a special civil action for certiorari. However, there are exceptions to the rule. The aggrieved party is not obliged to first file a motion for reconsideration of the assailed resolution before filing a petition under Rule 65 of the Rules of Court, as amended where, as in this case, (1) the question is purely legal, (2) judicial intervention is urgent; (3) its application may cause great and irreparable damage; and (4) the controverted acts violate due process. Namil, et al. v. Comelec, et al., G.R. No. 150540. October 28, 2003

We hold that petitioner acted correctly in filing the present petition because the resolution of the COMELEC in question is not subject to reconsideration and, therefore, any party who disagreed with it only had one recourse, and that was to file a petition for certiorari under Rule 65 of the Rules of Civil Procedure. Angelia v. Comelec, G.R. No. 135468. May 31, 2000, 388 Phil. 560, 566

The instant controversy involves resolutions issued by the COMELEC en banc which do not pertain to election offenses. Hence, a special civil action for certiorari is the proper remedy in accordance with Section 2, Rule 64 of the Rules of Court. Angelia v. Comelec, G.R. No. 135468. May 31, 2000, 388 Phil. 560, 566

Even assuming that the respondent judge erred in the appreciation of the documentary evidence, the extraordinary writ of certiorari will not lie, as no grave abuse of discretion may be attributed to a court simply because of its alleged wrongful appreciation of facts and evidence. Tadena v. Comelec, G.R. No. 162882. April 27, 2004

In accordance with Rule 64 and other related provisions of the 1997 Rules of Civil Procedure, as amended, governing review of judgments and final orders or resolutions of the Commission on Elections, only petitions which are accompanied by or which comply strictly with the requirements specified therein shall be entertained. On the basis thereof, the Court Resolved to DISMISS the instant petition for certiorari for non-compliance therewith, particularly for late filing of the petition and late payment of the legal fees in violation of Rule 64, Sections 3 and 5 (4th par.) and Rule 46, Section 3 in relation to Rule 56, Section 2. Siwa v. Comelec, G.R. No. 167731. May 10, 2005The Supreme Court is vested with original jurisdiction to issue writs of certiorari, prohibition and mandamus against the decision of the regional trial court in the election protest case before it, regardless of whether it has appellate jurisdiction over such decision. Carlos v. Angeles & Serapio G.R. No. 142907. November 29, 2000 CERTIORARI, NOT PROPER FOR INTERLOCUTORY ORDERS OF DIVISION, EXCEPTION

The most recent case involving interlocutory orders of a COMELEC Division is the 2007 case of Rosal v. Commission on Elections.The general rule is that a decision or an order of a COMELEC Divisioncannot be elevated directly to this Court through a special civil action for certiorari. Furthermore, a motion to reconsider a decision, resolution, order, or ruling of a COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to reconsider an interlocutory order of a COMELEC Division shall be resolved by the division which issued the interlocutory order, except when all the members of the division decide to refer the matter to the COMELEC En Banc. Soriano et al. v. Comelec et al., G.R. Nos. 164496-505, April 2, 2007 Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor can they be proper subject of a petition for certiorari. To rule otherwise would not only delay the disposition of cases but would also unnecessarily clog the Court docket and unduly burden the Court. This does not mean that the aggrieved party is without recourse if a COMELEC Division denies the motion for reconsideration. The aggrieved party can still assign as error the interlocutory order if in the course of the proceedings he decides to appeal the main case to the COMELEC En Banc. The exception enunciated in Kho and Repol is when the interlocutory order of a COMELEC Division is a patent nullity because of absence of jurisdiction to issue the interlocutory order, as where a COMELEC Division issued a temporary restraining order without a time limit, which is the Repol case, or where a COMELEC Division admitted an answer with counter-protest which was filed beyond the reglementary period, which is the Kho case. Soriano et al. v. Comelec et al., G.R. Nos. 164496-505, April 2, 2007 This Court has already ruled in Reyes v. RTC of Oriental Mindoro,As a general rule, any decision, order or ruling of the COMELEC in the exercise of its quasi-judicial functions may be brought to the Supreme Court on certiorari under Rules 64 and 65 of the Revised Rules of Court within thirty days from receipt of a copy thereof. However, these decisions or rulings refer to the decision or final order of the COMELEC en banc and not of any division thereof. A motion for reconsideration of a decision of the COMELEC Division has to be filed first, which is resolved by the COMELEC en banc, whose decision on the motion for reconsideration may then be the subject of a petition for certiorari with this Court. Thus, it has been held that the Constitution vests in the COMELEC in division, the jurisdiction to hear and decide all election cases, including pre-proclamation controversies, and in the COMELEC en banc to resolve motions for reconsideration from decisions or rulings of the former. In other words, the "decision, order, or ruling of" the COMELEC which may be brought to the Supreme Court on certiorari refers to that of the COMELEC en banc. As it is, the Court is without jurisdiction to entertain the instant petition. Vicente, Jr. v. Comelec & Sonza [G.R. No. 170255. January 31, 2006]

However, this rule is not ironclad. In ABS-CBN Broadcasting Corporation v. COMELEC, we stated

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration] may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice or the protection of labor, when the decision or resolution 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.

The Court further pointed out in ABS-CBN that an exception was warranted under the peculiar circumstances of the case since there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time for the 11 May 1998 elections. The same can be said in Repols case. We rule that direct resort to this Court through a special civil action for certiorari is justified under the circumstances obtaining in the present case. Repol v. Comelec, et al., G.R. No. 161418. April 28, 2004The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of the Division of the Commission on Elections. Estrella v. Comelec, G.R. No. 154041. September 16, 2003; Ambil, Jr. v. Commission on Elections, 344 SCRA 358 (2000).

It is settled that the Supreme Court can review on certiorari the decisions, orders, and ruling of the COMELEC en banc. But what is being assailed in the instant case are the resolution and orders of the Second Division of the Commission on Elections.

Petitioner admits that his motion for reconsideration of the order dated November 15, 2000 of the Second Division is still pending resolution before the COMELEC en banc. The present petition is thus premature. (Ambil, Jr. v. Commission on Elections (First Division, Formerly Second Division), et al., G.R. No. 143398, Oct. 25, 2000) Borbon v. Comelec [G.R. No. 147203. May 4, 2001]

CERTIORARI AND INTERLOCUTORY ORDERS

This situation is precisely what we are trying to avoid by insisting on strict compliance of the rule that aninterlocutory order cannot by itself be the subject of an appeal or a petition for certiorari. Soriano et al. v. Comelec et al., G.R. Nos. 164496-505, April 2, 2007 CERTIORARI, NOT A SUBSTITUTE FOR LOST APPEAL

We have said time and again that the special civil action of certiorari is not a substitute for the lost or lapsed remedy of appeal. Cantoria v. Comelec. G.R. No. 162035, Nov. 26, 2004.

CERTIORARI, QUESTIONS OF FACT

In certiorari proceedings, questions of fact are not generally permitted, the inquiry being limited essentially to whether or not the respondent tribunal had acted without or in excess of its jurisdiction or with grave abuse of discretion. CERTIORARI, 30-DAY RECKONING PERIOD

In sum, the 30-day reglementary period must be reckoned from the receipt of the decision, order or resolution and not from the receipt of a dissenting opinion issued later. In the instant case, the dissenting opinion was submitted and promulgated 36 days after the assailed joint resolution. Tan & Burahan v. Comelec et al., G. R. Nos. 166143-47, Nov. 20, 2006 CITIZENSHIP, QUALIFICATION

In Frivaldo v. Commission on Elections, the Court ruled that the citizenship qualification must be construed as applying to the time of proclamation of the elected official and at the start of his term. Altarejos v. Comelec, G.R. No. 163256. November 10, 2004

In applying election laws, it would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving private international law which may well be settled before the highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727). MERCADO, vs. MANZANO and the COMMISSION ON ELECTIONS, G.R. No. 135083, May 26, 1999

CONSTITUTIONAL ISSUE, EARLIEST OPPORTUNITY TO RAISE

The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be considered on appeal. Matibag v. Benipayo et al. G.R. No. 149036, April 2, 2002 CORRECTION OF MANIFEST ERROR, JURISDICTION

In this case, the petition filed by Caringal before the COMELEC involves a pre-proclamation controversy and not an election contest. Although the petition alleged fraud, the remedy sought was merely for correction of erroneous entries in the statements of votes which were based on the election returns. Arbonida v. Comelec, G.R. No. 167137, March 14, 2007In the aforecited provision of law, the Board of Canvassers may correct manifest errors committed under the circumstances enumerated therein before proclamation of the winning candidate. In this case, therefore, either the Municipal Board of Canvassers of Patikul, Sulu or the ProvincialBoard of Canvassers of Sulu has jurisdiction to take cognizance of respondent LoongsPetition For Correction ofManifest Error. Since the canvassing proceedings for the subject position were already before respondent Provincial Board of Canvassers of Sulu and the petition for correction was filed before it, respondent Provincial Board of Canvassers correctly took cognizance of the petition. Baddiri v. Comelec, G.R. No. 165677, June 8, 2005.

DECISION, COMPLETENESS

The Court rules that a resolution or decision of the COMELEC is considered complete and validly rendered or issued when there is concurrence by the required majority of the Commissioners. x x x x x Put otherwise, with the required majority vote, the majority opinion embodied in a decision or resolution duly promulgated is validly rendered and issued despite dissent or inhibition of the minority, and even if the reason for the dissent or inhibition is submitted much later than its promulgation. Tan & Burahan v. Comelec et al., G.R. Nos. 166143-47, Nov. 20, 2006Nonetheless, it has to be made clear that decisions, resolutions or orders of collegiate courts must have separate concurring or dissenting opinions appended to the majority opinion before these are promulgated. And it is the responsibility of the clerk of court to ensure that these separate opinions are submitted within the required period so that the decision, resolution or order is timely promulgated. Tan & Burahan v. Comelec et al., G.R. Nos. 166143-47, Nov. 20, 2006 DECISION, SEPARATE OPINIONS

Separate opinions not approved by the required majority of the court members, whether they be concurring or dissenting opinions, must be distinguished from the opinion of the court. Verily, the joint resolution is the ruling being assailed and not the dissenting opinion. It is clear that, not being essential to the assailed joint resolution, the dissenting opinion merely serves to comply with the constitutional proviso that any member who dissented from a decision or resolution must state the reason therefore. Tan & Burahan v. Comelec et al., G. R. Nos. 166143-47, Nov. 20, 2006 DEMURRER TO EVIDENCE; EFFECT OF DENIAL

In Election contests, the denial of a demurrer to evidence amounts to a waiver of right to present evidence. Gementiza v. Comelec, G.R. No. 140884, March 6, 2001, 353 SCRA 724 DISQUALIFICATION

The case for disqualification exists, and survives, the election and proclamation of the winning candidate because an outright dismissal will unduly reward the challenged candidate and may even encourage him to employ delaying tactics to impede the resolution of the disqualification case until after he has been proclaimed. Lanot v. Comelec & Eusebio, G.R. No. 164858, November 16, 2006

In the case at bar, at the time of the proclamation of Defensor who garnered the highest number of votes, the Division Resolution invalidating his certificate of candidacy was not yet final, hence, he had at that point in time remained qualified. Therefore, his proclamation was valid or legal. Planas v. Comelec et al., G.R. No. 167594, March 10, 2006

Section 2 of COMELEC Resolution No. 2050 is as clear as day: the COMELEC is mandated to dismiss a complaint for the disqualification of a candidate who has been charged with an election offense but who has already been proclaimed as winner by the Municipal Board of Canvassers. COMELEC Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification cases; hence, should be applied and given effect. Albaa vs. Comelec G.R. No. 163302 July 23, 2004 This may have been overturned. See the case of Lanot v. Comelec, supra.However, contrary to the COMELEC En Bancs reliance on Resolution No. 2050 in its 20 August 2004 resolution, the prevailing law on the matter is Section 6 of the Electoral Reforms Law of 1987. Any rule or action by the COMELEC should be in accordance with the prevailing law. Lanot v. Comelec & Eusebio, G.R. No. 164858, November 16, 2006

Indeed, the electorate cannot amend or waive the qualifications prescribed by law for elective office. The will of the people as expressed through the ballot cannot cure the vice of ineligibility. Bautista v. Comelec, G.R. Nos. 154796-97. October 23, 2003

Due process is required. Codilla v. De Venecia, Locsin G.R. No. 150605. December 10, 2002

The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in section 68 of the Omnibus Election Code. Codilla v. De Venecia, Locsin G.R. No. 150605. December 10, 2002

Hence, when a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. Codilla v. De Venecia, Locsin G.R. No. 150605. December 10, 2002

It is the electoral aspect that we are more concerned with, under which an erring candidate may be disqualified even without prior criminal conviction. (Sunga vs. Comelec, 288 SCRA 76); Nolasco vs. Comelec, G.R. No. 122250 and Blanco vs. Comelec G.R. No. 122258, 21 July 1997) DISQUALIFICATION, DEATH OF PETITIONER, SUBSTITUTION/INTERVENTION

The law and the COMELEC rules have clear pronouncements that the electoral aspect of a disqualification case is not rendered inutile by the death of petitioner, provided that there is a proper substitution or intervention of parties while there is a pending case. Lanot v. Comelec & Eusebio, G.R. No. 164858, November 16, 2006 There is no law or jurisprudence which says that intervention or substitution may only be done prior to the proclamation of the winning candidate. A substitution is not barred by prescription because the action was filed on time by the person who died and who is being substituted. The same rationale applies to a petition-in-intervention. Lanot v. Comelec & Eusebio, G.R. No. 164858, November 16, 2006 DISQUALIFICATION, ELECTORAL & CRIMINAL ASPECTS, Sec. 68 OEC

Relevant to this case is Codilla v. De Venecia, which held that the jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Sec. 68 of the Omnibus Election Code. Blanco v. Comelec & Alarilla, G.R. No. 180164, June 17, 2008

In Blanco v. COMELEC, G.R. No. 122258, the Court held:

. . . Vote-buying has its criminal and electoral aspects. Its criminal aspect to determine the guilt or innocence of the accused cannot be the subject of summary hearing. However, its electoral aspect to ascertain whether the offender should be disqualified from office can be determined in an administrative proceeding that is summary in character.Blanco v. Comelec & Alarilla, G.R. No. 180164, June 17, 2008

Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed its misunderstanding of the two aspects of a disqualification case. The electoral aspect of a disqualification case determines whether the offender should be disqualified from being a candidate or from holding office. Proceedings are summary in character and require only clear preponderance of evidence. An erring candidate may be disqualified even without prior determination of probable cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal aspect, and vice-versa.

The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for an election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether probable cause exists. If there is probable cause, the COMELEC, through its Law Department, files the criminal information before the proper court. Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable doubt to convict. A criminal conviction shall result in the disqualification of the offender, which may even include disqualification from holding a future public office.

The two aspects account for the variance of the rules on disposition and resolution of disqualification cases filed before or after an election. When the disqualification case is filed before the elections, the question of disqualification is raised before the voting public. If the candidate is disqualified after the election, those who voted for him assume the risk that their votes may be declared stray or invalid. There is no such risk if the petition is filed after the elections. The COMELEC En Banc erred when it ignored the electoral aspect of the disqualification case by setting aside the COMELEC First Divisions resolution and referring the entire case to the COMELEC Law Department for the criminal aspect. Lanot v. Comelec & Eusebio, G.R. No. 164858, November 16, 2006 DISQUALIFICATION, SECOND PLACER, EXCEPTION

The disqualification of the elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated because of the disqualification. Votes cast in favor of a candidate who obtained the highest number of votes, against whom a petition for disqualification was filed before the election, are presumed to have been cast in the belief that he was qualified. For this reason, the second placer cannot be declared elected.

The exception to this rule rests on two assumptions. First, the one who obtained the highest number of votes is disqualified. Second, the voters are so fully aware in fact and in law of a candidates disqualification to bring such awareness within the realm of notoriety but nonetheless the voters still cast their votes in favor of the ineligible candidate. Lanot and Benavides failed to prove that the exception applies in the present case. Thus, assuming for the sake of argument that Eusebio is disqualified, the rule on succession provides that the duly elected Vice-Mayor of Pasig City shall succeed in Eusebios place. Lanot v. Comelec & Eusebio, G.R. No. 164858, November 16, 2006

DOMICILE

Residence not a requirement for domicile. Co vs. HRET 199 SCRA 692Domino v. Comelec, G.R. No. 134015, July 19, 1995 Dumpit-Michelena v. Boado, G.R. Nos. 163619-20, November 17, 2005

DOUBLE REGISTRATION (Election Offense)

Baytan, et al., vs. Comelec, [G.R. No. 153945. February 4, 2003]

DUE PROCESS

In administrative proceedings, the essence of due process is simply an opportunity to be heard, or an opportunity to explain ones side or opportunity to seek a reconsideration of the action or ruling complained of. A formal trial-type hearing is not at all times and in all situations essential to due process. Verily, to be heard does not only mean presentation of testimonial evidence. One may also be heard through pleadings and where opportunity to be heard through pleadings is accorded, there is no denial of due process. Alejandro v. Comelec & Co, G.R. No. 167101, January 31, 2006

A party cannot successfully invoke deprivation of due process if he was accorded the opportunity of a hearing, through either oral arguments or pleadings. There is no denial of due process when a party is given an opportunity through his pleadings. Alauya, Jr., vs. Comelec, et al., [G.R. Nos. 152151-52. January 22, 2003]

Bautista v. Comelec, G.R. Nos. 154796-97. October 23, 2003

The right to due process is a cardinal and primary right which must be respected in all proceedings. It is the embodiment of the sporting idea of fair play, the cornerstone of every democratic society. In any proceeding, the essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard. Saya-ang v. Comelec, G.R. No. 155087 November 28, 2003 ELECTION

In this jurisdiction, an election means the choice or selection of candidates to public office by popular vote through the use of the ballot, and the elected officials of which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. Specifically, the term election, in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of votes. The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election. Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in all republican forms of government the basic idea is that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. Carlos v. Angeles & Serapio G.R. No. 142907. November 29, 2000 ELECTION OFFENSE, GUN BAN

Ampo v. Court of Appeals, G. R. No. 169091, Feb. 16, 2006 ELECTION OFFENSE, JURISDICTION

Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal information for double registration against petitioners in the instant case. There is no constitutional requirement that the filing of the criminal information be first decided by any of the divisions of the COMELEC. Baytan, et al., vs. Comelec, [G.R. No. 153945. February 4, 2003]

The Comelec, through its authorized legal officers, has the exclusive power to conduct preliminary investigations of all election offenses and to prosecute them. Pea, et al. v. Judge Martizano, A.M. No. MTJ-02-1451. May 30, 2003

ELECTION OFFENSE, MALA PROHIBITA

More importantly, COMELEC Resolution No. 2323 is a special law and a violation of which is in the nature of a mala prohibita crime. As such, regardless of petitioners intent, mere carrying of the gun without the necessary permit is already a violation of the COMELEC resolution. It is hornbook doctrine that in mala prohibita crimes, the only inquiry is whether the law has been violated. When the act is illegal, the intent of the offender is immaterial. Ampo v. Court of Appeals, G. R. No. 169091, Feb. 16, 2006 ELECTION OFFENSE, UNLAWFUL CAMPAIGNING

The essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period. Lanot v. Comelec & Eusebio, G.R. No. 164858, November 16, 2006 ELECTION PROTEST

An election contest, unlike an ordinary civil action, is clothed with a public interest. The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. An election contest therefore involves not only the adjudication of private and pecuniary interests of rival candidates but paramount to their claims is the deep public concern involved and the need of dispelling the uncertainty over the real choice of the electorate. And the court has the corresponding duty to ascertain by all means within its command who is the real candidate elected by the people. BARROSO V. AMPIG, G.R. No. 138218. March 17, 2000 ELECTION PROTEST, EVIDENCE

In every other respect, the trial is summary and the court may consider not only what has been presented formally as evidence but also whatever may have been submitted to it by virtue of the express provision of the law. (Reforma v. De Luna, G.R. No. L-13242, July 31, 1958) Asis v. Ilao, G.R. No. L-17451, Jan. 31, 1962

ELECTION PROTEST, REVISION

In case of protest, a revision or recount of the ballots cast for the candidates decides the election protest case. The candidate receiving the highest number or plurality of votes shall be proclaimed the winner. Carlos v. Angeles & Serapio G.R. No. 142907. November 29, 2000 ELECTION PROTEST & PRE-PROCLAMATION CASE

With respect to petitioner Montilla, indeed, he abandoned his petition for correction of manifest errors when he filed an election protest against respondent Datu Pax S. Mangudadatu. Dumayas, Jr. v. Commission on Elections so teaches. Cerbo et al. v. Comelec & Mangudadatu, G.R. No. 168411, February 15, 2007While the filing of a protest ex abundante ad cautela is not considered an abandonment of the petition for correction of manifest errors, this Court quotes with approval the following observations of the COMELEC in brushing aside as mere afterthought the claim of Montilla in a manifestation he subsequently filed that his election protest was filed ex abundante ad cautela and that he inadvertently omitted to indicate in its caption that it was one such: Cerbo et al. v. Comelec & Mangudadatu, G.R. No. 168411, February 15, 2007The filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. Villamor v. Comelec, G. R. No. 169865, July 21, 2006

Nevertheless, the general rule is not absolute. It admits of certain exceptions, as where: (a) the board of canvassers was improperly constituted; (b) quo warranto was not the proper remedy; (c) what was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation; (d) the filing of a quo warranto petition or an election protest was expressly made without prejudice to the pre-proclamation controversy or was made ad cautelam; and (e) the proclamation was null and void. Dumayas v. Comelec, G.R. Nos. 141952-53, 2001 Apr 20Moreover, not all actions seeking the annulment of proclamation suspend the running of the period for filing an election protest or a petition for quo warranto. Villamor v. Comelec, G. R. No. 169865, July 21, 2006There is no law or rule prohibiting the simultaneous prosecution or adjudication of pre-proclamation controversies and elections protests. Allowing the simultaneous prosecution scenario may be explained by the fact that pre-proclamation controversies and election protests differ in terms of the issues involved and the evidence admissible in each case and the objective each seeks to achieve. Moreover, the Court, under certain circumstances, even encourages the reinforcement of a pre-proclamation suit with an election protest. As we held in Matalam v. Commission on Elections. Loong v. Comelec & Jikiri, G.R. No. 166891, Nov. 20, 2006Correlating the petitions mentioned in Section 248 with the 10-day period set forth in the succeeding Section 250, a petition to suspend tolls the 10-day period for filing an election protest from running, while a petition to annul interrupts the running of the period. In other words, in a Section 248 petition to suspend where the 10-day period did not start to run at all, the filing of a Section 250 election contest after the tenth (10th) day from proclamation is not late. On the other hand, in a Section 248 petition to annul, the party seeking annulment must file the petition before the expiration of the 10-day period. Loong v. Comelec & Jikiri, G.R. No. 166891, Nov. 20, 2006 ELECTON PROTESTS, ALLEGATIONS

The Court, however, found the allegations embodied in the election protest to be serious enough to necessitate the opening of the ballot boxes to resolve the issue of fraud and irregularities in the election. Saquilayan, vs. Comelec and Oscar Jaro, G.R. No. 157249. November 28, 2003 ELECTION PROTESTS, JURISDICTION

E. C. Case No. 15-24 is not governed by the Rules of Civil Procedure. The Rules of Civil Procedure generally do not apply to election cases. They apply only by analogy or in a suppletory character and whenever practicable and convenient. Election contests are subject to the Comelec Rules of Procedure. Rule 35 thereof governs election contests involving elective municipal officials before the Regional Trial Courts. Barroso v. Ampig, et al. [G.R. No. 138218. March 17, 2000]

An election contest therefore involves not only the adjudication of private and pecuniary interests of rival candidates but paramount to their claims is the deep public concern involved and the need of dispelling the uncertainty over the real choice of the electorate. And the court has the corresponding duty to ascertain by all means within its command who is the real candidate elected by the people. Barroso v. Ampig, et al. [G.R. No. 138218. March 17, 2000]

The Constitution itself grants to the trial court exclusive original jurisdiction over contests involving elective municipal officials. Gallardo v. Tabamo, 218 SCRA 253 (1993) ELECTION PROTEST, RIGHT TO PRESENT EVIDENCE

First, Batuls reliance on Section 2, Rule 17 of the COMELEC Rules of Procedure in asserting his alleged right to present the testimonies of the 50 BEI chairpersons is not supported by Section 2 of Rule 17.

The COMELEC First Division correctly exercised its discretion in refusing to hear all 50 BEI chairpersons, as this would not have been feasible and practical given the remaining time until the next election. Procedural rules in elections cases are designed to achieve not only a correct but also an expeditious determination of the popular will of the electorate.

Second, a formal trial-type hearing is not at all times and in all situations essential to due process. It is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present evidence on which a fair decision can be based. Batul v. Bayron, G.R. Nos. 157687 & 158959, 26 February 2004. ELECTION PROTEST, EVIDENCE ALIUNDE, AUTHENTICITY OF BALLOTS

We have repeatedly ruled that the ballots are the best evidence of the objections raised and an inspection of these ballots is sufficient. Moreover, there is no better authority than the COMELEC itself to determine the authenticity of the ballots, having itself ordered and supervised the printing of all the official ballots. Batul v. Bayron, G.R. Nos. 157687 & 158959, 26 February 2004.

ELECTION PROTEST, ESTOPPEL, TIE VOTE

The only case where this Court has held that a party is estopped to contest the election of the winning candidate is in the case of a tie where the candidates who were declared to have obtained equal number of votes had voluntarily submitted themselves to the drawing of lots to determine the winner, as provided by law. It was ruled by this Court that the candidate who lost in the drawing of lots is estopped from contesting the election of the one who won in the draw, because by submitting himself to the draw the defeated candidate is considered to have admitted that the announcement made by the board of canvassers regarding the tie was the result of a valid and lawful canvass. The candidate who submitted himself to the draw is considered as having deliberately induced his opponent to believe that canvass which resulted in a tie was legal and he had thereby led his opponent to act upon such belief in the validity of the canvass and the tie, so that he can not be permitted to repudiate his own acts.

This court has even adopted a more liberal view on this matter when in a latter case it held that a candidate who has tied with another and who submits himself to the said drawing of lots, stating that if the result of said drawing of lots should be adverse to him, he would file a protest before a competent court, is not estopped from doing so. The view adopted by the Court in this latter case is in keeping with the doctrine that an election protest involves public interest, so that the court should allow all opportunity possible for the ascertainment of the true result of the elections. (DE CASTRO vs. JULIAN G. GINETE and UBALDO Y. ARCANGEL, Judge of the Court of First Instance of Sorsogon, 10th Judicial District, Branch I, respondents., G.R. No. L-30058, 1969 Mar 28, En Banc)

ELECTION RETURNS, IF THERE ARE NO BALLOTS

Maruhom v. Comelec, GR No. 139357, 331 SCRA 473; Lerias v. HRET, 202 SCRA 808

EVIDENCE

Mere allegations not evidence. Luxuria Homes vs. CA 302 SCRA 315

Parole evidence not admitted to prove whom one voted. Lomugdang v. Javier 21 SCRA 402 EXECUTION PENDING APPEAL

To grant execution pending appeal in election protest cases, the following requisites must concur: a) there must be a motion by the prevailing party with notice to the adverse party; b) there must be good reasons for the execution pending appeal; and c) the order granting execution pending appeal must state good reasons. Carloto v. Comelec, G.R. No.174155, January 24, 2007

The trial court may only grant discretionary execution while it has jurisdiction over the case and is in possession of either of the original record or the record on appeal, as the case may be, at the time of the filing of such motion. When not all of the parties have perfected their appeal and the period to appeal has yet to expire, the trial court still retains its so-called residual jurisdiction to order discretionary execution. Zacate v. Comelec et Baldado , G.R. No. 144678. March 1, 2001

While petitioner timely filed his motion for execution pending appeal, petitioner belatedly filed the motion for reconsideration of the denial of his motion for execution pending appeal rendering said denial final and executory. Zacate v. Comelec et Baldado , G.R. No. 144678. March 1, 2001

Lauban v. Comelec, G.R. No. 128473, Resolution dated August 26, 1997Policarpio v. Comelec, G.R. No. 135390, November 22, 1999

Any motion for execution pending appeal must be filed before the period for the perfection of the appeal. Asmala v. Comelec, G.R. No. 126221. April 28, 1998Executions pending appeal are exceptions to the rule, and, therefore, must be restrictively construed to comply with the stringent requirements of the law. The Commission looks with disfavor on orders of execution pending appeal, without clear and justifiable good reasons. Policarpio v. Comelec, G.R. No. 135390. November 22, 1999At the outset, we note that there is no dispute with respect to the jurisdiction of the Regional Trial Courts to rule on motions for execution pending appeal filed within the reglementary period for perfecting an appeal. Consequently, the filing of a notice of appeal within the same period does not divest the trial court of its jurisdiction over a case and resolve pending incidents. Camlian v. Comelec, G.R. No. 124169. April 18, 1997While execution pending appeal may be allowed under the foregoing rule, the said provision must be strictly construed against the movant as it is an exception to the general rule on execution of judgments. Following civil law jurisprudence, the reason allowing for immediate execution must be of such urgency as to outweigh the injury or damage of the losing party should it secure a reversal of the judgment on appeal. Absent any such justification, the order of execution must be struck down as flawed with grave abuse of discretion. Camlian v. Comelec, G.R. No. 124169. April 18, 1997Not every invocation of public interest with particular reference to the will of the electorate can be appreciated as a good reason especially so if the same appears to be self-serving and has not been clearly established. Public interest will be best served when the candidate voted for the position is finally proclaimed and adjudged winner in the elections. Urgency and expediency can never be substitutes for truth and credibility. Camlian v. Comelec, G.R. No. 124169. April 18, 1997 EXECUTION PENDING APPEAL, GOOD REASONS

Ramas v. Commission on Elections held that the following constitute good reasons and a combination of two or more of them will suffice to justify execution pending appeal: (1) public interest involved or the will of the electorate; (2) the shortness of the remaining portion of the term of the contested office; and (3) the length of time that the election contest has been pending. Carloto v. Comelec, G.R. No.174155, January 24, 2007 EXECUTION PENDING APPEAL, QUESTIONED JUDGMENT

With respect to the above contentions by petitioner, the Court agrees with the COMELEC that they involve an alleged error of judgment on the part of the trial court for which the proper judicial remedy is an appeal from the decision rendered by that court. It is settled that where the issue or question involved affects the wisdom or legal soundness of the decision not the jurisdiction of the court to render said decision the same is beyond the province of a special civil action for certiorari. Carloto v. Comelec, G.R. No.174155, January 24, 2007 EXECUTION PENDING MOTION FOR RECONSIDERATION

Early last year, the Court, through Mr. Justice Antonio T. Carpio in Batul v. Bayron, affirmed a similar order of the COMELEC First Division directing the immediate execution of its own judgment. Despite the silence of the COMELEC Rules of Procedure as to the procedure of the issuance of a writ of execution pending appeal, there is no reason to dispute the COMELECs authority to do so, considering that the suppletory application of the Rules of Court is expressly authorized by Section 1, Rule 41 of the COMELEC Rules of Procedure which provides that absent any applicable provisions therein the pertinent provisions of the Rules of Court shall be applicable by analogy or in a suppletory character and effect. Balajonda v. Comelec, February 28, 2005

As we have held before, only a more compelling contrary policy consideration can prevent the suppletory application of Section 2. The primary reason advanced by Batul that Section 2 does not apply to election contests involving city, provincial and regional officials, simply because these cases are originally cognizable by the COMELEC cannot negate this public policy. Such a reason cannot frustrate or further delay the assumption of public office by the lawful choice of the people as determined by the COMELEC. Batul did not contest the good reasons cited by the COMELEC First Division in granting immediate execution. Hence, we see no reason to discuss the COMELECS findings on this matter. Batul v. Bayron, G.R. Nos. 157687 & 158959, 26 February 2004.Balingit v. Comelec et al, G.R. No. 170300, Feb. 9, 2007

EXPERT OPINION

Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory in character; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is consistent with the facts in the case or otherwise unreasonable. Punzalan v. Comelec G.R. No. 126669. April 27, 1998 FACTUAL FINDINGS OF COMMISSION

The familiar rule is that findings of fact of the [COMELEC] supported by substantial evidence shall be final and non-reviewable. Villagracia v. Comelec, G.R. No. 168296, January 31, 2007The factual findings of administrative agencies which have acquired expertise in their field are generally binding and conclusive on the courts in the absence of grave abuse and none has been shown in this case. Benwaren v. Comelec & Crisologo, G.R. No. 169393, April 18, 2006.

The above factual findings of the COMELEC supported by evidence, are accorded, not only respect, but finality. Cayetano v. Comelec, Buac & Bautista; G.R. Nos. 166388 and 166652, January 23, 2006

The rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is absolutely no evidence or no substantial evidence in support of such findings should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC--created and explicitly made independent by the Constitution itselfon a level higher than statutory administrative organs. The factual finding of the COMELEC en banc is therefore binding on the Court. Dagloc vs. Comelec, Samad and Dilangalen, [G.R. Nos. 154442-47. December 10, 2003]

Factual findings of the COMELEC, based on its own assessment and duly supported by evidence, are conclusive upon the Court, more so, in the absence of substantiated attack on the validity of the same (Mohammad vs. Commission on Elections, 320 SCRA 258 [1999]). Bataga, Sr. v Comelec & Tan [G.R. Nos. 150965-66. January 15, 2002]

The Supreme Courts function is merely to check or to ascertain where COMELEC might have gone far astray from parameters laid down by law but not to supplant its factual findings. So long as its findings are not arbitrary and unfounded, the Court is not at liberty to discard and ignore such findings Sarangani, vs. Commission on Elections & Adiong [G.R. No. 155560-62. November 11, 2003]

FACTUAL FINDINGS, EXCEPTION

Factual findings of administrative bodies like the COMELEC are not infallible and will be set aside when they fail the test of arbitrariness, or upon proof of grave abuse of discretion, fraud or error of law. Thus, when they grossly misappreciate evidence of such nature as to compel a contrary conclusion, their factual findings have been reversed. In the case at bar, we agree with petitioner that respondent COMELEC disregarded some glaring facts which give rise to a prima facie showing of irregularity in the assailed election return. Basarte v. Comelec, G.R. No. 169413, May 9, 2007 FAILURE OF ELECTION

A scrutiny of the petitions filed before the COMELEC shows that petitioners never alleged that no voting was held nor was voting suspended in the subject municipalities. Neither did petitioners allege that no one was elected. Petitioners only allege that there was a sham election and similar sham canvassing. As noted earlier, to warrant a declaration of failure of election, the alleged irregularities must be proven to have 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 should have been clearly alleged by petitioners before the COMELEC en banc, but they were not. Tan & Burahan v. Comelec et al., G. R. Nos. 166143-47, Nov. 20, 2006 It is the Commission (Comelec) sitting en banc that is vested with exclusive jurisdiction to declare a failure of election Carlos v. Angeles & Serapio G.R. No. 142907. November 29, 2000Baaga vs. Comelec, 336 SCRA, 701

Petition to declare a failure of election and petition to annul an election are one and the same thing.

Typoco vs. Comelec 319 SCRA 498

Carlos vs. Angeles, 346 SCRA 571

Section 4, Rep. Act No. 7166 provides that the COMELEC sitting en banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special elections as provided in Section 6 of the Omnibus Election Code. Tan, et al., vs. Comelec, Jikiri, et al., G.R. Nos. 148575-76. December 10, 2003

But Section 6 of the Omnibus Election Code lays down three instances where a failure of election may be declared, namely, (1) 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; (2) 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 (3) 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 cases. In all instances there must have been a failure to elect. This is obvious in the first two scenarios, where the election was not held and where the election was suspended. As to the third scenario, the preparation and the transmission of the election returns, which give rise to the consequence of failure to elect, must as aforesaid be literally interpreted to mean that nobody emerged as a winner. Tan, et al., vs. Comelec, Jikiri, et al., G.R. Nos. 148575-76. December 10, 2003

In the present case, the allegations-bases of both the petition and Langcos petition-in-intervention before the COMELEC are mostly grounds for an election contest, not for a declaration of failure of election. While there are allegations which may be grounds for failure of election, they are supported by mere affidavits and the narrative report of the election officer. Bao vs. Comelec, et al., [G.R. No. 149666. December 19, 2003]

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. Batabor vs. Comission on Elections et al. G.R. No. 160428. July 21, 2004

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. Batabor vs. Comission on Elections et al. G.R. No. 160428. July 21, 2004

Before Comelec can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and second, the votes cast would affect the result of the election. In Loong vs. Commission on Elections, this Court added that the cause of such failure of election should have been any of the following: force majeure, violence, terrorism, fraud or other analogous cases. Ampatuan et al. v. Comelec, G.R. No. 149803, January 31, 2002

FAILURE OF ELECTION NOT A PRE-PROC

An action for declaration of failure of election cannot be confused with a pre-proclamation controversy. Alauya, Jr. vs. Commission on Elections, et al., [G.R. Nos. 152151-52. January 22, 2003] FAILURE TO APPEAL/FILE CERTIORARI

It is axiomatic that a party who does not ordinarily appeal, or as in this case file a petition for certiorari, from the orders of the COMELEC, is not entitled to any affirmative relief. Alauya, Jr. vs. Commission on Elections, et al., [G.R. Nos. 152151-52. January 22, 2003]

FEES, MOTION FEES, FILING FEES

Not only was his motion filed beyond the five-day reglementary period to file the same, the filing fee therefore was paid way beyond the said period. His motion should have been dismissed outright for failure to pay the filing fee on time. Failure to pay filing fees will not vest the election tribunal jurisdiction over the case and such procedural lapse warrants the outright dismissal of the action. Alejandro v. Comelec et al., G.R. No. 167101, September 12, 2006 FILING FEES

The subsequent payment of the filing fee on 28 January 2003 did not relieve Zamoras of his mistake. A case is not deemed duly registered and docketed until full payment of the filing fee. Otherwise stated, the date of the payment of the filing fee is deemed the actual date of the filing of the notice of appeal. Zamoras v. Comelec, et al., G.R. No. 158610; November 12, 2004

The COMELEC filing fee, to distinguish from the other mandatory fees under Rule 141 of the Rules of Court, as amended, is credited to the Courts General Fund. Navarosa v. Comelec, G.R. No. 157957. September 18, 2003Soller vs. Comelec, 339 SCRA 685

Villota vs. Comelec, 362 SCRA 676

Baaga v. Comelec, 336 SCRA 701

FINAL ORDER; EN BANC/DIVISION

Salva v. Macalintal 340 SCRA 506

Gementiza v. Comelec, 353 SCRA FORUM SHOPPING

Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. Repol v. Comelec, et al., G.R. No. 161418. April 28, 2004

Forum shopping is a ground for the summary dismissal of a petition. Santos v. Comelec & Asistio, G.R. No. 164439, January 23, 2006 The strict application of the non-forum shopping rule in the case at bar would not work to the best interest of the parties and the electorate. An election contest, unlike an ordinary civil action, is clothed with a public interest. The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. An election contest therefore involves not only the adjudication of private and pecuniary interests of rival candidates but paramount to their claims is the deep public concern involved and the need of dispelling the uncertainty over the real choice of the electorate. And the court has the corresponding duty to ascertain by all means within its command who is the real candidate elected by the people. BARROSO V. AMPIG, G.R. No. 138218. March 17, 2000

GOOD REASONS FOR EXECUTION PENDING APPEAL

Santos vs. Comelec, March 26, 2003

Fermo vs. Comelec, March 13, 2000

Ramas vs. Comelec, 286 SCRA 189 Not every invocation of public interest with particular reference to the will of the electorate can be appreciated as a good reason especially so if the same appears to be self-serving and has not been clearly established. Public interest will be best served when the candidate voted for the position is finally proclaimed and adjudged winner in the elections. Urgency and expediency can never be substitutes for truth and credibility. Camlian v. Comelec, G.R. No. 124169. April 18, 1997Obviously, the COMELEC cannot refer to the proximity of the October 2005 elections since at the time it issued its November 12, 2005 Resolution, the elections would have already passed. Neither can the COMELEC refer to the October 2007 elections because it would not then be proximate (or immediate) because such elections will take place a little less than two years after the issuance of the November 12, 2005 Resolution. Balingit v. Comelec et al, G.R. No. 170300, Feb. 9, 2007

GOOD REASONS VS. VALIDITY OF DECISION

Gutierrez vs. Comelec, GR No. 126298, 25 March 1997

GRAVE ABUSE OF DISCRETION

Grave abuse of discretion means such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave, as when it is exercised arbitrarily or despotically by reason of passion or personal hostility. Such abuse must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Balingit v. Comelec, G.R. No. 170300, Feb. 9, 2007 By grave abuse of discretion is meant such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave, as when it is exercised arbitrarily or despotically by reason of passion or personal hostility. Such abuse must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Cantoria v. Comelec. G.R. No. 162035, Nov. 26, 2004. 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. It is not sufficient that the COMELEC, in the exercise of its power, abused its discretion; such abuse must be grave. Batabor v. Comelec, G. R. No. 160428. July 21, 2004

Grave abuse of discretion means a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough, it must be so grave as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Suliguin v. Comelec, MBOC of Nagcarlan, Laguna, G.R. No. 166046, March 23, 2006Abbubakar v. HRET et al. G.R. No. 173609, March 7, 2007 HONEST MISTAKE

There is a limit to what can be construed as an honest mistake or oversight due to fatigue, in the performance of official duty. Pimentel Jr. vs. Comelec, 325 SCRA 196; Domalanta vs. Comelec, 334 SCRA 555

HRET, JURISDICTION

With respect to petitioner Cerbo who ran for the position of congressman, the COMELEC indeed had no jurisdiction over his petition, his opponent respondent Suharto T. Mangudadatu having been proclaimed as such. It is well settled that once a candidate is proclaimed as representative, the opponents recourse is to file an election protest with the House of Representatives Electoral Tribunal which has the sole and exclusive jurisdiction over all contests relative to the election, returns and qualifications of members of the House of Representatives, and this holds true even if there is an allegation of nullity of proclamation. Cerbo et al. v. Comelec & Mangudadatu, G.R. No. 168411, February 15, 2007The HRET is the sole judge of all contests relating to the election, returns, and qualifications of the members of the House of Representatives and has the power to promulgate procedural rules to govern proceedings brought before it. Roces v. HRET, G.R. NO. 167499, Sept. 15, 2005

The HRET has sole and exclusive jurisdiction over all contests relative to the election, returns, and qualifications of members of the House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, COMELECs jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins. Aggabao