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ATTY. ROMULO B. MACALINTAL, Petitioner, vs.PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.

D E C I S I O N

NACHURA, J.:

Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized progeny of Section 4,2 Article VII of the Constitution:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for the purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by a budget allocation, a seal, a set of personnel and confidential employees, to effect the constitutional mandate. Petitioner’s averment is supposedly supported by the provisions of the 2005 Rules of the Presidential Electoral Tribunal (2005 PET Rules),3 specifically:

(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the Associate Justices are designated as "Chairman and Members," respectively;

(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and confidential employees of every member thereof;

(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET, may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and

(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court seal.

Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision does allow the "appointment of additional personnel."

Further, petitioner highlights our decision in Buac v. COMELEC4 which peripherally declared that "contests involving the President and the Vice-President fall within the exclusive original jurisdiction of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner reiterates that the constitution of the PET, with the designation of the Members of the Court as Chairman and Members thereof, contravenes Section 12, Article VIII of the Constitution, which prohibits the designation of Members of the Supreme Court and of other courts established by law to any agency performing quasi-judicial or administrative functions.

The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a Comment5 thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is unspecified and without statutory basis; "the liberal approach in its preparation x x x is a violation of the well known rules of practice and pleading in this jurisdiction."

In all, the OSG crystallizes the following issues for resolution of the Court:

I

WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.

II

WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF ARTICLE VII OF THE 1987 CONSTITUTION.

III

WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS

UNCONSTITUTIONAL FOR BEING A VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987 CONSTITUTION.6

In his Reply,7 petitioner maintains that:

1. He has legal standing to file the petition given his averment of transcendental importance of the issues raised therein;

2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4, Article VII of the Constitution; and

3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section 12, Article VIII of the Constitution.

We winnow the meanderings of petitioner into the singular issue of whether the constitution of the PET, composed of the Members of this Court, is unconstitutional, and violates Section 4, Article VII and Section 12, Article VIII of the Constitution.

But first, we dispose of the procedural issue of whether petitioner has standing to file the present petition.

The issue of locus standi is derived from the following requisites of a judicial inquiry:

1. There must be an actual case or controversy;

2. The question of constitutionality must be raised by the proper party;

3. The constitutional question must be raised at the earliest possible opportunity; and

4. The decision of the constitutional question must be necessary to the determination of the case itself.8

On more than one occasion we have characterized a proper party as one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of.9 The dust has long settled on the test laid down in Baker v. Carr:10 "whether the party has alleged

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such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult questions."11 Until and unless such actual or threatened injury is established, the complainant is not clothed with legal personality to raise the constitutional question.

Our pronouncements in David v. Macapagal-Arroyo12 illuminate:

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a" citizen" or "taxpayer."

x x x x

However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United States Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers’

Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where the "transcendental importance" of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.

x x x x

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met:

(1) cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a generalized interest in the

outcome of this case, and succeeds only in muddling the issues. Paragraph 2 of the petition reads:

2. x x x Since the creation and continued operation of the PET involves the use of public funds and the issue raised herein is of transcendental importance, it is petitioner’s humble submission that, as a citizen, a taxpayer and a member of the BAR, he has the legal standing to file this petition.

But even if his submission is valid, petitioner’s standing is still imperiled by the white elephant in the petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo (Macapagal-Arroyo) in the election protest filed by 2004 presidential candidate Fernando Poe, Jr. before the Presidential Electoral Tribunal,13 because judicial inquiry, as mentioned above, requires that the constitutional question be raised at the earliest possible opportunity.14 Such appearance as counsel before the Tribunal, to our mind, would have been the first opportunity to challenge the constitutionality of the Tribunal’s constitution.

Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is unmistakably estopped from assailing the jurisdiction of the PET before which tribunal he had ubiquitously appeared and had acknowledged its jurisdiction in 2004. His failure to raise a seasonable constitutional challenge at that time, coupled with his unconditional acceptance of the Tribunal’s authority over the case he was defending, translates to the clear absence of an indispensable requisite for the proper invocation of this Court’s power of judicial review. Even on this score alone, the petition ought to be dismissed outright.

Prior to petitioner’s appearance as counsel for then protestee Macapagal-Arroyo, we had occasion to affirm the grant of original jurisdiction to this Court as a Presidential Electoral Tribunal in the auspicious case of Tecson v. Commission on Elections.15 Thus -

Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took

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cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not (being) justiciable" controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution.

Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:

The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and Valdez petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution which provides:

"The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice President and may promulgate its rules for the purpose."

The word "contest" in the provision means that the jurisdiction of this Court can only be invoked after the election and proclamation of a President or Vice President. There can be no "contest" before a winner is proclaimed.16

Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:

G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under the last paragraph of Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion that these petitions should be dismissed outright for prematurity. The Court has no jurisdiction at this point of time to entertain said petitions.

The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET) and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each specifically and exclusively clothed with jurisdiction by the Constitution to act respectively as "sole judge of all contests relating to the election, returns, and qualifications" of the President and Vice-President, Senators, and Representatives. In a litany of cases, this Court has long recognized that these electoral tribunals exercise jurisdiction over election contests only after a candidate has already been proclaimed winner in an election. Rules 14 and 15 of the Rules of the Presidential Electoral Tribunal provide that, for President or Vice-President, election protest or quo warranto may be filed after the proclamation of the winner.17

Petitioner, a prominent election lawyer who has filed several cases before this Court involving constitutional and election law issues, including, among others, the constitutionality of certain provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003),18 cannot claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching framework affirmed in Tecson v. Commission on Elections19 is that the Supreme Court has original jurisdiction to decide presidential and vice-presidential election protests while concurrently acting as an independent Electoral Tribunal.

Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does not authorize the constitution of the PET. And although he concedes that the Supreme Court may promulgate its rules for this purpose, petitioner is insistent that the constitution of the PET is unconstitutional. However, petitioner avers that it allows the Court to appoint additional personnel for the purpose, notwithstanding the silence of the constitutional provision.

Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might possibly stick. But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to promulgate. Apparently, petitioner’s concept of this adjunct of judicial power is very restrictive. Fortunately, thanks in no part to petitioner’s opinion, we are guided by well-settled principles of constitutional construction.

Verba legis dictates that wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. This Court, speaking through former Chief Justice Enrique Fernando, in J.M. Tuason & Co., Inc. v. Land Tenure Administration20 instructs:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to obtain that it should ever be present in the people’s consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be examined in light of the history of the times, and the condition and circumstances surrounding the framing of the Constitution.21 In following this guideline, courts should bear in mind the object sought to be accomplished in adopting a doubtful constitutional

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provision, and the evils sought to be prevented or remedied.22 Consequently, the intent of the framers and the people ratifying the constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus in the landmark case of Civil Liberties Union v. Executive Secretary:23

It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory.

We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to wit:

[T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document.

On its face, the contentious constitutional provision does not specify the establishment of the PET. But neither does it preclude, much less prohibit, otherwise. It entertains divergent interpretations which, though unacceptable to petitioner, do not include his restrictive view – one which really does not offer a solution.

Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other related provisions of the Constitution such as the parallel provisions on the Electoral Tribunals of the Senate and the House of Representatives.

Before we resort to the records of the Constitutional Commission, we discuss the framework of judicial power mapped out in the Constitution. Contrary to petitioner’s assertion, the Supreme Court’s constitutional mandate to act as sole judge of election contests involving our country’s highest public officials, and its rule-making authority in connection therewith, is not restricted; it includes all necessary powers implicit in the exercise thereof.

We recall the unprecedented and trailblazing case of Marcos v. Manglapus:25

The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government." Thus, the 1987 Constitution explicitly provides that "[t]he legislative power shall be vested in the Congress of the Philippines" [Art. VI, Sec. 1], "[t]he executive power shall be vested in the President of the Philippines" [Art. VII, Sec. 1], and "[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1]. These provisions not only establish a separation of powers by actual division but also confer plenary legislative, executive and judicial powers subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis pointed out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government."

The Court could not have been more explicit then on the plenary grant and exercise of judicial power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from the unequivocal grant of jurisdiction

in the last paragraph of Section 4, Article VII of the Constitution is sound and tenable.

The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive branch of government, and the constitution of the PET, is evident in the discussions of the Constitutional Commission. On the exercise of this Court’s judicial power as sole judge of presidential and vice-presidential election contests, and to promulgate its rules for this purpose, we find the proceedings in the Constitutional Commission most instructive:

MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en banc. This is also to confer on the Supreme Court exclusive authority to enact the necessary rules while acting as sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President.

MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with respect to its internal procedure is already implicit under the Article on the Judiciary; considering, however, that according to the Commissioner, the purpose of this is to indicate the sole power of the Supreme Court without intervention by the legislature in the promulgation of its rules on this particular point, I think I will personally recommend its acceptance to the Committee.26

x x x x

MR. NOLLEDO. x x x.

With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an Electoral Tribunal in the Senate and a Commission on Appointments which may cover membership from both Houses. But my question is: It seems to me that the committee report does not indicate which body should promulgate the rules that shall govern the Electoral Tribunal and the Commission on Appointments. Who shall then promulgate the rules of these bodies?

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MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body distinct and independent already from the House, and so with the Commission on Appointments also. It will have the authority to promulgate its own rules.27

On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to former Chief Justice Roberto Concepcion:

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are essentially justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the time of the Supreme Court sitting en banc would be occupied with it considering that they will be going over millions and millions of ballots or election returns, Madam President.28

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined:

MR. VILLACORTA. Thank you very much, Madam President.

I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth paragraph of Section 4 provides:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President.

May I seek clarification as to whether or not the matter of determining the outcome of the contests relating to the election returns and qualifications of the President or Vice-President is purely a political matter and, therefore, should not be left entirely to the judiciary. Will the above-quoted provision not impinge on the doctrine of separation of powers between the executive and the judicial departments of the government?

MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.

MR. VILLACORTA. That is right.

MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to the judiciary because this is strictly an adversarial and judicial proceeding.

MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic Act 7950 which provides for the Presidential Electoral Tribunal?

FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore, they are cognizable only by courts. If, for instance, we did not have a constitutional provision on an electoral tribunal for the Senate or an electoral tribunal for the House, normally, as composed, that cannot be given jurisdiction over contests.

So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that in that election, Lopez was declared winner. He filed a protest before the Supreme Court because there was a republic act which created the Supreme Court as the Presidential Electoral Tribunal. The question in this case was whether new powers could be given the Supreme Court by law. In effect, the conflict was actually whether there was an attempt to create two Supreme Courts and the answer of the Supreme Court was: "No, this did not involve the creation of two Supreme Courts, but precisely we are giving new

jurisdiction to the Supreme Court, as it is allowed by the Constitution. Congress may allocate various jurisdictions."

Before the passage of that republic act, in case there was any contest between two presidential candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what was statutory but it is not an infringement on the separation of powers because the power being given to the Supreme Court is a judicial power.31

Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and then emphasized that the sole power ought to be without intervention by the legislative department. Evidently, even the legislature cannot limit the judicial power to resolve presidential and vice-presidential election contests and our rule-making power connected thereto.

To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply constitutionalized what was statutory before the 1987 Constitution. The experiential context of the PET in our country cannot be denied.32

Consequently, we find it imperative to trace the historical antecedents of the PET.

Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of the present Constitution did not contain similar provisions and instead vested upon the legislature all phases of presidential and vice-presidential elections – from the canvassing of election returns, to the proclamation of the president-elect and the vice-president elect, and even the determination, by ordinary legislation, of whether such proclamations may be contested. Unless the legislature enacted a law creating an institution that would hear election contests in the

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Presidential and Vice-Presidential race, a defeated candidate had no legal right to demand a recount of the votes cast for the office involved or to challenge the ineligibility of the proclaimed candidate. Effectively, presidential and vice-presidential contests were non-justiciable in the then prevailing milieu.

The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence of a similar provision in its pattern, the Federal Constitution of the United States. Rather, the creation of such tribunal was left to the determination of the National Assembly. The journal of the 1935 Constitutional Convention is crystal clear on this point:

Delegate Saguin. – For an information. It seems that this Constitution does not contain any provision with respect to the entity or body which will look into the protests for the positions of the President and Vice-President.

President Recto. – Neither does the American constitution contain a provision over the subject.

Delegate Saguin. – But then, who will decide these protests?

President Recto. – I suppose that the National Assembly will decide on that.33

To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793, establishing an independent PET to try, hear, and decide protests contesting the election of President and Vice-President. The Chief Justice and the Associate Justices of the Supreme Court were tasked to sit as its Chairman and Members, respectively. Its composition was extended to retired Supreme Court Justices and incumbent Court of Appeals Justices who may be appointed as substitutes for ill, absent, or temporarily incapacitated regular members.

The eleven-member tribunal was empowered to promulgate rules for the conduct of its proceedings. It was mandated to sit en banc in deciding presidential and vice-presidential contests and authorized to exercise powers similar to those conferred upon courts of justice, including the issuance of subpoena, taking of depositions, arrest of

witnesses to compel their appearance, production of documents and other evidence, and the power to punish contemptuous acts and bearings. The tribunal was assigned a Clerk, subordinate officers, and employees necessary for the efficient performance of its functions.

R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced the bicameral legislature under the 1935 Constitution with the unicameral body of a parliamentary government.

With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was not directly chosen by the people but elected from among the members of the National Assembly, while the position of Vice-President was constitutionally non-existent.

In 1981, several modifications were introduced to the parliamentary system. Executive power was restored to the President who was elected directly by the people. An Executive Committee was formed to assist the President in the performance of his functions and duties. Eventually, the Executive Committee was abolished and the Office of Vice-President was installed anew.

These changes prompted the National Assembly to revive the PET by enacting, on December 3, 1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the Office of the President and Vice-President of the Philippines, Appropriating Funds Therefor and For Other Purposes." This tribunal was composed of nine members, three of whom were the Chief Justice of the Supreme Court and two Associate Justices designated by him, while the six were divided equally between representatives of the majority and minority parties in the Batasang Pambansa.

Aside from the license to wield powers akin to those of a court of justice, the PET was permitted to recommend the prosecution of persons, whether public officers or private individuals, who in its opinion had participated in any irregularity connected with the canvassing and/or accomplishing of election returns.

The independence of the tribunal was highlighted by a provision allocating a specific budget from the national treasury or Special Activities Fund for its operational expenses. It was empowered to appoint its own clerk in accordance with its rules. However, the subordinate officers were strictly employees of the judiciary or other officers of the government who were merely designated to the tribunal.

After the historic People Power Revolution that ended the martial law era and installed Corazon Aquino as President, civil liberties were restored and a new constitution was formed.

With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then statutory PET into a constitutional institution, albeit without its traditional nomenclature:

FR. BERNAS. x x x.

x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what was statutory but it is not an infringement on the separation of powers because the power being given to the Supreme Court is a judicial power.34

Clearly, petitioner’s bete noire of the PET and the exercise of its power are unwarranted. His arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman" and "Members," respectively; (2) the PET uses a different seal; (3) the Chairman is authorized to appoint personnel; and (4) additional compensation is allocated to the "Members," in order to bolster his claim of infirmity in the establishment of the PET, are too superficial to merit further attention by the Court.

Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4, Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The following exchange in the 1986 Constitutional Commission should provide enlightenment:

MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote:

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The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President.

Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc as the sole judge of all presidential and vice-presidential election contests?

MR. SUMULONG. That question will be referred to Commissioner Concepcion.

MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme Court was able to dispose of each case in a period of one year as provided by law. Of course, that was probably during the late 1960s and early 1970s. I do not know how the present Supreme Court would react to such circumstances, but there is also the question of who else would hear the election protests.

MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules provided for the hearings and there is not time limit or duration for the election contest to be decided by the Supreme Court. Also, we will have to consider the historical background that when R.A. 1793, which organized the Presidential Electoral Tribunal, was promulgated on June 21, 1957, at least three famous election contests were presented and two of them ended up in withdrawal by the protestants out of sheer frustration because of the delay in the resolution of the cases. I am referring to the electoral protest that was lodged by former President Carlos P. Garcia against our "kabalen" former President Diosdado Macapagal in 1961 and the vice-presidential election contest filed by the late Senator Gerardo Roxas against Vice-President Fernando Lopez in 1965.

MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of Senator Roxas was withdrawn, the results were already available. Senator Roxas did not want to have a decision adverse to him. The votes were being counted already, and he did not get what he expected so rather than have a decision adverse to his protest, he withdrew the case.

x x x x

MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme Court this matter of resolving presidential and vice-presidential contests?

MR. CONCEPCION. Personally, I would not have any objection.

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are essentially justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the time of the Supreme Court sitting en banc would be occupied with it considering that they will be going over millions and millions of ballots or election returns, Madam President.

MR. CONCEPCION. The time consumed or to be consumed in this contest for President is dependent upon they key number of teams of revisors. I have no experience insofar as contests in other offices are concerned.

MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en banc?

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened before teams of three, generally, a representative each of the court, of the protestant and of the "protestee." It is all a questions of how many teams are organized. Of course, that can be expensive, but it would be expensive whatever court one would choose. There were times that the Supreme Court, with sometimes 50 teams at the same time working, would classify the objections, the kind of problems, and the court would only go over the objected votes on which the parties could not agree. So it is not as awesome as it would appear insofar as the Court is concerned. What is awesome is the cost of the revision of the ballots because each party would have to appoint one representative for every team, and that may take quite a big amount.

MR. SUAREZ. If we draw from the Commissioner’s experience which he is sharing with us, what would be the reasonable period for the election contest to be decided?

MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always manages to dispose of the case in one year.

MR. SUAREZ. In one year. Thank you for the clarification.35

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET, to undertake the Herculean task of deciding election protests involving presidential and vice-presidential candidates in accordance with the process outlined by former Chief Justice Roberto Concepcion. It was made in response to the concern aired by delegate Jose E. Suarez that the additional duty may prove too burdensome for the Supreme Court. This explicit grant of independence and of the plenary powers needed to discharge this burden justifies the budget allocation of the PET.

The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an "awesome" task, includes the means necessary to carry it into effect under the doctrine of necessary implication.36 We cannot overemphasize that the abstraction of the PET from the explicit grant of power to the Supreme Court, given our abundant experience, is not unwarranted.

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A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the Supreme Court sitting en banc. In the same vein, although the method by which the Supreme Court exercises this authority is not specified in the provision, the grant of power does not contain any limitation on the Supreme Court’s exercise thereof. The Supreme Court’s method of deciding presidential and vice-presidential election contests, through the PET, is actually a derivative of the exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the subsequent directive in the provision for the Supreme Court to "promulgate its rules for the purpose."

The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal (HRET),37 which we have affirmed on numerous occasions.38

Particularly cogent are the discussions of the Constitutional Commission on the parallel provisions of the SET and the HRET. The discussions point to the inevitable conclusion that the different electoral tribunals, with the Supreme Court functioning as the PET, are constitutional bodies, independent of the three departments of government – Executive, Legislative, and Judiciary – but not separate therefrom.

MR. MAAMBONG. x x x.

My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal, either of the House or of the Senate, is it correct to say that these tribunals are constitutional creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which are created by mandate of the Constitution but they are not constitutional creations. Is that a good distinction?

x x x x

MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House Electoral Tribunal is a constitutional body?

MR. AZCUNA. It is, Madam President.

MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?

MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.

MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77 Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the electoral tribunals are not separate departments of the government. Would that ruling still be valid?

MR. AZCUNA. Yes, they are not separate departments because the separate departments are the legislative, the executive and the judiciary; but they are constitutional bodies.39

The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by our holding in Lopez v. Roxas, et al.:42

Section 1 of Republic Act No. 1793, which provides that:

"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole judge of all contests relating to the election, returns, and qualifications of the president-elect and the vice-president-elect of the Philippines."

has the effect of giving said defeated candidate the legal right to contest judicially the election of the President-elect of Vice-President-elect and to demand a recount of the votes case for the office involved in the litigation, as well as to secure a judgment declaring that he is the one elected president or vice-president, as the case may be, and that, as such, he is entitled to assume the duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall be composed of the Chief Justice and the other ten Members of the Supreme Court," said

legislation has conferred upon such Court an additional original jurisdiction of an exclusive character.

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may be likened to the fact that courts of first instance perform the functions of such ordinary courts of first instance, those of court of land registration, those of probate courts, and those of courts of juvenile and domestic relations. It is, also, comparable to the situation obtaining when the municipal court of a provincial capital exercises its authority, pursuant to law, over a limited number of cases which were previously within the exclusive jurisdiction of courts of first instance.

In all of these instances, the court (court of first instance or municipal court) is only one, although the functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate from, those of the same court acting as a court of land registration or a probate court, or as a court of juvenile and domestic relations. So too, the authority of the municipal court of a provincial capital, when acting as such municipal court, is, territorially more limited than that of the same court when hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance. In other words, there is only one court, although it may perform the functions pertaining to several types of courts, each having some characteristics different from those of the others.

Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are both trial courts and, appellate courts, without detracting from the fact that there is only one Supreme Court, one Court of Appeals, and one court of first instance, clothed with authority to discharge said dual functions. A court of first instance, when performing the functions of a probate court or a court of land registration, or a court of juvenile and domestic relations, although with powers less broad than those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot be inferior to itself. So too, the Presidential

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Electoral Tribunal is not inferior to the Supreme Court, since it is the same Court although the functions peculiar to said Tribunal are more limited in scope than those of the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment vested by the Constitution in the President. It merely connotes the imposition of additional duties upon the Members of the Supreme Court.

By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it has functions peculiar only to the Tribunal. It is obvious that the PET was constituted in implementation of Section 4, Article VII of the Constitution, and it faithfully complies – not unlawfully defies – the constitutional directive. The adoption of a separate seal, as well as the change in the nomenclature of the Chief Justice and the Associate Justices into Chairman and Members of the Tribunal, respectively, was designed simply to highlight the singularity and exclusivity of the Tribunal’s functions as a special electoral court.

As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention of Section 12, Article VIII of the Constitution, we point out that the issue in Buac v. COMELEC43 involved the characterization of the enforcement and administration of a law relative to the conduct of a plebiscite which falls under the jurisdiction of the Commission on Elections. However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that "contests involving the President and the Vice-President fall within the exclusive original jurisdiction of the PET, also in the exercise of quasi-judicial power."

The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the Constitution reads:

SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which provides that the power "shall be vested in one Supreme Court and in such lower courts as may be established by law." Consistent

with our presidential system of government, the function of "dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable and enforceable" 44 is apportioned to courts of justice. With the advent of the 1987 Constitution, judicial power was expanded to include "the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."45 The power was expanded, but it remained absolute.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral contests as essentially an exercise of judicial power.1avvphi1

At the barangay and municipal levels, original and exclusive jurisdiction over election contests is vested in the municipal or metropolitan trial courts and the regional trial courts, respectively.

At the higher levels – city, provincial, and regional, as well as congressional and senatorial – exclusive and original jurisdiction is lodged in the COMELEC and in the House of Representatives and Senate Electoral Tribunals, which are not, strictly and literally speaking, courts of law. Although not courts of law, they are, nonetheless, empowered to resolve election contests which involve, in essence, an exercise of judicial power, because of the explicit constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the SET decide election contests, their decisions are still subject to judicial review – via a petition for certiorari filed by the proper party – if there is a showing that the decision was rendered with grave abuse of discretion tantamount to lack or excess of jurisdiction.46

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-presidential election contest, it performs what is essentially a judicial power. In the landmark case of Angara v. Electoral Commission,47 Justice Jose P. Laurel enucleated that "it would be

inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of the powers of government." And yet, at that time, the 1935 Constitution did not contain the expanded definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in conjunction with latter’s exercise of judicial power inherent in all courts,48 the task of deciding presidential and vice-presidential election contests, with full authority in the exercise thereof. The power wielded by PET is a derivative of the plenary judicial power allocated to courts of law, expressly provided in the Constitution. On the whole, the Constitution draws a thin, but, nevertheless, distinct line between the PET and the Supreme Court.

If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII. Surely, the petitioner will be among the first to acknowledge that this is not so. The Constitution which, in Section 17, Article VI, explicitly provides that three Supreme Court Justices shall sit in the Senate and House Electoral Tribunals, respectively, effectively exempts the Justices-Members thereof from the prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in Section 4, Article VII, which exempts the Members of the Court, constituting the PET, from the same prohibition.

We have previously declared that the PET is not simply an agency to which Members of the Court were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an institution independent, but not separate, from the judicial department, i.e., the Supreme Court. McCulloch v. State of Maryland49 proclaimed that "[a] power without the means to use it, is a nullity." The vehicle for the exercise of this power, as intended by the Constitution and specifically mentioned by the Constitutional Commissioners during the discussions on the grant of power to this Court, is the PET. Thus, a

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microscopic view, like the petitioner’s, should not constrict an absolute and constitutional grant of judicial power.

One final note. Although this Court has no control over contrary people and naysayers, we reiterate a word of caution against the filing of baseless petitions which only clog the Court’s docket. The petition in the instant case belongs to that classification.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

DE LOS ANGELES VS. RODRIGUEZ In the 1922 general elections, Eulogio Rodriguez, Servando de los Angeles, and Miguel R. Cornejo contested for the office of governor of the Province of Rizal. Rodriguez obtained 11,339 votes, Angeles, 10,979 votes (correcting a manifest mathematical computation), and Cornejo 4,662 votes. Rodriguez, having in his favor a plurality of 360 votes, was proclaimed as elected to the position of governor of Rizal.

Angeles protested the election of Rodriguez by a motion which alleged that numerous errors, frauds, and irregularities had been committed during the election, to his prejudice. After Cornejo had answered and Rodriguez had filed a counter-protest, a prolonged trial was had before Judge of First Instance Llorente. The judgment was not the protest be dismissed with costs and incidental expenses against the contestant.

The defeated candidate and losing party, in this court, assigns fifteen errors as committed by the trial court. For convenience, those errors will be grouped in much the same manner as by the parties.

A preliminary matter presented in error XIV which the parties argue in the concluding portions of their briefs, relates to the right of the contestee to intervene in the case. The court accepts as correct the statement of counsel for the appellant when he informs us that Rodriguez has resigned the office of governor of Rizal and that another has been named to fill the vacancy. But Rodriguez has not disclaimed. Did the resignation of

Rodriguez ipso facto remove him as an adversary of the contestant?

The contest of an election is initiated by a motion of a registered candidate voted for the election, e. g., Angeles. Every candidate served with the notice of protest immediately becomes a party to the proceedings, e.g., Rodriguez. But the jurisdiction of the courts to entertain the contest, does not in any manner depend upon the status of the contestee. If this court should decide in favor of the contestant, it would in effect ordered the contestee or his successor to surrender his office to the successful party, while if the suit should go against the contestant, the contestee or his successor would remain in undisturbed possession of the office. Even if Rodriguez has no personal interest in the proceedings, he has a party interest, which is to keep his political opponent out of the office and to see that the man who succeeded him by appointment is not disturbed in his rights.

Considering, therefore, the contest as still continuing between Angeles and Rodriguez, the first major point made by the appellant relates to alleged irregularities in precincts Nos. 1 and 2, municipality of Cardona, No. 3, municipality of Makati, and No. 3, municipality of Malabon. (Errors I, II, III and IV.) The fact that detachable numbers were not removed from the ballots before they were deposited in the box, presents, according to the appellant, two important ramifications, the first, violation of section 442, as amended, of the Election Law, and the second, the perpetration of fraud by a pre-arranged plan. If the 709 ballots cast in favor of Rodriguez and the 327 ballots cast in favor of Angels, without the removal of the slips before deposit in the ballot box, were eliminated, there would be a resulting difference of 382 votes in favor of the contestant, and he would win the election by a plurality of 22 votes.

The last paragraph of section 442, as amended, of the Election Law provides:

The detachable number of the ballot shall be detached from the latter in sight of the voter, at the moment when said ballot is to be placed in the ballot box, but not before, by the chairman of the election board, without exposing the contents of the ballot. The detachable number shall be deposited in the box for spoiled ballots and shall be kept

there, and no ballot the number whereof has not been detached by said chairman and in the sight of the board of inspectors shall be allowed to be deposited in the box.

The language of the law in question is sought to be interpreted by the contestant as mandatory and invalidating the votes cast in violation thereof, and by the contestee as directory and not invalidating the votes.lawphi1.net

While the authorities in the United States apparently take different views on this question, it will be found, on examination, that the decision are predicated on the wording of the particular statute requiring interpretation and application. (Contrast Lynip vs. Buckner [1895], 22 Nev., 426; 30 L. R. A., 354, and Montgomery vs. Henry [1905], 144 Ala., 629; 1 L. R. A., [N. S.], 656; with West vs. Ross [1873], 53 Mo., 350.) In this jurisdiction, the general underlying principle is as stated in Lino Luna vs. Rodriguez ([1918], 39 Phil., 208), where it was held:

The rules and regulations, for the conduct of elections, are mandatory before the election, but when it is sought to enforce them after the election, they are held to be directory only, if that is possible, especially where, if they are held to be mandatory, innocent voters will be deprived of their votes without any fault on their part. The various and numerous provision of the Election Law were adopted to assist the voters in their participation in the affairs of the government and not to defeat that object. When the voters have honestly cast their ballots, the same should not be nullified simply because the officers appointed under the law to direct the election and guard the purity of the ballot have not done their duty. . . .

More recently, in the case of Lucero vs. De Guzman ([1924], 45 Phil., 852), the court having to determine if a ballot otherwise unexceptionable, except for the failure of the election inspector to detach the numbered coupon from it, should be counted, ruled:1awphi1.net

The circumstance that the coupon hearing the number of a ballot is not detached at the time the ballot is voted does not justify the court in rejecting the ballot. The duty of detaching the coupon is placed by law upon the election

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officials, and the voter must not be deprived of the franchise by reason of their failure to perform this duty.

The irregularity in question seems to have been due to a misconstruction of the law on the part of the election inspectors, and to have been committed irrespective of whether the votes were for Angeles or Rodriguez. The voters were themselves in no wise at fault. Applying the law as heretofore interpreted, and noting no oppository facts, the challenged ballots were properly counted.

The other branch of appellant's argument under the same heading of alleged fraud in the municipalities of Cardona, Makati, and Malabon, consists in an exposition of the manner in which the fraud was committed. The mechanism of this plan, according to the appellant, was in the watchers having a list taken from the electoral census of the names of the voters, in front of each name there appearing the removable number of the ballot, so that in the scrutiny by these watchers near the inspectors, with a view of this list and number, they were able to verify if the voter had remained true to his promise and from whom he had voted. As pointed out by appellee, the hiatus in this theory is how the watchers came to know the numbers. The alleged list of electors was lost so we are forced to rely upon purely oral testimony for a knowledge of its contents. The success of the scheme would depend upon the concurrence of several essential factors which it is hard to assume united for its accomplishment. In some of the precincts at least, the election board was composed of members belonging to different parties who could easily have thwarted a plan designed to destroy the secrecy of the ballot.

On the major point with its two branches which we have under view, the trial judge made the following pronouncements:

It was fully proven that in precincts 1 and 2 of the Cardona, 2 of San Pedro Makati and 3 of the municipality of Montalban, the detachable numbers of the ballot were not removed before depositing the ballots in the boxes. It is to be noted that the same was also done in the municipality of Jalajala and in precincts 1 and 2 of Teresa where the petitioner obtained a majority of votes. Petitioner prays for the annulment of all the votes cast in the aforesaid precincts of Cardona, Makati, and Malabon.

The court is of the opinion that this statutory provision (section 442, Administrative Code, as amended) relates to the manner and form of conducting the election; it is mandatory before the election but directory only afterwards. Once the ballots were allowed to be deposited in the box the irregularity thus resulting cannot be prejudicial to the innocent voters. There is neither proof that with the commission of such irregularity the voters were prevented from expressing their will, nor that such procedure has resulted in the casting of illegal votes to such an extent as to make the result of the elections doubtful in the aforesaid precincts. Furthermore, the law does not command that the ballots so cast shall be declared null or discounted in the canvass.

There was an attempt to prove that in precincts 1 and 2 of Cardona the secrecy of the ballot was violated; that list were carried there; that on those lists the numbers of the ballots were noted; that during the canvass these numbers were checked with those of the detachable numbers of the ballots not removed; and that the public shouted the phrases "He is loyal; strike him; strike him also." All the evidence introduced is oral and completely contradictory. Not the slightest documentary evidence was introduced and as regards the remarks of the public, the evidence is very vague.

Accepting the law pertinent to the question as previously interpreted by this court and accepting the facts as found by an experienced trial judge, we must perforce decide against the appellant on his four assignments of error.

The second major point made by the appellant relates to alleged irregularities in precincts Nos. 1 and 2, municipality of Montalban (Errors V, VI, VII, and VIII). In these precincts, Rodriguez received 3888 votes and Angeles 12 votes, or a difference in favor of Rodriguez of 376 votes. If the election returns in Montalban should be thrown out, Angeles would win the election by a plurality of 16. Fifteen irregularities are specified by appellant as having been

committed in precinct No. 1 of Montalban and sixteen irregularities as having been committed in precinct No. 2 of Montalban. For the satisfaction of appellant, we will consider these alleged irregularities in detail.

In the first place, it is asserted by appellant and no denied by appellee, that the municipal council of Montalban named all of the election inspectors and secretaries from the Democrata party. Our comment is that apparently Montalban is a stronghold of Rodriguez, and that there is only one party in that municipality. Bi-partisan representation on the board of inspectors is only possible, as indeed is expressly provided by law, "should there be in such municipality one or more political parties or branches or fractions thereof, or political groups." (Section 417, as amended, of the Election Law.)

It is next asserted that the municipal council in naming the election inspectors designated one of the inspectors as chairman of the board, in violation of section 421, as amended, of the Election Law, which provides that the inspectors of each precinct "shall meet and appoint one of their number chairman, or, if a majority shall not agree upon such appointment they shall draw lots for such position." Our comment is that while the law should have been followed to the letter, the variation therefrom was nonprejudicial to the rights of the voters.

It is next asserted with reference to the first precinct that the inspectors changed about in their duties and appointed another as substitute. Our comment is that while their actions were improper, there was a substantial compliance with the law.

It is next asserted with reference to the second precinct that there was no oath of registration of the voters. Our comment is that the list which would go to show the exactitude of this fact has disappeared and that there is evidence to the effect that oaths were taken.

It is next asserted that copies of the electoral list were not sent to the provincial board and the Executive Bureau as required by section 433, as amended, of the Election Law. Our comment is that it appears that all the copies were sent to the municipal secretary who could easily have

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forwarded them to the other named officials. At most, this was an error which did not hurt anyone.

It is next asserted that in precinct No. 1, ballots of the series "E" instead of the series "A" were used. Our comment is that while improper, under the circumstances, it is immaterial.

It is next asserted that the removable slips and stubs of ballots used have disappeared. Our comment is as heretofore explained that this would not affected the validity of the election.

It is next asserted that ballot 12-E cast in favor of Rodriguez bears a removable slip. Our comment is that in conformity with out decision this ballot was properly counted.

It is next asserted that two names appear on a ballot which was counted for Rodriguez. Our comment is that while apparently properly admitted since both names were "Eulogio Rodriguez," the loss of this one vote by Rodriguez would not change the election.

It is next asserted that while there were only eight illiterates in precinct No. 1, the commissioner, Mr. Gomez, found twenty-seven ballots which appeared to have been written by two or three hands. A similar statement is made as to precinct No. 2. Our comment is that the opinion of the commissioner is not decisive and appears to be without foundation of fact.

It is next asserted that no copies of the oaths by illiterates and disabled voters were sent to the provincial board and the Executive Bureau. Our comment is that section 453, as amended, of the Election Law, requires the oath taken by the person and watcher who assist a voter to be made out in quadruplicate and sent to the official named in the law. (Lino Luna vs. Rodriguez, supra; Cailles vs. Gomez and Barbaza [1992], 42 Phil., 496.)

It is next asserted that the number of the ballot was placed against the name of the voter as he advanced to vote. Our comment is that this appears to have been done only as to a few voters through mistake.

It is next asserted that the inspectors admitted many ballots without the corresponding removable number and that these ballots were deposited in the box and counted as valid votes. Our comment is that this subject has been covered under the first major point.

It is next asserted that Catalino Ano, one of the inspectors of the first precinct, was given employment after the election, in the office of the provincial engineer, by Rodriguez. Our comment is that his may be true or not and still not affect the election.

A few other points are made as to the second precinct, but we think enough has been said to show the attitude of the appellant. He argues truly that a number of provisions of the Election Law have not been followed. But when from these premises counsel proceeds to deduce that all of the irregularities committed can only be explained as indicative of deliberate premeditated fraud, we are unable to follow him. Our impression is that the infringement of the law came about more through stupidity or ignorance or inexperience than through any criminal tendency. Indeed, with Rodriguez having such a close grip on the electorate of Montalban, the perpetration of fraud was unnecessary.

With reference to the many irregularities which the contestant tried to prove had taken place in the municipality of Montalban, we make our own the findings of the trial judge as follows:

The court is in accord with the petitioner that as to precinct 1 of the municipality of Montalban the following facts have been proven: the inspectors and the secretary of the Election Board all belong to the same party — the Democrata Party; the chairman of said Board was appointed by the municipal council; inspector Agapito San Pascual was not present at the first two days of registration, although he has signed the electoral census on all the days of registration; no copies of the electoral census were forwarded to the provincial board nor to the Executive Bureau; in this precinct ballots of series E were used; the stub book of this series has disappeared; 36 detachable numbers have also disappeared; the copies of the declarations under oath of the illiterate and of the incapacitated voters were not sent to the provincial board

nor to the Executive Bureau nor placed in the box for void ballots; and, lastly, the inspectors accepted ballots without the detachable coupon and such ballots were deposited in the ballot box and later counted as valid votes. All the irregularities above mentioned were committed either by the municipal council or the board of inspectors. It is not believed that such irregularities can prejudice the innocent voters. Regarding the ballots without the detachable numbers which the inspectors allowed to be deposited in the ballot box, there is not evidence of the fraud relating thereto. Petitioner argues in his brief that there are many ballots written by the same hand and many others written by two or more persons. As far as we are able to recollect no evidence whatsoever was introduced as to this point. The attention of the court was not called to these ballots. Petitioners presented ballots written by two or more persons, Exhibit U, but these ballots belong to the second precinct of Montalban.

In regard to the second precinct of Montalban, almost the same irregularities were also committed. The inspectors and secretary of election appointed by the municipal council all belong to the Democrata Party; the same council appointed one of them as chairman; copies of the electoral census and of the oaths of the illiterate and incapacitated voters were not sent to the provincial board nor to the Executive Bureau; inspector Mariano Bautista acted as secretary during the registration days; during the canvass, the secretary did not write the votes on the blackboard and no tally sheet was found in the ballot box; the inspectors wrote on the census lists the number of the ballots. These numbers, according to inspector Mateo Bautista, were erased by a person extraneous to the Election Board; the detachable numbers of all the ballots used in this precinct have all disappeared, and, lastly, 7 ballots are also missing. Here we have to make the same conclusions that we made in relation with the irregularities committed in the first precinct. The electors had nothing to do with such irregularities. As to the 7 votes that have disappeared there is no evidence of any fraud regarding same. Petitioner in his brief also mentions 103 ballots written by persons other than the voters themselves. As far as we are able to recollect the attention of the court was not called to this point during the trial of the case. No evidence was introduced about this matter and the adverse party was unable to explain anything regarding these 103

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ballots. The petitioner introduced 12 ballots written by several persons and these 12 ballots are marked Exhibit U. Lastly, the petitioner attempted to prove that the electors did not subscribe the oath during registration days. Respondent, however, maintains that all the voters subscribed the required elector's oath, but that the petitioner took possession of all of them. Be it as it may, innumerable voters from this precinct appeared in court and testified that they had subscribed the elector's oath on registering. Furthermore, these voters have not been challenged. They were conclusively registered in the electoral census and were allowed to vote during the elections.

Based principally on the facts as they were found by the trial judge, we must rule against appellant as to assignments of error V, VI, VII, and VIII. In doing so, we wish again to emphasize our desire to respect the wishes of the voters so that what is done by public officials may not have the effect of disfranchising the electorate.

The remaining argument of appellant relates to alleged bribery committed in the barrio of Darangan, municipality of Binangonan, and in the barrio of Lamayan, municipality of San Felipe Neri, and to the admission and exclusion of ballots in certain precincts in various municipalities. (Errors IX, X, XI, XII, and XIII.) As these facts could be admitted without changing the result of the election, we need not burden this opinion with minute rulings. So called bribery committed by means of a candidate's giving a check in the amount of P200 for the repair of a "visita," and by furnishing posts, galvanized iron, and cement for the construction of a school, indicate more of public spirit than of venal intent. As held in Lucero vs. De Guzman, supra, "The circumstance that a candidate for the office of provincial governor made a small contribution for the repair of a dangerous road leading to one of the precincts and that a few electors testified that they voted for him because of his liberality, does not justify the subtraction of their votes from the votes of said candidate in a contest subsequently instituted over the office. . . ." As to the ballots claimed to have been illegally admitted or excluded to the disadvantage of the contestant, if they are summed up, it will be found, that all of them together if adjudicated to the contestant, would not place him in the office of provincial governor of Rizal.

With reference to the alleged bribery and the admission and exclusion of ballot, the trial judge made the following findings:

In regard to the charges of bribery, the petitioner attempted to prove that the respondent Eulogio Rodriguez had given a check for P200 to be expended for the repair of a chapel (visita), and that in the barrio of Lamayan of the municipality of San Felipe Neri he had given posts, galvanized iron, and cement for the construction of the school of said barrio. Ramon Pons denied having received the check in question and all the evidence introduced is insufficient to prove said charges.

Finally, regarding the admission and exclusion of ballots, we are of the opinion that from the votes obtained by Eulogio Rodriguez there must be deducted 5 votes marked Exhibits S to S — 4; 12 votes marked Exhibit U and ballot Exhibit P or a total of 18 votes. There must be admitted in favor of Eulogio Rodriguez the 6 votes of Exhibit 9, 4 of the Exhibit 10, 1 of 12, 1 of 15, 1 of 16, 4 of 18, 1 of 19, 1 of 21, of 22, 1 of 23, 1 of 25, 1 of 28, 1 of 35, 1 of 38, 1 of 39, 1 of 40, 1 of 41, of 42, 2 of 43, 1 of 44, 1 of 46, 1 of 47, 1 of 48, 1 of 49, 1 of 56, 1 of 57, 2 of 58, 5 of 60, 4 of 61, 1 of 63, 1 of 66, 3 of 67, 1 of 69, and 2 of 70, or a total of 57 votes. In favor of Servando de los Angeles there must be admitted 5 votes Exhibits T to T-4, the 4 votes of Exhibit AA, 2 of CC, 2 of DD, 2 of KK, 2 of II, 7 of LL, 5 of MM, 1 of NN, 2 of PP, 7 of QQ, 5 of RR, 1 of SS, 1 of UU, and 1 of Exhibit F, or a total of 47 votes. Ballots F and P are not found among the exhibits, but they were presented to the court during the trial and must therefore merit consideration. A resume of the increase and decrease of votes in accordance with the admissions and exclusions of votes herein made will show that the result of the election has not been affected.

For obvious reason, we have to rule against appellant as to assignments of error IX, X, XI, XII, XIII, and XV.

Looking at the case in a large way and disencumbering ourselves of multitudinous details, we are confident that we give expression to the will of the electorate of Rizal when we do as Judge Llorente did, find in substance against the contestant and in favor of the contestee. The law was not

always followed, it is true, irregularities, many of them, were committed, it is true, but when everything is said and done, it still remains incontrovertible that the people wanted Rodriguez and not Angeles for their governor.

For all the foregoing, the judgment appealed from will be affirmed with costs against the appellant. So ordered.

These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao.

G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to the local elections on January 18, 1988.

G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a green card holder.

In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted in all previous elections, including the plebiscite on

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February 2,1987 for the ratification of the 1987 Constitution, and the congressional elections on May 18,1987.

After hearing the consolidated petitions before it, the COMELEC with the exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that:

The possession of a green card by the respondent (Miguel) does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. As the respondent meets the basic requirements of citizenship and residence for candidates to elective local officials (sic) as provided for in Section 42 of the Local Government Code, there is no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508).

In his dissenting opinion, Commissioner Badoy, Jr. opined that:

A green card holder being a permanent resident of or an immigrant of a foreign country and respondent having admitted that he is a green card holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a permanent resident or immigrant" to be qualified to run for elected office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.)

In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the petitioner prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of

Appeals ordered the regional trial court to dismiss and desist from further proceeding in the quo warranto case. The Court of Appeals held:

... it is pointless for the Regional Trial Court to hear the case questioning the qualification of the petitioner as resident of the Philippines, after the COMELEC has ruled that the petitioner meets the very basic requirements of citizenship and residence for candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that decisions of the Regional Trial Courts on quo warranto cases under the Election Code are appealable to the COMELEC. (p. 22, Rollo, G.R. No. 88831.)

These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988.

Section 18, Article XI of the 1987 Constitution provides:

Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.

In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) provides:

SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Sec. 25, 1971, EC).

In view of current rumor that a good number of elective and appointive public officials in the present administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on the holders' right to hold elective public office in the Philippines is a question that excites much interest in the outcome of this case.

In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was, "Permanently."

On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed:

Alien Registration Receipt Card.

Person identified by this card is entitled to reside permanently and work in the United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.)

Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently.

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Immigration is the removing into one place from another; the act of immigrating the entering into a country with the intention of residing in it.

An immigrant is a person who removes into a country for the purpose of permanent residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term "immigrant." (3 CJS 674.)

As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides (3 CJS 527). This is in return for the protection given to him during the period of his residence therein.

Aliens reading in the limited States, while they are permitted to remain, are in general entitled to the protection of the laws with regard to their rights of person and property and to their civil and criminal responsibility.

In general, aliens residing in the United States, while they are permitted to remain are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal constitution that no state shall deprive "any person" of life liberty, or property without due process of law, or deny to any person the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law. (3 CJS 529-530.)

Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of

the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan.

The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides:

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Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.'

Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the United States?

To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code).

Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January

18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office.

The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988.

In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof.

Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court

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will not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak.

Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void.

WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. The election of respondent Merito C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent.

he main issue in these consolidated petitions centers on who is the rightful governor of the province of Leyte 1) petitioner Adelina Larrazabal (G.R. No. 100739) who obtained the highest number of votes in the local elections of February 1, 1988 and was proclaimed as the duly elected governor but who was later declared by the Commission on Elections (COMELEC) "... to lack both residence and registration qualifications for the position of Governor of Leyte as provided by Art. X, Section 12, Philippine Constitution in relation to Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No. 179 and is hereby disqualified as such Governor"; 2) petitioner Benjamin Abella (G.R. No. 100710), who obtained the second highest number of votes for the position of governor but was not allowed by the COMELEC to be proclaimed as governor after the disqualification of Larrazabal; or 3) Leopoldo E. Petilla, the vice-governor of the province of. Leyte.

This is the fourth time that the controversy relating to the local elections in February 1, 1988 for governor of the province of Leyte is elevated to this Court. The antecedent facts of these cases are stated in the earlier consolidated cases of BENJAMIN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners, v. ADELINA INDAY LARRAZABAL, PROVINCIAL BOARD OF CANVASSERS OF LEYTE and COMMISSION ON ELECTIONS, respondents (G.R. Nos. 87721-30) and BENJAMN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners v. ADELINA LARRAZABAL and COMMISSION ON ELECTIONS, respondents (G. R. No. 88004) 180 SCRA 509 [1989]), to wit:

The Court has ordered the consolidation of G.R. Nos 87721-30 and G.R. No. 88004 involving the same parties and the same election in 1988 for the office of provincial governor of Leyte. Challenged in the petitions for certiorari are the resolutions of the respondent Commission on Elections dismissing the pre-proclamation and disqualification cases filed by the herein petitioners against private respondent Adelina Larrazabal.

Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for provincial governor of Leyte in the local election held on February 1, 1988. The private respondent is the wife of Emeterio V. Larrazabal, the original candidate of the Lakas ng Bansa-PDP-Laban who was disqualified by the Commission on Elections on January 18, 1988, for lack of residence. (G.R. No. 88004, Rollo, pp. 102-104) (He filed a petition for certiorari to challenge this resolution. He, however, filed an urgent ex-parte motion to withdraw petition which was granted in a resolution dated January 21, 1988 and the case was dismissed. [G.R. No. 81313]) On January 31, 1988, the day before the election, she filed her own certificate of candidacy in substitution of her husband. (Ibid., p. 48) The following day, at about 9:30 o'clock in the morning, Silvestre de la Cruz, a registered voter of Tacloban City, filed a petition with the provincial election supervisor of Leyte to disqualify her for alleged false statements in her certificate of candidacy regarding her residence. (Id., pp. 113-118) This was immediately transmitted to the main office of the Commission on Elections, which could not function, however, because all but one of its members had not yet been confirmed by the Commission on Appointments. De la Cruz then came to this Court, which

issued a temporary restraining order on February 4, 1988, enjoining the provincial board of canvassers of Leyte 'from proclaiming Adelina Larrazabal as the winning candidate for the Office of the Governor in the province of Leyte, in the event that she obtains the winning margin of votes in the canvass of election returns of said province.' (Id., p. 179) On March 1, 1988, the Commission on Elections having been fully constituted, we remanded the petition thereto for appropriate action, including maintenance or lifting of the Court's temporary restraining order of February 4, 1988. (Id. pp. 182-184)

In the meantime, petitioner Abella, after raising various verbal objections (later duly reduced to writing) during the canvass of the election returns, seasonably elevated them to the Commission on Elections in ten separate appeals docketed as SPC Nos. 88-627 to 88627-I. Pending resolution of these cases, Abella intervened on March 7, 1988 in the disqualification case, docketed as SPC No. 88-546, and the following day filed a complaint, with the Law Department of the COMELEC charging the private respondent with falsification and misrepresentation of her residence in her certificate of candidacy. On March 22, 1988, the public respondent consolidated the pre-proclamation and disqualification cases with the Second Division.

On February 3, 1989, this Division unanimously upheld virtually all the challenged rulings of the provincial board of canvassers, mostly on the ground that the objection raised were merely formal and did not affect the validity of the returns or the ballots, and ordered the proclamation of the winner after completion of the canvass. (G.R. Nos. 87721-30, Rollo, pp. 18-50) On that same date, the disqualification case was also dismissed by a 2-1 decision, and the matter was referred to the Law Department for 'preliminary investigation for possible violation of Section 74 of the Omnibus Election Code. ' (G.R. Nos. 88004, Rollo, pp. 26-40)

The motion for reconsideration of the resolution on the pre-proclamation cases was denied by the COMELEC en banc on April 13, 1989, with no dissenting vote. (G.R. Nos. 87721-30, Rollo, pp. 51-56) These cases are the subject of G.R. Nos. 87721-30, where we issued on April 18, 1989, another temporary restraining order to the provincial board

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of canvassers of Leyte to CEASE and DESIST from resuming the canvass of the contested returns and/or from proclaiming private respondent Adelina Larrazabal Governor of Leyte.

The motion for reconsideration of the resolution on the qualification case was also denied by the COMELEC en banc on May 4, 1989, but with three commissioners dissenting. (G.R. No. 88004, Rollo, pp 47-61; penned by Commissioner Abueg, Jr., with Commissioners Africa Rama, and Yorac, dissenting) The dismissal of this case is the subject of G.R. No. 88004. (at pp. 511-513)

Disposing of the consolidated petitions, this Court rendered judgment as follows:

1. In G.R.Nos. 87721-30, the decision dated February 3, 1989, the resolution dated April 13, 1989, are affirmed and the petition is DISMISSED.

2. In G.R. No. 88004, the decision dated February 3,1989, and the resolution dated May 4, 1989, are REVERSED and SET ASIDE. Respondent Commission on Elections is ORDERED to directly hear and decide SPC Case No. 88-546 under Section 78 of the Omnibus Election Code, with authority to maintain or lift our temporary restraining order of April 18, 1989, according to its own assessment of the evidence against the private respondent.

The parties are enjoined to resolve this case with all possible speed, to the end that the Governor of Leyte may be ascertained and installed without further delay. (p. 520)

In view of these rulings, the COMELEC, upon motion of Larrazabal, lifted its temporary restraining order against her proclamation paving Larrazabal's proclamation and her assumption to the Office of Governor of Leyte while the hearings in the disqualification case (SPC No. 88-546) continued.

On February 14, 1991, the second division in a 2-1 vote rendered a decision disqualifying Larrazabal as governor.

On July 18, 1991, the Commission en banc issued a resolution which denied Larrazabal's motion to declare decision void and/or motion for reconsideration and

affirmed the second division's decision. In the same resolution, the Commission disallowed Abella's proclamation as governor of Leyte.

Hence, these petitions.

We treat the various Comments as Answers and decide the petitions on their merits.

Acting on a most urgent petition (motion) for the issuance of a restraining order filed by petitioner Larrazabal, this Court issued a temporary restraining order on August 1, 1991.

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... [E]ffective immediately and continuing until further orders from this Court, ordering the respondent on on Elections to CEASE and DESIST from enforcing, implementing and executing the decision and resolution, respectively dated February 14, 1991 and July 18, 1991.

It appearing that despite the filing of this petition before this Court and during its pendency, the incumbent Vice-Governor of Leyte Hon. Leopoldo E. Petilla, took his oath as Provincial Governor of Leyte and assumed the governorship as contained in his telegraphic message, pursuant to COMELEC resolution SPC No. 88-546, promulgated on July 18, 1991, the Court further Resolved to ORDER Hon. Leopoldo E. Petilla to MAINTAIN the status quo ante then prevailing and/or existing before the filing of this petition and to DESIST from assuming the office of the Governor and from discharging the duties and functions thereof. (Rollo-100739, p. 204)

In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC completely disregarded our pronouncement in G.R. No. 88004 in that instead of acting on SPC Case No. 88-546 under section 78 of the Election Code, the COMELEC proceeded with a disqualification case not contemplated in G.R. No. 88004.

The argument is not meritorious.

The questioned decision and resolution of the COMELEC conform with this Court's decision in G.R. No. 88004.

Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella, petitioner in G.R. No. 100710 was allowed to intervene in the case) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of Ormoc City like her husband who was earlier disqualified from running for the same office. The COMELEC dismissed the petition and referred the case to its Law Department for proper action on the ground that the petition was a violation of Section 74 of the Election Code and, pursuant to it rules, should be prosecuted as an election offense under Section 262 of the Code.

This Court reversed and set aside the COMELEC's ruling, to wit:

The Court holds that the dismissal was improper. The issue of residence having been squarely raised before it, it should not have been shunted aside to the Law Department for a roundabout investigation of the private respondent's qualification through the filing of a criminal prosecution, if found to be warranted, with resultant disqualification of the accused in case of conviction. The COMELEC should have opted for a more direct and speedy process available under the law, considering the vital public interest involved and the necessity of resolving the question of the earliest possible time for the benefit of the inhabitants of Leyte.

In the view of the Court, the pertinent provision is Section 78 in relation to Section 6 of R.A. No. 6646.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

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Section 6 of R.A. 6646 states as follows:

Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. ...

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The above-stressed circumstances should explain the necessity for continuing the investigation of the private respondent's challenged disqualification even after the election notwithstanding that such matter is usually resolved before the election. Independently of these circumstances, such proceedings are allowed by Section 6 of RA. 6646 if for any reason a candidate is not declared by final judgment before an election to be disqualified ...

In fine, the Court directed the COMELEC to determine the residence qualification of petitioner Larrazabal in SPC Case No. 88-546. Concomitant with this directive would be the disqualification of petitioner Larrazabal in the event that substantial evidence is adduced that she really lacks the residence provided by law to qualify her to run for the position of governor in Leyte.

In line with the Court's directive, the COMELEC conducted hearings in SPC Case No. 88-546 to resolve the qualification of Larrazabal on the basis of two (2) legal issues raised by Silvestre T. de la Cruz namely, Larrazabal's lack of legal residence in the province of Leyte and her not being a registered voter in the province, as required by Title II, Chapter I, Section 42, B.P. Blg. 337, in relation to Article X, Section 12 of the Constitution, to wit:

Sec. 42. Qualification. — (1) An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such

in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Pilipino, or any other local language or dialect.

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Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

The position of petitioners De la Cruz and Abena was that respondent Larrazabal is neither a resident nor a registered voter of Kananga, Leyte as she claimed but a resident and registered voter of Ormoc City, a component city of the province of Leyte but independent of the province pursuant to Section 12, Article X of the Constitution thereby disqualifying her for the position of governor of Leyte. They presented testimonial as well as documentary evidence to prove their stance.

On the other hand, respondent Larrazabal maintained that she was a resident and a registered voter of Kananga, Leyte. She, too presented testimonial as well as documentary evidence to prove her stand.

The COMELEC ruled against the respondent, now petitioner Larrazabal.

In its questioned decision and resolution, the COMELEC found that petitioner Larrazabal was neither a resident of Kananga, Leyte nor a registered voter thereat. With these findings, the COMELEC disqualified the petitioner as governor of the province of Leyte.

The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines that under "the Election Law, the matter of determination of the RESIDENCE is

more on the principle of INTENTION, the animus revertendi rather than anything else."

In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she had the ANIMUS REVERTENDI evidenced by her continuous and regular acts of returning there in the course of the years, although she had physically resided at Ormoc City." (Petition, Rollo, p. 40)

As can be gleaned from the questioned decision, the COMELEC based its finding that the petitioner lacks the required residence on the evidence of record to the effect that despite protestations to the contrary made by the petitioner, she has established her residence at Ormoc City from 1975 to the present and not at Kananga, Leyte. Her attempt to purportedly change her residence one year before the election by registering at Kananga, Leyte to qualify her to ran for the position of governor of the province of Leyte clearly shows that she considers herself already a resident of Ormoc City. In the absence of any evidence to prove otherwise, the reliance on the provisions of the Family Code was proper and in consonance with human experience. The petitioner did not present evidence to show that she and her husband maintain separate residences, she at Kananga, Leyte and her husband at Ormoc City. The second division of the COMELEC in its decision dated February 14, 1991 states:

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But there is the more fundamental issue of residence. The only indications of a change of residence so far as respondent is concerned are: the address indicated in the application for cancellation filed by respondent indicating her postal address as Kananga, Leyte, the annotation in her Voter's affidavit for Precinct No. 15 that her registration was cancelled due to lack of residence; the testimony of Anastacia Dasigan Mangbanag that she entered into a contract of lease with option to buy with the spouses Emeterio and Inday Larrazabal over two parcels of land the witness owned in Mahawan, Kananga, Leyte; that she sees the spouses in the leased house in Kananga, that she was informed by Inday Larrazabal that the spouses had

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decided to buy their property because she wanted to beautify the house for their residence. She attached as annex the written contract signed by her and the spouses; and the testimony of Adolfo Larrazabal Exh. "10" cousin of the spouses that 'at a family meeting ... the political plan of the Larrazabal clan was discussed, among which were (sic) the problem of Terry's residence in Ormoc City' and that it was decided in said meeting ... that Inday Larrazabal, wife of Terry, will transfer her Ormoc Registration as a voter to Kananga, Leyte (so) she will be able to vote for Terry and also help me in my candidacy; that they have been staying in Kananga, very often as they have properties in Lonoy and a house in Mahawan.

The references to residence in the documents of cancellation and registration are already assessed for their evidentiary value in relation to the documents themselves above. The question must therefore be addressed in relation to the testimony of Anastacia Dasigan Mangbanag and Adolfo V. Larrazabal. The gist of the testimonies is that they leased properties in Mahawan, Leyte and that they are seen in the house on the land leased. But the contract of lease with option to purchase itself indicates as to where the legal residence of the Jarrazabal is. The pertinent portion states:

SPS EMETERIO V. LARRAZABAL AND ADELINA Y. LARRAZABAL, both of legal age, Filipino, and residents of Ormoc City, Philippines, hereinafter referred to as the LESSEES.

The acknowledgment also indicates that Emeterio V. Larrazabal presented his Residence Certificate No. 155774914 issued in Ormoc City.

The testimony of Adolfo Larrazabal reenforces this conclusion. It admits, as of the second or third week of November, that the residence of Emeterio Larrazabal was Ormoc City and that Inday Larrazabal was going to transfer her registration so she may be able to vote for him.

For the purpose of running for public office, the residence requirement should be read as legal residence or domicile, not any place where a party may have properties and may visit from time to time.

The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence.

Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as follows:

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.

Husband and wife as a matter of principle live together in one legal residence which is their usual place of abode. (COMELEC decision, pp. 21-23; Rollo – 100710, pp. 67-69; Emphsis supplied)

As regards the principle of ANIMUS REVERTENDI we ruled in the case of Faypon v. Quirino, 96 Phil. 294 [1954]):

xxx xxx xxx

... [M]ere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient to constitute abandonment or loss of such residence.' ... The determination of a persons legal residence or domicile largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss.

xxx xxx xxx

... A citizen may leave the place of his birth to look for 'greener pastures' as the saying goes, to improve his life, and that, of course, includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to

improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities; so there he registers as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin, has not forsaken him. ... (at pp. 297-300)

In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present. The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to continue her residence therein. It is common among us Filipinos to often visit places where we formerly resided specially so when we have left friends and relatives therein although for intents and purposes we have already transferred our residence to other places.

Anent the issue of whether or not the petitioner is a registered voter of Kananga, Leyte, the petitioner insists that she is such a registered voter based on the following antecedents: 1) She cancelled her registration in Ormoc City on November 25, 1987, and 2) she then transferred her registration to Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day (February 1, 1988) in Kananga, Leyte.

Despite the insistence of the petitioner, the evidence shows that her supposed cancellation of registration in Ormoc City and transfer of registration in Kananga, Leyte, is not supported by the records. As the COMELEC stated:

The train of events, which led to respondent's g of her certificate of candidacy on the basis of her registration started on November 25, 1987, when she allegedly filed all application for cancellation of registration Exh. "2-B". Subsequent to this request, her voter's affidavit in Precinct

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15, Ormoc City with Serial No. 0918394 J was annotated with the words 'cancelled upon application of the voter due to transfer of residence.' Thereafter, she registered in Precinct No. 17, Mahawan, Kananga, Leyte on November 28,1987 which registration was contained in Voter's Affidavit with Serial No. 0190840-J The cancellation of registration was submitted to the Board of Election Inspectors on January 9, 1988 (Revision Day) on the submission of the sworn application at 4:30 p.m. allegedly by a clerk from the Election Registrar's Office with only the poll clerk and the third member because the Chairman of the Board of Election Inspectors allegedly left earlier and did not come back. Exh. "3-B".

We find the version pressed by respondent unworthy of belief. The story is marked by so many bizarre cirumtances not consistent with the ordinary course of events or the natural behavior of persons. Among these are:

(1) The application for cancellation of registration by respondent Adelina Y. Larrazabal happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it was not sent to the Board of Election Inspectors in a sealed envelope;

(2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988;

(3) The voter's affidavit was delivered by itself without any endorsement or covering letter from the Election Registrar or anybody else;

(4) The election clerk delivered the application for cancellation only towards the last hour of the revision day, allegedly at 4:30 P.M., January 9, 1988;

(5) All the members of the Board of Election Inspectors had already signed the Minutes indicating that no revision of the voter's list was made as of 5:00 PM

(6) The poll clerk and the third member prepared another minutes stating that the election clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the minutes they had previously signed;

(7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan, Kananga, was supposed to have filled up an application for cancellation of his registration in Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for cancellation was never submitted in evidence.

(8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17 are far removed from the serial numbers of the other new registrants in November 28, 1987 in the same precinct.

The most telling evidence is the list of voters (Form 2-A), Exh. "G", that the Chairman and the poll clerk had written in Part II of the same, closed by the signatures of both officials showing that there were only nine (9) additional registered voters in Precinct 17, Mahawan, Kananga, Leyte, namely, Bantasan, Merly; Conie; Limosnero Anita; Limosnero W; Pame Virginia; Savenario, Analiza; Verallo, Ofelia; Basan, Juanita; and Acgang Bonifacio. This is consistent with the list of new voters after the November 28, 1987 for Precinct No. 17, Mahawan, Kananga, Leyte submitted by the Election of Kananga to the National Central File of the Commission per certification of the Chief, National Central File Division on January 25, 1988 dated January 25, 1988, Exh. 'C'. The affidavits submitted by the Election Registrar to the Commission could only have come from the Board of Election Inspectors of Precinct No. 17, after the November 28, 1987 registration, for the Election Registrar could not have had the affidavits of these new registrants apart from those supplied by the Precinct itself. Why were not the affidavits of the Larrazabals included? Was this part of the incredibly bizarre series of inadvertence and neglect that spanned Ormoc City and Kananga? This also explains the certification dated January 29, 1988, of the Election Registrar of Kananga that as of that date Mrs. Adelina Larrazabal was not a registered voter in any of the' precincts in Kananga. Exh. "L". It was only on February 15, 1988, or two weeks after the election day that the same Registrar certified for the first time that there were two voters lists, the first without the names of the Larrazabals and the second, which appeared only after February 1, submitted by the Chairman of the Board for Precinct 17 which contained the spouses Larrazabals' names.

It might also be stressed that one set of voter's list Exh. "G" had the signature of both the Chairman, poll clerk and third member of the board, while the one which appeared later which included the names of the Larrazabal had the signature only of the Chairman. Exh. "I".

From the certification of the National Central Files, it appears that the Serial Nos. of the newly registered voters were as follows: 0189821-J 018922-J 0189823-J 0189824-J 0189825-J 0189826-J 0189827-J 0189828-J 0189839-J The alleged registration of Emeterio V. Larrazabal and Adelina Y. Larrazabal are inexplicably effected through voter's affidavits with Serial Nos. 0190893J and 01 90840-J. These serial numbers are traced per record of the Commission to Precinct No. 6, municipality of Kananga, Leyte. Per official Project of precincts on file with the Commission, Precinct No. 6 is a poblacion precinct located in Kananga, Municipal High School Building. How these documents came to be used in Precinct No. 17 in Barangay Mahawan and only by the Larrazabals has never been explained.

It also takes a lot of straining to believe the story about the effort to cancel registration on November 25, 1987, which application surfaced before the Board of Election inspectors for Precinct No. 15, Ormoc City only on January 9, 1988, Revision Day. As pointed out by Petitioner, it is absurd that it would only be on Revision Day, normally set aside for the purpose of receiving inclusion and exclusion orders from the courts, that the application for cancellation would be coincidentally found and delivered to the Board of Election Inspectors for Precinct 15. Furthermore, the entire membership of the Board of Inspectors for said precinct, signed a Minutes, Exh. "3-A" which indicates that no order of inclusion or exclusion was received from any court and that the board proceeded with the numbering of a total 229 voters for the precinct. The Minutes also indicates that the Board adjourned at 5:00 p.m. Exh. "3-B" which was supposedly prepared after Exh. "3-A" signed only by the poll clerk and third member indicates that at 4:30 P.M. an unidentified clerk from the Election Registrar's Office arrived with the application for cancellation of Vilma Manzano and Adelina Larrazabal.

It also appears that on November 28, 1987, the Board of Election Inspectors for Precinct 15, Ormoc City prepared

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the list of voters for said precinct, Exh. 'N' where the name of Adelina Y. Larrazabal appears as voter No. 96 and Emeterio V. Larrazabal is listed as Voter No. 98. At the back of the list there is a certification that there was no voter which was included by court order and that to voters, one Montero and one Salvame were excluded by virtue of such order. As of January 29, 1988, when the certified true copy of the Voter's List for Precinct 15 was furnished the petitioner, no additional entry was reflected on the list which would show what transpired on January 9, 1988, as alleged by the Election Registrar for Ormoc City and the poll clerk and third member of the board of inspectors that a cancellation was effected. It taxes credulity therefore, to lend belief to Exh. "2-C", when was issued by the City Registrar for Ormoc only on February 1, 1990, which for the first time showed handwritten annotations of cancellation of the registration of Adelina Larrazabal and Vilma Manzano by witnesses Gratol and Patonog. If this evidence did not exist at the time of the entry which purports to have been on January 9, 1988, this evidence could have been used to confront within Carolina Quezon when she testified and identified Exh. "N" on April 14, 1988. In fact if these entries indicating (sic) were made, they would have been evident in Exh. 'W. The failure to confront Quezon with the entries and the late submission of Exh. "2-C" can only lead to two conclusions: these entries did not exist as of January 29, 1988 when the certification of the list of voters was made and that they were annotated in the voter's list after that date. This is consistent with Exh. "P" which was issued on February 11, 1988.

The relative weight of the parties' evidence supports petitioner's thesis that respondent was not a registered voter in Precinct No. 17, Brgy. Mahawan, Kananga, Leyte, and, that she and her husband Emeterio Larrazabal continued to be registered voters in Precinct No. 15, Ormoc City. (Rollo, pp. 62-67; COMELEC decision, pp. 22-27)

The Court is bound by these factual findings as they are supported by substantial evidence:

In Aratuc v. Commission on Elections (88 SCRA 251), speaking of the need to preserve the 'independence and all the needed concomitant powers' of the Commission on

Elections, Justice Antonio P. Barredo declared that it is but proper that the Court should accord the greatest measures of presumption of regularity to its course of action ... to the end it may achieve its designed place in the democratic fabric of our government ... (Abella v. Larrazabal, supra)

Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte.

Section 12, Article X of the Constitution provides:

Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

Section 89 of Republic Act No. 179 creating the City of Ormoc provides:

Election of provincial governor and members of the Provincial Board of the members of the Provincial Board of the Province of Leyte — The qualified voters of Ormoc City shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte.

Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from voting for the provincial elective officials. The question now is whether or not the prohibition against the 'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial officials.

The petitioner citing section 4, Article X of the Constitution, to wit:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

submits that "while a Component City whose charter prohibits its voters from participating in the elections for provincial office, is indeed independent of the province, such independence cannot be equated with a highly urbanized city; rather it is limited to the administrative supervision aspect, and nowhere should it lead to the conclusion that said voters are likewise prohibited from running for the provincial offices." (Petition, p. 29)

The argument is untenable.

Section 12, Article X of the Constitution is explicit in that aside from highly-urbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition. Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are geographically attached. This independence from the province carries with it the prohibition or mandate directed to their registered voters not to vote and be voted for the provincial elective offices. The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable.

Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the

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members of the provincial board of the Province of Leyte' connotes two prohibitions — one, from running for and the second, from voting for any provincial elective official." (Resolution En Banc, p. 6)

The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong English" since nowhere in the provision is there any reference to a prohibition against running for provincial elective office. She states that if the prohibition to run was indeed intended, the provision should have been phrased "Shall not be qualified TO RUN in the election FOR provincial governor." A comma should have been used after the word qualified and after the word "vote" to clearly indicate that the phrase "in the election of the provincial governor" is modified separately and distinctly by the words "not qualified" and the words "not entitled to vote." (Petition, p. 19)

The Court finds the petitioner's interpretation fallacious.

In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court interpreted Section 20 of Presidential Decree No. 957 in relation to the conjunction and, to wit:

Time of Completion. — Every owner or developer shall construct and provide the facilities, improvements, infrastructures and other forms of development, including water supply and lighting facilities, which are offered and indicated in the approved subdivision or condominium plans. ...

The Court ruled:

We further reject petitioner's strained and tenuous application of the called doctrine of last antecedent in the interpretation of Section 20 and, correlatively, of Section 21. He would thereby have the enumeration of 'facilities, improvements, infrastructures and other forms of development' interpreted to mean that the demonstrative Phrase 'which are offered and indicated in the approved subdivision plans, etc,' refer only to 'other forms of development' and not to 'facilities, improvements and infrastructures.' While this subserves his purpose, such bifurcation whereby the supposed adjectives phrase is set apart from the antecedent words, is illogical and

erroneous. The complete and applicable rule is ad proximum antedecens flat relationisi impediatursentencia (See Black's Law Dictionary, 4th Ed., 57 citing Brown v. Brown, Delta 3 Terry 157, 29 A. 2d 149, 153) Relative words refer to the nearest antecedent, unless it be prevented by the context. In the present case, the employment of the word 'and' between 'facilities, improvements, infrastructures' and 'other forms of development,' far from supporting petitioner's theory, enervates it instead since it is basic in legal hermeneutics that and is not meant to separate words but is a conjunction used to denote a joinder or union. (at pp. 81-83)

Applying these principles to the instant case, the conjunction and between the phrase shall not be qualified and entitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the demonstrative phrase "in the election of the provincial governor and the members of the provincial board of the Province of Leyte."

Finally, the petitioner contends that the February 14, 1991 decision of the COMELEC's second division is null and void on the ground that on that date, the term of Commissioner Andres Flores, one of the signatories of the majority opinion (vote was 2-1) had already expired on February 2, 1991. (Commissioner Flores was nominated by the President on January 30, 1988 and was confirmed by the Commission on Appointments on February 15, 1988. His term of office was fixed by the President for three years from February 15, 1988 to February 15, 1991.)

The petitioner postulates that the President has no power to fix the terms of office of the Commissioners of the COMELEC because the Constitution impliedly fixes such terms of office. With regards to Commissioner Flores, the petitioner professes that Flores' term of three (3) years expired on February 2, 1991 based in section 1(2), Article IX, C, of the Constitution, to wit:

xxx xxx xxx

(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three

Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Any appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. In relation to the Transitory Provision of the 1987 Constitution (Article XVIII) particularly Section 15 thereof, to wit:

xxx xxx xxx

The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge The duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years including service before the ratification of this Constitution.

There is no need to pass upon this constitutional issue raised by the petitioner. The Court ruled in the case of Alger Electric, Inc. v. Court of Appeals (135 SCRA 37 [1985]):

xxx xxx xxx

... This Court does not decide questions of a constitutional nature unless absolutely necessary to a decision of the case. If there exists some other ground based on statute or general law or other grounds of construction, we decide the case on a non-constitutional determination. (See Burton v. United States, 196 U.S. 283; Siler v. Louisville & Nashville R. Co. 213 U.S. 175; Berea College v. Kentucky 211 U.S. 45.) (at p. 45)

Even if we concede that Commissioner Flores' term expired on February 2, 1991, we fail to see how this could validate the holding of an elective office by one who is clearly disqualified from running for that position and the continued exercise of government powers by one without legal authority to do so. The powers of this Court are broad enough to enjoin the violation of constitutional and statutory provisions by public officers especially where, as in this case, we merely affirm the decision of the

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COMELEC en banc promulgated at a time when Commissioner Flores was no longer a member.

Moreover, under the peculiar circumstances of this case, the decision of the second division of COMELEC would still be valid under the de facto doctrine.

Commissioner Flores was appointed for a three-year term from February 15, 1988 to February 15, 1991. In these three years he exercised his duties and functions as Commissioner. Granting in the absence of a statute expressly stating when the terms of the COMELEC Chairman and members commence and expire, that his term expired on February 2, 1991 to enable a faithful compliance with the constitutional provision that the terms of office in the COMELEC are on a staggered basis commencing and ending at fixed intervals, his continuance in office until February 15, 1991 has a color of validity. Therefore, all his official acts from February 3, 1991 to February 15, 1991, are considered valid. The Court ruled in the case of Leyte Acting Vice-Governor Aurelio D. Menzon v. Leyte Acting Governor Leopoldo E. Perilla, et al. G.R. No. 90762, May 20, 1991:

And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.

There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity.

Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second highest number of votes, next to Larrazabal in the local elections of February 1, 1988 in the province of Leyte. The COMELEC en banc, after affirming the February 14, 1991 decision of its second division disqualifying arrazabal as governor disallowed Abella from assuming position of governor in accordance with section

6, Republic Act No. 6646 and the rulings in the cases of Frivaldo v. Commission on Elections (174 SCRA 245 [1989]) and Labo, Jr. v. Commission on Elections (176 SCRA 1 [1989]).

Abella claims that the Frivaldo and Labo cases were misapplied by the COMELEC. According to him these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions for a quo warranto filed under section 253 of the Omnibus Code, contesting the eligibility of the respondents after they had been proclaimed duly elected to the Office from which they were sought to be unseated while SPC No. 88-546 which was filed before proclamation under section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of candidacy for material misrepresentations and was seasonably filed on election day. He, therefore, avers that since under section 6 of Republic Act 6646 it is provided therein that:

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes case for him shall not be counted.

the votes cast in favor of Larrazabal who obtained the highest number of votes are not considered counted making her a non-candidate, he, who obtained the second highest number of votes should be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004.

The petitioner's arguments are not persuasive.

While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate. In the Frivaldo and Labo cases, this is precisely the reason why the candidates who obtained the second

highest number of votes were not allowed to assume the positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position can not assume the vacated position. It should be stressed that in G.R. No. 88004, the Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to determine whether or not Larrazabal was qualified to be a candidate for the position of governor in the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in the case of Labo, Jr. v. Commission on Elections:

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio

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v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:

... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him.

Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government 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. (20 Corpus Juris 2nd, S 243, p. 676.)

The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid the vote the winner into office or maintain him there. However the absence of a statute which clearly asserts a contrary politics and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21)

In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion.

WHEREFORE, the instant petitions are DISMISSED. The questioned decision of the second division of the Commission on Elections dated February 14, 1991 and the questioned Resolution en banc of the Commission dated July 18, 1991 are hereby AFFIRMED. The temporary restraining order issued on August 1, 1991 is LIFTED. Costs against the petitioners.

SO ORDERED.

Questioned in this petition for review is the decision[1] of the Court of Appeals[2] (CA), as well as its resolution, which affirmed the decision of the Regional Trial Court[3] (RTC) of Zamboanga del Norte in dismissing a petition for mandamus against a Provincial Election Supervisor and an incumbent Election Registrar.

The undisputed facts are as follows:

Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del Norte on July 27, 1986. She was to replace respondent Election Registrar Claudio Concepcion, who, in turn, was transferred to Liloy, Zamboanga del Norte.[4] Correspondingly approved by the Civil Service Commission,[5] both appointments were to take effect upon assumption of office. Concepcion, however, refused to transfer post as he did not request for it.[6] Garces, on the other hand, was directed by the Office of Assistant Director for Operations to assume the Gutalac post.[7] But she was not able to do so because of a Memorandum issued by respondent Provincial Election Supervisor Salvador Empeynado that prohibited her from assuming office in Gutalac as the same is not vacant.[8]

On February 24, 1987, Garces was directed by the same Office of Assistant Director to defer her assumption of the Gutalac post. On April 15, 1987, she received a letter from the Acting Manager, Finance Service Department, with an enclosed check to cover for the expenses on construction of polling booths. It was addressed “Mrs. Lucita Garces E.R. Gutalac, Zamboanga del Norte” which Garces interpreted to mean as superseding the deferment order.[9] Meanwhile, since respondent Concepcion continued occupying the Gutalac office, the COMELEC en banc cancelled his appointment to Liloy.[10]

On February 26, 1988, Garces filed before the RTC a petition for mandamus with preliminary prohibitory and mandatory injunction and damages against Empeynado[11] and Concepcion, among others. Meantime, the COMELEC en banc through a Resolution dated June 3, 1988, resolved to recognize respondent Concepcion as the Election Registrar of Gutalac,[12] and ordered that the appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled.[13] In view thereof, respondent Empeynado moved to dismiss the petition for mandamus alleging that the same was rendered moot and academic by the said COMELEC Resolution, and that the case is cognizable only by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The RTC, thereafter, dismissed the petition for mandamus on two grounds, viz., (1) that quo warranto is the proper remedy,[14] and (2) that the “cases” or “matters” referred under the constitution pertain only to those involving the conduct of elections. On appeal, respondent CA affirmed the RTC’s dismissal of the case. Hence, this petition.

The issues raised are purely legal. First, is petitioner’s action for mandamus proper? And, second, is this case cognizable by the RTC or by the Supreme Court?

On the first issue, Garces claims that she has a clear legal right to the Gutalac post which was deemed vacated at the time of her appointment and qualification. Garces insists that the vacancy was created by Section 2, Article III of the Provisional Constitution.[15] On the contrary, Concepcion posits that he did not vacate his Gutalac post as he did not accept the transfer to Liloy.

Article III Section 2 of the Provisional Constitution provides:

“All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986.” (Italics supplied)

The above organic provision did not require any cause for removal of an appointive official under the 1973 Constitution.[16] The transition period from the old to the new Constitution envisioned an “automatic” vacancy;[17]

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hence the government is not hard put to prove anything plainly and simply because the Constitution allows it.[18] Mere appointment and qualification of the successor removes an incumbent from his post. Nevertheless, the government in an act of auto-limitation and to prevent indiscriminate dismissal of government personnel issued on May 28, 1986, Executive Order (E.O.) No. 17. This executive order, which applies in this case as it was passed prior to the issuance of Concepcion’s transfer order, enumerates five grounds for separation or replacement of elective and appointive officials authorized under Article III, Section 2 of the Provisional Constitution, to wit:

“1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;

2. Existence of the probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of public office for partisan political purposes;

5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service.”

Not one of these grounds was alleged to exist, much less proven by petitioner when respondent Concepcion was transferred from Gutalac to Liloy. More, Concepcion was transferred without his consent. A transfer requires a prior appointment.[19] If the transfer was made without the consent of the official concerned, it is tantamount to removal without valid cause[20] contrary to the fundamental guarantee on non-removal except for cause.[21] Concepcion’s transfer thus becomes legally infirm and without effect for he was not validly terminated. His appointment to the Liloy post, in fact, was incomplete because he did not accept it. Acceptance, it must be emphasized, is indispensable to complete an appointment.[22][23] There can be no appointment to a non-vacant position. The incumbent must first be legally removed, or his appointment validly terminated before one could be

validly installed to succeed him. Further, Garces’ appointment was ordered to be deferred by the COMELEC. The deferment order, we note, was not unequivocably lifted. Worse, her appointment to Gutalac was even cancelled by the COMELEC en banc. Corollarily, Concepcion’s post in Gutalac never became vacant. It is a basic precept in the law of public officers that “no person, no matter how qualified and eligible he is for a certain position may be appointed to an office which is not vacant.

These factors negate Garces’ claim for a well-defined, clear, certain legal right to the Gutalac post. On the contrary, her right to the said office is manifestly doubtful and highly questionable. As correctly ruled by respondent court, mandamus, which petitioner filed below, will not lie as this remedy applies only where petitioner’s right is founded clearly in law and not when it is doubtful.[24] It will not issue to give him something to which he is not clearly and conclusively entitled.[25] Considering that Concepcion continuously occupies the disputed position and exercises the corresponding functions therefore, the proper remedy should have been quo warranto and not mandamus.[26] Quo warranto tests the title to one’s office claimed by another and has as its object the ouster of the holder from its enjoyment, while mandamus avails to enforce clear legal duties and not to try disputed titles.[27]

Garces’ heavy reliance with the 1964 Tulawie[28] case is misplaced for material and different factual considerations. Unlike in this case, the disputed office of “Assistant Provincial Agriculturist” in the case of Tulawie is clearly vacant and petitioner Tulawie’s appointment was confirmed by the higher authorities making his claim to the disputed position clear and certain. Tulawie’s petition for mandamus, moreover, was against the Provincial Agriculturist who never claimed title to the contested office. In this case, there was no vacancy in the Gutalac post and petitioner’s appointment to which she could base her claim was revoked making her claim uncertain.

Coming now to the second issue.

The jurisdiction of the RTC was challenged by respondent Empeynado[29] contending that this is a “case” or “matter” cognizable by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution cancelling

the appointment of Garces as Election Registrar of Gutalac, he argues, should be raised only on certiorari before the Supreme Court and not before the RTC, else the latter court becomes a reviewer of an en banc COMELEC resolution contrary to Sec. 7, Art. IX-A.

The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:

“Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the commission or by the commission itself. Unless otherwise provided by this constitution or by law, any decision, order, or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.”

This provision is inapplicable as there was no case or matter filed before the COMELEC. On the contrary, it was the COMELEC’s resolution that triggered this Controversy. The “case” or “matter” referred to by the constitution must be something within the jurisdiction of the COMELEC, i.e., it must pertain to an election dispute. The settled rule is that “decision, rulings, order” of the COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7 Art. IX-A are those that relate to the COMELEC’s exercise of its adjudicatory or quasi-judicial powers[30] involving “elective regional, provincial and city officials.”[31] In this case, what is being assailed is the COMELEC’s choice of an appointee to occupy the Gutalac Post which is an administrative duty done for the operational set-up of an agency.[32] The controversy involves an appointive, not an elective, official. Hardly can this matter call for the certiorari jurisdiction of the Supreme Court. To rule otherwise would surely burden the Court with trivial administrative questions that are best ventilated before the RTC, a court which the law vests with the power to exercise original jurisdiction over “all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions.”[33]

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WHEREFORE, premises considered, the petition for review is hereby DENIED without prejudice to the filing of the proper action with the appropriate body.

SO ORDERED.

DIMANGADAP DIPATUAN, petitioner, vs.THE COMMISSION ON ELECTIONS, ALEEM HOSAIN AMANODDIN, ALEEM ABBAS MOHAMMAD HABIB, HADJI SALIC IMAM, IBRA P. BALI, MAMENTAL NAGA, CADAR G. USMAN, MAGAUNDAR AMEROL, ALI MANGANDA, HOSARI ALOYOD, YUNOS MALIK, respondents.

Pedro Q. Quadra for petitioner.

Ariraya P. Corot, Linang D. Mandangan, Mangorsi A. Mindalano and Tingaraan Bangkero for private respondents.

R E S O L U T I O N

FELICIANO, J.:

Petitioner Dimangadap Dipatuan asks us to set aside the decision dated 8 November 1988 of the respondent Commission on Elections (Comelec) Second Division which ordered the inclusion of election returns from two (2) precincts (Precincts Nos. 15 and 17) of the Municipality of Bacolod Grande, Province of Lanao del Sur, in the canvass of votes cast in the 1988 local elections, as well as the decision of the Comelec En Banc dated 22 December 1988, affirming the decision of the Comelec Second Division.

Petitioner Dipatuan and private respondent Aleem Hosain Amanoddin were candidates for Mayor of Bacolod Grande in the 1 February 1988 special local elections in Lanao del Sur. The other private respondents were candidates for Vice-Mayor and Councilors in the same municipality.

On 21 February 1988, the Municipal Board of Canvassers of Bacolod Grande, chaired by Samuel Minalang, finished

canvassing the votes but did not proclaim the winning candidates. It did so on 29 February 1988, when private respondent Amanoddin was proclaimed winner and elected Mayor.

Earlier, on 25 February 1988, petitioner Dipatuan was proclaimed Mayor by a separate Board of Canvassers headed by one Mamacaog Manggray, after the said Board had excluded the election returns from Precincts Nos. 15, 17 and 21 from its canvass.

The Comelec En Banc set aside both (a) the proclamation made by the Minalang Board for being premature, the candidates not having been given the opportunity to appeal, and (b) the proclamation by the Manggray Board on the ground that the latter Board had not been properly constituted. A Special Board of Canvassers ("Special Board") was therefore convened in Manila by the Comelec to recanvass the election returns from Bacolod Grande, Lanao del Sur.

On 21 June 1988, during the recanvass, petitioner objected to the inclusion of the election returns from Precincts Nos. 15 and 17, contending that the returns from the two (2) precincts were spurious and manufactured". In this connection, petitioner seasonable converted his oral objection into written form and submitted certified copies of the voting records and voter's affidavits and affidavits of witnesses. The petitioner claimed that the questioned returns were "obviously manufactured" within the eaning of Section 243 (c) of the Omnibus Election Code and that therefore a pre-proclamation controversy existed which must be resolved before proclamation of the winning candidates Petitioner contended the following irregularities had attended at the Bacolod Grande local elections:

1. In Precinct No. 15. of the 248 persons who actually voted, 187 arrived in the precinct and voted, according to the voting list, precisely in alphabetical and chronological order; of the 187 voters who voted in alphabetical and chronological order, 811 were illiterates as reflected in their respective voter's affidavits,. but had suddenly learned how to write their names in the voting list; many persons whose faces were covered by veils were allowed to vote without their identities being verified.

2. In Precinct No. 17, 93 voters are listed as having voted in alphabetical and chronological order, i.e., in the precise sequence of their listing in the voting records: 45 illiterate voters suddenly learned to write their names in the voting records; many persons with their faces covered were allowed to vote without confirmation of their identities.

3. In both Precincts Nos. 15 and 17, there were discrepancies between the signatures of voters appearing in the voter's affidavits and the signatures appearing in the voting record; and members of the Boards of Election Inspectors falsified the voting records by making it appear that many or most of the registered voters had voted when in fact they had not.

The Special Board denied petitioner's objections and ordered the inclusion of the questioned returns from Precincts Nos. 15 and 17 in the canvass.

On appeal, the Comelec Second Division sustained the Special Board's action, dismissed petitioner's appeal and ordered the Special trial Board to proclaim the winning candidates. On 22 December 1988, the Comelec En Banc affirmed the decision of the Comelec Second Division Land denied petitioner's Motion for Reconsideration.

Hence the instant Petition for Certiorari, filed on 23 December 1988, with prayer for a writ of preliminary injunction or temporary restraining order to enjoy proclamation of private respondent Amanoddin as elected Mayor of Bacolod Grande.

On 10 January 1989, the, Court. issued a Temporary Restraining Order requiring Comelec to cease and desist from proclaiming private respondents as the duly elected municipal officials of Bacolod Grande. It attorney out, however, that pursuant to the Comelec decision of 22 December 1988 and upon notice to petitioner, the Special Board had on 28 December 1988 already proclaimed private respondent Amanoddin and the, other private respondents as the elected Municipal Mayor and Councilors of Bacolod Grande.

The Court, acting on petitioner's Motion to Annul Proclamation and/or Suspend Effects of Proclamation and on the Lanao del Sur Provincial Governor's Urgent

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Request for Clarificatory Order, issued a Resolution on 2 February 1989 directing that, pending resolution on the merit of the instant Petition for Certiorari, private respondent Amanoddin, having been procIaimed Municipal Mayor on 28 December 1988, should be recognized as such Mayor and authorized to discharge the functions and duties of that office.

The central issue here posed is whether or not the questioned returns from Precincts Nos. 15 and 17 in the Municipality of Bacolod Grande, Province of Lanao del Sur, were "obviously manufactured" such that the propriety or legality of their inclusion in the canvass by the Special Board presented a pre-proclamation controversy to be resolved before proclamation of this writing candidates.

Both the Comelec Division and the Comelec En Banc, in sustaining the Special Board's action ordering the inclusion of the questioned returns in the recanvass, held that the assailed returns were not "obviously manufactured" such that petitioner's contentions had not generated a pre-proclamation controversy and that petitioner's proper recourse was rather the bringing of an election contest where his contentions in respect of the assailed returns could be properly ventilated and examined in detail.

1. We start by noting that the Comelec (both Second Division and the Commission En Banc) correctly emphasized that, under the regime of the Omnibus Election Code, pre-proclamation controversies are properly limited to challenges directed against the Board of Canvassers and proceedings before such Board of Canvassers, and not the Board of Election Inspectors nor proceedings before such latter Board 1 and that such challenges should relate to particular election returns to which petitioner should have made specific verbal objection subsequently confirmed in writing. 2 In a pre-proclamation controversy it is axiomatic that the Comelec is not to look beyond or behind election returns which are on their face regular and authentic returns. A party seeking to raise issues resolution of which would compel the Comelec to pierce the veil, so to speak, of election returns prima facie regular, has his proper remedy in a regular election protest. By their nature, and given the obvious public interest in the speedy determination of the results of elections, pre-proclamation controversies are to be

resolved in summary proceedings. 3 The delicate policy equilibrium here involved was explained by the Court in the following terms in Alonto v. Commission on Elections: 4

[P]re-proclamation controversies should be summarily decided, consistent with the law's desire that the canvass and proclamation be delayed as little as possible . . . [and that the Comelec and the courts should guard both against proclamation grabbing through tampered returns as well as against attempts to paralyze canvassing and proclamation in order to prolong hold-overs.

2. Section 243 of the Omnibus Election Code provides, in relevant part:

Sec. 243. Issues that may be raised in pre-proclamation controversy. — The following shall be the proper issues that may be raised in a pre-proclamation controversy:

xxx xxx xxx

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

Thus, in principle, the issues raised by petitioner do constitute issues properly raised in pre-proclamation controversies. That the assailed returns were "obviously manufactured" must, however, be evident from the face of the election returns themselves. In the case at bar, petitioner does not claim that the election returns from Precincts Nos. 15 and 17 had not been made or issued by the Board of Election Inspectors or that they had been manufactured by some unknown third party or parties; petitioner does not, in other words, claim that the returns themselves were not authentic. What petitioner in effect contends is that where election returns, though genuine or authentic in character, are reflective of fraudulent acts done before or carried out by the Board of Election Inspectors, the returns should be deemed as "obviously manufactured."

Petitioner's contention does not persuade. In Ututalum v. Commission on Elections, et al., 5 petitioner Ututalum (represented by the same counsel who, in the Petition at

bar, represents petitioner) contended that the issues he had raised before the Comelec actually referred to "obviously manufactured returns", a subject matter proper for a pre-proclamation controversy and therefore cognizable by the Comelec. Petitioner Ututalum claimed that the questioned election returns had been based upon a List of Voters which was subsequently nullified by the Comelec "on the ground of massive irregularities committed in the preparation thereof and being statistically improbable", and that the Comelec then ordered a new registration of voters for the local elections of February 1988. In dismissing the Petition, the Court, said, through Mme. Justice Herrera

That the padding of the of Voters may constitute fraud or that the Board of Election) Inspectors may have fraudulently conspired in its preparation, would nut be a valid Basis for a pre-proclamation controversy either. For whenever irregularities, such as fraud, are asserted, the proper course of action is an election protest.

Such irregularities as fraud, vote-buying and terrorism are proper ground in an election contest but may not as a rule be invoked to declare a failure of election and to disenfranchise the greater number of the (electorate through the misdeeds, precisely, of only a relative few. Otherwise, elections will never be carried out with the resultant disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665). 6

3. In the case at bar, the Comelec Second Division held that the apparent alphabetical and chronological sequence in the voting was not necessarily proof of fraud that would justify the exclusion of the assailed returns. The Comelec Second Division explained

1. Mere alphabetical and chronological voting does not itself constitute sufficient evidence to establish fraud that would justify the setting aside of election returns. As counsel for appellant had occasion to assert in Lucman v. Dirripio SPC No. 87-190, October 15, 1987, "[I]t is unfair to conclude that alphabetical voting is indicative of fraud." and "[l]n some precise of Lanao, alphabetical voting is imposed to promote an orderIy election," We do not take

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such factual finding here. But the evidence is ambiguous and is susceptible of several interpretations. For this reason we are bound by the presumption of regularity in the performance of official functions. Rule 131, Sec. 5 (m) Rules of Court. 7

In the case of Lucman v. Dimaporo (SPC 87-190), petitioner Lucman raised before the Comelec the same issue here raised by petitioner Dipatuan. Counsel for candidate Dimaporo (again, the same counsel for petitioner Dipatuan) defended the same chronological and alphabetical voting in the following comments:

It is unfair to conclude that alphabetical voting in Lanao del Sur is indicative of fraud. There is evidence on record from the testimony of Lucman's own witness Elsa Sarip that alphabetical voting is an honest procedure adopted by some Boards of Election Inspectors in Lanao.

In some Precincts in Lanao del Sur, alphabetical voting is imposed to promote an orderly election. Usually in the morning the bulk of the voters gather in the precincts What the Board of Election Inspectors do is to call one by one the names of the voters in alphabetical order to avoid overcrowding in the precincts. This procedure finds corroboration in the very testimony of Lucman's witness Elsa Sarip. 8

Private respondents in the case at bar explained that Precincts Nos. 15 and 17 of Bacolod Grande, Lanao del Sur, were located in the poblacion. Early in the morning of election day, 1 February 1988, voters of the two (2) precincts converged on their respective polling places ready to cast their votes as soon as the precincts opened. In order to avoid trouble, since everyone wanted to vote ahead of the others, the Boards of Election inspectors of the two (2) precincts adopted voting by alphabetical order, calling out the names of voters in the same sequence listed in the List of Voters. 9

4. Petitioner's complaints about supposed irregularities involving illiterate voters appear to assume that it is improper or unlawful for a third person — e.g., the assistor who had helped the illiterate to cast his vote 10 — write the name of the assisted illiterate in the voting record. As the Comelec pointed out, however, the proper procedure

for indicating that illiterate voters have cast their votes has not been specifically set out in the Omnibus Election Code:

2. The citation of signatures of alleged illiterate voters is not clear. For the procedure that the Board of Election Inspectors followed with respect to them is not established. The law itself is not too clear as to how it is to record the fact that an illiterate voter actually votes, i.e., to do so by thumbmarking the voting record, or to allow the assistor to sign the name of the illiterate voter. Sec. 196, B.P. Blg. 881. Again, the evidence is ambiguous and we are bound by law to presume regularity. In addition, it must be pointed out that the illiterate voters in the two questioned precincts are outnumbered by literate voters whose valid votes will be invalidated by the setting aside of the returns. The disenfranchisement of voters through the misdeeds of a few should be avoided. Grand Alliance for Democracy v. Commission on Elections, supra. 11

5. Turning to the Affidavits relied upon by the petitioner Dipatuan, we need note only that they do not appear to be the direct and conclusive evidence required in Pimentel v. Comelec, 12 considering that said Affidavits had been executed by affiants allegedly closely connected to petitioner and therefore expected to support his position, rather than by independent and impartial witnesses. In any case, as pointed out in the decision of the Comelec Second Division, to require the comparison of signatures and thumbmarks appearing in the voting records and the voter's list and voter's affidavits would necessitate, not a summary pre-proclamation proceeding, but a regular election protest. In so ruling, the Comelec correctly relied upon the ruling of this Court in Dianalan v. Comelec. 13

We must conclude that petitioner has not shown any grave abuse of discretion or any act without or in excess of jurisdiction on part of the Comelec in rendering the decisions dated 8 November 1988 and 22 December 1988.

WHEREFORE, this Petition for certiorari is hereby DISMISSED. No pronouncement as to costs.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Gancayco, J., is on leave.

LUCAS V. CAUTON, petitioner, vs.COMMISSION ON ELECTIONS and PABLO SANIDAD, respondents.

Antonio Barredo for petitioner. Ramon Barrios for respondent Commission on Elections. Pablo C. Sanidad and F. D. Villanueva and Associates for respondent Sanidad.

ZALDIVAR, J.:

In the national elections held on November 9, 1965, petitioner Lucas V. Cauton and respondent Pablo Sanidad, along with Godofredo S. Reyes, were candidates for the office of Representative in the second congressional district of Ilocos Sur.

During the canvass by the Provincial Board of Canvassers of Ilocos Sur of the votes cast for the candidates for Representative in the second congressional district of Ilocos Sur, and particularly after the Board had opened the envelopes containing the copies of the election returns from each of the election precincts in the municipalities of Candon, Santiago and Sta. Cruz that were presented by the Provincial Treasurer of Ilocos Sur to the Board, respondent Sanidad brought to the attention of the Board the fact that the entries of votes for the candidates for Representative in those copies of the election returns that came from the envelopes presented by the provincial treasurer differed from the entries appearing in the copies of the returns from the same election precincts that were in the possession of the Liberal Party.1äwphï1.ñët

Respondent Sanidad filed a petition with the Commission on Elections praying for the opening of the ballot boxes in all the precincts of Candon, Santiago and Sta. Cruz, in order to retrieve the election returns deposited therein so that those election returns might be used in the canvass of the votes for the candidates for Representative in the second district of Ilocos Sur, and that in the meantime the Provincial Board of Canvassers of Ilocos Sur be ordered to refrain from proclaiming the winning candidate for the

P a g e | 29

office of Representative in said district. The Commission on Elections issued the restraining order prayed for by respondent Sanidad and set his petition for hearing.

After hearing, the Commission on Elections found "that it had been clearly established that the copies of the election returns for the Municipal Treasurer, for the Commission on Elections and for the Provincial Treasurer for the municipality of Santa Cruz have uniform alterations in the entries of the votes cast for representative showing different number of votes compared with the Liberal Party copies, while the copies of the election returns for the Commission on Elections and the Provincial Treasurer for the municipalities of Candon and Santiago have likewise uniform alterations and showing different numbers compared with the Liberal Party copies ...."1The copies of the election returns that were furnished the municipal treasurers of Candon and Santiago were never verified because the municipal treasurers of those two municipalities did not comply with the subpoena duces tecum issued by the Commission on Elections directing them to bring to the Commission the copies of the election returns of the precincts in their respective municipalities that were in their possession.

On December 22, 1965, respondent Commission on Elections issued an order providing, among others, that

... to enable the aggrieved party to establish discrepancy between copies of the election returns provided by law in the aforementioned precincts for the purpose of obtaining judicial remedy under the provisions of Section 163 of the Revised Election Code, the Commission Resolved ... to direct immediately the opening of the ballot boxes of the municipalities of Candon, Sta. Cruz and Santiago which are now impounded and under the custody of the Zone Commander of the 1st PC Zone in Camp Olivas, San Fernando, Pampanga solely for the purpose of retrieving therefrom the corresponding election returns, copies for the ballot box, in all the precincts of said municipalities.

Pursuant to the instructions of respondent Commission, contained in the resolution of December 22, 1965, the ballot boxes from all the precincts in the municipalities of Candon, Sta. Cruz and Santiago were opened by the Chief of the Law Enforcement Division of the Commission, Atty.

Fernando Gorospe, Jr., in the presence of witnesses, and the envelopes containing the election returns found inside the ballot boxes were taken and brought to Manila on December 23, 1965.

On the same date, December 23, 1965, herein petitioner, Lucas V. Cauton, filed before this Court a petition for certiorari and prohibition with preliminary injunction, praying that the resolution of the respondent Commission on Elections dated December 22, 1965 ordering the opening of the ballot boxes used in all the precincts of Candon, Sta. Cruz and Santiago in the elections of November 9, 1965 be annulled and set aside. The petition further prays that the Commission on Elections be restrained from opening, the envelopes containing the election returns found in the afore-mentioned ballot boxes and be ordered to return the said envelopes to the corresponding ballot boxes. In his petition, petitioner alleges that the respondent Commission on Elections acted without or in excess of its jurisdiction in issuing the resolution of December 22, 1965. This Court gave due course to the petition, but did not issue the writ of preliminary injunction prayed for. This petition is now the case before Us.

Upon instructions by respondent Commission on Elections, on December 28, 1966, the envelopes that were taken from the ballot boxes were opened and the election returns were taken out and their contents examined and recorded by a committee appointed by the Commission. This was done in a formal hearing with notice to the parties concerned.

Respondent Pablo C. Sanidad filed his answer to instant petition on January 5, 1966, admitting some of the allegations and denying others, and maintaining that the Commission on Elections had acted well within the bounds of its authority in issuing the order of December 22, 1965. Respondent Commission on Elections also filed its answer on January 5, 1966, maintaining that it has authority under the law to order the opening of the ballot boxes as stated in its resolution of December 22, 1965.

In the meantime, on the basis of the discrepancies in the entries of the votes for the candidates for Representative, between the election returns taken out of the ballot boxes

that were opened by order of the Commission of Elections and the election returns submitted by the Provincial Treasurer of Ilocos Sur to the Provincial Board of Canvassers of Ilocos Sur, respondent Pablo C. Sanidad filed a petition with the Court of First Instance of Ilocos Sur, docketed as Election Case No. 16-N, for a recount of the votes in all the precincts of Candon, Sta. Cruz and Santiago, pursuant to the provisions of Section 163 of the Revised Election Code.

On February 14, 1966, petitioner filed before this Court in urgent motion, in this case, praying for the issuance of an order enjoining the Court of First Instance of Ilocos Sur (Branch II-Narvacan) from further proceeding with Election Case No. 16-N, abovementioned, pending final decision of the instance case, upon the ground that the recount of the ballots in that case in the court below would render the instant case moot and academic. This motion was denied by this Court in a resolution dated February 17, 1966.

The principal issue in the present case revolves on the of the resolution of the respondent Commission of Elections, dated December 22, 1965, which orders the opening of the ballot boxes used in all the precincts in the municipalities of Candon, Sta. Cruz and Santiago, Ilocos Sur, during the elections of November 9, 1965 for the purpose of retrieving therefrom the corresponding election returns, copies for the ballot box, "to enable the aggrieved party to establish discrepancy between copies of the election returns provided by law in the aforementioned precincts for the purpose of obtaining judicial remedy under the provisions of Section 163 of the Revised Election Code."

It is the stand of the petitioner that respondent Commission on Elections is without jurisdiction to issue, or has acted in excess of jurisdiction in issuing, the resolution in question, so that said resolution is null and void and should not be given legal force and effect. The petitioner contends that under Section 157 of the Revised Election Code the Commission on Elections has authority to order the opening of the ballot boxes "only in connection with an investigation conducted for the purpose of helping the prosecution of any violation of the election laws or for the purely administrative purpose but not when the sole purpose is, as in this case, to assist a party in trying to win the election ...." The petitioner further, contends that "the

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mere fact that the copies of the returns in the precincts in question in the possession of the Liberal Party do not tally with the returns involving the same precincts in the possession of the Provincial Treasurer, the Commission of Elections and the Nacionalista Party as well does not legally support the validity of the resolution of the respondent Commission in question ...."2

We cannot sustain the stand of the petitioner. We believe that in issuing the resolution in question the Commission on Elections simply performed a function as authorized by the Constitution, that is, to "have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and ... exercise all other functions which may be conferred upon it by law." The Commission has the power to decide all administrative questions affecting elections, except the question involving the right to vote.3

This Court in a line of decisions has ruled that the Commission on Election has the power to investigate and act on the propriety or legality of the canvass of election returns made by the board of canvassers. In the case of Albano vs. Arranz, L-19260, January 31, 1962, this Court, through Mr. Justice J.B.L. Reyes, held as follows:

The suspension of the proclamation of the winning candidate pending an inquiry into irregularities brought to the attention of the Commission on Elections was well within its administrative jurisdiction, in view of the exclusive authority conferred upon it by the Constitution (Art. X ) for the administration and enforcement of all laws relative to elections. The Commission certainly had the right to inquire whether or not discrepancies existed between the various copies of election returns for the precincts in question, and suspend the canvass all the meantime so the parties could ask for a recount in case of variance ....'

What the respondent Commission on Elections did in the case now before Us is just what is contemplated in the abovequoted ruling of this Court. The power of the Commission on Elections in this respect is simply administrative and supervisory — intended to secure the proclamation of the winning candidate based on the true count of the votes cast. When the Commission on Elections exercises this power the purpose is not for the

Commission to help a candidate win the election but to bring about the canvass of the true results of the elections as certified by the boards of election inspectors in every precinct. The object of the canvass is to determine the result of the elections based on the official election returns. In order that the result of the canvass would reflect the true expression of the people's will in the choice of their elective officials, the canvass must be based on true, genuine, correct, nay untampered, election returns. It is in this proceedings that the Commission on Elections exercises its supervisory and administrative power in the enforcement of laws relative to the conduct of elections, by seeing to it that the canvass is based on the election returns as actually certified by the members of the board of inspectors. Once the Commission on Elections is convinced that the elections returns in the hands of the board of canvassers do not constitute the proper basis in ascertaining the true result of the elections, it should be its concern, nay its duty, to order the taking of such steps as may be necessary in order that the proper basis for the canvass is obtained or made available.

The election law requires the board of inspectors to prepare four copies of the election return in each precinct — one to be deposited in the ballot box, one to be delivered to the municipal treasurer, one to be sent to the provincial treasurer, and one to be sent to the Commission on Elections. In the case of the canvass of the election returns for candidates for provincial or national offices, the election returns received by the provincial treasurer from the boards of inspectors are used. It is the duty of the provincial treasurer to turn over to the provincial board of canvassers the election returns received by him from the boards of inspectors. If the Commission on Elections is duly informed and it so finds, in appropriate proceedings, that the election returns in the hands of the provincial treasurer are tampered, then the Commission should afford the candidate adversely affected by the tampering an opportunity to show that there exist authentic copies of the same election returns which are not tampered. A recourse may be had to the copies received by the Commission on Elections and to the copies received by the municipal treasurer. If it is shown, that the copies in the hands of the Commission on Elections and of the municipal treasurer are similarly tampered as the copies in the hands of the provincial treasurer, then it becomes

evident that all the three copies of the election returns outside the ballot box do not constitute a reliable basis for a canvass. The only copies left to be checked, whether they are also tampered or not, are the ones inside the ballot boxes. Certainly, the Commission on Elections, in the exercise of its power to administer and enforce the laws relative to the conduct of elections, may order the opening of the ballot boxes to ascertain whether the copy inside each ballot box is also tampered like the three copies outside the ballot box, corresponding to each precinct. The Commission on Elections may do this on its own initiative, or upon petition by the proper party. Once it is found that the copy of the election return inside the ballot box is untampered, the Commission on Elections would then have accomplished two things, namely: (1) secured a basis for the prosecution for the violation of the laws relative to elections, and (2) afforded the party aggrieved by the alteration of the election returns outside the ballot box a basis for a judicial recount of the votes as provided for in Section 163 of the Revised Election Code. Thus, the Commission on Elections has thereby made available the proper and reliable basis for the canvass of the votes that will lead to the proclamation by the board of canvassers of the true winner in the elections. In so doing the Commission on Elections, as we have said, had performed its constitutional duty of administering and enforcing the laws relative to the conduct of elections with a view to promoting clean and honest elections — the very purpose for which the Commission on Elections was created by constitutional mandate.

In the case now before Us, the Commission on Elections issued the questioned resolution "after hearing the arguments of the petitioner and the opposition thereto and considering that it has been clearly established that the copies of the election returns for the Municipal Treasurer, for the Commission on Elections and for the Provincial Treasurer for the municipality of Sta. Cruz have uniform alteration in the entries of the votes cast for representative showing different number of votes compared with the Liberal Party copies, while the copies of the election returns for the Commission of Elections and the Provincial Treasurer for the municipalities of Candon and Santiago have likewise uniform alterations and showing different numbers compared with the Liberal Party copies ..."5Indeed, in the face of this finding by the

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Commission on Elections, which indicates a clear violation of the election law, and which indicates an attempt to procure the proclamation of the winner in the elections for Representative in the second congressional district of Ilocos Sur by the use of tampered election returns, can the Commission on Elections be remiss in the performance of its duties as a constitutional body committed with the exclusive charge of the enforcement and administration of all laws relative to the conduct of elections? The Revised Election Code gives to the Commission on Elections the direct and immediate supervision over provincial, municipal and city officials designated by law to perform duties relative to the conduct of elections — and included among these officials are members of the provincial board of canvassers.6The provincial board of canvassers is enjoined by law to canvass all the votes cast for Representatives on the basis of the election returns produced by the provincial treasurer.7The Commission on Elections has a duty to enforce this law and it has the duty to see to it that the election returns to be used for canvassing must be genuine and authentic, not falsified or tampered with. Where the election returns produced by the provincial treasurer have been shown to have been tampered, and all the other copies outside the ballot boxes have also been shown to have been tampered or falsified, it is certainly within the power of the Commission on Elections to issue such order as would ascertain the existence of the genuine, authentic and untampered election returns, and thus open the way for the summary recount of the votes, in accordance with law, for the purposes only of the canvass of the votes and the proclamation of the candidate found to have obtained the highest number of votes. In the case now before Us, it is found by the Commission on Elections that no other copies can be had except those deposited in the ballot boxes. Hence, the necessity for the Commission to order the retrieving of the copies of the election returns from the ballot boxes. An order to this effect does not affect the right to vote or the validity of any vote cast, so that it is perfectly within the power of the Commission on Elections to issue such an order in the exercise of its exclusive power to administer and enforce the laws relative to the conduct of elections. It would indeed be absurd to say that the Commission on Elections has a legal duty to perform and at the same time it is denied the necessary means to perform said duty.

The purpose of the Revised Election Code is to protect the integrity of elections and to suppress all evils that may violate its purity and defeat the will of the voters.8The purity of the elections is one of the most fundamental requisites of popular government.9The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created — to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with.10Technicalities, which are not conducive to free, orderly and honest elections, but on the contrary may defeat the will of the sovereign people as expressed in their votes, should not be allowed to hamper the Commission on Elections in the performance of its duties. To sustain the petitioner in the present case is to deny the Commission on Elections the power to retrieve the copies of the election returns from the ballot boxes in order that the true number of votes cast for a candidate may be known and thus permit a canvass on the basis of election returns that are patently falsified. We cannot, and We must not, sanction the stand of petitioner.

As We have adverted to, the Commission on Elections has the power to inquire whether there exist discrepancies among the various copies of the election returns.11Of all the copies prepared by the board of inspectors the copy least susceptible to being tampered with is the one deposited in the ballot box. Where the three copies outside the ballot boxes appear to have been uniformly altered, there is no plausible reason why the copy deposited in the ballot box may not be used to determine whether discrepancies exist in the various copies. Inasmuch as the Commission on Elections has the right to determine whether said discrepancies exist, it must also have the right to consult said returns, which cannot be done unless the ballot boxes are opened. It is noteworthy that the Revised Election Code does not provide that it is the courts that have the power to order the opening of the ballot box in a situation like this.

Section 157 of the Revised Election Code, on which petitioner herein relies in support of his stand in the present case, authorizes the opening of the ballot box whenever it is the subject of an official investigation. It provides:

The municipal treasurer shall keep the boxes unopened in his possession in a secure place and under his responsibility for three months, unless they are the subject of an official investigation, or a component court or tribunal shall demand them sooner, or the competent authority shall order their preservation for a longer time in connection with any pending contest or investigation.

Under this section the ballot boxes may be opened in case there is an election contest. They may also be opened even if there is no election contest when their contents have to be used as evidence in the prosecution of election frauds.12Moreover, they may be opened when they are the subject of any official investigation which may be ordered by a competent court or other competent authority.13The "competent authority" must include the Commission on Elections which is charged with the administration and enforcement of the laws relative to the conduct of elections. In the instant case the Commission on Elections found that it has been clearly established that the election returns outside the ballot boxes, in all the precincts in the municipalities of Candon, Santiago and Sta. Cruz, have been tampered with. It is within the power of the Commission to order the investigation of that apparent anomaly that has connection with the conduct of elections. The investigation may be in connection with the prosecution for the violations of the election laws and at the same time to ascertain the condition of the election returns inside the ballot boxes as compared with the election returns outside the ballot boxes, for the same precincts. The opening of the ballot boxes may, therefore, be prayed for by a candidate who is prejudiced by the apparent falsification of the election returns outside the ballot boxes, and in ordering the opening of the ballot boxes the purpose of the Commission is not to help a particular candidate win an election but to properly administer and enforce the laws relative to the conduct of elections.

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From what has been said We hold that the order of December 22, 1965, being questioned by the petitioner in the present case, was perfectly within the power of the Commission on Elections to issue.

Wherefore, the petition for certiorari and prohibition in the present case is dismissed, with costs against the petitioner. It is so ordered.

FEDERICO S. SANDOVAL, petitioner, vs. COMMISSION ON ELECTIONS and CANUTO SENEN A. ORETA, respondents.

D E C I S I O N

PUNO, J.:

The petition at bar assails the order of the Commission on Elections , (COMELEC) en banc dated June 2, 1998 nullifying and setting aside the proclamation of petitioner Federico S. Sandoval as congressman-elect for the Malabon-Navotas legislative district.

The facts are as follows:

Petitioner Federico S. Sandoval and private respondent Canuto Senen Greta, together with Pedro Domingo, Mariano Santiago, Symaco Benito and Warren Serna, vied for the congressional seat for the Malabon-Navotas legislative district during the election held on May 11, 1998.

On election day, after the votes have been cast and counted in the various precincts in the two municipalities, their respective board of canvassers convened to canvass the election returns forwarded by the board of election inspectors.

In Malabon, a reception group and several canvassing committees were formed to expedite the canvass. The reception group received, examined and recorded the sealed envelopes containing the election returns, as well as the ballot boxes coming from the precincts. The reception group then distributed the election returns among the canvassing committees. The committees simultaneously canvassed the election returns assigned to

them in the presence of the lawyers and watchers of the candidates.

On May 16, 1998, counsels for private respondent made a written request upon Malabon Election Officer Armando Mallorca to furnish them with a complete list of the statement of votes so that they could verify whether all statements of votes have been tabulated.[1] They likewise requested for a complete list of precincts in the municipality together with the number of canvassed votes for petitioner and private respondent as of May 16, 1998. They also sought permission to conduct an audit of the tabulation reports made by the municipal board of canvassers.[2] These requests, however, were denied by the municipal ,board of canvassers on the following grounds: (1) that any counsel for a candidate has neither personality nor right to conduct an audit of the tabulation report as the proceedings of the board are presumed to be regular, and (2) that the granting of the requests would delay the proceedings of the board to the prejudice of the will of the people of Malabon.[3] CalrkyÓ

On May 17, 1998, the Malabon municipal board of canvassers concluded its proceedings. The board issued a certificate of canvass of votes stating that it canvassed 804 out of 805 precincts in the municipality. The certificate of canvass showed that private respondent obtained the highest number of votes in Malabon with 57,760 votes, with petitioner coming in second with 42,892 votes.[4]

On the same day, after obtaining copies of the statements of votes, Ma. Rosario O. Lapuz, authorized representative of private respondent wrote then COMELEC Chairman Bernardo Pardo[5] and informed him that several election returns were not included in the canvass conducted by the Malabon municipal board of canvassers. She moved that the certificate of canvass issued by said board be declared "not final."[6]

On May 19, 1998, Ms. Lapuz again wrote Chairman Pardo. The letter reiterated the allegations in her letter dated May 17, 1998 and requested that the Malabon municipal board of canvassers be ordered to canvass the election returns which it allegedly failed to include in its canvass.[7]

On May 23, 1998, private respondent filed with the COMELEC an Urgent Petition entitled "In re: Petition to Correct Manifest Error in Tabulation of Election Returns by the Municipal Board of Canvassers of Malabon, NCR. Canuto Tito Oreta vs. Municipal Board of Canvassers of Malabon." The petition was docketed as SPC No.98-143. It alleged that while the certificate of canvass showed that 804 election returns were canvassed and tabulated, only 790 election returns were actually canvassed. Private respondent contended that there was a manifest error in the non-recording or copying of the results in 14 election returns from 14 precincts into the statement of votes. It prayed: (1) that the municipal, board of canvassers of Malabon be reconvened to correct said manifest error by entering the results of the elections in the 14 election returns into the statement of , votes and that the certificate of canvass be corrected to reflect the complete results in 804 precincts; and (2) that the canvass of the results for the congressional election by the district board of canvassers for Malabon and Navotas be suspended until the alleged manifest error is corrected.[8] Mesmä

Meanwhile, the proceedings of the municipal board of canvassers of Navotas were disrupted by the riotous exchange of accusations by the supporters of the opposing mayoralty candidates. The COMELEC had to move the venue to the Philippine International Convention Center in Manila to finish the canvass. On May 27, 1998, Chairman Pardo issued a memorandum to Atty. Ma. Anne V. G. Lacuesta, Chairman, District Board of Canvassers for Malabon-Navotas, authorizing her to immediately reconvene the district board of canvassers, complete the canvassing of the municipal certificate of canvass and supporting statement of votes per municipality , and proclaim the winning candidate for the congressional seat of the Malabon-Navotas legislative district.[9]

On May 28, 1998, private respondent filed with the COMELEC an Urgent Manifestation/Motion in connection with SPC No.98-143. It prayed that the canvass of the, results of the congressional election by the district board of canvassers be suspended until the alleged manifest error in SPC No.98-143 is corrected.[10]

At 4:15 in the afternoon on May 28, 1998, the district board of canvassers convened at the Philippine International

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Convention Center. It took up private respondent's petition to correct the manifest error arising from the non-inclusion of 19 election returns in the canvass. After examining the statement of votes by precinct and the certificate of canvass signed and thumbmarked by three watchers from different parties, the district board of canvassers found that a total of 804 election returns were canvassed by the Malabon municipal board of canvassers.[11]

The district board of canvassers then proceeded to canvass the certificates of canvass from the two municipalities. Counsel for private respondent requested that the canvassing be suspended until the Commission has resolved their petition for correction of manifest error in the certificate of canvass of Malabon. The district board of canvassers, however, denied the request for the following reasons:

"1. absence of restraining order from the Commission;

"2. order of the Chairman dated May 27, 1998 directing the district board to proceed with the canvass and proclamation of winning candidates for the district of Malabon-Navotas; ScslxÓ

"3. there is no irregularity in the submitted certificate of canvass from both municipalities and there were no objections raised for both certificates of canvass of the counsels present;

"4. no report coming from the municipal board of canvassers from Malabon that there were uncanvassed election return except for one;

"5. the municipal board of canvassers of Malabon submitted to the district board of canvassers certificate of canvass which indicated that the number of canvassed returns for District I is 397 and 407 for District II for a total of 804 out of 805 election returns;

"6. the board has only the ministerial duty to tally the votes as reflected on the certificate of canvass supplemented by the statement of votes and has no authority to verify allegations of irregularities in the preparation thereof; and

"7. there is no pre-proclamation contest for the position of congressman."[12]

Private respondent's counsel sought reconsideration of the decision of the district board' of canvassers but it was likewise denied by the board.

After canvassing the municipal certificates of canvass, the district board of canvassers proclaimed petitioner the duly elected congressman of the legislative district of Malabon-Navotas. The board declared that petitioner obtained a total vote of 82,339 over private respondent's 80,319 votes.[13] Petitioner took his oath of office on the same day.[14] Slxsä c

The following day, on May 29, 1998, private respondent filed with the COMELEC in connection with SPC No.98-143 an "Urgent Appeal from the Decision of the Legislative District Board of Canvassers for Malabon and Navotas with Prayer for the Nullification of the Proclamation of Federico S. Sandoval as Congressman." It alleged that there was a verbal order from the COMELEC Chairman to suspend the canvass and proclamation of the winning candidate for congressman of the Malabon-Navotas legislative district; that the district board of canvassers proceeded with the canvass and proclamation despite the verbal order; and that the non-inclusion of the 19 election returns in the canvass would result in an incomplete canvass of the election returns. It prayed that the decision of the district board of canvassers be reversed and that the municipal board of canvassers of Malabon be reconvened to complete its canvass. It also prayed that the proclamation of petitioner as congressman be annulled.[15]

On May 30, 1998, private respondent filed with the COMELEC an Urgent Petition docketed as SPC No.98-206. The petition sought the annulment of , petitioner's proclamation as congressman. It alleged that at about 4:00 in the afternoon on May 28, 1998, the COMELEC Chairman directed the district board of canvassers to suspend the canvass and proclamation pending the resolution of the petition for correction of manifest error in the municipal certificate of canvass of Malabon; that the district board of canvassers still proceeded with the canvass in spite of the order; that the proclamation was made despite the non-inclusion of election returns from 19

precincts in Malabon; and that the non-inclusion of these election returns will materially affect the result of the election. Private respondent prayed that the proclamation of petitioner as congressman be annulled and that the municipal board of canvassers of Malabon be ordered to reconvene to include the 19 election returns in the canvass.[16]

On June 2, 1998, the COMELEC en banc issued an order setting aside the proclamation of petitioner. The COMELEC ruled that the proclamation by the district board of canvassers was void because: (1) it was made in defiance of the verbal order by the COMELEC Chairman relayed through Executive Director Resurrection Z. Borra to suspend the proclamation of the winner in the congressional election until the Commission has resolved private respondent's petition for correction of manifest error in the certificate of canvass; and (2) it was based on an incomplete canvass. The dispositive portion of the order reads: slxä mis

"WHEREFORE, the proclamation made by the District Board of Canvassers of Malabon and Navotas for the position of Congressman being void ab initio is no proclamation at all. Meantime, it is hereby set aside.

"Atty .Ma. Anne Lacuesta is hereby relieved as Chairman, District Board of Canvassers of Malabon-Navotas, and Atty. Consuelo B. Diola is named Chairman of said Board. Atty. Diola is directed to maintain the status quo prior to the Board's unauthorized proclamation, until further orders.

"Meantime, let these cases be set for hearing en banc on 09 June 1998 at 10:00 in the morning.

"SO ORDERED."[17]

On June 8, 1998, petitioner filed this petition for certiorari seeking the annulment and reversal of said order. Petitioner contended:

"1. Respondent COMELEC's annulment of petitioner Sandoval's proclamation as winner in the election for congressman of Malabon-Navotas, without the benefit of prior hearing, is grossly indecent and violates his right to due process of law.

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"2. Respondent COMELEC's action on respondent Oreta's petitions violates Republic Act 7166 which bars pre-proclamation cases in the elections of members of the House of Representative.

"3. Respondent Oreta's remedy for seeking correction of alleged manifest errors in the certificate of canvass for members of Congress does not lie with respondent COMELEC but, initially with the municipal board of canvassers.

"4. At any rate, respondent Oreta's right to raise questions concerning alleged manifest errors in the Malabon certificate of canvass is barred by his failure to raise such questions before petitioner Sandoval's proclamation.

"5. Respondent Oreta's recourse lies with the House of Representatives Electoral Tribunal which is not precluded from passing upon the allegedly uncanvassed election returns in Malabon."[18]

On June 9, 1998, we required the respondents to comment on the petition. We also issued a temporary restraining order mandating the COMELEC to cease and desist from implementing and enforcing the questioned order.[19]

The COMELEC nonetheless conducted a hearing on June 9, 1998 , concerning SPC No.98-143 and SPC No.98-206.

Private respondent filed his comment[20] on June 22, 1998. He argued:

"1. Respondent COMELEC committed no jurisdictional error in declaring void ab initio the proclamation of petitioner Sandoval as Congressman-elect for the Malabon-Navotas legislative district. Missdaa

a. The premature and hasty proclamation of respondent Sandoval made by the District Board on the basis of an incomplete canvass is illegal, hence, null and void.

b. Respondent COMELEC substantially complied with the requirements of due process in declaring the proclamation of respondent Sandoval an absolute nullity.

"2. Respondent COMELEC properly took cognizance of respondent Oreta's petition to correct manifest error in the certificate of canvass issued by the Malabon board.

a. While technically a pre-proclamation case, correction of manifest errors for purposes of the congressional elections is within the power and authority of the COMELEC to order, in the exercise of its appellate and original jurisdiction over such subject matter.

b. The failure of the Malabon board to tabulate the results of seventeen ( 17) election returns and to record the votes supporting the certificate of canvass resulted in a manifest error in the certificate of canvass which should be summarily corrected by ordering the Malabon board to reconvene, canvass the 17 election returns, record the votes in the statement of votes and prepare a new certificate of canvass."

On June 29, 1998, then Solicitor General Silvestre Bello III filed a Manifestation and Motion in Lieu of Comment.[21] He found the assailed order of the COMELEC null and void for the following reasons:

"1. Respondent COMELEC's motu proprio and ex parte annulment of petitioner's proclamation as winner in the election for congressman of Malabon-Navotas is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction and violated petitioner's right to due process; and

"2. Respondent COMELEC had no jurisdiction over the petitions filed by respondent Oreta, hence its order dated June 2, 1998 annulling petitioner's proclamation is null and void."

In view of. the Solicitor General's manifestation and motion, we required the COMELEC to file its own comment.

The COMELEC filed its comment on August 11, 1998. It invoked its power of direct control and supervision over the board of canvassers, allowing it to review, revise and reverse the board's actions. It said that it rendered the questioned order upon finding that petitioner's proclamation was illegal and therefore void ab initio. It cited

two reasons to support its findings: first, it was made in disregard of the Chairman's verbal order to suspend the canvass and proclamation, and second, it was based on an incomplete canvass.[22] SdaÓ adsc

On August 27, 1998, the new Solicitor General, Ricardo P. Galvez, filed a Manifestation and Motion withdrawing the Manifestation and Motion filed ,by former Solicitor General Bello. The Solicitor General, this time, upheld the validity of the assailed order. In essence, he argued that the Malabon municipal board of canvassers failed to include 17 election returns in its canvass; that such omission constitutes manifest error in the certificate of canvass which must be corrected by the district board of canvassers; and that the proclamation of petitioner was void ab initio because it was based on an incomplete canvass.[23]

Petitioner and private respondent subsequently filed their respective reply, rejoinder and sur-rejoinder.

Considering the arguments raised by the parties, the issues that need to be resolved in this case are:

1. whether the COMELEC has the power to take cognizance of SPC No. 98-143 and SPC No. 98-206, both alleging the existence 'of manifest error in the certificate of canvass issued by the Malabon municipal board of canvassers and seeking to reconvene said board of canvassers to allow it to correct the alleged error; and

2. whether the COMELEC's order to set aside petitioner's proclamation was valid.

On the first issue, we uphold the jurisdiction of the COMELEC over the petitions filed by private respondent. As a general rule, candidates and registered political parties involved in an election are allowed to file pre-proclamation cases before the COMELEC. Pre-proclamation cases refer to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by, any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns.[24] The COMELEC has

P a g e | 35

exclusive jurisdiction over all pre-proclamation controversies.[25] As an exception, however, to the general rule, Section 15 of Republic Act (RA) 7166[26]. prohibits candidates in the presidential, vice-presidential, senatorial and congressional elections from filing pre-proclamation cases.[27] It states:

"Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-President, Senator, and Members of the House of Representatives.-- For purposes of the elections for President, Vice-President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be. However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it." RtcÓ spped

The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum in these sensitive posts.[28] The law, nonetheless, provides an exception to the exception. The second sentence of Section 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice- president and members of the House of Representatives for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election. This rule is consistent with and complements the authority of the COMELEC under the Constitution to, "enforce and administer all laws and regulations relative to the conduct of an, election, plebiscite, initiative, referendum and recall"[29] and its power to "decide, except those involving the right to vote, all questions affecting elections."[30]

Applying the foregoing rule, we hold that the Commission has jurisdiction over SPC No. 98- 143 and SPC No.98-206, both filed by private respondent seeking to correct the alleged manifest error in the certificate of canvass issued by the Malabon municipal board of canvassers. These petitions essentially allege that there exists a manifest error in said certificate of canvass as the board failed to

include several election returns in the canvassing. Private respondent prays that the board be reconvened to correct said error. Section 15 of RA 7166 vests the COMELEC with jurisdiction over cases of this nature. We reiterate the long-standing rule that jurisdiction is conferred by law and is determined by the allegations in the petition regardless of whether or not the petitioner is entitled to the relief sought.[31]

The authority to rule on petitions for correction of manifest error is vested in the COMELEC en banc. Section 7 of Rule 27 of the 1993 COMELEC Rules of Procedure[32] provides that if the error is discovered before proclamation, the board of canvassers may motu proprio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed. The aggrieved party may appeal the decision of the board to the Commission and said appeal shall be heard and decided by the Commission en banc. Section 5, however of the same rule states that a petition for correction of manifest error may be filed directly with the Commission en banc provided that such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of , the winning candidate had already been made. Thus, we held in Ramirez vs. COMELEC:[33] Korteä

"Although in Ong, Jr. v. COMELEC it was said that 'By now it is settled that election cases which include pre-proclamation controversies must first be heard and decided by a division of the Commission' -- and a petition for correction of manifest error in the Statement of Votes, like SPC 95-198 is a pre-proclamation ; controversy -- in none of the cases cited to support this proposition was the issue the correction of a manifest error in the Statement of Votes under Sec. 231 of the Omnibus Election Code (BP. Blg. 881) or Sec. 15 of R.A. No.7166. On the other hand, Rule 27, Sec. 5 of the 1993 Rules of the COMELEC expressly provides that pre - proclamation controversies involving, inter alia, manifest errors in the tabulation or tallying of the results may be filed directly with the COMELEC en banc x x x."[34]

Petitioner nonetheless contends that SPC No. 98-143 and SPC No. 98-206 must be dismissed because private respondent failed to raise the issue of manifest error before

the appropriate board of canvassers in accordance with the second sentence of Section 15 of RA 7166.

We disagree.

The issue of manifest error in the certificate of canvass for Malabon has been raised before the district board of canvassers before petitioner could be proclaimed and said board has in fact ruled on the issue.[35] We find this as sufficient compliance with the law. The facts show that it was impossible for private respondent to raise the issue before the Malabon municipal board of canvassers as it still did not have a copy of the statement of votes and the precinct list at the time of the canvassing in the municipal level. At that time, private respondent still had no knowledge of the alleged manifest error. He, however, lost no time in notifying the COMELEC Chairman and the district board of the alleged error upon discovery thereof. We find petitioner's argument, therefore, to be devoid of merit.

We now go to the second issue. Although the COMELEC is clothed with jurisdiction over the subject matter and issue of SPC No.98-143 and SPC No. 98-206, we find the exercise of its jurisdiction tainted with illegality. We hold that its order to set aside the proclamation of petitioner is invalid for having been rendered without due process of law. Procedural due process demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal show substantial evidence to support its ruling.[36] In other words, due process requires that a party be given an opportunity to adduce his evidence to support his side of the case and that the evidence should be considered in the adjudication of the case.[37] The facts show that COMELEC set aside the proclamation of petitioner , without the benefit of prior notice and hearing and it rendered the questioned order based solely on private respondent's allegations. We held in Bince, Jr. vs. COMELEC:[38] xä law

"Petitioner cannot be deprived of his office without due process of law. Although public office is not property under Section 1 of the Bill of Rights of the Constitution, and one cannot acquire a vested right to public office, it is, nevertheless, a protected right. Due process in proceedings before the COMELEC, exercising its quasi-

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judicial functions, requires due notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of any candidate, We had ruled in Farinas 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."[39]

Citing Section 242 of the Omnibus Election Code, private respondent argues that the COMELEC is authorized to annul an illegal proclamation even without notice and hearing because the law states that it may motu proprio order a partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made. We reject the argument. Section 242 of the Omnibus Election Code reads:

"Sec. 242. Commission's exclusive jurisdiction of all pre-proclamation controversies.-- The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections."

The phrase "motu proprio" does not refer to the annulment of proclamation but to the manner of initiating the proceedings to annul a proclamation made by the board of canvassers. The law provides two ways by which annulment proceedings may be initiated. It may be at the own initiative of the COMELEC (motu proprio) or by written petition. In either case, notice and hearing is required. This is clear from the language of the law. ScmisÓ

We likewise reject private respondent's assertion that the hearing held on June 9, 1998 substantially satisfies the due process requirement. The law requires that the hearing be held before the COMELEC rules on the petition. Here, the public respondent first issued an order annulling the proclamation of petitioner and then set the date of the

hearing. We explained in Farinas vs. COMELEC[40] the pernicious effect of such procedure:

"As aptly pointed out by the Solicitor General, 'to sanction the immediate annulment or even the suspension of the effects of a proclamation before the petition seeking such annulment or suspension of its effects shall have been heard would open the floodgates of unsubstantiated petitions after the results are known, considering the propensity of the losing candidates to put up all sorts of obstacles in an open display of unwillingness to accept defeat, or would encourage the filing of baseless petitions not only to the damage and prejudice of winning candidates but also to the frustration of the sovereign will of the electorate.'" (citations omitted)

Public respondent submits that procedural due process need not be observed in this case because it was merely exercising its administrative power to review, revise and reverse the actions of the board of canvassers. It set aside the proclamation made by the district board of canvassers for the position of congressman upon finding that it was tainted with illegality.

We cannot accept public respondent's argument.

Taking cognizance of private respondent's petitions for annulment of petitioner's proclamation, COMELEC was not merely performing an administrative function. The administrative powers of the COMELEC include the power to determine the number and location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies and government instrumentalities to ensure free, orderly, honest, peaceful and credible elections, register political parties, organizations or coalitions, accredit citizens' arms of the Commission, prosecute election offenses, and recommend to the President the removal of or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. In addition, the Commission also has direct control and supervision over all personnel involved in the conduct of election. However , the resolution of the adverse claims of private respondent and petitioner as regards the existence of a manifest error in the questioned certificate of canvass requires the

COMELEC to act as an arbiter. It behooves the Commission to hear both parties to determine the veracity of their allegations and to decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls for the exercise by the COMELEC of its quasi- judicial power. It has been said that where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial officer, it is deemed quasi-judicial.[41] The COMELEC therefore, acting as quasi-judicial tribunal, cannot ignore the requirements of procedural due process in resolving the petitions filed by private respondent. MisÓ sc

IN VIEW WHEREOF, the COMELEC order dated June 2, 1998 in SPC No. 98-143 and SPC No. 98-206 is ANNULLED. This case is REMANDED to the COMELEC and the Commission is hereby ordered to hold a hearing on the issues presented in SPC No. 98-143 and SPC No. 98-206, and thereafter render a decision based on the evidence adduced and the applicable laws. The incident of whether or not petitioner may continue discharging the functions of the office of congressman pending resolution of the case on its merit shall be addressed by the COMELEC in the exercise of its reasonable discretion.

SO ORDERED.

TOLENTINO VS. COMELEC

Before us are two petitions for certiorari and prohibition assailing several orders of the Second Division (Division) of the Commission on Election (COMELEC) relative to its revision of ballots under Section 6, Rule 20 of its Rules of Procedure in the protests on the results of the local elections in 2007 in Tagaytay City.

In G.R. Nos. 187958 and 187961-62, the petitioner, Abraham N. Tolentino (Tolentino), seeks the nullification of the orders dated May 8, 20091 and May 25, 2009.2 In the first order, the Division formally requested the Senate Electoral Tribunal (SET) to allow the conduct of the revision within the SET’s premises; in the second, the Division denied Tolentino’s motion for reconsideration vis-à-vis the first order. Tolentino prayed for the issuance of

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temporary restraining order (TRO) and/or a writ of preliminarily injunction.

In G.R. Nos. 187966-68, the petitioner, Celso P. De Castro (De Castro), assails the order dated June 2, 2009,3 which denied the motion to suspend the scheduled revision of ballots in the SET premises. De Castro prayed for the issuance of a TRO or writ of preliminary injunction or status quo ante order.

The petitions were consolidated on July 28, 2009 due to their commonality as to the facts and issues.

Antecedents

In the May 14, 2007 elections, all the parties ran for elective local offices in Tagaytay City. Tolentino and De Castro were proclaimed as the duly elected Mayor and Vice-Mayor, respectively. The private respondents contested the election results in 116 ballot boxes by filing three separate election protests against the proclaimed winning candidates for Mayor, Vice-Mayor and Members of the Sanggunian Panlungsod, docketed as EPC Case

No. 2007-07,4 EPC Case No. 2007-08,5 and EPC Case No. 2007-09.6 The protests were raffled to the Second Division of the COMELEC. The records do not contain the order for the consolidation of the cases, but it appears that they were consolidated previously inasmuch as the caption of all orders issued by the Division indicated the joining of the cases.

After finding the protests sufficient in form and substance, the Division required the City Treasurer of Tagaytay City to inventory the protested ballot boxes and to turn them over to the Election Officer of Tagaytay City for delivery and submission to the COMELEC’s Electoral Contests Adjudication Department (ECAD) in Manila.

However, the delivery and submission took place only on December 17, 2008 due to the moves of Tolentino and De Castro of taking turns to suspend the transmittal of the ballot boxes to ECAD. Tolentino moved to defer the transmittal of the ballot boxes to ECAD on the premise that he had to complete the photocopying and verification of the contested ballots; upon denial of his motion, he elevated

the issue to the Court by petition for certiorari (docketed as G.R. No. 183806-08). The petition was eventually dismissed for lack of merit on September 16, 2008.7 On his part, De Castro moved for the reconsideration of the September 7, 2007 order in the COMELEC en banc, which denied the motion. In the order dated March 6, 2008, the Division re-directed the City Treasurer and the Election Officer of Tagaytay City to implement the directives of its September 7, 2007 order.

In this connection, the Court ruled on September 16, 2008 in G.R. No. 183806-08 – Tolentino’s earlier petition for certiorari – that there was no longer any legal bar against the full implementation of the Division’s September 7, 2007 order for the immediate transmittal of the ballot boxes for purposes of the revision and recount.

Further delay occurred because 44 of the 116 contested ballot boxes became involved in the election protest of candidate Aquilino L. Pimentel III against Senator Juan Miguel F. Zubiri pending in the SET and docketed as SET Case No. 001-07.

On November 21, 2008, De Castro again sought the suspension of the revision proceedings,8 citing the order issued on November 17, 2008 by the SET, asserting the SET’s preferential custody pursuant to Section 2 of COMELEC Resolution No. 2812 over the ballot boxes, election documents, and election paraphernalia in connection with SET Case No. 001-07.

However, the Division resolved not to suspend the revision proceedings, and instead directed the Election Officer of Tagaytay City to deliver the affected ballot boxes to the SET, with the remainder of the ballot boxes to be deposited in the ECAD Ballot Box Storage Area in Manila.9

In his Compliance Report dated December 16, 2008,10 the Election Officer certified that 116 ballot boxes were contested in EPC Nos. 2007-07, 2007-08 and 2007-09; that 44 ballot boxes were delivered to the SET for being simultaneously involved in SET Case No. 001-07;11 that on December 17, 2008, 72 ballot boxes were delivered to the ECAD; that of the 44 ballot boxes delivered to the SET, 16 were set aside with appropriate remarks "No metal seal outside" or "Metal seal not properly locked";12 and that out

of the 72 ballot boxes delivered to the ECAD, 24 were set aside with the remarks "No metal seal outside", or "Metal seal not properly locked", or "2 padlocks only."13

In other words, 40 ballot boxes out of the 116 protested ones were set aside due to apparent sealing defects or irregularities.

On January 6, 2009, upon receipt of the 72 ballot boxes, the Division ordered the constitution of four Revision Committees,14 for the committees to convene and commence the revision of the 72 ballot boxes in such a way that whenever a ballot box was opened, its contents should be revised for all of the three protest cases before opening the next ballot box.

On January 9, 2009, Tolentino and De Castro separately moved for the reconsideration of the Division’s order. Tolentino thereby raised prematurity due to the unresolved pending issues, the absence of guidelines or procedure, and the fact that not all the involved ballot boxes were in the COMELEC’s custody. De Castro sought to clarify the dispositions in the assailed order, reminding that there would be a simultaneous revision for the three protest cases involving three positions; and to suspend the proceedings until after all pending incidents were resolved pursuant to Section 2, Rule 19 of the COMELEC Rules of Procedure.

On January 12, 2009, the Division suspended the revision proceedings until all the contested ballot boxes were already in the custody of the COMELEC.151avvphi1

It did not take long thereafter before the Division lifted the suspension of the revision proceedings upon the private respondents’ manifestation, considering that the SET, through its letter dated February 16, 2009, had meanwhile agreed to accommodate the Division’s request to conduct the revision proceedings in the SET’s premises from March 2 to 13, 2009.16

On May 8, 2009, the Division issued the first assailed order in G.R. Nos. 187958 and 187961-62, formally requesting the SET to allow the revision to proceed within its premises, viz:

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Acting on the JOINT MANIFESTATION WITH REQUEST TO SET SCHEDULE OF REVISION filed by protestants, through counsel on February 16, 2009 and on the COMMENTS filed by protestee, through counsel, in EPC 2007-07, Abraham N. Tolentino on February 25, 2009; protestee in EPC 2007-08, Celso P. De Castro on February 27, 2009; protestees in EPC 2007-08 x x x.

In connection thereto, in order to facilitate the resolution of election protest cases considering that barely a year is left of the contested term of offices, the Commission (Second Division) hereby REQUESTS the Senate Electoral Tribunal (SET) to allow the Commission to conduct revision within its premises, under such terms and conditions that the Tribunal may impose.

SO ORDERED.17

Tolentino moved to reconsider this order, but the Division denied his motion through its second assailed order dated May 25, 2009, thus:

x x x

We find protestee’s allegation unmeritorious. It should be understood that the deferment of the revision was due to the unavailability at that time of the ballot boxes. To address this situation, the Commission under its plenary powers, can avail of alternative methods to facilitate the disposition of cases pursuant to the rule that election protest cases should be resolved with dispatch. Hence, coordination with other tribunals for purposes of revision of ballots subject of simultaneous protests is the usual course of action taken by the Commission.

IN VIEW THEREOF, there is no cogent reason for the Commission (Second Division) to reconsider its order dated May 8, 2009. Moreover, the Senate Electoral Tribunal, in a letter dated May 20, 2009 addressed to Presiding Commissioner Nicodemo T. Ferrer, granted the Commission’s request to revise the contested ballots involved in the instant cases within its premises.

SO ORDERED.18

On May 25, 2009,19 the Division directed anew the constitution of the four Revision Committees and the commencement of the revision of the 44 ballot boxes within the SET premises on June 3, 2009.

On May 29, 2009, De Castro filed a verified omnibus motion requesting the Division to formulate first the mechanics, guidelines and procedure for the simultaneous revision of the ballots for the three distinct positions protested, and to defer the revision proceedings until after all pending incidents had been resolved.20

In its June 2, 2009 order, the Division ruled that:

xxx there is no cogent reason to suspend the scheduled revision of ballots in these cases.

First, there is no need to specific rules regarding the revision of ballots because the Revision Committee will conduct the revision of the forty-four (44) contested ballots now in the custody of the Senate Electoral Tribunal, per case and not simultaneously. The normal procedure of revision shall be followed.

Second, considering that the twenty-four (24) segregated ballot boxes are in the custody of the Commission, the appropriate order as regards thereto shall later be issued.

Anent, protestee De Castro's submission of the names of his revisors and manifestation of his intent to photocopy all the contested ballots and other related election documents, the Commission (Second Division) hereby APPROVES and NOTES the same, respectively.

xxx

SO ORDERED.21

De Castro now assails the June 2, 2009 order in G.R. Nos. 187966-68. It appears that De Castro’s omnibus motion and compliance filed on May 29, 2009, which was the subject of the assailed order, was in effect a motion for the reconsideration of the May 25, 2009 order of the Division received on the same date.22

In furtherance of his cause, Tolentino filed on June 30, 2009 his supplement to the petition,23 alleging that events had transpired subsequent to the filing of his petition. He stated that the revision proceedings concerning EPC 2007-07 conducted within the SET premises on June 3 to 8, 2009 involved only 28 ballot boxes because the Revision Committee suspended the revision of the set-aside 16 ballot boxes.

It appears that the Division likewise ordered the Revision Committees: (a) to verify the condition of the ballot boxes and to submit a report thereon upon the termination of the revision proceedings;24 (b) to submit a consolidated report on all the set-aside ballot boxes, including the 16 delivered to the SET whose revision was suspended by the Revision Committees;25 and (c) not to open the set-aside ballot boxes so that the Division would not be pre-empted in resolving whether the ballot boxes found to have defective security devices should be included in the revision of ballots and, instead, to authorize the Revision Committees only to verify the condition of such ballot boxes and submit a report thereon, to become the basis for the Division to resolve the pending issue.26

Issues

In G.R. Nos. 187958 and 187961-62, Tolentino raises the following issues:

I. WHETHER OR NOT PUBLIC RESPONDENT, THE HONORABLE COMMISSION ON ELECTIONS, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED ISSUANCES ORDERING THE REVISION OF THE FORTY FOUR (44) BALLOT BOXES WITH THE HONORABLE SENATE ELECTORAL TRIBUNAL WITHOUT FIRST RESOLVING WHETHER OR NOT THE SIXTEEN (16) BALLOT BOXES OF THE SAID FORTY FOUR (44) BALLOT BOXES, WHICH WERE SEGREGATED OR SET ASIDE, SHOULD BE INCLUDED IN THE REVISION.

II. WHETHER OR NOT PUBLIC RESPONDENT, THE HONORABLE COMMISSION ON ELECTIONS, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

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WHEN IT ISSUED THE ASSAILED ISSUANCES ORDERING THE REVISION OF THE FORTY FOUR (44) BALLOT BOXES WITH THE HONORABLE SENATE ELECTORAL TRIBUNAL WITHOUT RESOLVING HOW THE REVISION PROCEEDINGS WOULD BE CONDUCTED IN EPC NOS. 2007-07 TO 09, IN LINE WITH THE ROSAL DOCTRINE AND WITH OBSERVANCE OF THE BASIC TENETS OF DUE PROCESS.

In his supplement to the petition, he adds the following issues:

I. WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS (SECOND DIVISION) COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT VIOLATED THE CARDINAL RULE IN ADMINISTRATIVE CASES.

II. WHETHER HONORABLE COMMISSION ON ELECTIONS (2ND DIVISION) COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED PIECEMEAL ORDERS LEADING TO DISORDERLY PROCEEDINGS.

In G.R. Nos. 187966-68, De Castro raises the sole issue:

WHETHER OR NOT THE PUBLIC RESPONDENT COMELEC SECOND DIVISION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE QUESTIONED ORDER DATED JUNE 2, 2009.

Arguments and Contentions of the Parties

Tolentino contends that the Division should first resolve the issue of the inclusion or exclusion of the protested ballot boxes, considering that the verification, investigation and examination of their condition had already been terminated by the Election Officer of Tagaytay City; that citing Rosal v. Commission on Elections (G.R. Nos. 172741 and 168253, March 16, 2007, 518 SCRA 473), he insists that the COMELEC should provide a reasonable procedure in view of a vital threshold issue of "whether the ballots found in

the ballot boxes during the revision proceedings were the same ballots that were cast and counted in the elections;" and that the assailed issuances totally overhauled, amended, and altered the final and executory ruling of January 12, 2009 that deferred any revision proceedings until all the protested ballot boxes were all in the custody of the COMELEC.

De Castro submits that the obstinate refusal of the Division to issue an order setting forth the ground rules for the per case revision of ballots was an omission exemplifying a grave abuse of discretion and a denial of his substantive and procedural right to due process; that the caption of the orders dated May 25, 2009 and June 2, 2009 show that the three protest cases were consolidated, but the Division still chose to conduct the revision piecemeal starting with the position of Mayor, then of Vice Mayor, and finally of City Councilors, separately as provided in the June 2, 2009 order.27

The private respondents counter through their Consolidated Joint Comment filed on September 8, 200928 that Rosal does not mention any requirement for the suspension of revision of ballots or for the stoppage of the opening of a ballot box in a revision proceeding; that the set-aside ballot boxes should be opened; that a full determination of the "integrity of the ballot boxes and their contents" could be made only if the status and condition of the contents were also considered; that the disallowance of the opening of the set-aside ballot boxes pre-empted the parties’ rights to examine, present and argue upon the condition of the ballot boxes and their contents; that the COMELEC could not be bound to maintain a strict adherence to its January 12, 2009 order because the SET had already allowed the revision to be conducted within its premises; and that the COMELEC had issued sufficient and adequate rules of procedure for the revision of the questioned ballots, for, as mandated in the June 2, 2009 order, the normal procedure of revision would be followed, implying that the procedure in previous revision of ballots be maintained.

Ruling

The petitions have no merit.

G.R. No. 187958 and Nos. 187961-62

At the outset, the Court holds that the order of revision and the revision of ballots synchronized with that of the SET were proper. The reasons for this holding follow.

First: In regular election contests, the general averment of fraud or irregularities in the counting of votes justifies the examination of the ballots and recounting of votes. This process of examination is the revision of the ballots pursuant to Section 6, Rule 20 of the 1993 COMELEC Rules of Procedure, to wit:

Section 6. Revision of Ballots. – When the allegations in a protest or counter-protest so warrant, or whenever in the opinion of the Commission or Division the interest of justice so demands, it shall immediately order the ballot boxes containing ballots and their keys, list of voters with voting records, book of voters, and other documents used in the election to be brought before the Commission, and shall order the revision of the ballots.

The protests involved herein assailed the authenticity of the election returns and the veracity of the counting of the ballots.29 In that regard, the ballots themselves are the best evidence, for, as stated in Miguel v. Commission on Elections: 30

The rule in this jurisdiction is clear and jurisprudence is even clearer. In a string of categorical pronouncements, we have consistently ruled that when there is an allegation in an election protest that would require the perusal, examination or counting of ballots as evidence, it is the ministerial duty of the trial court to order the opening of the ballot boxes and the examination and counting of ballots deposited therein.

The only means to overcome the presumption of legitimacy of the election returns is to examine and determine first whether the ballot boxes have been substantially preserved in the manner mandated by law. Hence, the necessity to issue the order of revision.

Second: The synchronized revision of ballots by the SET and the Division is allowed under Section 3 of COMELEC Resolution No. 2812, which provides:

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Section 3. The Tribunals, the Commission and the Courts shall coordinate and make arrangement with each other so as not to delay or interrupt the revision of ballots being conducted. The synchronization of revision of ballots shall be such that the expeditious disposition of the respective protest cases shall be the primary concern.

According to Mendoza v. Commission on Elections,31 the COMELEC does not lose jurisdiction over the provincial election contest by reason of the transmittal of the provincial ballot boxes and other election materials to the SET, because its jurisdiction over provincial election contest exists side by side with the jurisdiction of the SET, with each tribunal being supreme in its respective areas of concern, with neither being higher than the other in terms of precedence; hence, the jurisdiction of one must yield to the other.

In the proper exercise of its jurisdiction, therefore, the Division, mindful of the need for the expeditious disposition of the cases, formally requested the SET to permit the revision of the 44 ballot boxes within its premises. The Division made this request although it had suspended the revision proceedings through a previous order on account of the then incomplete number of ballot boxes in ECAD’s custody. In this connection, the contention that the Division’s suspension order became immutable cannot be upheld; such an order, being essentially interlocutory in character, could not attain finality. An interlocutory order is one that resolves an incidental or collateral matter without putting an end to the case, and for that reason does not become final and immutable upon the expiration of the period prescribed for taking an appeal from a judgment or final order.32

It is clear that by its suspension order the Division only adopted an auxiliary means necessary to carry its jurisdiction into effect. In that light, we should find that there was no irregularity in the Division’s lifting of the suspension, for, after all, nothing prohibited the COMELEC from undertaking the appreciation of ballots in tandem with the SET’s own revision of ballots for the senatorial electoral protest.

Third: Under Section 11, Rule 20 of the COMELEC Rules of Procedure,33 one of the most indispensable informations that should appear in the revision report relates to the conditions of the ballot boxes. The importance of this information cannot be understated. According to Rosal v. Commission on Elections,34 "the integrity of the ballots and therefore their probative value, as evidence of the voters’ will, are contingent on the integrity of the ballot boxes in which they were stored." This was precisely what Tolentino was asking the Division to do before the order of revision issued.

Yet, the Court rejects Tolentino’s urging for obvious reasons. Any defects in the security locks or seals of the set-aside ballot boxes, as predetermined by the examining Election Officer, could not yet satisfy the requirement of the rule. For one, the COMELEC was not bound by the report simply because the defects still needed to be confirmed during the process of actual revision. Moreover, the presumption that the ballots reflected the intent of the voters, as expressly recognized in Section 6(c)(2), Rule 13 of A.M. No. 07-4-15- SC,35 should not be done away with solely on the basis of the report of the City Election Officer, by which said officer complied with a requirement set primarily for the transmittal of the ballot boxes involved. Rosal, which A.M. No. 07-4-15- SC complements, demands more than such a report in order to overcome the presumption. More than such report, there should be a full blown trial in which all the parties concerned should be allowed the opportunity to present their own evidence, to raise their objections, and to pose their claims before reaching a finding of ballot box tampering. Rosal clearly mandates so, viz:

Under the circumstances, the question as to who between the parties was duly elected to the office of mayor cannot be settled without further proceedings in the Comelec. In keeping with the precepts laid down in this decision, the Comelec must first ascertain, after due hearing, whether it has before it the same ballots cast and counted in the elections. For this purpose, it must determine: (1) which ballot boxes sufficiently retained their integrity as to justify the conclusion that the ballots contained therein could be relied on as better evidence than the election returns and (2) which ballot boxes were in such a condition as would afford a reasonable opportunity for unauthorized persons

to gain unlawful access to their contents. In the latter case, the ballots must be held to have lost all probative value and cannot be used to set aside the official count reflected in the election returns.36

Consequently, no ruling could be handed down against the integrity of the ballot boxes that would effectively render naught the evidentiary value of the ballots they contained unless a full blown trial on the merits was first conducted. Tolentino should accept the legal impossibility for the Division to rule on the issue of inclusion or exclusion of the set-aside ballot boxes except after the revision process.

In Rosal, we set the doctrinal guidelines in settling the issue in an election protest of who among the parties was the real choice of the electorate, thus:

We summarize the foregoing doctrines: (1) the ballots cannot be used to overturn the official count as reflected in the election returns unless it is first shown affirmatively that the ballots have been preserved with a care which precludes the opportunity of tampering and all suspicion of change, abstraction or substitution; (2) the burden of proving that the integrity of the ballots has been preserved in such a manner is on the protestant; (3) where a mode of preserving the ballots is enjoined by law, proof must be made of such substantial compliance with the requirements of that mode as would provide assurance that the ballots have been kept inviolate notwithstanding slight deviations from the precise mode of achieving that end; (4) it is only when the protestant has shown substantial compliance with the provisions of law on the preservation of ballots that the burden of proving actual tampering or the likelihood thereof shifts to the protestee and (5) only if it appears to the satisfaction of the court or Comelec that the integrity of the ballots has been preserved should it adopt the result as shown by the recount and not as reflected in the election returns.37

The foregoing guidelines were inapplicable, however, considering that the proceedings were still in the hearing stage. This explains why the Division deemed the determination of the physical conditions of the ballot boxes as a necessary measure for its final determination of whether or not to give probative value to the ballots contained in the set-aside ballot boxes. The Division had

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still to reach the deliberative stage of the protests, when it would decide based on the evidence presented during trial. Before then, deciding on the propriety of relying on the results of the revision of ballots instead of the election returns did not yet arise.

Rosal does not forbid the revision of the set-aside ballots. What it proscribes is the blind adherence to the result of the recount without taking into consideration the proof of any likelihood that the integrity of the ballot boxes was compromised. It forbids the COMELEC from conducting "a fresh appreciation of the contested ballots without first ascertaining whether the ballots to be recounted had been kept inviolate."38 Tolentino should understand that election contests would not end with the result of the revision; and that the revision reports, being evidentiary, should still be scrutinized like any other evidence presented before the Division. Verily, the revision was not an end in itself, but simply demarcated the beginning of the process of determining the true result of the election.

Fourth: The supplemental arguments of Tolentino allege a violation of his right to due process by the non-observance of the cardinal rules of due process in administrative adjudications and by the piece-meal resolution of the pending incidents.

In Ang Tibay v. Court of Industrial Relations,39 the Court enunciated the cardinal rules for procedural due process in administrative or quasi-judicial tribunal, to wit:

1. The right to a hearing, which includes the right to present one’s case and submit evidence in support thereof;

2. The tribunal must consider the evidence presented;

3. The decision must have something to support itself;

4. The evidence must be substantial. Substantial evidence is such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion;

5. The decision must be based on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected;

6. The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate; and

7. The tribunal or body should render its decision in such manner that the parties to the proceeding can know the various issues involved and the reason for the decision rendered.

The Ang Tibay formulation was overlapping and repetitious. Hence, in Air Manila, Inc. v. Balatbat,40 the formulation was simplified into four basic rights, as follows:

1. The right to notice, be it actual or constructive, of the institution of the proceedings that may affect a person’s legal right;

2. The right to a reasonable opportunity to appear and defend his rights and to introduce witnesses and relevant evidence in his favor;

3. The right to a tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and one of competent jurisdiction; and

4. The right to a finding or decision of that tribunal supported by substantial evidence presented at the hearing or at least ascertained in the records or disclosed to the parties.

Gauged upon the foregoing guidelines, Tolentino’s gripe was unwarranted. He was not denied procedural due process. The Division had required him to provide the names of his revisors whose tasks included the raising of objections, the claiming votes for him, or the contesting of the votes in favor of his opponent. He has neither alleged being deprived of this opportunity, nor indicated any situation in which his revisors were denied access to the revision proceedings. He could not also insist that the COMELEC did not consider his legal and factual arguments; besides, he could still raise them in his memorandum should he chose to. During the revision stage, he should raise all objections, present his evidence and witnesses, and file his memorandum before the case would be submitted for resolution. Such manner of

presenting his side would fully meet the demands of due process, for, as the Court has explained the nature of due process in Stayfast Philippines Corporation v. National Labor Relations Commission:41

The essence of due process is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of.

A formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of notice and hearing. xxx

A review of the records proves that the parties, including Tolentino, were afforded ample opportunity to ventilate their respective claims, to raise their objections, to claim votes, and to contest the votes of their opponents through their duly designated revisors.

G.R. Nos. 187966-68

Contrary to De Castro’s submission, the Division set the ground rule for the revision of the contested ballots by laying down the procedure for the simultaneous revision of the contested ballots for all the three election protests.

Paragraph 5 of the January 6, 2009 order distinctly stated that "the revision of ballots in the above-entitled cases be conducted in such a way that when a ballot box is opened, its contents shall be revised in all three (3) cases before proceeding to the next ballot box considering that the same precincts are contested in all three (3) cases."42 That procedure was ideal under the obtaining circumstances, given that the same precincts were involved in all the three cases. Also, the procedure was the practical and most expeditious manner of recording the observations in the minutes of the proceedings, the segregation according to vote per candidate, and the validation and registration of all objections or contests on the votes and claims on the same. All objections and claims of each party’s revisors would later on be collated on a "per case" basis and submitted to the Chairperson of each Revision Committee

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to aid in the preparation of the revision report for the precincts or clusters of precincts assigned to such committee.

We find no incompatibility between the order of January 6, 2009 and the order of June 2, 2009. The latter order provided that the "Revision Committees will conduct the revision of the forty-four (44) contested ballots now in the custody of the Senate Electoral Tribunal, per case and not simultaneously. The normal procedure of revision shall be followed."43 The purpose of the latter order was to preserve the distinction of each position, that is, by keeping the data for each of the positions separate despite the process of data-gathering being done simultaneously for all three positions.

It is noted that the three cases involved 44 ballot boxes in the custody of the SET and 72 ballot boxes in the custody of the COMELEC, all concerning the several elective positions. The task of the four Revision Committees entailed the preparation of per-precinct revision reports for each of the three positions, the number of which would depend on how many precincts or clusters of precincts were assigned to the committees. The only logical solution to the need for systematic proceedings was to do the revisions on a per-case or per-position approach, closing the ballot box only after all the data required, and the objections and claims relevant to each position had already been recorded. Such a procedure would become significant especially during the stage of the segregation of the votes per candidate, at which time the votes for each candidate would be given to the opponent’s revisors who would then validate the ballots, or register objections, or claim votes for the candidates they represented, or contest the votes of their principal’s opponents.

In an election protest, the electoral tribunal has an imperative duty to promptly ascertain by all means within its command the candidates the electorate have chosen. It bears stressing that in the exercise of the plenitude of its powers to protect the integrity of the elections, the COMELEC should not and must not be straitjacketed by procedural rules in resolving election disputes.44 Thus, the Division’s adoption of measures that especially respond to or address unique situations, like these cases, was incidental to the COMELEC’s general authority to adopt all

the means to effect its powers and exercise its jurisdiction. Such adoption is even warranted under Section 4 of the COMELEC Rules of Procedure:

Section 4. Means to Effect Jurisdiction. – All auxiliary writs, processes and other means necessary to carry into effect its powers or jurisdiction may be employed by the Commission; and if the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or these rules, any suitable process or proceeding may be adopted.

The nature of election protests cases often makes the COMELEC face varied situations calling for the exercise of its general authority to adopt means necessary to effect its powers and jurisdiction. The COMELEC, in its performance of its duties, must be given a considerable latitude in adopting means and methods that would insure the accomplishment of the great objective for which it was created – to promote free, orderly, and honest elections. The choice of the means by the COMELEC should not be interfered with, unless the means were clearly illegal or the choice constituted grave abuse of discretion.45 To require a more stringent rule would unduly handicap the COMELEC in the achievement of its mandate to expeditiously dispose of election contests. Hence, a liberal construction of its rules should be conceded to the COMELEC, for, as already held:

It has been frequently decided, and it may be stated as a general rule recognized by all courts, that statutes providing for election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical objections. An election contest, unlike an ordinary action, is imbued with public interest since it involves not only the adjudication of the private interests of rival candidates but also the paramount need of dispelling the uncertainty which beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the office within their gift. Moreover, it is neither fair nor just to keep in office for an uncertain period one whose right to it is under suspicion. It is imperative that his claim be immediately cleared not only for the benefit of the winner but for the sake of public interest, which can only be achieved by brushing aside technicalities of procedure

which protract and delay the trial of an ordinary action. xxx.46

Moreover, the pleadings of Tolentino even showed that the ground rules and guidelines for the revision of ballots were issued to the parties a day before the revision proceedings.47 Thus, neither petitioner could validly complain about not having been duly informed of the manner of revision, in light of the directive contained in paragraph 4 of the January 6, 2009 order that the parties should be briefed on the ground rules for the revision of ballots before the commencement of the revision.48

In fine, the Division did not commit any abuse of discretion, least of all grave, in its issuance of the assailed orders. Its actuations relative to the conduct of the revision proceedings in the three election protests were far from capricious or whimsical. The Division issued ground rules with sufficient notice to the parties, who were thereby adequately shielded from partiality or unfairness during the process of revision. The Division should instead be commended for carrying out its mandate to expedite the disposition of the present election controversies.

WHEREFORE, we dismiss the petitions for lack of merit.

The Second Division of the Commission on Elections is directed to proceed with dispatch on the revision of ballots in EPC Case No. 2007-07, EPC Case No. 2007-08, and EPC Case No. 2007-09, and to resolve the election protests as soon as practicable.

This decision is immediately executory.

Costs of suit to be paid by the petitioners.

SO ORDERED.

BAGATSING VS. COMELEC

In this petition for certiorari petitioners seek to annul and set aside the Resolution dated June 4, 1998 of the Commission on Elections (COMELEC) First Division directing the proclamation of private respondent as Mayor of the City of Manila for having been issued with grave

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abuse of discretion amounting to lack, or excess, of jurisdiction.

The backdrop of the instant case reveals the following antecedent facts:

Petitioners Amado S. Bagatsing, Ernesto M. Maceda and Jaime Lopez and herein private respondent Jose L. Atienza were candidates for the position of Mayor of Manila in the May 11, 1998 elections.

On May 18, 1998, seven (7) days after the elections, petitioners filed with the COMELEC a complaint for disqualification against private respondent, docketed as SPA No. 98-319, on the ground that the latter allegedly caused the disbursement of public funds in the amount of Three Million Three Hundred Seventy-Five Thousand (P3,375,000.00) Pesos, more or less, within the prohibited forty-five-day period before the elections in violation of Article 22, Section 261 (g) (2)[1] of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code of the Philippines. The alleged disbursement was intended to be distributed in the form of financial assistance to the public school teachers of the City of Manila who manned the precinct polls in that city during the elections.

On May 20, 1998, the COMELEC (First Division)* issued an order suspending the proclamation of private respondent, the dispositive portion of which reads:

PREMISES CONSIDERED, it appearing that the evidence presented consisting of disbursement voucher and the general payroll evidencing payment to the teachers in the form of financial assistance dated May 5, 1998, in violation of Section 68 of the Omnibus Election Code, which provides:

SEC. 68 Disqualifications. - Any candidate who in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy, (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any

contribution prohibited under Section 89, 95, 96, 97 and 104; or (e) violated any Section 80, 83, 85, 86 and 261, paragraphs d, e, k, v and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived hi (sic) statues (sic) as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws (Sec. 25, 1971 EC) (underscoring ours).

show a probable cause of commission of election offenses which are grounds for disqualification, and the evidence in support of disqualification is strong, the City Board of Canvassers of Manila is hereby directed to complete the canvassing of election returns of the City of Manila, but to suspend proclamation of respondent Jose L. Atienza, Jr. should he obtain the winning number of votes for the position of City Mayor of Manila, until such time when the petition for disqualification against him shall have been resolved.

The Executive Director of this Commission is directed to cause the immediate implementation of this Order.

SO ORDERED.[2]

On May 21, 1998, private respondent filed a Motion for Reconsideration and sought to set aside the afore-quoted order directing the suspension of his proclamation as mayor.

On June 4, 1998, the COMELEC (First Division)* handed down a resolution granting the motion for reconsideration, ratiocinating thusly:

The Commission En Banc finds correct respondent's reliance on COMELEC Resolution No. 2050 for his cause. The Resolution, promulgated by the Commission in order to formulate the rules governing the disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of Republic Act 6646 otherwise known as the Electoral Reform Law of 1987, pertinently provides:

2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code, filed after the elections against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of the Commission.

Where a similar complaint is filed after the elections but before proclamation of the respondent candidate, the complaint shall nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the Court before which the criminal case is pending and the said Court may order the suspension of the proclamation, if the evidence of guilt is strong.

The applicability of COMELEC Resolution No. 2050 on cases of such nature as the one at bench, had been upheld by the Supreme Court in Lozano vs. Commission on Elections, G.R. 94628, October 28, 1991, when it declared:

Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification cases. The COMELEC Rules of Procedure speak of special actions, which include disqualification cases, in general. Hence, as between a specific and a general rule, the former shall necessarily prevail.

It is thus, a good law which could govern this case.

Considering therefore, that the petition for disqualification was filed after the election but before respondent's proclamation, the Commission En Banc, conformably with Resolution No. 2050, hereby dismisses the same as a disqualification case but refers Petitioners' charges of election offense against respondent to the Law Department for appropriate action.[3]

The decretal portion of the resolution reads:

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WHEREFORE, in view of the foregoing, the Commission FIRST DIVISION hereby GRANTS the Motion to lift the order of suspension of respondent's proclamation. The Order of the First Division suspending respondent's proclamation as City Mayor of Manila is SET ASIDE. The City Board of Canvassers of Manila is hereby DIRECTED to CONVENE, COMPLETE the CANVASS and PROCLAIM the candidate obtaining the highest number of votes for said position. Petitioners' complaints against respondent for violation of the Omnibus Election Code is hereby referred to the Law Department for preliminary investigation.

SO ORDERED.[4]

That same day at around eleven o’clock in the morning, petitioners filed a Motion to Suspend Immediate Intended Proclamation of Respondent. In the afternoon of the same day, petitioners likewise filed a Motion for Reconsideration and a Second Motion to Suspend Immediate Intended Proclamation of Respondent before COMELEC en banc.

Meanwhile, the City Board of Canvassers of Manila reconvened at three o’clock in the afternoon of the same day, June 4, 1998, and proclaimed private respondent as the duly elected Mayor of the City of Manila.[5]

On June 25, 1999, without waiting for the resolution of their motion for reconsideration pending before the COMELEC en banc, petitioners filed the instant petition to set aside the June 4, 1998 resolution of the COMELEC's First Division.

Records reveal, however, that said motion for reconsideration pending before the COMELEC en banc was denied in its Order of July 2, 1998 at the instance of herein petitioners themselves for the reason that they had already filed a petition before this Court docketed as G.R. No. 134047.[6]

The instant petition seeks to strike down as having been issued with grave abuse of discretion COMELEC First Division Resolution dated June 4, 1998 dismissing the petition for disqualification and referring the case to the

COMELEC’s Law Department for preliminary investigation, based on COMELEC Resolution No. 2050. Petitioners contend that Resolution No. 2050 had already been nullified by the decision of this Court in Sunga vs. Comelec.[7] Such being the case, petitioners argue that the COMELEC should be compelled by mandamus to assume jurisdiction and continue to hear and decide the disqualification case.

COMELEC Resolution No. 2050, adopted on November 3, 1988, reads:

WHEREAS, there remain pending before the Commission, a number of cases of disqualification filed by virtue of the provisions of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. 6646, otherwise known as the Electoral Reforms Law of 1987;

WHEREAS, opinions of the members of the Commission on matters of procedure in dealing with cases of this nature and the manner of disposing of the same have not been uniform;

WHEREAS, in order to avoid conflicts of opinion in the disposition or disqualification cases contemplated under Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act 6646, there is a strongly felt need to lay down a definite policy in the disposition of this specific class of disqualification cases;

NOW, THEREFORE, on motion duly seconded, the Commission en banc:

RESOLVED, as it hereby resolves, to formulate the following rules governing the disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987:

1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Section 68 of the Omnibus Election Code, filed directly with the Commission before an election in which the respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact

been committed. Where the inquiry by the Commission results in a finding before election, that the respondent candidate did in fact commit the acts complained, the Commission shall order the disqualification of the respondent candidate from continuing as such candidate.

In case such complaint was not resolved before the election, the Commission may motu proprio, or an (sic) motion of any of the parties, refer the complaint to the law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. Such recourse may be availed of irrespective of whether the respondent has been elected or has lost in the election.

2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act No. 6646 filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of the Commission.

Where a similar complaint is filed after election but before proclamation of the respondent candidate, the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is strong.

3. The Law Department shall terminate the preliminary investigation within thirty (30) days from receipt of the referral and shall submit its study, report and recommendation to the Commission en banc within five (5) days from the conclusion of the preliminary investigation. If it makes a prima facie finding of guilt, it shall submit with such study the Information for filing with the appropriate court.

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The above-quoted resolution covers two (2) different aspects:

First, as contemplated in paragraph 1, a complaint for disqualification filed before the election which must be inquired into by the COMELEC for the purpose of determining whether the acts complained of have in fact been committed. Where the inquiry results in a finding before the election, the COMELEC shall order the candidate's disqualification. In case the complaint was not resolved before the election, the COMELEC may motu propio or on motion of any of the parties, refer the said complaint to the Law Department of the COMELEC for preliminary investigation.

Second, as laid down in paragraph 2, a complaint for disqualification filed after the election against a candidate (a) who has not yet been proclaimed as winner, or (b) who has already been proclaimed as winner. In both cases, the complaint shall be dismissed as a disqualification case but shall be referred to the Law Department of the COMELEC for preliminary investigation. However, if before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is strong.

Petitioners contend that Resolution No. 2050, upon which the COMELEC anchored its dismissal of the disqualification case, is no longer a good law since it has been nullified in toto by this Court in Sunga v. COMELEC.[8]

Contrary to petitioners' contention, nowhere did the Court strike down COMELEC Resolution No. 2050 in Sunga. There, we held that:

xxx We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification case filed before the election but which remained unresolved after the election. What the Resolution mandates in such a case is for the Commission to refer the complaint to its Law Department for

investigation to determine whether the acts complained of have in fact been committed by the candidate sought to be disqualified. The findings of the Law Department then become the basis for disqualifying the erring candidate. This is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case.

Moreover, Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No. 6646, which provides:

SEC. 6. Effects of Disqualification Case.--Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong (italics supplied).

Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word 'shall' signifies that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre v. Duavit in effect disallows what RA No. 6646 imperatively requires. xxx[9]

The ruling in Sunga is not applicable to the case at bar. There, the complaint for disqualification was filed prior to the May 8, 1995 elections. Under Section 6 of R.A. 6646, where the complaint was filed before the election but for

any reason, a candidate is not declared by final judgment before the election to be disqualified and he is voted for and receives the winning number of votes in such election, the COMELEC shall continue with the trial and hearing of the case. Thus, the facts in Sunga fall under the contemplation of Section 6, namely: (1) the complaint for disqualification was filed before the election; (2) for any reason, the issue of disqualification was not finally resolved before the election; and (3) the candidate sought to be disqualified is voted for and received the winning number of votes. Consequently, the COMELEC should have continued with the hearing and decided the case on the merits. Instead, COMELEC erroneously dismissed the disqualification case and referred the matter to the Law Department for preliminary investigation of the criminal aspect of the case. The deleterious effect of the premature and precipitate dismissal was pointed out by this Court, thus:

xxx A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law.[10]

In sharp contrast, the complaint for disqualification against private respondent in the case at bar was lodged on May 18, 1998 or seven (7) days after the 1998 elections. Pursuant to paragraph 2 of Resolution No. 2050, the complaint shall be dismissed as a disqualification case and shall be referred for preliminary investigation to the Law Department of the COMELEC. Under this scenario, the complaint for disqualification is filed after the election which may be either before or after the proclamation of the respondent candidate.

The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the disqualification case therein simply because it remained unresolved before the election

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and, in lieu thereof, referring it to its Law Department for possible criminal prosecution of the respondent for violation of the election laws. Notably, there is nothing in paragraph 1 of Resolution No. 2050 which directs the dismissal of the disqualification case not resolved before the election. It says the COMELEC “may motu propio or on motion of any of the parties, refer the complaint to the Law Department of the Commission as an instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws.” The referral to the Law Department is discretionary on the part of the COMELEC and in no way may it be interpreted that the COMELEC will dismiss the disqualification case or will no longer continue with the hearing of the same. The reason for this is that a disqualification case may have two (2) aspects, the administrative, which requires only a preponderance of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to convict. Where in the opinion of the COMELEC, the acts which are grounds for disqualification also constitute a criminal offense or offenses, referral of the case to the Law Department is proper.

Petitioners argue that the COMELEC should have proceeded and continued with the trial of SPA No. 98-319 and rendered judgment as the law and evidence would warrant, invoking Section 6 of R.A. 6646.

We do not agree. Section 6 explicitly applies only to any candidate who has been declared by final judgment to be disqualified before an election. The section provides further that “if for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest xxx.” There is no provision in R.A. 6646 that treats of a situation where the complaint for disqualification is filed after the election. If the intention of the law is for the COMELEC to hear and decide disqualification cases filed after the election, it would not have made a distinction between cases filed before and after the election. Section 6 would not have used the word “before” preceding “an election.” Thus, the need for implementing rules as embodied in Comelec Resolution No. 2050 which provide that any

complaint for disqualification based on Section 6 of R.A. 6646 is filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case, but the complaint shall be referred for preliminary investigation to the Law Department of COMELEC.

The applicability of Resolution No. 2050 on disqualification cases was in fact upheld by this Court in Lozano vs. Yorac,[11] the Court said:

xxx Resolution No. 2050 was passed by reason of the variance in opinions of the members of respondent commission on matters of procedure in dealing with cases of disqualification filed pursuant to Section 68 of the Omnibus Election code in relation to Section 6 of Republic Act No. 6646, or the Electoral Reforms Law of 1987, and the manner of disposing of the same had not been uniform. Hence, the COMELEC decided to lay down a definite policy in the disposition of these disqualification cases. With this purpose in mind, the commission en banc adopted Resolution No. 2050. xxx

xxx

xxx Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification cases. The COMELEC Rules of Procedure speak of special actions, which include disqualification cases, in general. Hence, as between a specific and a general rule, the former shall necessarily prevail.

xxx[12]

It bears stressing that the Court in Sunga recognized the difference between a disqualification case filed before and after an election when, as earlier mentioned, it stated that the referral of the complaint for disqualification where the case is filed before election “is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case.”

Why there is a difference between a petition for disqualification filed before and after the election proceeds from the fact that before the election, the question of disqualification is raised as an issue before the electorate and those who vote for the candidate assume the risk that should said candidate be disqualified after the election, their votes would be declared stray or invalid votes. Such would not be true in the case of one filed after the electorate has already voted.[13]

Petitioners further postulate that the proclamation of private respondent on June 4, 1998 is void because it was made “without awaiting for the lapse of the five-day period for the finality of decisions rendered by a division in special actions," citing Sec. 13 (c) Rule 18 of the COMELEC Rules of procedure providing that “unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions and Special cases. xxx”

We find this contention without merit.

The mere filing of a petition for disqualification is not a ground to suspend the proclamation of the winning candidate. In the absence of an order suspending proclamation, the winning candidate who is sought to be disqualified is entitled to be proclaimed as a matter of law. This is clear from Section 6 of R.A. 6646 providing that the proclamation of the candidate sought to be disqualified is suspended only if there is an order of the COMELEC suspending proclamation. Here, there was no order suspending private respondent’s proclamation. Consequently, private respondent was legally proclaimed on June 4, 1998.

Neither did the COMELEC err in not ordering the suspension of private respondent's proclamation. The second paragraph of paragraph 2 of Resolution No. 2050 provides that where a complaint is filed after the elections but before proclamation, as in this case, the complaint must be dismissed as a disqualification case but shall be referred to the Law Department for preliminary investigation. If before the proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the

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appropriate trial court, the complainant may file a petition for suspension of the proclamation of respondent with the court before which the criminal case is pending and that court may order the suspension of the proclamation if the evidence of guilt is strong.[14] It appearing that none of the foregoing circumstances obtain herein as there is no prima facie finding of guilt yet, a suspension of private respondent's proclamation is not warranted. The mere pendency of a disqualification case against a candidate, and a winning candidate at that, does not justify the suspension of his proclamation after winning in the election. To hold otherwise would unduly encourage the filing of baseless and malicious petitions for disqualification if only to effect the suspension of the proclamation of the winning candidate, not only to his damage and prejudice but also to the defeat of the sovereign will of the electorate, and for the undue benefit of undeserving third parties.[15]

Before we end, we take note that when petitioners filed the instant petition on June 25, 1999, they had before the COMELEC en banc a pending motion for reconsideration of the June 4, 1998 resolution of the First Division. The Court does not look with favor the practice of seeking remedy from this Court without waiting for the resolution of the pending action before the tribunal below, absent extraordinary circumstances warranting appropriate action by this Court. This makes a short shrift of established rules of procedure intended for orderly administration of justice.

The COMELEC (First Division) in its June 4, 1998 resolution correctly referred petitioners’ complaint for disqualification to its Law Division for appropriate action. There being no temporary restraining order from this Court, that body as an instrument of the COMELEC should have continued with its task of determining whether or not there exists probable cause to warrant the criminal prosecution of those who may be liable for the alleged election offenses.

WHEREFORE, the instant petition is hereby DISMISSED. The respondent Commission on Elections is hereby directed to RESOLVE with great dispatch the pending incident relative to the preliminary investigation being conducted by its Law Department.

SO ORDERED.

EMILIO P. CORTEZ, petitioner, vs.THE COMMISSION ON ELECTION ET AL., respondents.

Ramon Diokno for petitioner. Vicente de Vera, Chairman Commission on Elections, and Rodrigo Perez for respondents.

MORAN, C.J.:

In the plebiscite which took place last March, the polling places corresponding to the barrios in the municipalities of Bacolor, Candada, Arayat, Sta. Ana Luis, San Simon, Apalit, Sexmoan, Macabebe, Minalin, Mexico and Lubao, were transferred to the poblacion by the resolution of the respondents municipal councils. In connection with the coming election, the approval of such transfer was sought by said municipal councils from the respondent Commission on Elections, approval which was granted because of the abnormal conditions of peace and order obtaining in the aforementioned municipalities. The approval was given over the objection of Dr. Emilio P. Cortez, candidate to the position of the provincial Government in the Province of Pampanga. Hence, this petition for review. At the hearing before this court, attorney Rodrigo Perez of the Commission on Elections appeared for all the respondents.

The pertinent provisions of the law are section 62, 65 and 66 of the Revised Election Code (Republic Act No. 180). They are as follows:

SEC. 62. Designation of polling places. — At least seventy days before each regular election, the municipal council shall designate in each election precinct a place as provided in this Code where the meetings of the board of inspectors for registration and the election shall be held. (C.A., 357-56.)

SEC. 63. Requirements for polling places. — ... The polling place shall be located as centrally as possible with respect to the residence of the voters of the precinct, but it

may be located also in the poblacion of the municipality upon petition of the majority of the voters of the precinct or by agreement of all the political parties, or by resolution of the municipal council, in subsequent elections after the election to be held on the second Tuesday of November, nineteen hundred and forty-seven. ... (C.A., 357-57.)

SEC. 66. Change of polling places. — After a polling place has been designated, its location shall not be changed until the next regular election, unless it is so ordered by competent authority, except in case it is destroyed or it can not be used. (C.A., 357-60.)

The general rule, therefore, under section 62 and 63 is that a polling place shall be located "in each election precinct" and "as centrally as possible with respect to the residence of the voters of the precinct." There are, however, three exceptions in which, under section 63, the polling places may be located in the poblacion namely: 1. When the majority of the voters so request; 2. By agreement of all the political parties; and 3. By a resolution of the municipal council, but this last-named exception shall take municipal council, but this last-named exception shall take effect in election subsequent to that November of this year. The express inclusion of those three exceptions is an implied exclusion of all others.

Thus, section 66 cannot be construed as another exception giving the Commission on Elections authority to transfer a polling place from a barrio to the poblacion, not only because there is nothing in its language that may warrant such construction but also because by such construction the exceptions provided in section 63 may become nugatory.

Section 66 should be construed in conjunction with section 63, the latter being a provision regarding location of polling places and the former a provision concerning changes that may be made after the polling places are located. Section 66 does not undertake to establish a new procedure for the making of such changes; it only provides that the changes may be made by competent authority, that is, by the officials designated by law and in the manner provided by law. Hence, when the location of a polling place is to be change from a barrio precinct to the poblacion, the case comes within the purview of section

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63, and the change should be made in the manner therein provided, namely, either by the petition of the majority of the voters or by agreement of all the parties.

The theory that section 63 is applicable only under normal conditions is contrary to the very wording of said section which contains provisions precisely to meet abnormal conditions. When for any serious difficulty a polling place cannot be located within the corresponding election precinct, a remedy is provided in said section consisting of a petition by the majority of the voters or by agreement of all the political parties for the transfer of the polling place to the poblacion. And when for the serious cause the holding of an election shall become impossible in any political division or subdivision, the remedy lies in the hands of the President who, upon recommendation of the Commission on Elections, may postpone such election for such time as he may deem necessary (section 8, Rev. Election Code).

The power given by the Commission by section 2, Article X of the Constitution, "to decide" all administrative questions concerning location of polling places, is a power that should be exercised when a question is brought before the Commission, and its decision should be rendered in accordance with law and not in contravention of law. The functions and powers of the Commission on Elections are limited by law. It has no legislative power to change or modify the law, nor may such power be delegated to the Commission. In the instant case, the action taken by the Commission on Elections finds no support in law.

Two writs of preliminary injunction have already been issued in this case, one prohibitory and another mandatory. The prohibitory injunction is directed against the respondents, ordering them to desist from placing or transferring to the poblacion the polling places corresponding to the barrio precincts, and the mandatory injunction is also directed to the respondents to restore to the respective barrios, as centrally as possible with respect the residence of the voters, the polling places already transferred from said barrios to the poblacion.lawphil.net

For all the foregoing, the order issued by the Commission on Elections approving the resolution of the respondents municipal councils is reversed, and the

preliminary writs of prohibitory and mandatory injunction issued in this case are made permanent, without costs.

Feria, Pablo, Hilado, Briones, Padilla, and Tuason, JJ., concur.

TICZON VS. COMELEC

These related cases, concerning the position of mayor of San Pedro City, have a common factual background and involve turncoatism as a ground for disqualification.

1. In 1963, Zacarias A. Ticzon, as official candidate of the Liberal Party, was elected mayor of San Pablo City while Cezar P. Dizon, the Nacionalista candidate, was elected vice-mayor.

2. In 1967, Dizon as the Nacionalista candidate, was elected mayor of San Pablo City. He beat Ticzon, the official candidate of Liberal Party.

3. In 1971, Dizon, again as a Nacionalista, was reelected mayor, beating Ticzon, who ran as a rebel Liberal Party candidate, and Pedro Magcase, the official Liberal Party candidate. By reason of transitory provisions of the Constitution, Dizon continued to serve as mayor after expiration of his four-year term in 1975.

4. According to Dizon, he remained a member of the Natcionalista Party up to the early party of 1978 when he campaigned for the candidates for the Batasang Pambansa of the Kilusang Bagong Lipunan (KBL) in the elections held on April 7, 1978.

5. Dizon was the official KBL candidate for mayor of San Pablo City in the elections on January 30, 1980 while, ironically, his old antagonist, Ticzon, was the official Nacionalista standard-bearer.

7. The change in party affiliation made by Dizon and Ticzon provoked the filing against them of the charge of turncoatism. Thus, on January 21, 1980, Roman C. Armedilla, a registered voter of San Pablo City, filed with the Commission on Elections a petition to disqualify Dizon

on the ground that in his certificate of candidacy dated January 3, 1980 he indicated that he was the KBL official candidate although he was formerly affiliated with the he Nacionalista Party (Case No. 166).

8. Dizon in his verified answer to that petition alleged that during his four-year term in office, he did not change his party affiliation because he continued to be a member of the Nacionalista Party; that he remained in office after December 31, 1975 not as an elected official but as a "casual"; that his change of party affiliation was beyond the six-month prohibitory period because he became a KBL member in 1978 and that the constitutional prohibition should not be applied retroactively to his case. He said that he was the KBL campaign manager in San Pablo City in the elections for Batasan members on April 7, 1978 (p. 7, Memorandum). His certificate of affiliation with the KBL is dated March 7, 1978 and is at tested by the President of the Philippines and Secretary General Jose a Roño (Annex B of Dizon's Memo).

9. On the other hand, on January 23, 1980, Antonio B. Cosico, a registered vogter, filed with the Comelec a petition to disqualify Ticzon because in his second certificate of candidacy he stated that he was nominated by the Nacionalista Party although he admittedly ran as a Liberal Party candidate in the 1971 elections (Case No. 235). Fifty-eight barangay captains and chairmen of San Pablo City, in a resolution dated January 27, 1980, asked Mayor Dizon to push through the disqualification case against Ticzon (pp. 89-91, Rollo of G.R. No. 52678).

10. Ticzon in his answer to that petition alleged that in 19710 he was expelled from the Liberal Party because he had run as a rebel candidate and, consequently, in January, 1980 when he ran for mayor, he was partyless. Attached to his answer was an affidavit of Manuel A. Concordia, the acting chairman of the district committee of the Liberal Party. Concordia attested to the expulsion of Ticzon from the Liberal Party in 1971. (According to Dizon, no answer was filed by Ticzon, pp. 72 and 85, Rollo of G.R. No. 52678).

11. The disqualification case against Ticzon was submitted for decision on February 6, 1980 when Ticzon offered as rebuttal evidence the affidavit of Senator Gerardo Roxas,

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the president of the Liberal Party, affirming that in 1971 Ticzon was expelled from the party for acts inimical to its objectives (pp. 30-31, Rollo of G.R. No. 52678). But Governor Felicisimo San Luis, the provincial chairman of the Liberal Party, stated in his affidavit that Ticzon was not expelled from the party (p. 86, Rollo). the two disqualification cases were not decided before the elections.

12. A third case, Case No. 462, was filed by Ceferino Ambrary, the KBL campaign manager in San Pablo City, against the San Pablo City chapter of the Nacionalista Parety for having included among its candidates for councilor a guest candidate named Dominador Laset, Jr., a member of the National Union for Liberation. Because of that guest candidacy, the Comelec in its resolutions of February 13 and 16, 1980 treated the candidates of the Nacionalista Party in San Pablo City as independent candidates not entitled to the benefit of block-voting (pp. 223 and 285 to 287, Rollo of G.R. No. 52678).

13. In the meantime or in the evening of January 30, 1980, the city board of canvassers started the canvass of the election returns. Dizon later asked the Comelec to change tohe board of canvassers on the ground of bias and partiality (p. 38, Rollo of G.R. No. 52678).

14. The Comelec in a telegram dated January 30, 1980 to the city board of canvassers directed that should it appear that Ticzon had won, then his proclamation should be suspended in view of the pending disqualification case against him (p. 292, Rollo of G.R. No. 52678).

15. On January 31, 1980, Dizon filed with the Comelec a verified petition praying, alternatively, for the suspension of the canvass and the proclamation or for the nullification of the election. He alleged the following grounds.

3. That prior to the elections of January 30, 1980, in the City of San Pablo, many registered voters in the permanent list of voters were not included in the certified list of voters prepared for each voting center, so that thousands of registered voters were disenfranchised and not able to vote on Election Day, which registered disenfranchised voters had they been able to vote, would

materially alter the results of the election, more particularly with respect to the position of City Mayor;

4. That private respondent (Ticzon) on or before Election Day has restored to widespread vote-buying and has employed strongarm tactics, resulting in the nullification of the free will of the electorate;

5. That the election returns submitted appear to be tampered with, altered or falsified and that there exists discrepancies in the authentic copies from a voting center or discrepancies in the votes of the candidates, which tampering, alteration, or falsification and discrepancies in the returns would materially affect the results of the elections, more particularly that of the position of City Mayor. (ANNEX A of Dizon's Memorandum.)

16. Ticzon was furnished with a copy of that petition. The Comelec acted on it by sending a directive dated February 1, 1980 to the provincial election officer of Laguna to stop the canvass of the votes for city mayor, vice-mayor and members of the Sangguniang Panglungsod in San Pablo City and advising that "no canvass or proclamation shall be undertaken until further orders" from the Comelec (p. 32, Rollo of G.R. No. 52678).

17. That directive triggered the filing by Ticzon of a petition for certiorari in this Court on February 4, 1980 for the purpose of suspending its enforcement (G.R. No. 52451, Ticzon vs. Comelec). Only the Comelec was made a respondent in that case. Ticzon did not implead Dizon as a respondent in that case This Court issued a resolution with a restraining order on February 5, 1980, enjoining the Comelec from enforcing its directive insofar as it suspended the canvass and instructing the city board of canvassers to proceed with the he canvass of the election returns (p. 33, Rollo). Not being a respondent, Dizon was not aware of that resolution. The provincial election officer of Laguna was advised by telegram on February 6 of that restraining order.

18. However, that restraining order was not implemented because before it was served upon the Comelec, it had issued a resolution dated February 6, 1980, replacing the city board of canvassers with a new board of canvassers composed of three Comelec lawyers. It was stated in the

resolution that Dizon had sought the replacement of the city board of canvassers due to acts prejudicial to his candidacy (p. 35, Rollo). Dizon contented that this Court's restraining order did not prohibit the change of the city board of canvassers.

19. Dizon had complained to the Comelec that the city superintendent of schools and the city fiscal, two of the three members of the city board of canvassers, were partial to Ticzon. The fiscal allegedly owed his appointment to Congressman Manuel A. Concordia (Ticzon's lawyer) while the city superintendent of schools had allegedly campaigned on the sly for Ticzon. The Comelec' investigating team found it advisable that a new board of canvassers be appointed and that the venue of the canvass be changed to manila )pp. 78-79, Rollo).

20. On February 7, the Comelec instructed the new board of canvassers to bring the election returns to Manila and to of canvassers to bring the election returns to Manila and to canvass them in the Comelec's session hall (p. 36, Rollo). Dizon in a sworn letter to the city board of canvassers dated February 7, 1980 alleged that the previous members of the board were partial and biased; that there was lack of notice or improper notice to the parties in the previous partial canvass of the returns and that there was undue haste in the previous canvass. Dizon asked for a recanvass in the interest of fairness and justice (pp. 38-39, Rollo).

21. The Comelec in its resolution of February 11, 1980 held that the recanvass was not prohibited by this Court's restraining order. It ordered the new board to canvass all the election returns including those already canvassed by the old board (p. 39, Rollo). So, the new board canvassed all the returns.

22. At the instance of Ticzon and without the knowledge of Dizon, this Court issued on February 14, 1980 an order restraining the canvass of the election returns in Manila by the new city board of canvassers. That order was served in the Comelec at ten o'clock in the morning of February 15, 1980 when the recanvass was about to be terminated and after Ticzon had learned of the resolution of February 12, disqualifying him. A copy of the restraining order was sent to the Comelec's Law Department at four-quarter in the

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afternoon. Horacio Apostol of the Law Department sent the restraining order to the Comelec Chairman at five-forty in the afternoon of the following day. But the day before, Dizon had already been proclaimed as mayor (p. 4, Memo of Solicitor General of August 1, 40-41, Rollo).

23. In the meanwhile, or on February 12, 1980 before the recanvass was completed, the Comelec in its Resolution No. 9085 Case No. 235, Cosico vs. Ticzon, ruled that Ticzon was disqualified because without having resigned from the Liberal Party or being expelled therefrom he ran as a Nacionalista (pp. 40-41, Rollo).

24. The Comelec found that, according to the affidavit of Pedro Magcase, a former vice-mayor and Liberal Party standard bearer, and other documentary evidence, Ticzon continued as a member in good standing of the Liberal Party. Hence, Ticzon's. Hence, Ticzon's candidacy was not given due course, the votes in his favor were regarded as stray votes and the new city board of canvassers was directed to proclaim Dizon as the winning candidate for mayor of San Pablo City (p. 40, Rollo). Thus, this Court's second restraining order of February 14, enjoining the canvass by the newly constituted board of canvassers, was useless. It was useless because of the Comelec's prior resolution of February 12, disqualifying Ticzon and ordering the proclamation of Dizon. By reason of Ticzon's disqualification, there was no need to canvass or determine the votes for him as tallied in the election returns.

25. In a separate resolution No. 9098 in Case 166, dated February 13, 1980, the Comelec dismissed Armedilla's petition to disqualify Dizon. That petition was submitted on the basis of the pleadings. The dismissal was anchored on the ground of insufficiency of evidence (p. 23, Rollo of G.R. No. 53393).

26. On February 15, 1980, Ticzon filed in this Court against the Comelec and Cosico a second petition for certiorari wherein he prayed that the resolution disqualifying him be set aside. Again, Ticzon did not implead Dizon as a respondent (G.R. No. 52678).

27 On that same day, after five o'clock in the afternoon, this Court issued a third restraining order, enjoining the

Comelec from implementing the disqualification resolution and the city board of canvassers from proclaiming Dizon. That restraining order was received in the Comelec at seven-forty in the evening. However, as already stated, at a little past six o'clock in the evening of that same day, or before that third restraining order could be served, the city board of canvassers, implementing the Comelec's February 12 resolution, proclaimed Dizon as mayor. He garnered 28, 119 votes. As directed by the Comelec, the votes in favor of Ticzon were not counted and were considered stray votes (pp. 45, 49, 102, 109 and 112, Rollo of G.R. No. 52678).

28. It should be noted that Ticzon filed with the Comelec a petition for quo warranto dated February 22, 1980, seeking to oust Dizon as mayor on the ground of turncoastism, and that he filed against Dizon an election protest ad cautelam (Cases Nos. 80-15, pp. 34-36, Rollo of G.R. No. 53393).

29. On February 20, 1980 Dizon filed a motion to intervene in the second case. Attached to his motion was his answer in intervention. His motion was granted. Annexed to that motion was a resolution dated February 3, 1980, signed by fifty-eight (58) barangay chairmen and captains of San Pablo City, headed by Ricardo B. Dioso, Sr., enumerating the following irregularities and frauds allegedly committed by the Nationalistas or Ticzon's backers: (1) use of flying and face voters; (2) open ballot boxes; (3) disenfranchisement of old and new voters; (4) substitution of ballots; (5) some KBL voters were not able to vote due to the threats on their persons and families made by Nacionalista leaders; (6) substitution of voters and voting by dead persons; (7) to invalidated the ballots of KBL voters who resorted to block-voting, some teachers wrote therein the names of certain candidates; (8) frauds committed by teachers; (9) vote-buying by adherents of Ticzon at prices ranging from P20 to P50 per vote; (10) use as watchers by Nacionalistas of ex-convicts and goons and (11) fraudulent reading of ballots to favor Nacionalista candidates (Annex G, p. 92, Rollo).

30. With respect to the disqualification case against Dizon, Armedilla interposed in this Court on March 18, 1980 and "appeal by certiorari" wherein he contended that the Comelec did not observe due process in dismissing the case (G.R. No. 53393).

31. Dizon in his comment on that appeal traversed the allegation as to nonobservance of due process. He said that at the hearing of the petition for disqualification on January 26, 1980 in the Comelec the case was submitted on the basis of the pleadings (p. 30, Rollo of G.R. No. 53393).

The issues are whether the Comelec committed a grave abuse of discretion in changing the city board of canvassers and the venue of the recanvass of the returns, in disqualifying Ticzon on the ground of turncoatism, in dismissing the petition for disqualification against Dizon and in ordering his proclamation.

In resolving those issues, we have to take into account the Comelec's unique position in our scheme of government and its dominant and pervasive role in insuring the holding of free, orderly and honest elections.

The Comelec is empowered to "enforce and administer all laws relative to the conduct of elections" and is "the sole judge of all contests relating to the elections, returns, and disqualifications" of elective officials (Sec. 2[1 & 2], Art. XII[C], Constitution; Secs. 185 and 188, 1978 Election Code).

It is "the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory" (Art. 175, 1978 Election Code). However, its decision, order or ruling may be reviewed by this Court on certiorari (Sec. 11, Art. XII[C] of the Constitution).

It has "direct control and supervision over the board the canvassers" and any member of the board "may at any time be relieved for the cause and subtitled motu propio by the commission" (Sec. 168' Election Code of 1978).

We find that the Comelec did not abuse its discretion in changing the city board of canvassers' in directing that the canvass be held in its session hall in Manila and in allowing a recanvass of the returns already canvassed by the old board. The Comelec acted within its powers and jurisdiction in taking those steps based on its findings. It investigating the situation in the light of the representations

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made by Dizon. The question as to the recanvass was argued by the parties before the city board of canvassers.

There is no justifications for this Court to interfere with the action taken by the Comelec. In factual matters, the Comelec is "en mejores condiciones que ningun otro organismo del Estado para conocer aquellos que tiendana asequrar la pureza del sufragio, en que radica la salud de las democracias. Sus conclusiones, por tanto, relativas a los hechos y las cuestiones de equidad no deben ser modificadas, a menos que en autos aparezca que abuso gravamente de sus facultades." (Vinzons vs. Commission on Elections, 73 Phil. 247, 251-2.)

Hence, the petition in the first case, G.R. No. 52451, should be dismissed for lack of merit.

The other cases, G.R. Nos. 52678 and 53393, are preproclamation controversies which arose because of the constitutional prohibition that "no elective public officer may change his political party affiliation during his term of office, and no candidate for any elective public office may change his political party affiliation within six moths immediately preceding or following an election" (Sec. 10, Art. XII[C]). That prohibition is incorporated in section 4 of Batas Blg. 52 which took effect on December 22, 1979.

Section 7 of that law provides that the Comelec "shall motu proprio, or upon sworn petition of any voter, political party or candidate, after due notice and hearing, refuse to give due course to a certificate of candidacy if it is shown that the person filing the same does not possess all the necessary qualifications for the office concerned or is disqualified from running for said office as provided by law".

The Comelec found that Ticzon, a Liberal in the 1971 elections, indicated that he was a Nacionalista in the certificate of candidacy which he filed for the elections on January 30, 1980. "The records do not disclose that he resigned his membership from the said Liberal Party. Neither was he expelled from his party. On the contrary, the affidavit of Ex-Vice-Mayor Pedro Magcase shows" that Ticzon remained with the Liberal Party. "All other documentary evidences on record indicate his continuance

as member in good standing of the Liberal Party" (Resolution No. 9085, p. 40, Rollo of G.R. No. 52678).

The Comelec had jurisdiction to make the factual finding that Ticzon changed his party affiliation within six months preceding the elections. It is not a whimsical and capricious preceding the elections. It is not a whimisical and capricious finding. It is supported by documentary evidence. Ticzon was not denied due process when the finding was made. He was duly heard and he presented evidence at the hearing. Consequently, that finding cannot be set aside in this certiorari proceeding. It is binding and conclusive on this Court.

"Indeed, in special civil actions for certiorari, the main issue is one of jurisdiction — lack of jurisdiction or grave abuse of discretion amounting to excess of jurisdiction whereas petitions for review on certiorari are limited to the considered of questions of law" (Lucman vs. Dimaporo, L-31558, May 29, 1970, 33 SCRA 387, 399-400. See Basier vs. Commission on Elections, L-33692, February 24, 1972 and two other cases, 43 SCRA 238).

A review of the decision, order or ruling of the Comelec by means of certiorari means that this Court cannot review its factual findings (Sotto vs. Commission on Elections, 76 Phil. 516, 521).

If the courts do not disturb the factual findings of administrative agencies created by law, except when there is no substantial evidence to support such findings, then there is no reason to believe that the Constitution intended to place the Comelec (which was created by the Constitution as an independent body) on a lower level than those administrative agencies (Lucman) vs. Dimporo, 33 SCRA 387, 401).

Another contention of Ticzon is that the Comelec erred in regarding the votes obtained by him as stray votes. The Comelec's ruling is based on section 155(24) of the 1978 Election Code which provides that "any vote cast in favor of a candidate who has been disqualified under this Code shall be considered as stray and shall not be counted but it shall not invalidate the ballot". This is a new provision.

It is argued that because that rule is found among the "rules for the appreciation of ballots", it should be applied by the citizens elections committee in the counting of votes and it cannot be applied by the board of canvassers in canvassing the election returns. That contention has no merit.

Rule 24 means that the votes cast for a disqualified candidate fall into the category of invalid or inexistent votes because a disqualified candidate is no candidate at all or is not a candidate in the eyes of the law.

In Monsale vs.Nico, 83 Phil. 758, a candidate who withdrew his candidacy but who, nevertheless, obtained the highest number of votes, was to proclaimed because he had ceased to be a candidate. His opponent, who obtained the next highest number of votes, was proclaimed as the duly elected municipal mayor.

The Comelec did not give due course to Ticzon's candidacy. He became a non-candidate. The votes for a non-candidate cannot be counted and cannot influence the result of the elections. The votes for Ticzon were properly adjudged as stray votes.

With respect to the disqualification case against Mayor Dizon (G.R. No. 53393), the contention that due process was not observed in dismissing that case is not well-taken because petitioner Armedilla was given a chance to controvert Dizon's defense that he was already a KBL partisan in April, 1978 or more than six months prior to January 30, 1980 but Armedilla was not able to overthrow that defense. He submitted the case for decision by the Comelec on the pleadings.

The Comelec concluded that Dizon did not violate the prohibition against turncoatism. (See Resolution of January 25, 1980 in Amante vs. Comelec, G.R. No. 52375 where a gubernatorial candidate who was a KBL member for a short time and then ran as a Nacionalista in the election of January 30, 1980 was not considered disqualified.)

Armedilla's counsel, who is also Ticzon's counsel, did not discuss in his memorandum the disqualification case against Dizon. The latter's counsel discussed it in his memorandum.

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Dizon contends that the constitutional provision disqualifying an elective officer from changing his political party affiliation during his term of office cannot be given retroactive effect to his case. He argues that in 1971, when he was elected mayor for a four-year term ending on December 31, 1975, there was no legal no legal provision prohibiting an elective public official from changing his party affiliation.

After his four-year term expired, he continued to hold office by virtue of the provision that "all officials and employees in the existing Government shall continue in office until otherwise provided by law or decreed by the incumbent President of the Philippines" (Sec. 9, Art, XVII, Transistory Provisions of the Constitution).

The Comelec assumed that the other portion of Section 10, Article XII[C], regarding change of political party within six months prior to the elections, has no application to Dizon because, as alleged in his answer, he changed his party in April, 1978 or more than six months before January 30, 1980.

However, since, as stated earlier, Ticzon had filed with the Comelec a quo warranto proceeding against Dizon, wherein Dizon's alleged disqualification is in issue, that same matter may again be threshed out in the Comelec (Case No. 80-15).

Justice Barredo, Makasiar, Concepcion Jr., Fernandez, Guerrero and De Castro (seven including the herein ponente) concurred in this opinion. Chief Justice Fernando in a separate opinion concurs in Justice Melencio-Herrera's dissent. Justice Teehankee and Abad Santos filed separate dissents.

WHEREFORE, the petition in the three cases are dismissed without prejudice to further proceedings in the aforementioned quo warranto case.

The proclamation of Cesar P. Dizon as mayor of San Pablo City is upheld. No. costs.

SO ORDERED.

Barredo, Makasair, Concepcion Jr., Fernandez, Guerrero and De Castro, JJ., concuur.

KHOANTONIO T. KHO, petitioner, vs.COMMISSION ON ELECTIONS and EMILIO A. ESPINOSA, respondents.

TORRES, JR., J.:

May the Commission on Elections entertain a counter-protest filed by a party after the period to file the same has expired? Although a routine issue, it can also have crippling effects.

This is the case before us.

On May 30, 1995, petitioner Kho, a losing candidate in the 1995 gubernatorial elections in Masbate, filed an election protest 1 against private respondent Espinosa to set aside the proclamation of the latter as the Provincial Governor of Masbate and to declare him instead the winner in the elections.

Summons 2 was then issued by the Commission on Elections (COMELEC, for brevity) to Espinosa on June 1, 1995 requiring him to answer Kho's petition of protest within five (5) days from receipt thereof.

It appears that Espinosa received the summons on June 6, 1995, 3 but, he filed his answer with counter protest only on June 15, 1995. 4 When Kho received the answer with counter-protest of Espinosa on June 24, 1995, he filed on the same date a motion to expunge the said pleading because it was filed way beyond the reglementary period of five (5) days as provided for under Rule 10, Section 1, Part II in relation to Rule 20, Section 4 of the COMELEC Rules of Procedure.

Way back on June 19, 1995, petitioner Kho also filed an omnibus motion 5 praying that since five (5) days had elapsed and no answer to the protest had yet been filed by Espinosa, a general denial must be entered into the records in accordance with the COMELEC Rules of Procedure.

The Respondent COMELEC First Division, however, issued an order 6 dated July 26, 1995 admitting Espinosa's answer with counter-protest and requiring his lawyer to submit a supplemental pleading specifying the numbers of counter-protested precincts listed in the answer with counter protest. Kho received a copy of such order on September 20, 1995.

Following the order dated July 26, 1995, Espinosa filed on September 18, 1995 his compliance specifying therein the counter-protested precincts.

Consequently, the Comelec First Division, through its order dated September 23, 1995, admitted the said compliance, required Espinosa to make a cash deposit of P40,150.00 for the 73 counter-protested precincts and ordered the collection and delivery of the counter-protested ballot boxes to the Commission for revision.

On September 23, 1995, Kho filed a motion to resolve 7 alleging that he filed a motion to expunge on June 24, 1995 as a result of Espinosa's failure to answer the election protest within the legal period. Since, this motion to expunge had not yet been acted by the Commission, he, accordingly, prayed for its resolution.

Acting on the said motion, however, the COMELEC First Division, by its September 26, 1995 order, 8 dismissed the motion to resolve holding that Espinosa's answer with counter-protest which was mailed on June 15, 1995 was filed within the five (5) day reglementary period.

On September 29, 1995, Kho filed a motion for reconsideration 9 of the orders dated September 23 and 26, 1995. Espinosa, on the other hand, filed his opposition thereto arguing that the questioned interlocutory orders dated September 23 and 26, 1995 were mere incidental orders which implemented the earlier order dated July 26, 1995. He asserted that the failure an the part of Kho to

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seek first a reconsideration of this July 26, 1995 order which admitted the answer with counter-protest is a fatal and an irreversible procedural infirmity.

In denying the motion for reconsideration of Kho, the COMELEC First Division, through its November 15, 1995 order, 10 held that since Kho did not attempt to file a motion for reconsideration of the July 26, 1995 order, such order can not now be disturbed. The subsequent orders of September 23 and 26, 1995 that carried out the July 26, 1995 order should not be set aside to prevent unnecessary delay in the proceedings of the case.

On December 1, 1995, Kho filed a manifestation and motion, 11 this time addressed to the COMELEC en banc, reiterating the arguments he asserted in his motion for reconsideration and praying at the same time for the elevation of the case to the Commission en banc and the setting aside of the November 15, 1995 order and all other related orders concerning the belated filing of Espinosa's answer with counter-protest.

But the COMELEC First Division, in its order dated February 28, 1996, 12 denied the prayer for the elevation of the case to en banc because the September 23 and 26, 1995 orders were mere interlocutory orders which would not necessitate the elevation of the case to en banc, and merely took note of the other prayers in the manifestation and motion. The dispositive portion of the said order reads as follows:

WHEREFORE, in view of the foregoing, the Commission (First Division) hereby ORDERS, as follows:

1. That the manifestations, as well as the second and third prayers, in protestant's Manifestation and Motion be NOTED;

2. That the prayer for the elevation of the records of this case to the Commission en banc be DENIED;

3. That the protestee's prayer for suspension of revision proceedings be declared MOOT.

SO ORDERED. 13

On March 15, 1996, Kho filed the instant petition 14 arguing that the respondent COMELEC First Division committed grave abuse of discretion or without or in excess of jurisdiction in admitting the belatedly filed answer with counter-protest of Espinosa, and in refusing to elevate the case to the Commission en banc upon the pretext that the COMELEC First Division issued mere interlocutory orders. He prayed for the issuance of a temporary restraining order against the COMELEC to cease and desist from implementing the July 26, 1995 order and all other orders related to it, and that the COMELEC be directed to proceed with the protest case without considering the answer with counter-protest of Espinosa, which should be expunged from the records of the case.

Private respondent Espinosa, on the other hand, argued that the five (5) day period of filing an answer is not jurisdictional because the answer is not an initiatory pleading and the time of its filing can be extended either through motion or motu propio. He added that the COMELEC, in admitting the answer with counterprotest, committed no error as it is allowed to suspend its rules in the interest of justice and speedy disposition of matters before it. According to him, the order of the COMELEC dated July 26, 1995 admitting his counterprotest is not subjected to a timely motion for reconsideration by petitioner Kho, thus it became final and executory and can no longer be disturb.

Consequently, this Court issued a temporary restraining order on May 28, 1996. 15

We find the petition meritorious.

It is clear from the records that private respondent Espinosa filed his answer with counterprotest way beyond the reglementary period of five (5) days provided for by law. It must be pointed out that Espinosa received the COMELEC summons and the Petition of Protest of Kho on June 6, 1995. Under Section 1, Rule 10 of the COMELEC Rules of Procedure, the answer must be filed within five days from service of summons and a copy of the petition. Private respondent Espinosa, therefore, had until June 11, 1995 within which to file his answer. In violation however of the aforesaid rules, Espinosa filed his answer with

counterprotest only on June 15, 1995, obviously beyond the five (5) day mandatory period.

It should be stressed that under the COMELEC Rules of Procedure, the protestee may incorporate in his answer a counterprotest. 16 It has been said that a counterprotest is tantamount to a counterclaim in a civil action and may be presented as a part of the answer within the time he is required to answer the protest, unless a motion for extension is granted, in which case it must be filed before the expiration of the extended time. 17 Apparently, the counterprotest of Espinosa was incorporated in his answer. And as what was revealed, this answer with counterprotest was filed only on June 15, 1995, which was obviously late for four (4) days. It appears that Espinosa did not file a motion for extension of time within which to file his answer with counterprotest. In the absence thereof, there is no basis then for the COMELEC First Division to admit the belatedly filed answer with counterprotest.

It is worthy to note that as early as in the case of Arrieta vs. Rodriguez, 18 this Court had firmly settled the rule that the counterprotest must be filed within the period provided by law, otherwise, the forum loses its jurisdiction to entertain the belatedly filed counterprotest. In the case at bar, there is no question that the answer with counterprotest of Espinosa was filed outside the reglementary period provided for by law. As such, the COMELEC First Division has no jurisdictional authority to entertain the belated answer with counterprotest much less pass upon and decide the issues raised therein. It follows therefore that the order of July 26, 1995 which pertains to the admission of the answer with counterprotest of Espinosa as well as the other consequent orders implementing the order of admission issued by the COMELEC First Division are void for having been issued without jurisdiction. Even if petitioner Kho did not file a motion for reconsideration of the order dated July 26, 1995 admitting the answer with counterprotest, the jurisdictional infirmity, brought about by the late filing of the answer to the protest, persists and can not be cured by the omission on the part of the protestee-petitioner to seek a reconsideration of the order dated July 26, 1995.

Admittedly, even before the order dated July 26, 1995 was issued by the COMELEC First Division, petitioner Kho had

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already put into issue the late filing of Espinosa's answer with counterprotest and persistently asserted his right to move for the exclusion of the same from the record of the case. The records unmistakably show that when petitioner Kho was apprised of the fact that Espinosa did not file the answer within the reglementary period of five days, he filed on June 19, 1995 an omnibus motion praying that a general denial should be entered into the records of the case against Espinosa. He also filed on June 24, 1995 a motion to expunge from the records the answer with counterprotest of Espinosa. And when he received the July 26, 1995 order on September 20, 1995, he immediately filed on September 23, 1995 a motion praying for the resolution of the motion to expunge filed earlier. These circumstances indubitably show that even though petitioner Kho did not file a motion for reconsideration of the July 26, 1995 order he was not remiss in assailing at the first instance the belated filing of the answer with counterprotest of Espinosa.

As to the issue of whether or not the case should be referred to the COMELEC en banc, this Court finds the respondent COMELEC First Division correct when it held in its order dated February 28, 1996 that no final decision, resolution or order has yet been made which will necessitate the elevation of the case and its records to the Commission en banc. No less than the Constitution requires that election cases must be heard and decided first in division and any motion for reconsideration of decisions shall be decided by the Commission en banc. Apparently, the orders dated July 26, 1995, November 15, 1995 and February 28, 1996 and the other orders relating to the admission of the answer with counter-protest are issuances of a Commission in division and are all interlocutory orders because they merely rule upon an incidental issue regarding the admission of Espinosa's answer with counter-protest and do not terminate or finally dispose of the case as they leave something to be done before it is finally decided on the merits. 19 In such a situation, the rule is clear that the authority to resolve incidental matters of a case pending in a division, like the questioned interlocutory orders, falls on the division itself, and not on the Commission en banc. Section 5 (c), Rule 3 of the COMELEC Rules of Procedure explicitly provides for this,

Sec. 5. Quorum; Votes Required. . . .

xxx xxx xxx

(c) Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division which shall be resolved by the division which issued the order. (emphasis provided)

Furthermore, a look at Section 2, Rule 3 of the COMELEC Rules of Procedure confirms that the subject case does not fall on any of the instances over which the Commission en banc can take cognizance of. It reads as follows:

Sec. 2. The Commission en banc. — The Commission shall sit en banc in cases hereinafter specifically provided, or in pre-proclamation cases upon a vote of a majority of the members of a Commission, or in all other cases where a division is not authorized to act, or where, upon a unanimous vote of all the members of a Division, an interlocutory matter or issue relative to an action or proceeding before it is decided to be referred to the Commission en banc.

In the instant case, it does not appear that the subject controversy is one of the cases specifically provided under the COMELEC Rules of Procedure in which the Commission may sit en banc. Neither is it shown that the present controversy a case where a division is not authorized to act nor a situation wherein the members of the First Division unanimously voted to refer the subject case to the Commission en banc. Clearly, the Commission en banc, under the circumstances shown above, can not be the proper forum which the matter concerning the assailed interlocutory orders can be referred to.

In a situation such as this where the Commission in division committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending before it and the controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is not permissible under its present rules but to elevate it to

this Court via a petition for certiorari under Rule 65 of the Rules of Court.

Nevertheless, the resolution of this second issue is not decisive in the disposition of the instant case. What we considered here is the fact that the respondent COMELEC First Division committed grave abuse of discretion tantamount to lack of jurisdiction in admitting the belatedly filed answer with counterprotest of private respondent Espinosa.

ACCORDINGLY, the petition is hereby GRANTED. The Order dated July 26, 1995 admitting the answer with counterprotest of the private respondent as well as the other related orders, in so far as they pertain to the admission of the answer with counterprotest, are hereby declared void for having been issued without jurisdiction. The respondent COMELEC First Division is hereby directed to proceed with the hearing of the protest case with utmost dispatch without considering the answer with counterprotest of the private respondent.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.

Mendoza, J., is on leave.

Footnotes