G.R. No.

L-30240

August 23, 1929

AQUILINA TACAS, ET AL., plaintiffs-appellees, vs. EVARISTO TOBON, defendant-appellant. Simeon Ramos, Benito Soliven and J. Belmonte for the appellant. Vicente Paz for appellee. VILLAMOR, J.: This is an action to recover from the defendant the ownership and possession of three parcels of land described in the sketch attached to the complaint, together with the fruits collected by him during the time he was in possession of said land that is, since January, 1912, it being alleged that the defendant unlawfully took said parcels upon the death of Francisco Dumadag, predecessor in interest of the plaintiffs; and that he remained in possession, enjoying the fruits to the value of P700 annually. In his answer the defendant alleges that he is the owner of said lands, having purchased from one Exequiel or Gil Tacas, deceased, about fifteen years before the amended answer dated December 5, 1924. At the trial the parties adduced their respective evidence, and thereafter the trial court declared it sufficiently proven by a preponderance of the evidence that the three parcels of land under discussion, were parts of an estate belonging to Francisco Dumadag, whose title is a possessory information recorded in the registry of deeds of Ilocos Sur, having inherited them from his parents (Exhibit H); that during his lifetime, said Francisco Dumadag was in possession of the land as owner from many years, until his death on November 17, 1911, enjoying its fruits, consisting in rice, corn, tobacco, and vegetables; that said Francisco Dumadag had filed a declaration for tax purposes in his own name; that the land tax had been paid by Francisco Dumadag during the years 1908 and 1911, and in his name in the years from 1912 to 1914 (Exhibits I to P); that in January, 1912, during the season for planting tobacco immediately following the death of Francisco Dumadag, Evaristo Tobon took possession of the three parcels of land in question planting them with tobacco; that from 1912 up to the present, the defendant Evaristo Tobon has been collecting the fruits therefrom, consisting of 300 sheaves of rice and 300 manos of first, second, and third-class tobacco each year, at the approximate rate of P0.30 for each sheaf of rice, and P 3 for each mano of first-class tobacco, P 2.50 for second-class tobacco, and P 2 for third-class tobacco. There is no evidence of record regarding the amount and price of the corn collected by the defendant. And by virtue thereof, the trial court declared the plaintiffs to be the absolute owners of the three parcels of land in litigation, and ordered the defendant Evaristo Tobon to deliver said parcels of land to the plaintiffs, together with the fruits collected each year since 1912 until the complete termination of this case, and in default thereof, to pay to said

plaintiffs the sum of P 11,040, which is the total value of the rice and tobacco from 1912 to 1927, at P 0.30 per sheaf of rice, and P 2 per mano of tobacco. From this judgment, the defendant duly appealed in time, prosecuting his appeal to this court by the proper bill of exceptions. The appellant had made several assignments of error. In the first place, he contends that the identity of the pieces of land in litigation has not been established. We find no merit in this contention. It appears from the allegations of the complaint and the answer, that the case refers to the lands held by defendant and alleged by the latter to have been purchased from one Exequiel or Gil Tacas, brother to the plaintiff Aquilina Tacas. With regard to the probatory value of the documents presented by the parties, to wit, Exhibit H of the plaintiffs, and Exhibits 1 and 2 of the defendant, it is well to note that Exhibit H is a possessory information record duly approved on March 22, 1895 and inscribed in the registry of deeds of Ilocos Sur on November 4, 1917 in favor of Francisco Dumadag, covering some land situated in the sitio of Sisin, municipality of Magsingal, Ilocos Sur. On the other hand, Exhibit 1 of the defendant is an instrument executed on January 17, 1905 whereby one Exequiel or Gil Tacas sold three parcels of farm land in the place called Sisin to Evaristo Tobon for P 300 conan. And Exhibit 2 of the same defendant is another instrument executed on May 15, 1909 from which it appears that Francisco Dumadag and his brother-in-law, Gil Tacas, agreed that the three parcels of land belonging to the latter, together with the two parcels of the former in Anteng, Barrio of Carisquis, would be put in Dumadag's name in the possessory proceedings. The court below made a detailed analysis of the signature of Ramon G. Tolentino who, as justice of the peace, signed the ratification of the document Exhibit 1, comparing it with the unquestioned signatures of the same person, appearing in Exhibit 2, and concludes that the instrument Exhibit 1 is false. It is unnecessary to descend to the discussion of the characteristics of Ramon G. Tolentino's signature, he being the justice of the peace who ratified the document Exhibit 1, for, even granting that said instrument is genuine, it appears that Gil or Exequiel Tacas could not validly convey the lands in question to the defendant Evaristo Tobon, inasmuch as according to the possessory information, said lands belong to and were in possession of Francisco Dumadag even before 1895, until his death, which took place in November, 1911. The document Exhibit 2 argues nothing against our conclusion, for it is a contradiction to hold that in 1909 Francisco Dumadag agreed with his brother-in-law, Exequiel Tacas, that the three parcels of land belonging to the latter should be included in the former's possessory proceeding, considering that the latter had already been approved by this order of March 22, 1895. In the ordinary course of events, if such an agreement had

already been entered into, it should have been at the time of the institution of the possessory proceeding. Dumadag did not know how to sign his name, and besides, no one had identified said document, Exhibit 2. There is another reason why Exhibit 1 cannot prevail over Exhibit H, namely, that supposing that a sale was made in favor of the defendant in 1905, it was only in 1909 that Exhibit 2 was drawn in order to legalize the alleged transfer. Besides, despite the transfer of the lands in favor of the defendant having taken place in 1905, according to Exhibit 1, the defendant did not enter upon the possession of said lands until after the death of the original owner Francisco Dumadag, which occurred in November, 1911. Another error alleged by the appellant is that the trial court ordered him to deliver to the plaintiffs the fruits of the land from 1912 to 1927, or to pay their value, P 11,040. The complaint in this case was filed on February 1, 1918. The bill of exceptions does not show when the defendant was summoned but it does not show that the letter docketed his answer to the complaint on April 11, 1918. Evidence being lacking to show that when he entered upon the possession of the lands in question, he was aware of any flaw in his title or mode of acquiring it, he is deemed a possessor in good faith (article 433, Civil Code), and in accordance with article 451 of the Civil Code, the fruits of said lands were his, until he was summoned upon the complaint, or until he has filed his answer thereto. (Saul vs. Hawkins, 1 Phil., 275; Javier vs. Javier, 6 Phil., 493; Cleto vs. Salvador, 11 Phil., 416; Valencia vs. Jimenez and Fuster, 11 Phil., 492; Araujo vs. Celis, 16 Phil., 329; Alcala and Alviedo vs. Hernandez and Pacleb, 32 Phil., 628; Tolentino vs. Vitug, 39 Phil., 126; Aquino vs. Taedo, 39 Phil., 517; Rivera vs. Roman Catholic Archbishop of Manila, 40 Phil., 717; and Velasquez vs. Teodoro, 46 Phil., 757.) Art 451 of the same Code provides: Art. 451. Fruits received by one in possession in good faith before possession is legally interrupted become his own. Natural and industrial fruits are deemed to have been received as soon as they are gathered and harvested. Civil fruits are deemed to accrue from day to day, and belong to the possessor in good faith in this proportion. In his comments upon this article of the Civil Code, Manresa, among other things, says: But to every possessor in good faith there comes a time when he is considered a possessor in bad faith. When the owner or possessor with a better right comes along, where he becomes aware that what he had taken for granted is at least doubtful, and

when he learns the grounds in support of the adverse contention, good faith ceases. The possessor may still believe that his right is more secure, because we resign ourselves with difficulty to the sight of our vanishing hopes; but when the final judgment of the court deprives him of the possession, all illusion necessarily disappears. Although he may not have been convinced of it before, the possessor becomes aware that his possession is unlawful from the time he learns of the complaint, from the time he is summoned to the trial. It is at this time that his possession is interrupted, according to article 1945, and that he ceases to receive the fruits, according to the first paragraph of article 451. The ruling of the court retroacts to that time; but shall good faith be deemed to cease then ? Although there is a great difference between requiring the possessor in good faith to return the fruits he received from the time when his possession was legally interrupted, and considering him a possessor in bad faith for all legal purposes from that time, the law had to establish a definite rule in the matter, which is none other than that deducible from a combination of articles 452, 1945 and 435. Whether or not the defendant be a possessor in bad faith, for there is no doubt that he can be, and the law makes no attempt to deny it, from the service of judicial summons, there exists an act that this possessor knows that his right is not secure, that someone disputes it, and that he may yet lose it; and if the court holds that restitution be made, that time determines all the legal consequences of the interruption, the time when the possession in good faith ceased to be so before the law. The decisions of April 27, 1877, April 22, May 10 and June 13, 1878, February 11, and October 5, 1885, March 17, 1891, March 4, and May 17, 1893, held that good faith ceased when the answer to the complaint was filed, taking this doctrine from the Partidas. By analogy, the service of the summons, doubtless more certain and more difficult to evade, is now admitted, according to articles 451 and 1945 of the Code, and it is in this sense that the decisions of the Supreme Court of January 28, 1896, December 7, 1899, November 23, 1900, and July 11, 1903, must be understood, all of them holding that even the possessor in good faith must return the fruits received from the time the answer to the complaint was filed, that is, from the time he became aware that he was in undue possession. (Manresa, Commentaries on the Spanish Civil Code, vol. 4, pp. 270, 271.) By virtue of the foregoing, the judgment appealed from must be, as it is hereby, affirmed in so far as it holds that the plaintiffs are the owners of the lands in question, and that the defendant is bound to return to them the former. And with regard to the award of damages, said judgment is hereby modified so that the defendant is only bound to return to the plaintiffs the fruits received from April, 1918 to 1927, that is, 300 sheaves of rice and 300 manos of tobacco, with the right to deduct the expenses of planting and harvesting (art. 365 of the Civil Code), which shall be determined by the trial court, after hearing both parties. The appellant shall pay the costs of this trial. So ordered.

G.R. No. 151914

July 31, 2002

TEODULO M. COQUILLA, petitioner,vs. THE HON. COMMISSION ON ELECTIONS and MR. NEIL M. ALVAREZ, respondents. MENDOZA, J.: This is a petition for certiorari to set aside the resolution,1 dated July 19, 2001, of the Second Division of the Commission on Elections (COMELEC), ordering the cancellation of the certificate of candidacy of petitioner Teodulo M. Coquilla for the position of mayor of Oras, Eastern Samar in the May 14, 2001 elections and the order, dated January 30, 2002, of the COMELEC en banc denying petitioners motion for reconsideration. The facts are as follows: Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras, Eastern Samar. He grew up and resided there until 1965, when he joined the United States Navy. He was subsequently naturalized as a U.S. citizen.2 From 1970 to 1973, petitioner thrice visited the Philippines while on leave from the U.S. Navy.3 Otherwise, even after his retirement from the U.S. Navy in 1985, he remained in the DUnited States. On October 15, 1998, petitioner came to the Philippines and took out a residence certificate, although he continued making several trips to the United States, the last of which took place on July 6, 2000 and lasted until August 5, 2000.4 Subsequently, petitioner applied for repatriation under R.A. No. 81715 to the Special Committee on Naturalization. His application was approved on November 7, 2000, and, on November 10, 2000, he took his oath as a citizen of the Philippines. Petitioner was issued Certificate of Repatriation No. 000737 on November 10, 2000 and Bureau of Immigration Identification Certificate No. 115123 on November 13, 2000. On November 21, 2000, petitioner applied for registration as a voter of Butnga, Oras, Eastern Samar. His application was approved by the Election Registration Board on January 12, 2001.6 On February 27, 2001, he filed his certificate of candidacy stating therein that he had been a resident of Oras, Eastern Samar for "two (2) years."7 On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent mayor of Oras and who was running for reelection, sought the cancellation of petitioners certificate of candidacy on the ground that the latter had made a material misrepresentation in his certificate of candidacy by stating that he had been a resident of Oras for two years when in truth he had resided therein for only about six months since November 10, 2000, when he took his oath as a citizen of the Philippines. The COMELEC was unable to render judgment on the case before the elections on May 14, 2001. Meanwhile, petitioner was voted for and received the highest number of votes (6,131) against private respondents 5,752 votes, or a margin of 379 votes. On May 17, 2001, petitioner was proclaimed mayor of Oras by the Municipal Board of Canvassers.8 He subsequently took his oath of office. On July 19, 2001, the Second Division of the COMELEC granted private respondents petition and ordered the cancellation of petitioners certificate of candidacy on the basis of the following findings:

Respondents frequent or regular trips to the Philippines and stay in Oras, Eastern Samar after his retirement from the U.S. Navy in 1985 cannot be considered as a waiver of his status as a permanent resident or immigrant . . . of the U.S.A. prior to November 10, 2000 as would qualify him to acquire the status of residency for purposes of compliance with the one-year residency requirement of Section 39(a) of the Local Government Code of 1991 in relation to Sections 65 and 68 of the Omnibus Election Code. The one (1) year residency requirement contemplates of the actual residence of a Filipino citizen in the constituency where he seeks to be elected. All things considered, the number of years he claimed to have resided or stayed in Oras, Eastern Samar since 1985 as an American citizen and permanent resident of the U.S.A. before November 10, 2000 when he reacquired his Philippine citizenship by [repatriation] cannot be added to his actual residence thereat after November 10, 2000 until May 14, 2001 to cure his deficiency in days, months, and year to allow or render him eligible to run for an elective office in the Philippines. Under such circumstances, by whatever formula of computation used, respondent is short of the one-year residence requirement before the May 14, 2001 elections.9 Petitioner filed a motion for reconsideration, but his motion was denied by the COMELEC en banc on January 30, 2002. Hence this petition. I. Two questions must first be resolved before considering the merits of this case: (a) whether the 30day period for appealing the resolution of the COMELEC was suspended by the filing of a motion for reconsideration by petitioner and (b) whether the COMELEC retained jurisdiction to decide this case notwithstanding the proclamation of petitioner. A. With respect to the first question, private respondent contends that the petition in this case should be dismissed because it was filed late; that the COMELEC en banc had denied petitioners motion for reconsideration for being pro forma; and that, pursuant to Rule 19, 4 of the COMELEC Rules of Procedure, the said motion did not suspend the running of the 30-day period for filing this petition. He points out that petitioner received a copy of the resolution, dated July 19, 2001, of the COMELECs Second Division on July 28, 2001, so that he had only until August 27, 2001 within which to file this petition. Since the petition in this case was filed on February 11, 2002, the same should be considered as having been filed late and should be dismissed. Private respondents contention has no merit. Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts: Sec. 2. Period for Filing Motions for Reconsideration. A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution for implementation of the decision, resolution, order, or ruling. Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. A motion to reconsider a decision, resolution, order, or ruling, when not pro-forma, suspends the running of the period to elevate the matter to the Supreme Court. The five-day period for filing a motion for reconsideration under Rule 19, 2 should be counted from the receipt of the decision, resolution, order, or ruling of the COMELEC Division.10 In this case,

petitioner received a copy of the resolution of July 19, 2001 of the COMELECs Second Division on July 28, 2001. Five days later, on August 2, 2001, he filed his motion for reconsideration. On February 6, 2002, he received a copy of the order, dated January 30, 2002, of the COMELEC en banc denying his motion for reconsideration. Five days later, on February 11, 2002, he filed this petition for certiorari. There is no question, therefore, that petitioners motion for reconsideration of the resolution of the COMELEC Second Division, as well as his petition for certiorari to set aside of the order of the COMELEC en banc, was filed within the period provided for in Rule 19, 2 of the COMELEC Rules of Procedure and in Art. IX(A), 7 of the Constitution. It is contended, however, that petitioners motion for reconsideration before the COMELEC en banc did not suspend the running of the period for filing this petition because the motion was pro forma and, consequently, this petition should have been filed on or before August 27, 2001. It was actually filed, however, only on February 11, 2002. Private respondent cites the finding of the COMELEC en banc that An incisive examination of the allegations in the Motion for Reconsideration shows that the same [are] a mere rehash of his averments contained in his Verified Answer and Memorandum. Neither did respondent raise new matters that would sufficiently warrant a reversal of the assailed resolution of the Second Division. This makes the said Motion pro forma.11 We do not think this contention is correct. The motion for reconsideration was not pro forma and its filing did suspend the period for filing the petition for certiorari in this case. The mere reiteration in a motion for reconsideration of the issues raised by the parties and passed upon by the court does not make a motion pro forma; otherwise, the movants remedy would not be a reconsideration of the decision but a new trial or some other remedy.12 But, as we have held in another case:13 Among the ends to which a motion for reconsideration is addressed, one is precisely to convince the court that its ruling is erroneous and improper, contrary to the law or the evidence; and in doing so, the movant has to dwell of necessity upon the issues passed upon by the court. If a motion for reconsideration may not discuss these issues, the consequence would be that after a decision is rendered, the losing party would be confined to filing only motions for reopening and new trial. Indeed, in the cases where a motion for reconsideration was held to be pro forma, the motion was so held because (1) it was a second motion for reconsideration,14 or (2) it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence,15 or (3) it failed to substantiate the alleged errors,15 or (4) it merely alleged that the decision in question was contrary to law,17 or (5) the adverse party was not given notice thereof.18 The 16-page motion for reconsideration filed by petitioner in the COMELEC en banc suffers from none of the foregoing defects, and it was error for the COMELEC en banc to rule that petitioners motion for reconsideration was pro forma because the allegations raised therein are a mere "rehash" of his earlier pleadings or did not raise "new matters." Hence, the filing of the motion suspended the running of the 30-day period to file the petition in this case, which, as earlier shown, was done within the reglementary period provided by law. B. As stated before, the COMELEC failed to resolve private respondents petition for cancellation of petitioners certificate of candidacy before the elections on May 14, 2001. In the meantime, the votes were canvassed and petitioner was proclaimed elected with a margin of 379 votes over private respondent. Did the COMELEC thereby lose authority to act on the petition filed by private respondent?

R.A. No. 6646 provides: SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis added) SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. The rule then is that candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. But those against whom no final judgment of disqualification had been rendered may be voted for and proclaimed, unless, on motion of the complainant, the COMELEC suspends their proclamation because the grounds for their disqualification or cancellation of their certificates of candidacy are strong. Meanwhile, the proceedings for disqualification of candidates or for the cancellation or denial of certificates of candidacy, which have been begun before the elections, should continue even after such elections and proclamation of the winners. In Abella v. COMELEC19 and Salcedo II v. COMELEC,20 the candidates whose certificates of candidacy were the subject of petitions for cancellation were voted for and, having received the highest number of votes, were duly proclaimed winners. This Court, in the first case, affirmed and, in the second, reversed the decisions of the COMELEC rendered after the proclamation of candidates, not on the ground that the latter had been divested of jurisdiction upon the candidates proclamation but on the merits. II. On the merits, the question is whether petitioner had been a resident of Oras, Eastern Samar at least one (1) year before the elections held on May 14, 2001 as he represented in his certificate of candidacy. We find that he had not. First, 39(a) of the Local Government Code (R.A No. 7160) provides: Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (Emphasis added) The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation,"21 but rather to "domicile" or legal residence,22 that is, "the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi)."23 A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice).24

In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien. Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, 1427(a) of the United States Code provides: Requirements of naturalization. Residence (a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. (Emphasis added) In Caasi v. Court of Appeals,25 this Court ruled that immigration to the United States by virtue of a "greencard," which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines. Nor can petitioner contend that he was "compelled to adopt American citizenship" only by reason of his service in the U.S. armed forces.26 It is noteworthy that petitioner was repatriated not under R.A. No. 2630, which applies to the repatriation of those who lost their Philippine citizenship by accepting commission in the Armed Forces of the United States, but under R.A. No. 8171, which, as earlier mentioned, provides for the repatriation of, among others, natural-born Filipinos who lost their citizenship on account of political or economic necessity. In any event, the fact is that, by having been naturalized abroad, he lost his Philippine citizenship and with it his residence in the Philippines. Until his reacquisition of Philippine citizenship on November 10, 2000, petitioner did not reacquire his legal residence in this country. Second, it is not true, as petitioner contends, that he reestablished residence in this country in 1998 when he came back to prepare for the mayoralty elections of Oras by securing a Community Tax Certificate in that year and by "constantly declaring" to his townmates of his intention to seek repatriation and run for mayor in the May 14, 2001 elections.27 The status of being an alien and a non-resident can be waived either separately, when one acquires the status of a resident alien before acquiring Philippine citizenship, or at the same time when one acquires Philippine citizenship. As an alien, an individual may obtain an immigrant visa under 1328 of the Philippine Immigration Act of 1948 and an Immigrant Certificate of Residence (ICR)29 and thus waive his status as a nonresident. On the other hand, he may acquire Philippine citizenship by naturalization under C.A. No. 473, as amended, or, if he is a former Philippine national, he may reacquire Philippine citizenship by repatriation or by an act of Congress,30 in which case he waives not only his status as an alien but also his status as a non-resident alien.

In the case at bar, the only evidence of petitioners status when he entered the country on October 15, 1998, December 20, 1998, October 16, 1999, and June 23, 2000 is the statement "Philippine Immigration [] Balikbayan" in his 1998-2008 U.S. passport. As for his entry on August 5, 2000, the stamp bore the added inscription "good for one year stay."31 Under 2 of R.A. No. 6768 (An Act Instituting a Balikbayan Program), the term balikbayan includes a former Filipino citizen who had been naturalized in a foreign country and comes or returns to the Philippines and, if so, he is entitled, among others, to a "visa-free entry to the Philippines for a period of one (1) year" (3(c)). It would appear then that when petitioner entered the country on the dates in question, he did so as a visa-free balikbayan visitor whose stay as such was valid for one year only. Hence, petitioner can only be held to have waived his status as an alien and as a non-resident only on November 10, 2000 upon taking his oath as a citizen of the Philippines under R.A. No. 8171.32 He lacked the requisite residency to qualify him for the mayorship of Oras, Eastern, Samar. Petitioner invokes the ruling in Frivaldo v. Commission on Elections33 in support of his contention that the residency requirement in 39(a) of the Local Government Code includes the residency of one who is not a citizen of the Philippines. Residency, however, was not an issue in that case and this Court did not make any ruling on the issue now at bar. The question in Frivaldo was whether petitioner, who took his oath of repatriation on the same day that his term as governor of Sorsogon began on June 30, 1995, complied with the citizenship requirement under 39(a). It was held that he had, because citizenship may be possessed even on the day the candidate assumes office. But in the case of residency, as already noted, 39(a) of the Local Government Code requires that the candidate must have been a resident of the municipality "for at least one (1) year immediately preceding the day of the election." Nor can petitioner invoke this Courts ruling in Bengzon III v. House of Representatives Electoral Tribunal.34 What the Court held in that case was that, upon repatriation, a former natural-born Filipino is deemed to have recovered his original status as a natural-born citizen. Third, petitioner nonetheless says that his registration as a voter of Butnga, Oras, Eastern Samar in January 2001 is conclusive of his residency as a candidate because 117 of the Omnibus Election Code requires that a voter must have resided in the Philippines for at least one year and in the city or municipality wherein he proposes to vote for at least six months immediately preceding the election. As held in Nuval v. Guray,35 however, registration as a voter does not bar the filing of a subsequent case questioning a candidates lack of residency. Petitioners invocation of the liberal interpretation of election laws cannot avail him any. As held in Aquino v. Commission on Elections:36 A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself. Fourth, petitioner was not denied due process because the COMELEC failed to act on his motion to be allowed to present evidence. Under 5(d), in relation to 7, of R.A. No. 6646 (Electoral Reforms Law of 1987), proceedings for denial or cancellation of a certificate of candidacy are summary in nature. The holding of a formal hearing is thus not de rigeur. In any event, petitioner cannot claim denial of the right to be heard since he filed a Verified Answer, a Memorandum and a Manifestation,

all dated March 19, 2001, before the COMELEC in which he submitted documents relied by him in this petition, which, contrary to petitioners claim, are complete and intact in the records. III. The statement in petitioners certificate of candidacy that he had been a resident of Oras, Eastern Samar for "two years" at the time he filed such certificate is not true. The question is whether the COMELEC was justified in ordering the cancellation of his certificate of candidacy for this reason. We hold that it was. Petitioner made a false representation of a material fact in his certificate of candidacy, thus rendering such certificate liable to cancellation. The Omnibus Election Code provides: SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. 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. Indeed, it has been held that a candidates statement in her certificate of candidacy for the position of governor of Leyte that she was a resident of Kananga, Leyte when this was not so37 or that the candidate was a "natural-born" Filipino when in fact he had become an Australian citizen38 constitutes a ground for the cancellation of a certificate of candidacy. On the other hand, we held in Salcedo II v. COMELEC39 that a candidate who used her husbands family name even though their marriage was void was not guilty of misrepresentation concerning a material fact. In the case at bar, what is involved is a false statement concerning a candidates qualification for an office for which he filed the certificate of candidacy. This is a misrepresentation of a material fact justifying the cancellation of petitioners certificate of candidacy. The cancellation of petitioners certificate of candidacy in this case is thus fully justified. WHEREFORE, the petition is DISMISSED and the resolution of the Second Division of the Commission on Elections, dated July 19, 2001, and the order, dated January 30, 2002 of the Commission on Elections en banc are AFFIRMED. SO ORDERED.

DIOSCORO O. ANGELIA, petitioner, vs. COMMISSION ON ELECTIONS and FLORENTINO R. TAN, respondents. DECISION MENDOZA, J.: This is a petition for certiorari under Rule 65 of the Rules of Civil Procedure to set aside the resolution, dated August 18, 1998, of the Commission on Elections en banc annulling the proclamation of petitioner as member of the Sangguniang Bayan of Abuyog, Leyte and ordering the Municipal Board of Canvassers of said municipality to make the necessary corrections in the election returns of Precinct Nos. 84-A/84-A-1 and Precinct No. 23-A and, thereafter, proclaim the winning candidate or candidates for the Sangguniang Bayan. Sppedjo The facts of the instant case are as follows: Petitioner Dioscoro O. Angelia and private respondent Florentino R. Tan were candidates for the position of member of the Sangguniang Bayan of Abuyog, Leyte in the elections held on May 11, 1998. After the canvass of votes on May 13, 1998, the Municipal Board of Canvassers proclaimed the following as the duly elected members of the Sangguniang Bayan:[1] Winning Candidates Votes Obtained 1. Placido A. Deloy 2. Emmanuel L. Gaci 3. Edmundo P. Sano8,720 4. Clementino Rudas8,277 5. Francis Raymundo Realino8,173 9,681 9,164

On May 25, 1998, private respondent filed a petition for quo warranto with the Regional Trial Court, Abuyog, Leyte against petitioner, alleging that in Precinct Nos. 84-A/84-A-1, he was credited with only 82 votes, when he actually obtained 92, while in Precinct No. 23-A, petitioner was credited with 18 votes, when he actually garnered only 13 votes. According to private respondent, he actually received a total of 7,771 votes, while petitioner actually garnered 7,760 votes. Misoedp On June 12, 1998 petitioner took his oath and assumed office as member of the Sangguniang Bayan. Mi sedp On June 23, 1998, private respondent filed a motion to withdraw his petition. Subsequently, he filed a petition for annulment of proclamation of petitioner with the COMELEC. He attached to the petition a copy of Election Return No. 3700088 from Precinct Nos. 84-A/84-A-1, which he claims showed a tally of 92 votes for him but indicated a corresponding total in words and figures of only 82 votes.[2] He also submitted a copy of Election Return No. 3700023, which allegedly showed a tally of only 13 votes for petitioner but indicated a corresponding total in words and figures of 18 votes.[3] He presented the affidavit[4] of Alma Duavis, the poll clerk of Precinct Nos. 84-A/84-A-1, stating that she inadvertently entered in Election Return No. 3700088 only 82 instead of 92 as the total number of votes received by private respondent, and the affidavit[5] of Chona Fernando, the poll clerk of Precinct No. 23-A, stating that through oversight, in Election Return No. 3700023, she indicated 18 instead of 13 as the total votes obtained by petitioner. In addition, private respondent submitted to the COMELEC the affidavit[6] of Susan Matugas, the chairperson of the Board of Election Inspectors of Precinct Nos. 84-A/84-A-1, corroborating the affidavit of Duavis. In the resolution, dated August 18, 1998, the COMELEC annulled the proclamation of petitioner as member of the Sangguniang Bayan and ordered the Municipal Board of Canvassers to make the necessary corrections in the election returns from Precinct Nos. 84-A/ 84-A-1 and Precinct No. 23-A and, thereafter, to proclaim the winning candidate or candidates on the basis of the amended results. The resolution of the COMELEC reads: On the basis of the documents thus presented and taking into consideration the admission of the Board of Election Inspectors of Precinct Nos. 84-A and 84-A-1, Barangay Dingle, as well as the Chairman of the BEI of Precinct No. 23, the Commission En Banc hereby RULES to GRANT the Petition. Petitioner had correctly availed of the procedure provided for under Section 5 Rule 27 of the COMELEC Rules which prescribes: "Pre-proclamation controversies which may be filed directly with the Commission - (a) The following pre-proclamation controversies may be filed directly with the Commission: (2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing as .... (3) there had been a mistake in the copying of the figures into the statement of votes or into the certificate of canvass .... and such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidates had already been made." Indeed, the error committed is manifest in that in Resolution No. 2962 (General Instructions for Municipal/City/Provincial and District Boards of Canvassers in Connection with the May 11, 1998 Elections) it was clearly directed: "In case there exist discrepancies in the votes of any candidate in taras/tally as against the votes obtained in words/figures in the same returns/certificate, the votes in taras/tally shall prevail."

6. Carmelita P. Piscos 7,898

7. Marcelo G. Ganoza 7,835

8. Dioscoro O. Angelia 7,765 Private respondent, who received a total of 7,761 votes four votes less than those obtained by petitioner ranked ninth among the candidates. Nexold

Clearly, rectification of the error is called for, if We are to give life to the will of the electorate. Moreover, it is purely administrative and "It does not involve any opening of the ballot box, examination and appreciation of ballots and/or election returns. As said error was discovered after proclamation, all that is required is to convene the board of canvassers to rectify the error it inadvertently committed in order that the true will of the voters will be effected." (Tatlonghari vs. Commission on Elections, 199 SCRA 849) WHEREFORE, premises considered, the Commission En Banc hereby ANNULS the proclamation of Dioscoro Angelia, the same being based on an erroneous tally and DIRECTS the Municipal Board of Canvassers of Abuyog, Leyte, to RECONVENE within five (5) days from receipt hereof and effect the corrections in the total number of votes received by the candidates in Precinct Nos. 84-A/84-A-1 (clustered) and Precinct No. 23-A and thereafter PROCLAIM the winning candidate/s for Municipal Kagawad based on the corrected results. Accordingly, the Municipal Board of Canvassers reconvened on September 1, 1998 and, after making the necessary corrections in the election returns, proclaimed private respondent a member of the Sangguniang Bayan. Ed p Petitioner filed a motion for reconsideration alleging that he was not given due notice and hearing. Then, without waiting for the resolution of his motion, he filed the instant petition for certiorari, alleging, as the sole assignment of error, the following: WITH DUE RESPECT, PUBLIC RESPONDENT COMELEC GRAVELY ERRED AND VIOLATED PETITIONERS CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN IT PASSED THE AUGUST 18, 1998 RESOLUTION ANNULLING HIS PROCLAMATION AND RECONVENING THE MUNICIPAL BOARD OF CANVASSERS WITHOUT PRIOR NOTICE AND HEARING. The petition has no merit and should be dismissed, but before we do so, certain preliminary questions raised by the parties must first be disposed of. Edp sc First. Respondents contend that the instant petition should be dismissed for being premature, because petitioner has a pending motion for reconsideration of the resolution, dated August 18, 1998, of the COMELEC. We hold that petitioner acted correctly in filing the present petition because the resolution of the COMELEC in question is not subject to reconsideration and, therefore, any party who disagreed with it had only one recourse, and that was to file a petition for certiorari under Rule 65 of the Rules of Civil Procedure.[7] Rule 13, 1 of the COMELEC Rules of Procedure provides: What Pleadings are Not Allowed. The following pleadings are not allowed: d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases As the case before the COMELEC did not involve an election offense, reconsideration of the COMELEC resolution was not possible and petitioner had no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. For him to wait until the COMELEC denied his motion would be to allow the reglementary period for filing a petition for certiorari with this Court to run and expire. Sce dp

The COMELEC contends that petitioner should not be allowed to speculate on the outcome of his motion for reconsideration, which he has not formally withdrawn. Indeed, it would have been more appropriate for petitioner to first withdraw his motion for reconsideration in the COMELEC before filing the present petition. Nevertheless, the filing by petitioner of the instant petition and his reply to the comments of respondents where he admitted that, except in cases involving election offenses, a motion for reconsideration of a decision of the COMELEC en banc is a prohibited pleading[8] sufficiently indicated his intention to abandon his motion for reconsideration. Calrsp ped Second. Petitioner alleges that private respondent failed to serve him a copy of the petition for annulment of proclamation filed with the COMELEC. In reply, private respondent submitted the registry receipt and the return card[9] to prove that a copy of the said petition was received on June 26, 1998 by a certain Tudila M. Angelia on behalf of petitioner. Petitioner admits the receipt of said mail, but avers that it did not contain a copy of the petition for annulment of proclamation in the COMELEC but of the petition for quo warranto filed by private respondent in the Regional Trial Court, Abuyog, Leyte.[10] As private respondent points out, however, the petition for quo warranto was filed by his former counsel, the Martinez & Martinez Law Office, and a copy of said petition was already sent to petitioner. On the other hand, the petition for annulment of proclamation was filed by his new counsel, the Astorga & Macamay Law Office. Since a copy of the petition for quo warranto had previously been served on petitioner, there could be no reason for private respondents new counsel to serve it again on petitioner. Petitioner likewise claims that private respondent engaged in forum-shopping because, after filing a petition for quo warranto with the Regional Trial Court, Abuyog, Leyte, private respondent filed the present petition for annulment of proclamation with the COMELEC. This contention is bereft of merit. First, private respondent withdrew the quo warranto case before filing the petition for annulment of proclamation. Second, while the filing of a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy, this principle admits of several exceptions, such as when such petition is not the proper remedy.[11] Under 253 of the Omnibus Election Code, the grounds for a petition for quo warranto are ineligibility or disloyalty to the Republic of the Philippines of the respondent. Since in the present case, private respondent alleged the existence of manifest errors in the preparation of election returns, clearly, the proper remedy is not a petition for quo warranto but a petition for annulment of proclamation. Sccal r Third. Petitioner further contends that he was denied procedural due process because the COMELEC issued its resolution without notice and hearing. Indeed, it appears that the Municipal Board of Canvassers and the COMELEC did not comply with the procedure that should have been followed in the instant case. C alrsc In Castromayor v. COMELEC,[12] the returns from a precinct were overlooked by the Municipal Board of Canvassers in computing the total number of votes obtained by the candidates for the position of member of the Sangguniang Bayan, for which reason the COMELEC directed the Municipal Board of Canvassers to make the necessary corrections. We held that, as the case involved a manifest error, although the COMELEC erred in annulling the proclamation of petitioner without notice and hearing, the expedient course of action was for the Municipal Board of Canvassers to reconvene and, after notice and hearing in accordance with Rule 27, 7 of the COMELEC Rules of Procedure, to effect the necessary corrections on the certificate of canvass and proclaim the winning candidate or candidates on the basis thereof.

Said Rule 27, 7 of the COMELEC Rules of Procedure states: Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. (a) Where it is clearly shown before proclamation that manifest errors were committed in the tabulation or tallying of election returns, or certificates of canvass, during the canvassing as where (1) a copy of the election returns of one precinct or two or more copies of a certificate of canvass were tabulated more than once, (2) two copies of the election returns or certificate of canvass were tabulated separately, (3) there was a mistake in the adding or copying of the figures into the certificate of canvass or into the statement of votes by precinct, or (4) so-called election returns from nonexistent precincts were included in the canvass, the board 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. (b) The order for correction must be made in writing and must be promulgated. (c) Any candidate, political party, organization or coalition of political parties aggrieved by said order may appeal therefrom to the Commission within twenty-four (24) hours from the promulgation. (d) Once an appeal is made, the board of canvassers shall not proclaim the winning candidates, unless their votes are not affected by the appeal. (e) The appeal must implead as respondents the Board of Canvassers concerned and all parties who may be adversely affected thereby. (f) Upon receipt of the appeal, the Clerk of Court concerned shall forthwith issue summons, together with a copy of the appeal, to the respondents. (g) The Clerk of Court concerned shall immediately set the appeal for hearing. (h) The appeal shall be heard and decided by the Commission en banc. This case likewise involves manifest errors. Election Return No. 3700088 from Precinct Nos. 84A/84-A-1 is claimed to show 92 votes in favor of private respondent but indicate a total in words and figures of only 82 votes. On the other hand, Election Return No. 3700023 allegedly shows 13 votes for petitioner but indicates in words and figures 18 votes. These discrepancies can be easily resolved without opening the ballot boxes and recounting the ballots. COMELEC Resolution No. 2962 provides that "in case there exist discrepancies in the votes of any candidate in taras/tally as against the votes obtained in words/figures in the same returns/certificates, the votes in taras/tally shall prevail." Sppedsc In the present case, although the COMELEC annulled the proclamation of petitioner, it merely directed the Municipal Board of Canvassers to "RECONVENE within five (5) days from receipt hereof and effect the corrections in the total number of votes received by the candidates in Precinct Nos. 84-A/84-A-1 (clustered) and Precinct No. 23-A and thereafter PROCLAIM the winning candidate/s for Municipal Kagawad based on the corrected results." It was the Municipal Board of Canvassers which the COMELEC ordered to actually effect the necessary corrections, if any, in the said election returns and, on the basis thereof, proclaim the winning candidate or candidates as member or members of the Sangguniang Bayan. In accordance with our ruling in Castromayor, the expedient action to take is to direct the Municipal Board of Canvassers to reconvene and, after notice and

hearing in accordance with Rule 27, 7 of the COMELEC Rules of Procedure, to effect the necessary corrections, if any, in the election returns and, on the basis thereof, proclaim the winning candidate or candidates as member or members of the Sangguniang Bayan. S djad WHEREFORE, the en banc resolution, dated August 18, 1998 of the Commission on Elections is AFFIRMED with the MODIFICATION that the Municipal Board of Canvassers of Abuyog, Leyte is ordered to reconvene and, after notice to the parties and hearing in accordance with Rule 27, 7 of the COMELEC Rules of Procedure, to effect the necessary corrections, if any, in Election Return No. 3700088 from Precinct Nos. 84-A/84-A-1 and Election Return No. 3700023 from Precinct No. 23-A and, based on the amended results, proclaim the winning candidate or candidates as member or members of the Sangguniang Bayan of said municipality. SO ORDERED.

G.R. No. L-31455 February 28, 1985 FILIPINAS ENGINEERING AND MACHINE SHOP, petitioner,

Sample 2 same in construction as sample 1, except that its siding and top cover is made of plywood (or lawanit if available). 33.5 kilos in weight. Packed in wooden box. 2 P123.0

vs. Same as sample 2, except that it is packed in corrogated carton box. HON. JAIME N. FERRER, LINO PATAJO and CESAR MIRAFLOR as Commissioners of the Commission on Elections; COMELEC BIDDING COMMITTEE CHAIRMAN EMILIO AGUILA and MEMBERS PACIENCIO BALLON, ALEJANDRO MACARANAS, TOMAS MALLONGA and ERNESTO LOMBOS; HON. JUDGE JOSE LEUTERIO of the Court of First Instance of Manila, Branch 11 and ACME STEEL MANUFACTURING COMPANY, respondents Acme's bid was Prices Per Unit Brief Description P78.00 CUEVAS, J.: Appeal by certiorari from the Order dated November 15, 1969 issued by the respondent Judge of the then Court of First Instance of Manila, Branch II, DISMISSING Civil Case No. 77972 entitled, "Filipinas Engineering and Machine Shop vs. COMELEC, et al.", and his Honor's subsequent Order of December 20, 1969 DENYING petitioner's motion for reconsideration. In preparation for the national elections of November 11, 1969, then respondent Commissioners of the Commission on Elections (COMELEC) issued an INVITATION TO BID CALL No. 127 on September 16, 1969 calling for the submission of sealed proposals for the manufacture and delivery of 1 1,000 units of voting booths with the following specifications and descriptions, to wit: 11,000 Units VOTING BOOTHS, easy to install and store. Must be of light but strong and durable materials, rust proof or rust resistant and construction must be sturdy. Each Unit shall consists of two (2) voting booths with overall measurements of 150 cms. long x 75 cms. wide x 185 cms. high. (Each voting booth or compartment measuring 75 cms. long x 75 cms. wide x 185 cms. high). The top and all sides except the front side, shall be fully covered. The front side of the unit shall be without cover to serve as its opening (entrance). Each voting compartment shall be provided with a writing table. Each unit shall be contained in individual wooden box. Bidders are required to submit finished sample. 1 Among the seventeen bidders who submitted proposals in response to the said INVITATION were the herein petitioner, Filipinos Engineering and Machine Shop, (Filipinas for short) and the private respondent, Acme Steel Manufacturing Company, (Acme for short). Filipinas' sealed proposal was as follows: Prces Per Unit Brief Description P128.00 Hence, the instant appeal. Made of steel, channel type frames with steel sheet sidings, top cover and table; painted, 51 kilos in weight. 3 On October 7, 1969, the respondent COMELEC Bidding Committee Chairman and Members submitted their Memorandum on the proceedings taken pursuant to the said Invitation to Bid which stated that Acme's bid had to be rejected because the sample it submitted was "made of black iron sheets, painted, and therefore not rust proof or rust resistant," and that, "it is also heavy 51 kilos in weight. 4 The Committee instead recommended that Filipinas be awarded the contract to manufacture and supply the voting booths, but that an "ocular inspection be made by all members of the Commission of all the samples before the final award be made." 5 On October 9, 1969, after an ocular inspection of all the samples submitted was conducted by the COMELEC Commissioners, and after the Commissioners noted that Acme submitted the lowest bid, the COMELEC issued a Resolution awarding the contract (for voting booths) to Acme, subject to the condition, among others, that "(Acme) improves the sample submitted in such manner as it would be rust proof or rust resistant. ... ." 6 On October 11, 1969, the COMELEC issued Purchase Order No. 682 for the manufacture and supply of the 11,000 Units of voting booths in favor of Acme. Acme accepted the terms of the purchase. On October 16, 1969, Filipinas filed an Injunction suit with the then Court of First Instance of Manila, docketed as Civil Case No. 77972, against herein public respondents COMELEC Commissioners, chairman and members of the Comelec Bidding Committee, and private respondent Acme. Filipinas also applied for a writ of preliminary injunction. After hearing petitioner's said application, the respondent Judge in an order dated October 20, 1969 denied the writ prayed for. 7 Thereafter or more specifically on October 29, 1969, the public respondents filed a motion to Dismiss on the grounds that the lower court has no jurisdiction over the nature of suit, and that the complaint states no cause of action. 8 Acting on the motion (to dismiss), the respondent Judge issued the questioned Order dismissing Civil Case No. 77972. Filipinas' motion for reconsideration was denied for lack of merit.

In the meantime, since no restraining order had been issued against the holding of the national elections scheduled on November 11, 1969, Acme complied with its contract with the COMELEC. On this score alone, this petition should be dismissed for being moot and academic. Considering however the nature and importance of the legal questions raised, We have opted to discuss and resolve the same with finality. Two main issues are raised before Us, namely: 1. Whether or not the lower court has jurisdiction to take cognizance of a suit involving an order of the COMELEC dealing with an award of contract arising from its invitation to bid; and 2. Whether or not Filipinas, the losing bidder, has a cause of action under the premises against the COMELEC and Acme, the winning bidder, to enjoin them from complying with their contract. We resolve the first issue in the affirmative. By constitutional mandateThe Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions affecting elections, including the determination of the number of location of Polling places, and the appointment of election inspectors and of other election officials. ... The decisions, orders and rulings of the Commission shall be subject to review by the Supreme Court. (Section 2, Article X, 1935 Philippine Constitution, which was then in force) Section 5 of the Revised Election Code (Republic Act No. 180, approved June 21, 1947, the election law then enforced) provided that, "(a) any controversy submitted to the Commission on Elections shall be tried, heard and decided by it within fifteen days counted from the time the corresponding petition giving rise to said controversy is filed," and that, "any violation of any final and executory decision, order, or ruling of the Commission shall" constitute contempt of court Likewise, the same section provided that, "any decision, order or ruling of the Commission on Elections may be reviewed by the Supreme Court by writ of certiorari in accordance with the Rules of Court or with such rules as may be promulgated by the Supreme Court. Similarly, Section 17(5) of the Judiciary Act of 1948 (Republic Act No. 296), as amended, provides that, "final awards, judgments, decisions or orders of the Commission on Elections ..." fall within the exclusive jurisdiction of the Supreme Court by way of certiorari. Section 1, Rule 43 of the 1964 Revised Rules of Court prescribed the manner of appeal by certiorari to the Supreme Court from a final ruling or decision of the Commission on Elections, among other administrative bodies. Hence it has been consistently held 9 that it is the Supreme Court, not the Court of First Instance, which has exclusive jurisdiction to review on certiorari final decisions, orders or rulings of the COMELEC relative to the conduct of elections and enforcement of election laws. We are however, far from convince that an order of the COMELEC awarding a contract to a private party, as a result of its choice among various proposals submitted in response to its invitation to bid

comes within the purview of a "final order" which is exclusively and directly appealable to this court on certiorari. What is contemplated by the term "final orders, rulings and decisions" of the COMELEC reviewable by certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers.

It cannot be gainsaid that the powers vested by the Constitution and the law on the Commission on Elections may either be classified as those pertaining to its adjudicatory or quasi-judicial functions, or those which are inherently administrative and sometimes ministerial in character.

Thus in the case of Masangcay vs. Commission on Elections, G.R. No. L-13827, September 28, 1962 (6 SCRA 27, 2829), We held that ... (W)e had the occasion to stress in the case of Guevarra vs. Commission on Elections (G.R. No. L12596, July 31, 1958) that under the law and the constitution, the Commission on Elections has not only the duty to enforce and administer all laws relative to the conduct of elections, but also the power to try, hear and decide any controversy that may be submitted to it in connection with the elections. In this sense, We said the Commission, although it cannot be classified as a court of justice within the meaning of the Constitution (Sec. 30, Article VIII), for it is merely an administrative body, may, however, exercise quasi-judicial functions insofar as controversies that by express provision of law come under its jurisdiction. The difficulty lies in drawing the demarcation line between the duty which inherently is administrative in character and a function which calls for the exercise of the quasi-judicial function of the Commission. In the same case, we also expressed the view that when the Commission exercises a ministerial function it cannot exercise the power to punish for contempt because such power is inherently judicial in nature. ... . We agree with petitioner's contention that the order of the Commission granting the award to a bidder is not an order rendered in a legal controversy before it wherein the parties filed their respective pleadings and presented evidence after which the questioned order was issued; and that this order of the commission was issued pursuant to its authority to enter into contracts in relation to election purposes. In short, the COMELEC resolution awarding the contract in favor of Acme was not issued pursuant to its quasi-judicial functions but merely as an incident of its inherent administrative functions over the conduct of elections, and hence, the said resolution may not be deemed as a "final order" reviewable by certiorari by the Supreme Court. Being non-judicial in character, no contempt may be imposed by the COMELEC from said order, and no direct and exclusive appeal by certiorari to this Tribunal lie from such order. Any question arising from said order may be well taken in an ordinary civil action before the trial courts. On the second issue, We rule that Filipinas, the losing bidder, has no cause of action under the premises to enjoin the COMELEC from pursuing its contract with Acme, the winning bidder. While it may be true that the lower court has the jurisdiction over controversies dealing with the COMELEC's award of contracts, the same being purely administrative and civil in nature, nevertheless, herein petitioner has no cause of action on the basis of the allegations of its complaint.

Indeed, while the law requires the exercise of sound discretion on the part of procurement authorities, 10 and that the reservation to reject any or all bids may not be used as a shield to a fraudulent award, 11 petitioner has miserably failed to prove or substantiate the existence of malice or fraud on the part of the public respondents in the challenged award. The COMELEC's Invitation to Bid No. 127, dated September 16, 1969, expressly stipulates 8. AWARD OF CONTRACT

In Leoquinco vs. Postal Savings Bank, 47 Phil. 772, 774775, this Court held: ... (A)ppellant set forth and admitted in his pleadings in the regulation adopted by the Board of Directors authorizing the sale at public auction of the land, as well as the notice announcing the auction that appellant had expressly reserved to themselves the right to reject any and all bids. By taking part in the auction and offering his bid, the appellant voluntarily submitted to the terms and conditions of the auction sale announced in the notice, and clearly acknowledged the right reserved to the appellees. The appellees, making use of that right, rejected his offer. Clearly the appellant has no ground of action to compel them to execute a deed of sale of the land in his favor, nor to compel them to accept his bid or offer. ... . In issuing the resolution awarding the contract for voting booths in Acme's favor, the Commissioners of the COMELEC had taken into account that Acme's bid was the lowest; that Acme was a responsible manufacturer; and that upon an ocular inspection of the samples submitted by the bidders, Acme's sample was favorable chosen subject to certain conditions cited in the resolution. In fine, the public respondents properly exercised its sound discretion in making the award.

Subject to the rights herein reserved, award shall be made by the Commission by resolution to the lowest and responsible bidder whose Offer will best serve the interest of the Commission on Elections. The resolution of the Commission shag be communicated in writing to the winning bidder. The winning bidder or awardees shall enter into contract with the Commission on Elections for the supply of the voting booths under the terms and conditions embodied in the Invitation to Bid. THE COMMISSION ON ELECTIONS RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS; TO WAIVE ANY INFORMATION THEREIN; OR TO ACCEPT SUCH BID AS MAY IN ITS DISCRETION BE CONSIDERED MOST REASONABLE AND ADVANTAGEOUS. The right is also reserved to reject bids which are defective due to inadequate preparation, omission or lacks sufficient data, guarantee and other information required to be submitted, or bids without the accompanying bond. The right is further reserved to reject the bid of a bidder who had previously failed to perform properly or to deliver on nine materials covered by contract of similar nature. 14. THIS CALL FORBIDS IS NO MORE THAN AN INVITATION TO MAKE PROPOSALS AND THE COMMISSION ON ELECTIONS IS NOT BOUND TO ACCEPT ANY BID, NOR SHALL THIS CALL FOR BIDS BY ITSELF CONFER A RIGHT TO ANY BIDDER TO ACTION FOR DAMAGES OR UNREALIZED OR EXPECTED PROFITS UNLESS THE BID IS DULY ACCEPTED BY THERE SOLUTION OF THE COMMISSION ON ELECTIONS. 12 (Emphasis supplied) The "Bidders Tender Call No. 127", the form accomplished by the bidder pursuant to Invitation to Bid No. 127, also categorically provide that the bidder submits his proposals "subject to the conditions stated in the invitation." 13 It is crystal clear from the aforequoted conditions, that subject to the rights of the COMELEC duly reserved in the said Invitation, award shall be made to the lowest and responsible bidder whose offer will best serve the interest of the COMELEC; that the COMELEC had reserved the right, among others, to accept such bid, as may in its discretion, be considered most reasonable and advantageous; and that the invitation was merely a call for proposals. Consequently, the COMELEC was not under legal obligation to accept any bid since "Advertisements for bidders are simply invitation to make proposals and the advertiser is not bound to accept the highest or lowest bidder, unless the contrary appears." 14 Pursuant to COMELEC's Invitation to Bid No. 127, a bidder may have the right to demand damages, or unrealized or expected profits, only when his bid was accepted by resolution of the COMELEC. Filipinas' bid, although recommended for award of contract by the bidding committee, was not the winning bid. No resolution to that effect appeared to have been issued by the COMELEC. Decidedly then, Filipinas has no cause of action.

Once more, We reiterate the dictum earlier laid down in the case of Jalandoni vs. National Resettlement and Rehabilitation Administration, et al., G.R. No. L-15198, May 30,1960 (108 Phil, 486, 491-492) that Neither can it be contended that the fact that appellant gave the lowest quotation, which was favorably indorsed by the Committee on Bids, created a vested right in favor of the said bidder. Admittedly, the offers were rejected by the Board of Directors. It is clear therefore that there having no meeting of the minds of the parties, there was no perfected contract between them which could be the basis of action against the defendants-appellees. The presentation by a reliable and responsible bidder of the lowest bid to officials whose duty it is to let the contract to the lowest reliable and responsible bidder, but who have the right and have given notice that they reserve the right to reject any and an bids, does not constitute an agreement that they will make a contract with such a bidder, nor vest in him such an absolute right to the contract as against a higher bidder (Colorado Paving Co. vs, Murphy, (CCA 8th) 78 F. 28, 37 LRA 630). The mere determination of a public official or board to accept the proposal of a bidder does not constitute a contract (Smithmeyer vs. United States, 147 U.S. 342, 37 L, ed. 196,13 S. Ct. 321); the decision must be communicated to the bidder (Cedar Rapids Lumber Co. vs. Fischer, 129 Iowa 332,105 N.W. 595,4 LRA (NS) 177). No contractual relation can arise merely from a bid, unless by the terms of the statute and the advertisement, a bid in pursuance thereof is, as a matter of law, an acceptance of an offer, wholly apart from any action on the part of the municipality or any of its officers (Molloy vs. Rochelle, supra). WHEREFORE, finding the instant petition to be without merit aside from being moot and academic, the same is hereby DISMISSED. No pronouncement as to costs.

SO ORDERED.

LUCITA Q. GARCES, petitioner, vs. THE HONORABLE COURT OF APPEALS, SALVADOR EMPEYNADO and CLAUDIO CONCEPCION, respondents. RESOLUTION FRANCISCO, J.: 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 RTCs dismissal of the case. Hence, this petition. The issues raised are purely legal. First, is petitioners 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] 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 Concepcions 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] Concepcions 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] Corollarily, Concepcions 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. [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.

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 petitioners 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 ones 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 Tulawies appointment was confirmed by the higher authorities making his claim to the disputed position clear and certain. Tulawies 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 petitioners 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 COMELECs 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 COMELECs 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 COMELECs 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] 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.

TUPAY T. LOONG, petitioner, vs. COMMISSION ON ELECTIONS and ABDUSAKUR TAN, respondents, YUSOP JIKIRI, intervenor. DECISION PUNO, J.:

"In the matter of the Petition dated May 12, 1998 of Abdusakur Tan, Governor, Sulu, to suspend or stop counting of ballots through automation (sic) machines for the following grounds, quoted to wit '1.. The Election Returns for the Municipality of Pata, Province of Sulu-District II do not reflect or reveal the mandate of the voters: 'DISCUSSIONS

In a bid to improve our elections, Congress enacted R.A. No. 8436 on December 22, 1997 prescribing the adoption of an automated election system. The new system was used in the May 11, 1998 regular elections held in the Autonomous Region in Muslim Mindanao (ARMM) which includes the Province of Sulu. Atty. Jose Tolentino, Jr. headed the COMELEC Task Force to have administrative oversight of the elections in Sulu. The voting in Sulu was relatively peaceful and orderly.[1] The problem started during the automated counting of votes for the local officials of Sulu at the Sulu State College. At about 6 a.m. of May 12, 1998, some election inspectors and watchers informed Atty. Tolentino, Jr. of discrepancies between the election returns and the votes cast for the mayoralty candidates in the municipality of Pata. Some ballots picked at random by Atty. Tolentino, Jr. confirmed that votes in favor of a mayoralty candidate were not reflected in the printed election returns. He suspended the automated counting of ballots in Pata and immediately communicated the problem to the technical experts of COMELEC and the suppliers of the automated machine. After consultations, the experts told him that the problem was caused by the misalignment of the ovals opposite the names of candidates in the local ballots. They found nothing wrong with the automated machines. The error was in the printing of the local ballots, as a consequence of which, the automated machines failed to read them correctly. [2] At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency meeting of the local candidates and the military-police officials overseeing the Sulu elections. Those who attended were the various candidates for governor, namely, petitioner Tupay Loong, private respondent Abdusakur Tan, intervenor Yusop Jikiri and Kimar Tulawie. Also in attendance were Brig. Gen. Edgardo Espinosa, AFP, Marine forces, Southern Philippines, Brig. Gen. Percival Subala, AFP, 3rd Marine Brigade, Supt. Charlemagne Alejandrino, Provincial Director, Sulu, PNP Command and congressional candidate Bensandi Tulawie.[3] The meeting discussed how the ballots in Pata should be counted in light of the misaligned ovals. There was lack of agreement. Those who recommended a shift to manual count were Brig. Generals Espinosa and Subala, PNP Director Alejandrino, gubernatorial candidates Tan and Tulawie and congressional candidate Bensandi Tulawie. Those who insisted on an automated count were gubernatorial candidates Loong and Jikiri. In view of their differences in opinion, Atty. Tolentino, Jr. requested the parties to submit their written position papers.[4] Reports that the automated counting of ballots in other municipalities in Sulu was not working well were received by the COMELEC Task Force. Local ballots in five (5) municipalities were rejected by the automated machines. These municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots were rejected because they had the wrong sequence code.[5] Private respondent Tan and Atty. Tolentino, Jr. sent separate communications to the COMELEC en banc in Manila. Still, on May 12, 1998, Tan requested for the suspension of the automated counting of ballots throughout the Sulu province.[6] On the same day, COMELEC issued Minute Resolution No. 98-1747 ordering a manual count but only in the municipality of Pata. The resolution reads:[7]

'That the watchers called the attention of our political leaders and candidates regarding their discovery that the election returns generated after the last ballots for a precinct is scanned revealed that some candidates obtained zero votes, among others the Provincial Board Members, Mayor, Vice-Mayor, and the councilors for the LAKAS-NUCD-UMDP; 'That the top ballot, however, reveals that the ballots contained votes for Anton Burahan, candidate for Municipal Mayor while the Election Return shows zero vote; 'That further review of the Election Return reveals that John Masillam, candidate for Mayor under the LAKAS-NUCD-UMDP-MNLF obtains (sic) 100% votes of the total number of voters who actually voted; 'The foregoing discrepancies were likewise noted and confirmed by the chairmen, poll clerks and members of the Board of Election Inspectors (BEI) such as Rena Jawan, Matanka Hajirul, Dulba Kadil, Teddy Mirajuli, Rainer Talcon, Mike Jupakal, Armina Akmad, Romulo Roldan and Lerma Marawali to mention some; 'The Pata incident can be confirmed by no less than Atty. Jose Tolentino, Head, Task Force Sulu, whose attention was called regarding the discrepancies; 'The foregoing is a clear evidence that the automated machine (scanner) cannot be relied upon as to truly reflect the contents of the ballots. If such happened in the Municipality of Pata, it is very possible that the same is happening in the counting of votes in the other municipalities of this province. If this will not be suspended or stopped, the use of automated machines will serve as a vehicle to frustrate the will of the sovereign people of Sulu; 'Wherefore, the foregoing premises considered and in the interest of an honest and orderly election, it is respectfully prayed of this Honorable Commission that an Order be issued immediately suspending or stopping the use of the automated machine (scanner) in the counting of votes for all the eighteen (18) municipalities in the Province of Sulu and in lieu thereof, to avoid delay, counting be done through the usual way known and tested by us.' "While the commission does not agree with the conclusions stated in the petition, and the failure of the machine to read the votes may have been occasioned by other factors, a matter that requires immediate investigation, but in the public interest, the Commission, 'RESOLVED to grant the Petition dated May 12, 1998 and to Order that the counting of votes shall be done manually in the Municipality of PATA, the only place in Sulu where the automated machine failed to read the ballots, subject to notice to all parties concerned."' Before midnight of May 12,1998, Atty. Tolentino, Jr. was able to send to the COMELEC en banc his report and recommendation, urging the use of the manual count in the entire Province of Sulu, viz: [8]

"The undersigned stopped the counting in the municipality of Pata since he discovered that votes for a candidate for mayor was credited in favor of the other candidate. Verification with the Sulu Technical Staff, including Pat Squires of ES & S, reveals that the cause of the error is the way the ballot was printed. Aside from misalignment of the ovals and use of codes assigned to another municipality (which caused the rejection of all local ballots in one precinct in Talipao), error messages appeared on the screen although the actual condition of the ballots would have shown a different message. Because of these, the undersigned directed that counting for all ballots in Sulu be stopped to enable the Commission to determine the problem and rectify the same. It is submitted that stopping the counting is more in consonance with the Commission's mandate than proceeding with an automated but inaccurate count. "In view of the error discovered in Pata and the undersigned's order to suspend the counting, the following documents were submitted to him. "1. Unsigned letter dated May 12, 1998 submitted by Congressman Tulawie for manual counting and canvassing; "2. Petition of Governor Sakur Tan for manual counting; "3. Position paper of Tupay Loong, Benjamin Loong and Asani Tamang for automated count; "4. MNLF Position for automated count; and "5. Recommendation of General E.V. Espinosa, General PM Subala, and PD CS Alejandrino for manual count; "Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely intended to tame a disorderly crowd, inside and outside SSC, or a show of force. "It is submitted that since an error was discovered in a machine which is supposed to have an error rate of 1: 1,000,000, not a few people would believe that this error in Pata would extend to the other municipalities. Whether or not this is true, it would be more prudent to stay away from a lifeless thing that has sown tension and anxiety among and between the voters of Sulu. Respectfully submitted: 12 May 1998 (Sgd.) JOSE M. TOLENTINO, JR." The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving Atty. Tolentino, Jr.'s recommendation and the manner of its implementation as suggested by Executive Director Resurreccion Z. Borra. The Resolution reads:[9] "In the matter of the Memorandum dated 13 May 1998 of Executive Director Resurreccion Z. Borra, pertinent portion of which is quoted as follows: "In connection with Min. Res. No. 98-1747 promulgated May 12, 1998 which resolved to order that the counting of votes shall be done manually in the municipality of Pata, the only place in Sulu

where the automated counting machine failed to read the ballots, subject to notice to all parties concerned, please find the following: "1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force Head, Sulu, addressed to the Executive Director on the subject counting and canvassing in the municipality of Pata due to the errors of the counting of votes by the machine brought about by the error in the printing of the ballot, causing misalignment of ovals and use of codes assigned to another municipality. He recommended to revert to the manual counting of votes in the whole of Sulu. He attached the stand of Congressman Tulawie, Governor Sakur Tan and recommendation of Brigadier General Edgardo Espinosa, General Percival Subla, P/Supt. Charlemagne Alejandrino for manual counting. The position paper of former Governor Tupay Loong, Mr. Benjamin Loong and Mr. Asani S. Tammang, who are candidates for Governor and Congressman of 1st and 2nd Districts respectively, who wanted the continuation of the automated counting. "While the forces of AFP are ready to provide arm (sic) security to our Comelec officials, BEIs and other deputies, the political tensions and imminent violence and bloodshed may not be prevented, as per report received, the MNLF forces are readying their forces to surround the venue for automated counting and canvassing in Sulu in order that the automation process will continue. "Director Borra recommends, that while he supports Minute Resolution No. 98-1747, implementation thereof shall be done as follows: "1. That all the counting machines from Jolo, Sulu be transported back by C130 to Manila and be located at the available space at PICC for purposes of both automated and manual operations. This approach will keep the COMELEC officials away from violence and bloodshed between the two camps who are determined to slug each other as above mentioned in Jolo, Sulu. Only authorized political party and candidate watchers will be allowed in PICC with proper security, both inside and outside the perimeters of the venue at PICC. "2. With this process, there will be an objective analysis and supervision of the automated and manual operations by both the MIS and Technical Expert of the ES & S away from the thundering mortars and the sounds of sophisticated heavy weapons from both sides of the warring factions. "3. Lastly, it will be directly under the close supervision and control of Commission on Elections En Banc. "RESOLVED: "1. To transport all counting machines from Jolo, Sulu by C130 to Manila for purposes of both automated and manual operations, with notice to all parties concerned; "2. To authorize the official travel of the board of canvassers concerned for the conduct of the automated and manual operations of the counting of votes at PICC under the close supervision and control of the Commission En Banc. For this purpose, to make available a designated space at the PICC; "3. To authorize the presence of only the duly authorized representative of the political parties concerned and the candidates watchers both outside and inside the perimeters of the venue at PICC."

Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution No. 98-1750 and called for another meeting the next day, May 14, 1998, to discuss the implementation of the resolution.[10] The meeting was attended by the parties, by Lt. Gen. Joselin Nazareno, then the Chief of the AFP Southern Command, the NAMFREL, media, and the public. Especially discussed was the manner of transporting the ballots and the counting machines to the PICC in Manila. They agreed to allow each political party to have at least one (1) escort/ watcher for every municipality to acompany the flight. Two C130s were used for the purpose.[11] On May 15, 1998, the COMELEC en banc issued Minute Resolution No. 98-1796 laying down the rules for the manual count, viz:[12] "In the matter of the Memorandum dated 15 May 1998 of Executive Director Resurreccion Z. Borra, quoted to wit: 'In the implementation of COMELEC Min. Resolution No. 98-1750 promulgated 13 May 1998 in the manual counting of votes of Pata, Sulu, and in view of the arrival of the counting machines, ballot boxes, documents and other election paraphernalia for the whole province of Sulu now stored in PICC, as well as the arrival of the Municipal Board of Canvassers of said Municipality in Sulu, and after conference with some members of the Senior Staff and Technical Committee of this Commission, the following are hereby respectfully recommended: '1. Manual counting of the local ballots of the automated election system in Pata, Sulu;

Ms. Ma. Carmen Llamas e) Director Estrella P. de Mesa Ms. Teresita Velasco Ms. Nelly Jaena '4. Additional Special Board of Inspectors may be created when necesary.

'5. The Provincial Board of Canvassers which by standing Resolution is headed by the Task Force Sulu Head shall consolidate the manual and automated results as submitted by the Municipal Boards of Canvassers of the whole province with two members composed of Directors Estrella P. de Mesa and Ester L. Villaflor-Roxas; '6. The political parties and the candidates in Sulu as well as the Party-List Candidates are authorized to appoint their own watchers upon approval of the Commission', 'RESOLVED to approve the foregoing recommendations in the implementation of Min. Resolution No. 98-1750 promulgated on 13 May 1998 providing for the manual counting of votes in the municipality of Pata, Sulu. 'RESOLVED, moreover, considering the recommendation of Comm. Manolo B. Gorospe, Commissioner-In-Charge, ARMM, to conduct a parallel manual counting on all 18 municipalities of Sulu as a final guidance of the reliability of the counting machine which will serve as basis for the proclamation of the winning candidates and for future reference on the use of the automated counting machine."' On May 18, 1998, petitioner filed his objection to Minute Resolution No. 98-1796, viz:[13] "1. The minute resolution under agenda No. 98-1796 violates the provisions of Republic Act No. 8436 providing for an automated counting of the ballots in the Autonomous Region in Muslim Mindanao. The automated counting is mandatory and could not be substituted by a manual counting. Where the machines are allegedly defective, the only remedy provided for by law is to replace the machine. Manual counting is prohibited by law; "2. There are strong indications that in the municipality of Pata the ballots of the said municipality were rejected by the counting machine because the ballots were tampered and/or the texture of the ballots fed to the counting machine are not the official ballots of the Comelec; "3. The automated counting machines of the Comelec have been designed in such a way that only genuine official ballots could be read and counted by the machine; "4. The counting machines in the other municipalities are in order. In fact, the automated counting has already started. The automated counting in the municipalities of Lugus and Panglima Tahil has been completed. There is no legal basis for the 'parallel manual counting' ordained in the disputed minute resolution." Nonetheless, COMELEC started the manual count on the same date, May 18,1998.

'2. Automated counting of the national ballots considering that there are no questions raised on the National Elective Officials as pre-printed in the mark-sensed ballots; '3. The creation of the following Special Boards of Inspectors under the supervision of Atty. Jose M. Tolentino, Jr., Task Force Head, Sulu, namely: a) Atty. Mamasapunod M. Aguam Ms. Gloria Fernandez Ms. Esperanza Nicolas b) Director Ester L. Villaflor-Roxas Ms. Celia Romero Ms. Rebecca Macaraya c) Atty. Zenaida S. Soriano Ms. Jocelyn Guiang Ma. Jacelyn Tan d) Atty. Erlinda C. Echavia Ms. Theresa A. Torralba

On May 25, 1998, petitioner filed with this Court a petition for certiorari and prohibition under Rule 65 of the Rules of Court. He contended that: (a) COMELEC issued Minute Resolution Nos. 98-1747, 98-1750, and 98-1798 without prior notice and hearing to him; (b) the order for manual counting violated R.A. No. 8436; (c) manual counting gave "opportunity to the following election cheatings," namely: "(a) The counting by human hands of the tampered, fake and counterfeit ballots which the counting machines have been programmed to reject (Section 7, 8 & 9 of Rep. Act 8436). "(b) The opportunity to substitute the ballots all stored at the PICC. In fact, no less than the head of the COMELEC Task Force of Sulu, Atty. Jose M. Tolentino, Jr. who recommended to the COMELEC the anomalous manual counting, had approached the watchers of petitioners to allow the retrieval of the ballots, saying "tayo, tayo lang mga watchers, pag-usapan natin," dearly indicating overtures of possible bribery of the watchers of petitioner (ANNEX E). "(c) With the creation by the COMELEC of only 22 Boards of Election Inspectors to manually count the 1,194 precincts, the manipulators are given sufficient time to change and tamper the ballots to be manually counted. "(d) There is the opportunity of delaying the proclamation of the winning candidates through the usually dilatory moves in a pre-proclamation controversy because the returns and certificates of canvass are already human (sic) made. In the automated counting there is no room for any dilatory pre-proclamation controversy because the returns and the MBC and PBC certificates of canvass are machine made and immediate proclamation is ordained thereafter." Petitioner then prayed: "WHEREFORE, it is most especially prayed of the Honorable Court that: "1. upon filing of this petition, a temporary restraining order be issued enjoining the COMELEC from conducting a manual counting of the ballots of the 1,194 precincts of the 18 municipalities of the Province of Sulu but instead proceed with the automated counting of the ballots, preparation of the election returns and MBC, PBC certificates of canvass and proclaim the winning candidates on the basis of the automated counting and consolidation of results; "2. this petition be given due course and the respondents be required to answer; "3. after due hearing, the questioned COMELEC En Banc Minute Resolutions of May 12, 13, 15, and 17, 1998 be all declared null and void ab initio for having been issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction and for being in violation of due process of law; " 4. the winning candidates of the Province of Sulu be proclaimed on the basis of the results of the automated counting, automated election returns, automated MBC and PBC certificates of canvass; On June 8, 1998, private respondent Tan was proclaimed governor- elect of Sulu on the basis of the manual count.[14] Private respondent garnered 43,573 votes. Petitioner was third with 35,452 votes or a difference of 8,121 votes.

On June 23, 1998, this Court required the respondents to file their Comment to the petition and directed the parties "to maintain the status quo prevailing at the time of the filing of the petition."[15] The vice-governor elect was allowed to temporarily discharge the powers and functions of governor. On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate for governor filed a motion for intervention and a Memorandum in Intervention.[16] The result of the manual count showed he received 38,993 votes and placed second. Similarly, he alleged denial of due process, lack of factual basis of the COMELEC resolutions and illegality of manual count in light of R.A. No. 8436. TheCourt noted his intervention.[17] As similar petition for intervention filed by Abdulwahid Sahidulla, a candidate for vice-governor, on October 7, 1998 was denied as it was filed too late. In due time, the parties filed their respective Comments. On September 25, 1998, the Court heard the parties in oral arguments[18] which was followed by the submission of their written memoranda. The issues for resolution are the following: 1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of Court is the appropriate remedy to invalidate the disputed COMELEC resolutions. 2. Assuming the appropriateness of the remedy, whether or not COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in ordering a manual count. 2.a. Is there a legal basis for the manual count? 2-b. Are its factual bases reasonable? 2.c. Were the petitioner and the intervenor denied due process by the COMELEC when it ordered a manual count?

3. Assuming the manual count is illegal and that its result is unreliable, whether or not it is proper to call for a special election for the position of governor of Sulu. We shall resolve the issues in seriatim. First. We hold that certiorari is the proper remedy of the petitioner. Section 7, Article IX(A) of the 1987 Constitution states that if "unless 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." We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.[19] Contrariwise, administrative orders of the COMELEC are not, as a general rule, fit subjects of a petition for certiorari. The main issue in the case at bar is whether the COMELEC gravely abused its discretion when it ordered a manual count of the 1998 Sulu local elections. A resolution of the issue will involve an interpretation of R.A. No. 8436 on automated election in relation to the broad power of the COMELEC under Section 2(1), Article IX(C) of the Constitution "to enforce and administer all laws and regulations relative to the conduct of an election x x x." The issue is not only legal but one of first impression and undoubtedly suffused with significance to the entire nation. It is adjudicatory of the right of the petitioner, the private

respondent and the intervenor to the position of governor of Sulu. These are enough considerations to call for an exercise of the certiorari jurisdiction of this Court. Second. The big issue, one of first impression, is whether the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it ordered a manual count in light of R.A. No. 8436. The post election realities on ground will show that the order for a manual count cannot be characterized as arbitrary, capricious or whimsical. a. It is well established that the automated machines failed to read correctly the ballots in the municipality of Pata. A mayoralty candidate, Mr. Anton Burahan, obtained zero votes despite the representations of the Chairman of the Board of Election Inspectors and others that they voted for him. Another candidate garnered 100% of the votes. b. It is likewise conceded that the automated machines rejected and would not count the local ballots in the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo. c. These flaws in the automated counting of local ballots in the municipalities of Pata, Talipao, Siasi, Indanan, Tapal and Jolo were carefully analyzed by the technical experts of COMELEC and the supplier of the automated machines. All of them found nothing wrong with the automated machines. They traced the problem to the printing of local ballots by the National Printing Office. In the case of the municipality of Pata, it was discovered that the ovals of the local ballots were misaligned and could not be read correctly by the automated machines. In the case of the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo, it turned out that the local ballots contained the wrong sequence code. Each municipality was assigned a sequence code as a security measure. Ballots with the wrong sequence code were programmed to be rejected by the automated machines. It is plain that to continue with the automated count in these five (5) municipalities would result in a grossly erroneous count. It cannot also be gainsaid that the count in these five (5) municipalities will affect the local elections in Sulu. There was no need for more sampling of local ballots in these municipalities as they suffered from the same defects. All local ballots in Pata with misaligned ovals will be erroneously read by the automated machines. Similarly, all local ballots in Talipao, Siasi, Indanan, Tapal and Jolo with wrong sequence codes are certain to be rejected by the automated machines. There is no showing in the records that the local ballots in these five (5) municipalities are dissimilar which could justify the call for their greater sampling. Third. These failures of automated counting created post election tension in Sulu, a province with a history of violent elections. COMELEC had to act decisively in view of the fast deteriorating peace and order situation caused by the delay in the counting of votes. The evidence of this fragile peace and order cannot be downgraded. In his handwritten report to the COMELEC dated May 12, 1998, Atty. Tolentino, Jr. stated: "Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely intended to tame a disorderly crowd inside and outside SSC, or a show of force. "It is submitted that since an error was discovered in a machine which is supposed to have an error rate of 1:1,000,000, not a few people would believe that this error in Pata would extend to the other municipalities. Whether or not this is true, it would be more prudent to stay away from a lifeless thing that has sown tension and anxiety among and between the voters of Sulu."

Executive Director Resurreccion Z. Borra, Task Force Head, ARMM in his May 13,1998 Memorandum to the COMELEC likewise stated: "While the forces of AFP are ready to provide arm (sic) security to our COMELEC officials, BEI's and other deputies, the political tensions and imminent violence and bloodshed may not be prevented, as per report received, the MNLF forces are readying their forces to surround the venue for automated counting and canvassing in Sulu in order that automation process will continue." Last but not the least, the military and the police authorities unanimously recommended manual counting to preserve peace and order. Brig. Gen. Edgardo V. Espinosa, Commanding General, Marine Forces Southern Philippines, Brig. Gen. Percival M. Subala, Commanding General, 3rd Marine Brigade, and Supt. Charlemagne S. Alejandrino, Provincial Director, Sulu PNP Command explained that it "x x x will not only serve the interest of majority of the political parties involved in the electoral process but also serve the interest of the military and police forces in maintaining peace and order throughout the province of Sulu." An automated count of the local votes in Sulu would have resulted in a wrong count, a travesty of the sovereignty of the electorate. Its aftermath could have been a bloodbath. COMELEC avoided this imminent probability by ordering a manual count of the votes. It would be the height of irony if the Court condemns COMELEC for aborting violence in the Sulu elections. Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied due process. The Tolentino memorandum clearly shows that they were given every opportunity to oppose the manual count of the local ballots in Sulu. They were orally heard. They later submitted written position papers. Their representatives escorted the transfer of the ballots and the automated machines from Sulu to Manila. Their watchers observed the manual count from beginning to end. We quote the Tolentino memorandum, viz: "On or about 6:00 a.m. of May 12, 1998, while automated counting of all the ballots for the province of Sulu was being conducted at the counting center located at the Sulu State College, the COMELEC Sulu Task Force Head (TF Head) proceeded to the room where the counting machine assigned to the municipality of Pata was installed to verify the cause of the commotion therein. "During the interview conducted by the TF Head, the members of the Board of Election Inspectors (BEI) and watchers present in said room stated that the counting machine assigned to the municipality of Pata did not reflect the true results of the voting thereat. The members of the BEI complained that their votes were not reflected in the printout of the election returns since per election returns of their precincts, the candidate they voted for obtained "zero". After verifying the printout of some election returns as against the official ballots, the TF Head discovered that votes cast in favor of a mayoralty candidate were credited in favor of his opponents. "In his attempt to remedy the situation, the TF Head suspended the counting of all ballots for said municipality to enable COMELEC field technicians to determine the cause of the technical error, rectify the same, and thereafter proceed with automated counting. In the meantime, the counting of the ballots for the other municipalities proceeded under the automated system. "Technical experts of the supplier based in Manila were informed of the problem and after numerous consultations through long distance calls, the technical experts concluded that the cause of the error was in the manner the ballots for local positions were printed by the National Printing Office

(NPO), namely, that the ovals opposite the names of the candidates were not properly aligned. As regards the ballots for national positions, no error was found. "Since the problem was not machine-related, it was obvious that the use of counting machines from other municipalities to count the ballots of the municipality of Pata would still result in the same erroneous count. Thus, it was found necessary to determine the extent of the error in the ballot printing process before proceeding with the automated counting. "To avoid a situation where proceeding with automation will result in an erroneous count, the TF Head, on or about 11:45 a.m. ordered the suspension of the counting of all ballots in the province to enable him to call a meeting with the heads of the political parties which fielded candidates in the province, inform them of the technical error, and find solutions to the problem. "On or about 12:30 p.m., the TF Head presided over a conference at Camp General Bautista (3rd Marine Brigade) to discuss the process by which the will of the electorate could be determined. Present during the meeting were: 1. Brig. Gen. Edgardo Espinoza Marine Forces, Southern Philippines 2. Brig. Gen. Percival Subala 3rd Marine Brigade 3. Provincial Dir. Charlemagne Alejandrino Sulu PNP Command 4. Gubernatorial Candidate Tupay Loong LAKAS-NUCD Loong Wing 5. Gubernatorial Candidate Abdusakur Tan LAKAS-NUCD Tan Wing 6. Gubernatorial Candidate Yusop Jikiri LAKAS-NUCD-MNLF Wing 7. Gubernatorial Candidate Kimar Tulawie LAMMP 8. Congressional Candidate Bensaudi Tulawie LAMMP

"During said meeting, all of the above parties verbally advanced their respective positions. Those in favor of a manual count were: 1. Brig. Gen. Edgardo Espinoza 2. Brig. Gen. Percival Subala 3. Provincial Dir. Charlemagne Alenjandrino 4. Gubernatorial Candidate Abdusakur Tan 5. Gubernatorial Candidate Kimar Tulawie 6. Congressional Candidate Bensaudi Tulawie and those in favor of an automated count were: 1. Gubernatorial Candidate Tupay Loong 2. Gubernatorial Candidate Yusop Jikiri "Said parties were then requested by the TF Head to submit their respective position papers so that the same may be forwarded to the Commission en banc, together with the recommendations of the TF Head. 'The TF Head returned to the counting center at the Sulu State College and called his technical staff to determine the extent of the technical error and to enable him to submit the appropriate recommendation to the Commission en banc. "Upon consultation with the technical staff, it was discovered that in the Municipality of Talipao, some of the local ballots were rejected by the machine. Verification showed that while the ballots were genuine, ballot paper bearing a wrong "sequence code" was used by the NPO during the printing process. "Briefly, the following is the manner by which a sequence code" determined genuineness of a ballot. A municipality is assigned a specific machine (except for Jolo, which was assigned two (2) machines, and sharing of one (1) machine by two (2) municipalities, namely, H.P. Tahil and Maimbung, Pandami and K. Caluang, Pata and Tongkil and Panamao and Lugus). A machine is then assigned a specific "sequence code" as one of the security features to detect whether the ballots passing through it are genuine. Since a counting machine is programmed to read the specific "sequence code" assigned to it, ballots which bear a "sequence code" assigned to another machine/municipality, even if said ballots were genuine, will be rejected by the machine. "Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had the same problem of rejected ballots. However, since the machine operators were not aware that one of the reasons for rejection of ballots is the use of wrong "sequence code", they failed to determine whether the cause for rejection of ballots for said municipalities was the same as that for the municipality of Talipao. "In the case of 'misaligned ovals', the counting machine will not reject the ballot because all the security features, such as "sequence code", are present in the ballot, however, since the oval is misaligned or not placed in its proper position, the machine will credit the shaded oval for the position where the machine is programmed to "read" the oval. Thus, instead of rejecting the ballot,

the machine will credit the votes of a candidate in favor of his opponent, or in the adjacent space where the oval should be properly placed. "It could not be determined if the other municipalities also had the same technical error in their official ballots since the "misaligned ovals" were discovered only after members of the Board of Election Inspectors of the Municipality of Pata complained that their votes were not reflected in the printout of the election returns. "As the extent or coverage of the technical errors could not be determined, the TF Head, upon consultation with his technical staff, was of the belief that it would be more prudent to count the ballots manually than to proceed with an automated system which will result in an erroneous count. "The TF Head thus ordered the indefinite suspension of counting of ballots until such time as the Commission shall have resolved the petition/position papers to be submitted by the parties. The TF Head and his staff returned to Camp General Bautista to await the submission of the position papers of the parties concerned. "Upon receipt of the position papers of the parties, the TF Head faxed the same in the evening of May 12, 1998, together with his handwritten recommendation to proceed with a manual count." Attached are copies of the recommendations of the TF Head (Annex "1"), and the position papers of the Philippine Marines and Philippine National Police (Annex "2"), LAKAS-NUCD Tan Wing Annex (Annex "3"), Lakas-NUCD Loong Wing (Annex "4"), LAKAS-NUCD-MNLF Wing (Annex "5") and LAMMP (Annex "6"). Said recommendations and position papers were the bases for the promulgation of COMELEC Minute Resolution No. 98-1750 dated May 13, 1998 (Annex "7"), directing among other things, that the ballots and counting machines be transported by C130 to Manila for both automated and manual operations. "Minute Resolution No. 98-1750 was received by the TF Head through fax on or about 5:30 in the evening of May 13, 1998. Copies were then served through personal delivery to the heads of the political parties, with notice to them that another conference will be conducted at the 3rd Marine Brigade on May 14, 1998 at 9:00 o'clock in the morning, this time, with Lt. General Joselin Nazareno, then AFP Commander, Southern Command. Attached is a copy of said notice (Annex "8") bearing the signatures of candidates Tan (Annex "8-A") and Loong (Annex "8-B"), and the representatives of candidates Tulawie (Annex "8-C") and Jikiri (Annex "8-D"). "On May 14, 1998, the TF Head presided over said conference in the presence of the heads of the political parties of Sulu, together with their counsel, including Lt. Gen. Nazareno, Brig. Gen. Subala, representatives of the NAMFREL, media and the public. "After hearing the sides of all parties concerned, including that of NAMFREL, the procedure by which the ballots and counting machines were to be transported to Manila was finalized, with each political party authorized to send at least one (1) escort/watcher for every municipality to accompany the ballot boxes and counting machines from the counting center at the Sulu State College to the Sulu Airport up to the PICC, where the COMELEC was then conducting its Senatorial Canvass. There being four parties, a total of seventy-two (72) escorts/watchers accompanied the ballots and counting machines. "Two C130s left Sulu on May 15, 1998 to transport all the ballot boxes and counting machines, accompanied by all the authorized escorts. Said ballots boxes reached the PICC on the same day,

with all the escorts/watchers allowed to station themselves at the ballot box storage area. On May 17, 1998, another C130 left Sulu to ferry the members of the board of canvassers." Fifth. The evidence is clear that the integrity of the local ballots was safeguarded when they were transferred from Sulu to Manila and when they were manually counted. As shown by the Tolentino memorandum, representatives of the political parties escorted the transfer of ballots from Sulu to PICC. Indeed, in his May 14, 1992 letter to Atty. Tolentino, Jr., petitioner Tupay Loong himself submitted the names of his representatives who would accompany the ballot boxes and other election paraphernalia, viz:[20] "Dear Atty. Tolentino: "Submitted herewith are the names of escort(s) to accompany the ballot boxes and other election pharaphernalia to be transported to COMELEC, Manila, to wit: 1. Jolo 2. Patikul 3. Indanan 4. Siasi 5. K. Kaluang 6. Pata 7. Parang 8. Pangutaran 9. Marunggas 10. 11. 12. 13. 14. 15. 16. 17. 18. Luuk Pandami Tongkil Tapul Lugus Maimbong P. Estino Panamao Talipao Joseph Lu Fathie B. Loong Dixon Jadi

Jamal Ismael Enjimar Abam Marvin Hassan Siyang Loong

Hji. Nasser Loong Taib Mangkabong Jun Arbison Orkan Osman Usman Sahidulla Alphawanis Tupay Patta Alih Mike Bangahan Yasir lbba Hamba Loong Ismael Sali

"Hoping for your kind and (sic) consideration for approval on this matter. "Thank you. Very truly yours, (Sgd.) Tupay T. Loong (Sgd.) Asani S. Tammang" The ballot boxes were consistently under the watchful eyes of the parties' representatives. They were placed in an open space at the PICC. The watchers stationed themselves some five (5) meters away from the ballot boxes. They watched 24 hours a day and slept at the PICC.[21] The parties' watchers again accompanied the transfer of the ballot boxes from PICC to the public schools of Pasay City where the ballots were counted. After the counting they once more escorted the return of the ballot boxes to PICC.[22] In fine, petitioner's charge that the ballots could have been tampered with before the manual counting is totally unfounded. Sixth. The evidence also reveals that the result of the manual count is reliable.

If there are more ballots than the number of voters who actually voted, the poll clerk shall draw out as many local and national ballots as may be equal to the excess and place them in the envelope for excess ballots. 'II 'A. Counting of Votes National Ballots:

'1. If the national ballots have already been counted, return the same inside the envelope for counted ballots, reseal and place the envelope inside the ballot box; '2. If the national ballots have not yet been counted, place them inside an envelope and give the envelope through a liaison officer to the machine operator concerned for counting and printing of the election returns; '3. The machine operator shall affix his signature and thumbmark thereon, and return the same to the members of the BEI concerned for their signatures and thumbmarks; '4. 'B. '1. The said returns shall then be placed in corresponding envelopes for distribution; Local Ballots: Group the local ballots in piles of fifty (50);

It bears stressing that the ballots used in the case at bar were specially made to suit an automated election. The ballots were uncomplicated. They had fairly large ovals opposite the names of candidates. A voter needed only to check the oval opposite the name of his candidate. When the COMELEC ordered a manual count of the votes, it issued special rules as the counting involved a different kind of ballot, albeit, more simple ballots. The Omnibus Election Code rules on appreciation of ballots cannot apply for they only apply to elections where the names of candidates are handwritten in the ballots. The rules were spelled out in Minute Resolution 98-1798, viz:[23] "In the matter of the Memorandum dated 17 May 1998 of Executive Director Resurreccion Z. Borra, re procedure of the counting of votes for Sulu for the convening of the Board of Election Inspectors, the Municipal Board of Canvassers and the Provincial Board of Canvassers on May 18, 1998 at 9:00 a.m. at the Philippine International Convention Center (PICC), 'RESOLVED to approve the following procedure for the counting of votes for Sulu at the PICC: 'I. Common Provisions:

'2. The Chairman shall read the votes while the poll clerk and the third member shall simultaneously accomplish the election returns and the tally board respectively. 'If the voters shaded more ovals than the number of positions to be voted for, no vote shall be counted in favor of any candidate. '3. After all the local ballots shall have been manually counted, the same shall be given to the machine operator concerned for counting by the scanning machine. The machine operator shall then save the results in a diskette and print out the election returns for COMELEC reference. '4. The BEI shall accomplish the certification portion of the election returns and announce the results; '5. '6. Place the election returns in their respective envelopes and distribute them accordingly; Return all pertinent election documents and paraphernalia inside the ballot box. Consolidation of Results National Ballots

'1. Open the ballot box, retrieve the Minutes of Voting and the uncounted ballots or the envelope containing the counted ballots as the case may be; '2. Segregate the national ballots from the local ballots;

'III. 'A.

'3. Count the number of pieces of both the national and local ballots and compare the same with the number of votes who actually voted as stated in the Minutes of Voting: If there is no Minutes of Voting, refer to the Voting Records at the back of the VRRs to determine the number of voters who actually voted.

'1. The results of the counting for the national ballots for each municipality shall be consolidated by using the ERs of the automated election system; '2. After the consolidation, the Machine Operator shall print the certificate of canvass by municipality and statement of votes by precinct;

'3. To consolidate the provincial results, the MO shall load all the diskettes used in the scanner to the ERs; '4. The MO shall print the provincial certificate of canvass and the SOV by municipality;

Ms. Nelly Jaena" Later, the COMELEC utilized the services of 600 public school teachers from Pasay City to do the manual counting. Five (5) elementary schools served as the venues of the counting, viz:[25] "1. Gotamco Elementary School, Gotamco Street, Pasay City - for the municipalities of Indanan, Pangutaran, Panglima Tahil, Maimbung; "2. Zamora Elementary School, Zamora Street, Pasay City - for the municipalities of Jolo, Talipao, Panglima Estino, and Tapul; "3. Epifanio Elementary School, Tramo Street, Pasay City - for the municipalities of Parang, Lugus, Panamao; "4. Burgos Elementary School, Burgos Street, Pasay City - for the municipalities of Luuk and Tongkil;

'5. In case there is system failure in the counting and/or consolidation of the results, the POBC/MOBC shall revert to manual consolidation. 'B. Local Ballots

'1. - The consolidation of votes shall be done manually by the Provincial/Municipal Board of Canvassers; '2. The proclamation of winning candidates shall be based on the manual consolidation.

'RESOLVED, moreover, that the pertinent provisions of COMELEC Resolution Nos. 2971 and 3030 shall apply. 'Let the Executive Director implement this resolution."' As aforestated, five (5) Special Boards were initially created under Atty. Tolentino, Jr. to undertake the manual counting,[24] viz: "a) Atty. Mamasapunod M. Aguam Ms. Gloria Fernandez Ms. Esperanza Nicolas b) irector Ester L. Villaflor-Roxas Ms. Celia Romero Ms. Rebecca Macaraya c) Atty. Zenaida S. Soriano Ms. Jocelyn Guiang Ma. Jocelyn Tan d) Atty. Erlinda C. Echavia Ms. Teresa A. Torralba Ms. Ma. Carmen Llamas e) Director Estrella P. de Mesa Ms. Teresita Velasco

5. Palma Elementary School - for the municipalities of Siasi and Kalingalang Caluang." From beginning to end, the manual counting was done with the watchers of the parties concerned in attendance. Thereafter, the certificates of canvass were prepared and signed by the City/Municipal Board of Canvassers composed of the Chairman, Vice-Chairman, and Secretary. They were also signed by the parties' watchers.[26] The correctness of the manual count cannot therefore be doubted. There was no need for an expert to count the votes. The naked eye could see the checkmarks opposite the big ovals. Indeed, nobody complained that the votes could not be read and counted. The COMELEC representatives had no difficulty counting the votes. The 600 public school teachers of Pasay City had no difficulty. The watchers of the parties had no difficulty. Petitioner did not object to the rules on manual count on the ground that the ballots cannot be manually counted. Indeed, in his original Petition, petitioner did not complain that the local ballots could not be counted by a layman. Neither did the intervenor complain in his petition for intervention. The allegation that it will take a trained eye to read the ballots is more imagined than real. This is not all. As private respondent Tan alleged, the manual count could not have been manipulated in his favor because the results show that most of his political opponents won. Thus, "the official results show that the two congressional seats in Sulu were won by Congressman Hussin Amin of the LAKAS-MNLF Wing for the 1st District and Congressman Asani Tammang of the LAKASLoong Wing for the 2nd District. In the provincial level, of the eight (8) seats for the Sangguniang Panlalawigan, two (2) were won by the camp of respondent Tan; three (3) by the camp of petitioner Loong; two (2) by the MNLF; and one (1) by LAMMP. In the mayoral race, seven (7) out of eighteen (18) victorious municipal mayors were identified with respondent Tan; four (4) with petitioner Loong; three (3) with the MNLF; two (2) with LAMMP and one (1) with REPORMA."[27] There is logic to private respondent Tan's contention that if the manual count was tampered, his candidates would not have miserably lost. Seventh. We further hold that petitioner cannot insist on automated counting under R.A. No. 8436 after the machines misread or rejected the local ballots in five (5) municipalities in Sulu. Section 9 of R.A. No. 8436 provides:

"SEC. 9. Systems Breakdown in the Counting Center. In the event of a systems breakdown of all assigned machines in the counting center, the Commission shall use any available machine or any component thereof from another city/municipality upon approval of the Commission En Banc or any of its divisions. The transfer of such machines or any component thereof shall be undertaken in the presence of representatives of political parties and citizens' arm of the Commission who shall be notified by the election officer of such transfer There is a systems breakdown in the counting center when the machine fails to read the ballots or fails to store/save results or fails to print the results after it has read the ballots; or when the computer fails to consolidate election results/reports or fails to print election results/reports after consolidation." As the facts show, it was inutile for the COMELEC to use other machines to count the local votes in Sulu. The errors in counting were due to the misprinting of ovals and the use of wrong sequence codes in the local ballots. The errors were not machine-related. Needless to state, to grant petitioner's prayer to continue the machine count of the local ballots will certainly result in an erroneous count and subvert the will of the electorate. Eighth. In enacting R.A. No. 8436, Congress obviously failed to provide a remedy where the error in counting is not machine-related for human foresight is not all-seeing. We hold, however, that the vacuum in the law cannot prevent the COMELEC from levitating above the problem. Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power "to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." Undoubtedly, the text and intent of this provision is to have COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections. Congruent to this intent, this Court has not been niggardly in defining the parameters of powers of COMELEC in the conduct of our elections. Thus, we held in Sumulong v. COMELEC:[28] "Politics is a practical matter, and political questions must be dealt with realistically - not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions x x x. There are no ready made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of laws relative to the conduct of election, x x x we must not by any excessive zeal take away from the Commission on Elections the initiative which by constitutional and legal mandates properly belongs to it." In the case at bar, the COMELEC order for a manual count was not only reasonable. It was the only way to count the decisive local votes in the six (6) municipalities of Pata, Talipao, Siasi, Tudanan, Tapul and Jolo. The bottom line is that by means of the manual count, the will of the voters of Sulu was honestly determined. We cannot kick away the will of the people by giving a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when machine count does not work. Counting is part and parcel of the conduct of an election which is under the control and supervision of the COMELEC. It ought to be self-evident that the Constitution did not envision a COMELEC that cannot count the result of an election.

Ninth. Our elections are not conducted under laboratory conditions. In running for public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforseen circumstances that threaten to subvert the will of our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism of these actions often taken under very difficult circumstances. Even more, we cannot order a special election unless demanded by exceptional circumstances. Thus, the plea for this Court to call a special election for the governorship of Sulu is completely offline. The plea can only be grounded on failure of election. Section 6 of the Omnibus Election Code tells us when there is a failure of election, viz: "Sec. 6. Failure of election. - If on account of force majeure, terrorism, fraud, or other analogous causes, the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election, not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect." To begin with, the plea for a special election must be addressed to the COMELEC and not to this Court. Section 6 of the Omnibus Election Code should be read in relation to Section 4 of R.A. No. 7166 which provides: "Sec. 4. Postponement, Failure of Election and Special Elections. - The postponement, declaration of failure of elections and the calling of special elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the Commission en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after casting of votes or on the day of the election." The grounds for failure of election - force majeure, terrorism, fraud or other analogous causes clearly involve questions of fact. It is for this reason that they can only be determined by the COMELEC en banc after due notice and hearing to the parties. In the case at bar, petitioner never asked the COMILEC en banc to call for a special election in Sulu. Even in his original petition with this Court, petitioner did not pray for a special election. His plea for a special election is a mere afterthought. Too late in the day and too unprocedural. Worse, the grounds for failure of election are inexistent. The records show that the voters of Sulu were able to cast their votes freely and fairly. Their votes were counted correctly, albeit manually. The people have spoken. Their sovereign will has to be obeyed. There is another reason why a special election cannot be ordered by this Court. To hold a special election only for the position of Governor will be discriminatory and will violate the right of private respondent to equal protection of the law. The records show that all elected officials in Sulu have been proclaimed and are now discharging their powers and duties. Thus, two (2) congressmen, a vice-governor, eight (8) members of the Sangguniang Panlalawigan and eighteen (18) mayors, numerous vice-mayors and municipal councilors are now serving in their official capacities. These officials were proclaimed on the basis of the same manually counted votes of Sulu. If manual

counting is illegal, their assumption of office cannot also be countenanced. Private respondent's election cannot be singled out as invalid for alikes cannot be treated unalikes. A final word. Our decision merely reinforces our collective efforts to endow COMELEC with enough power to hold free, honest, orderly and credible elections. A quick flashback of its history is necessary lest our efforts be lost in the labyrinth of time.

of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with."

The COMELEC was organized under Commonwealth Act No. 607 enacted on August 22,1940. The power to enforce our election laws was originally vested in the President and exercised through the Department of Interior. According to Dean Sinco,[29] the view ultimately emerged that an independent body could better protect the right of suffrage of our people. Hence, the enforcement of our election laws, while an executive power, was transferred to the COMELEC. From a statutory creation, the COMELEC was transformed to a constitutional body by virtue of the 1940 amendments to the 1935 Constitution which took effect on December 2, 1940. COMELEC was generously granted the power to "have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections x x x."[30] Then came the 1973 Constitution. It further broadened the powers of COMELEC by making it the sole Judge of all election contests relating to the election, returns and qualifications of members of the national legislature and elective provincial and city officials.[31] In fine, the COMELEC was given judicial power aside from its traditional administrative and executive functions. The 1987 Constitution quickened this trend of strengthening the COMELEC. Today, COMLEC enforces and administers all laws and regulations relative to the conduct of elections, plebiscites, initiatives, referenda and recalls. Election contests involving regional, provincial and city elective officials are under its exclusive original jurisdiction. All contests involving elective municipal and barangay officials are under its appellate jurisdiction.[32]

In Pacis vs. COMELEC,[34] we reiterated the guiding principle that "clean elections control the appropriateness of the remedy." The dissent, for all its depth, is out of step with this movement. It condemns the COMELEC for exercising its discretion to resort to manual count when this was its only viable alternative. It would set aside the results of the manual count even when the results are free from fraud and irregularity. Worse, it would set aside the judgment of the people electing the private respondent as Governor. Upholding the sovereignty of the people is what democracy is all about. When the sovereignty of the people expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it should do everything to have that sovereignty obeyed by all. Well done is always better than well said.

IN VIEW WHEREOF, the petition of Tupay Loong and the petition in intervention of Yusop Jikiri are dismissed, there being no showing that public respondent gravely abused its discretion in issuing Minute Resolution Nos. 98-1748, 98-1750, 98-1796 and 98-1798. Our status quo order of June 23, 1998 is lifted. No costs.

SO ORDERED.

Our decisions have been in cadence with the movement towards empowering the COMELEC in order that it can more effectively perform its duty of safeguarding the sanctity of our elections. In Cauton vs. COMELEC,[33] we laid down this liberal approach, viz:

xxx

'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. The purity of the elections is one of the most fundamental requisites of popular government. The 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

RUPERTO A. AMBIL, JR., petitioner, vs. THE COMMISSION ON ELECTIONS (FIRST DIVISION, FORMERLY SECOND DIVISION) and JOSE T. RAMIREZ, respondents. DECISION PARDO, J.: The case before the Court is a special civil action for certiorari and prohibition with preliminary injunction or temporary restraining order seeking to nullify the order dated June 15, 2000 of the Commission on Elections (Comelec), First Division,[1] giving notice to the parties of the promulgation of the resolution on the case entitled Jose T. Ramirez, Protestee, versus Ruperto A. Ambil, Jr., Election Protest Case No. 98-29, on June 20, 2000, at 2:00 in the afternoon and to prohibit the respondent Commission on Election from promulgating the so called Guiani ponencia.[2] The facts are as follows: Petitioner Ruperto A. Ambil, Jr. and respondent Jose T. Ramirez were candidates for the position of Governor, Eastern Samar, during the May 11, 1998 elections.[3] On May 16, 1998, the Provincial Board of Canvassers proclaimed Ruperto A. Ambil, Jr. as the duly elected Governor, Eastern Samar, having obtained 46,547 votes, the highest number of votes in the election returns. On June 4, 1998, respondent Ramirez who obtained 45,934 votes, the second highest number of votes, filed with the Comelec, an election protest[4] challenging the results in a total of 201 precincts.[5] The case was assigned to the First Division (formerly Second), Commission on Elections.[6] On January 27, 2000, Commissioner Japal M. Guiani prepared and signed a proposed resolution in the case. To such proposed ponencia, Commissioner Julio F. Desamito dissented. Commissioner Luzviminda G. Tancangco at first did not indicate her vote but said that she would wish to see both positions, if any, to make her (my) final decision.[7] In the meantime, on February 15, 2000, Commissioner Guiani retired from the service. On March 3, 2000, the President of the Philippines appointed Commissioner Rufino S. Javier to the seat vacated by Commissioner Guiani. Commissioner Javier assumed office on April 4, 2000. On or about February 24, 2000, petitioner Ambil and respondent Ramirez received a purported resolution promulgated on February 14, 2000, signed by Commissioner Guiani and Tancangco, with Commissioner Desamito dissenting. The result was in favor of respondent Ramirez who was declared winner by a margin of 1,176 votes.[8] On February 28, 2000, the Comelec, First Division, declared that the thirteen-page resolution is a useless scrap of paper which should be ignored by the parties in this case there being no promulgation of the Resolution in the instant case. [9] On March 31, 2000, the Comelec, First Division, issued an order setting the promulgation of the resolution in the case (EPC Case No. 98-29) on April 6, 2000, at 2:00 in the afternoon.[10] However, on April 6, 2000, petitioner Ambil filed a motion to cancel promulgation challenging the validity of the purported Guiani resolution. The Comelec, First Division, acting on the motion, on the same date, postponed the promulgation until this matter is resolved.[11]

On June 14, 2000, two members of the First Division, namely, Commissioners Luzviminda G. Tancangco and Rufino S. Javier, sent a joint memorandum to Commissioner Julio F. Desamito, presiding Commissioner, stating: Pursuant to your recommendation in your April 18, 2000 Memorandum to the Commission En Banc that this case be submitted for a reconsultation by the members of the First Division, it is our position that we promulgate as soon as possible the Guiani Resolution of the case. This is notwithstanding the Jamil vs. Comelec (283 SCRA 349), Solidbank vs. IAC (G. R. No. 73777) and other doctrinal cases on the issue. After all, this Commission stood pat on its policy that what is controlling is the date the ponente signed the questioned Resolution as what we did in promulgating the case of Dumayas vs. Bernal (SPC 98-137). In view of the foregoing, we recommend that we proceed with the promulgation of the subject resolution and let the aggrieved party challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the Supreme Court.[12] On June 15, 2000, the Comelec, First Division, through Commissioner Julio F. Desamito, issued an order setting the promulgation of the resolution in the case on June 20, 2000, at 2:00 oclock in the afternoon.[13] Without waiting for the promulgation of the resolution, on June 19, 2000, petitioner interposed the instant petition.[14] Petitioner Ambil seeks to annul the order dated June 15, 2000 setting the promulgation of the resolution of the case (EPC Case No. 98-29) on June 20, 2000 at 2:00 in the afternoon, and prohibiting the Comelec, First Division, from promulgating the purported Guiani resolution and directing the Comelec, First Division, to deliberate anew on the case and to promulgate the resolution reached in the case after such deliberation.[15] On June 20, 2000, we issued a temporary restraining order enjoining respondent Comelec from implementing the June 15, 2000 order for the promulgation of the resolution set on June 20, 2000 at 2:00 in the afternoon. At the same time, the Court directed the respondents to comment on the petition within ten (10) days from notice. [16] On July 10, 2000, respondent Ramirez filed his comment.[17] Respondent Ramirez admitted that the proposed resolution of Commissioner Guiani was no longer valid after his retirement on February 15, 2000.[18] He submitted that Comelec, First Division, its membership still constituting a majority, must elevate the protest case to the Comelec en banc until resolved with finality.[19] In his comment filed on August 29, 2000, the Solicitor General interposed no objection to the petition.[20] At issue in this petition is whether Comelec, First Division, in scheduling the promulgation of the resolution in the case (EPC Case No. 98-29) acted without jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. We find the petition without merit. To begin with, the power of the Supreme Court to review decisions of the Comelec is prescribed in the Constitution, as follows:

Section 7. 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.[21] [emphasis supplied] We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.[22] This decision must be a final decision or resolution of the Comelec en banc,[23] not of a division,[24] certainly not an interlocutory order of a division.[25] The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the Commission on Elections.[26] The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended.[27] Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A motion for reconsideration is a plain and adequate remedy provided by law.[28] Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition.[29] In like manner, a decision, order or resolution of a division of the Comelec must be reviewed by the Comelec en banc via a motion for reconsideration before the final en banc decision may be brought to the Supreme Court on certiorari. The pre-requisite filing of a motion for reconsideration is mandatory.[30] Article IX-C, Section 3, 1987 Constitution provides as follows: Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. [emphasis supplied] Similarly, the Rules of Procedure of the Comelec provide that a decision of a division may be raised to the en banc via a motion for reconsideration.[31] The case at bar is an election protest involving the position of Governor, Eastern Samar.[32] It is within the original jurisdiction of the Commission on Elections in division.[33] Admittedly, petitioner did not ask for a reconsideration of the divisions resolution or final decision.[34] In fact, there was really no resolution or decision to speak of [35] because there was yet no promulgation, which was still scheduled on June 20, 2000 at 2:00 oclock in the afternoon. Petitioner went directly to the Supreme Court from an order of promulgation of the Resolution of this case by the First Division of the Comelec.[36] Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the Comelec in division can not dispense with the filing of a motion for reconsideration of a decision, resolution or final order of the Division of the Commission on Elections because the case would not reach the Comelec en banc without such motion for reconsideration having been filed and resolved by the Division.

The instant case does not fall under any of the recognized exceptions to the rule in certiorari cases dispensing with a motion for reconsideration prior to the filing of a petition.[37] In truth, the exceptions do not apply to election cases where a motion for reconsideration is mandatory by Constitutional fiat to elevate the case to the Comelec en banc, whose final decision is what is reviewable via certiorari before the Supreme Court.[38] We are aware of the ruling in Kho v. Commission on Elections,[39] that in a situation such as this where the Commission on Elections 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. This is the case relied upon by the dissenting justice to support the proposition that resort to the Supreme Court from a resolution of a Comelec Division is allowed.[40] Unfortunately, the Kho case has no application to the case at bar. The issue therein is, may the Commission on Elections in division admit an answer with counter-protest after the period to file the same has expired?[41] The Comelec First Division admitted the answer with counter-protest of the respondent. The Supreme Court declared such order void for having been issued with grave abuse of discretion tantamount to lack of jurisdiction. [42] However, an important moiety in the Kho case was not mentioned in the dissent. It is that the Comelec, First Division, denied the prayer of petitioner for the elevation of the case to en banc because the orders of admission were mere interlocutory orders.[43] Hence, the aggrieved party had no choice but to seek recourse in the Supreme Court. Such important fact is not present in the case at bar. We must emphasize that what is questioned here is the order dated June 15, 2000, which is a mere notice of the promulgation of the resolution in EPC Case No. 98-29. We quote the order in question in full, to wit: Pursuant to Section 5 of Rule 18 of the COMELEC RULES OF PROCEDURE, and the Joint Memorandum of Commissioners Luzviminda G. Tancangco and Rufino S. Javier to the Presiding Commissioner of the First Division dated 14 June 2000 paragraph 5 of which states: In view of the foregoing, we recommend that we proceed with the promulgation of the subject resolution and let the aggrieved party challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the Supreme Court. the promulgation of the Resolution in this case is hereby set on Tuesday, June 20, 2000 at 2:00 oclock in the afternoon at the Comelec Session Hall, Intramuros, Manila. No further motion for postponement of the promulgation shall be entertained. The Clerk of the Commission is directed to give the parties, through their Attorneys, notice of this Order through telegram and by registered mail or personal delivery. SO ORDERED. Given this 15th day of June, 2000 in the City of Manila, Philippines. FOR THE DIVISION:

[Sgd.] JULIO F. DESAMITO Presiding Commissioner[44] There is nothing irregular about the order of promulgation of the resolution in the case, except in the mind of suspicious parties. Perhaps what was wrong in the order was the reference to the memorandum of the two commissioners that was not necessary and was a superfluity, or excessus in linguae. All the members of the Division were incumbent Commissioners of the Commission on Elections (COMELEC) and had authority to decide the case in the Division. What appears to be patently null and void is the so-called Guiani resolution if it is the one to be promulgated. We cannot assume that the Comelec will promulgate a void resolution and violate the Constitution and the law. We must assume that the members of the Commission in Division or en banc are sworn to uphold and will obey the Constitution. Consequently, the Guiani resolution is not at issue in the case at bar. No one knows the contents of the sealed envelope containing the resolution to be promulgated on June 20, 2000, simply because it has not been promulgated!

an order where Commissioner Tancangco expressed her reservations and stated that she wished to see both positions, if any, before she made her final decision.[52] A final decision or resolution of the Comelec, in Division or en banc is promulgated on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram.[53] It is jurisprudentially recognized that at any time before promulgation of a decision or resolution, the ponente may change his mind.[54] Moreover, in this case, before a final decision or resolution could be promulgated, the ponente retired and a new commissioner appointed. And the incoming commissioner has decided to take part in the resolution of the case. It is presumed that he had taken the position of his predecessor because he co-signed the request for the promulgation of the Guiani resolution.[55] If petitioner were afraid that what would be promulgated by the Division was the Guiani resolution, a copy of which he received by mail, which, as heretofore stated, was not promulgated and the signature thereon of the clerk of court was a forgery, petitioner could seek reconsideration of such patently void resolution and thereby the case would be elevated to the Commission en banc. [56]Considering the factual circumstances, we speculated ex mero motu that the Comelec would promulgate a void resolution.

It may be true that the parties received a copy of what purports to be the Guiani resolution,[45] declaring respondent Jose T. Ramirez the victor in the case. Such Guiani resolution is admitted by the parties and considered by the Commission on Elections as void. The Solicitor General submitted an advice that the same resolution is deemed vacated by the retirement of Commissioner Guiani on February 15, 2000.[46] It can not be promulgated anymore for all legal intents and purposes. We rule that the so-called Guiani resolution is void for the following reasons: First: A final decision or resolution becomes binding only after it is promulgated and not before. Accordingly, one who is no longer a member of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision.[47] Much more could he be the ponente of the resolution or decision. The resolution or decision of the Division must be signed by a majority of its members and duly promulgated. Commissioner Guiani might have signed a draft ponencia prior to his retirement from office, but when he vacated his office without the final decision or resolution having been promulgated, his vote was automatically invalidated.[48] Before that resolution or decision is so signed and promulgated, there is no valid resolution or decision to speak of.[49] Second: Atty. Zacarias C. Zaragoza, Jr., Clerk of the First Division, Commission on Elections, denied the release or promulgation of the Guiani resolution. He disowned the initials on the face of the first page of the resolution showing its promulgation on February 14, 2000, and said that it was a forgery. There is no record in the Electoral Contests and Adjudication Department (ECAD) of the Commission on Election that a resolution on the main merits of the case was promulgated.[50] Third: By an order dated February 28, 2000, the Comelec, First Division, disclaimed the alleged thirteen (13) page resolution for being a useless scrap of paper which should be ignored by the parties there being no promulgation of the resolution in the case.[51] Fourth: It is unlikely that Commissioner Tancangco affixed her signature on the Guiani resolution. On the date that it was purportedly promulgated, which was February 14, 2000, the Division issued

The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass.[57] We must not speculate that the Comelec would still promulgate a void resolution despite knowledge that it is invalid or void ab initio. Consequently, the filing of the instant petition before this Court was premature. Petitioner failed to exhaust adequate administrative remedies available before the COMELEC. In a long line of cases, this Court has held consistently that before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation of courts intervention is fatal to ones cause of action.[58] This is the rule on exhaustion of administrative remedies. A motion for reconsideration then is a pre-requisite to the viability of a special civil action for certiorari, unless the party who avails of the latter can convincingly show that his case falls under any of the following exceptions to the rule: (1) when the question is purely legal, (2) where judicial intervention is urgent, (3) where its application may cause great and irreparable damage, (4) where the controverted acts violate due process, (5) failure of a high government official from whom relief is sought to act on the matter, and seeks when the issue for non-exhaustion of administrative remedies has been rendered moot.[59] This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative

redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case. However, we are not amiss to reiterate that the principal of exhaustion of administrative remedies as tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the president bears the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention.[60] The administrative authorities must be given an opportunity to act and correct the errors committed in the administrative forum. [61] Only after administrative remedies are exhausted may judicial recourse be allowed.[62] This case does not fall under any of the exceptions and indeed, as heretofore stated, the exceptions do not apply to an election case within the jurisdiction of the Comelec in Division.Hence, the petition at bar must be dismissed for prematurity. Failure to exhaust administrative remedies is fatal to a party's cause of action and a dismissal based on that ground is tantamount to a dismissal based on lack of cause of action.[63]WHEREFORE, the Court hereby DISMISSES the petition for prematurity.The Court orders the Commission on Elections, First Division, to resolve with all deliberate dispatch Election Protest Case No. 98-29 and to promulgate its resolution thereon adopted by majority vote within thirty (30) days from notice hereof. The temporary restraining order issued on June 20, 2000, is hereby lifted and dissolved, effective immediately.

ABDULLAH T. MACABAGO, petitioner, vs. COMMISSION ON ELECTIONS and JAMAEL M. SALACOP, respondents. DECISION CALLEJO, SR., J.: On May 22, 2001, petitioner Sabdullah T. Macabago was proclaimed by the Municipal Board of Canvassers as the winning candidate for the position of Municipal Mayor of Saguiran, Lanao del Sur. Petitioner had a lead of 198 votes over his adversary, private respondent Jamael M. Salacop. On June 1, 2001, private respondent filed a petition with the Commission on Elections (COMELEC) against petitioner and the proclaimed Vice-Mayor and Municipal Councilors, as well as the members of the Municipal Board of Canvassers, docketed as SPC-01-234, to annul the elections and the proclamation of candidates in the Municipality of Saguiaran, Lanao del Sur. Private respondent alleged that there was a massive substitution of voters, rampant and pervasive irregularities in voting procedures in Precincts Nos. 19, 20, 28 and 29, and a failure of the Board of Election Inspectors (BEI) to comply with Sections 28 and 29 of Comelec Resolution No. 3743 and Section 193 of the Omnibus Election Code, thus rendering the election process in those precincts a sham and a mockery and the proclamation of the winning candidates a nullity. Private respondent further averred that if his petition were to be given due course, he would win by a margin of one hundred ninety-four (194) votes over the votes of petitioner. He thus prayed: WHEREFORE, foregoing premises considered, it is most respectfully prayed of this Honorable Commission that the election results in Precincts 19, 20, 28 and 29 be ordered set aside and considered excluded and the proclamation of the winning candidates in the said municipality be ANNULLED to reflect the genuine desire of the majority of the people. All other reliefs, deemed just and equitable under the circumstances are likewise prayed for.[1] In support of his petition, private respondent appended thereto photocopies of random Voters Registration Records (VRRs) evidencing the fraud and deceit that allegedly permeated the electoral process, as well as affidavits tending to prove that serious irregularities were committed in the conduct of the elections in the subject precincts.[2] In his answer, petitioner denied the truth of the material allegations in the petition and averred that it raised a pre-proclamation controversy. He further alleged that the grounds relied upon by private respondent would be proper in an election protest but not in a pre-proclamation controversy.[3] The COMELEC En Banc took cognizance of the petition and on February 11, 2002, issued an order directing the Election Officer of Saguiran, Lanao del Sur, to bring to and produce before the COMELEC Office in Manila the original VRRs of the questioned precincts for technical examination: WHEREFORE, premises considered, the Commission hereby RESOLVES to direct Mr. Ibrahim M. Macadato, the Election Officer of Saguiran, Lanao del Sur to produce the subject original VRRs of the questioned precincts here in Manila for the appertaining technical examination. SO ORDERED.[4]

In the same order, the COMELEC declared that contrary to petitioners claims, the petition did not allege a pre-proclamation controversy. The Commission characterized the petition as one for the annulment of the election or declaration of failure of election in the municipality, a special action covered by Rule 26 of the COMELEC Rules of Procedure. Accordingly, the COMELEC set aside the docketing of the petition as a Special Case (SPC) and ordered the redocketing thereof as a Special Action (SPA). After its examination of the evidence submitted by petitioner, the COMELEC concluded that there was convincing proof of massive fraud in the conduct of the elections in the four (4) precincts that necessitated a technical examination of the original copies of the VRRs and their comparison with the voters signatures and fingerprints. The COMELEC further noted that since the lead of Macabago was only 124 votes vis--vis the 474 voters of the contested precincts, the outcome of the petition would adversely affect the result of the elections in the Municipality. In issuing said Order, the COMELEC relied on its broad powers under the 1987 Constitution and the pronouncement of this Court in Pantaleon Pacis vs. Commission on Elections,[5] and Tupay Loong vs. Commission on Elections, et al.[6] Forthwith, petitioner filed with this Court the instant special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, praying for the reversal of the February 11, 2002 order of the COMELEC En Banc. Petitioner alleged that: 6.1. PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT TOOK COGNIZANCE OF AND PASSED UPON THE PETITION IN SPC NO. 01-234 IN VIOLATION OF SECTION 3, RULE 3 OF THE COMELEC RULES OF PROCEDURE. 6.2. PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED ITS ORDER ON FEBRUARY 11, 2002 FOR THE TECHNICAL EXAMINATION OF THE VOTERS REGISTRATION RECORDS OF THE REGISTERED VOTERS OF PRECINCT NOS. 19, 20, 28 & 29 OF THE MUNICIPALITY OF SAGUIARAN, LANAO DEL SUR.[7] The kernel issues posed in the case at bar are (a) whether petitioners recourse to this Court under Rule 65 of the 1997 Rules of Civil Procedure, as amended, is in order; and (b) whether the COMELEC acted without jurisdiction or committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in taking cognizance of the petition of private respondent and in issuing the assailed Order. On the first issue, petitioner avers that he was impelled to file the instant petition without first filing with the COMELEC a motion for a reconsideration of its order because under the COMELEC Rules of Procedure, a motion for a reconsideration of an interlocutory order of the COMELEC En Banc is a prohibited pleading, and that the COMELEC acted with grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed order. Private respondent on the other hand insists that under Rule 64 of the 1997 Rules of Civil Procedure, a special civil action for certiorari filed with this Court is proper only for the nullification of a final order or resolution of the COMELEC and not of its interlocutory order or resolution such as the assailed order in this case. Section 1, Rule 64, as amended, reads:

SECTION 1. Scope. This Rule shall govern the review of judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit.[8] Under Section 2 of the same Rule, a judgment or final order or resolution of the COMELEC may be brought by the aggrieved party to this Court on certiorari under Rule 65, as amended, except as therein provided. We ruled in Elpidio M. Salva, et al. vs. Hon. Roberto L. Makalintal, et al.[9] that Rule 64 of the Rules applies only to judgments or final orders of the COMELEC in the exercise of its quasi-judicial functions. The rule does not apply to interlocutory orders of the COMELEC in the exercise of its quasi-judicial functions or to its administrative orders. In this case, the assailed order of the COMELEC declaring private respondents petition to be one for annulment of the elections or for a declaration of a failure of elections in the municipality and ordering the production of the original copies of the VRRs for the technical examination is administrative in nature.[10] Rule 64, a procedural device for the review of final orders, resolutions or decision of the COMELEC, does not foreclose recourse to this Court under Rule 65 from administrative orders of said Commission issued in the exercise of its administrative function.[11] It bears stressing that under Article VIII, Section 1 of the Constitution, judicial power is vested in the courts. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Judicial power is an antidote to and a safety net against whimsical, despotic and oppressive exercise of governmental power. The aggrieved party may seek redress therefrom through the appropriate special civil action provided by the Rules of Court. As to acts of the COMELEC, the special civil action may be one for certiorari pursuant to Article IX(A), Section 7 of the Constitution. As a general rule, an administrative order of the COMELEC is not a proper subject of a special civil action for certiorari.[12] But when the COMELEC acts capriciously or whimsically, with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such an order, the aggrieved party may seek redress from this Court via a special civil action for certiorari under Rule 65 of the Rules. [13] Private respondent cannot find solace in the pronouncement in Ruperto Ambil, Jr. vs. Commission on Elections, et al.[14] because the subject matter of the petition therein was an interlocutory order of a Division of the COMELEC. This Court held that the remedy of the aggrieved party was first to file a motion for a reconsideration of the order with the COMELEC En Banc. The raison detre therefor is that under Rule 3, Section 6(c) of the COMELEC Rules of Procedure, any motion for a reconsideration of a decision, resolution, order or ruling of a Division of the COMELEC has to be referred to and resolved by the Commission sitting En Banc. A motion for reconsideration filed with the COMELEC En Banc of an order, ruling or resolution of a Division thereof is a plain, speedy and adequate remedy therefrom. We now resolve the second issue. Irrefragably, the petition before the COMELEC does not pose a pre-proclamation controversy as defined in Article XX, Section 241 of Republic Act No. 7166, thus: SEC. 241. Definition. A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission.[15]

Pre-proclamation controversies are properly limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. The proceedings are summary in nature; thus, the reception of evidence aliunde, e.g. the original copies of the VRRs, is proscribed. In fine, in pre-proclamation proceedings, the COMELEC is not to look beyond or behind election returns which are on their face regular and authentic returns.[16] Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and resolved in a regular election protest.[17] In his petition with the COMELEC, private respondent alleged that fraud and irregularities allegedly perpetrated by unscrupulous individuals who substituted for the registered voters and voted for the latter in the subject precincts, in conspiracy with the Board of Election Inspectors, or abetted by the members thereof, attended the electoral process in the subject precincts. The fraud and the irregularities catalogued by private respondent required the reception of evidence aliunde. As stated earlier, such grounds are not proper bases for a pre-proclamation controversy but are appropriate for a regular election contest within the original jurisdiction of the Regional Trial Court. Indeed, the Court held in Dimangadap Dipatuan vs. Commission on Elections, et al.:[18] That the padding of the List of Voters may constitute fraud, or that the Board of Election Inspectors may have fraudulently conspired in its preparation, would not be a valid basis for a preproclamation controversy either. For, whenever irregularities, such as fraud, are asserted, the proper course of action is an election protest. Such irregularities as fraud, vote-buying and terrorism are proper grounds in an election contest but may not as a rule be invoked to declare a failure of election and to disenfranchise the greater number of the electorate through the misdeeds, precisely, of only a relative few. Otherwise, elections will never be carried out with the resultant disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665). Neither is private respondents petition before the COMELEC one for declaration of a failure of elections in Saguiran, Lanao del Sur. Section 6, Article 1 of R.A. No. 7166 provides when a failure of election occurs SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by the law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect (Sec. 7, 1978 EC).[19]

Under Section 5, Article 1 of the aforementioned law, the matter of the postponement or declaration of failure of election and the calling of a special election as provided for in Section 6, shall be decided by the COMELEC sitting En Banc by a majority of its members: SEC. 5. Postponement of election. The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (Sec. 4, p. 1, RA 7166).[20] Before the COMELEC can grant a verified petition seeking to declare a failure of election, the concurrence of two (2) conditions must be established, namely: (a) no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; (b) the votes cast would affect the result of the election. The Court declared in Ricardo Canicosa vs. Commission on Elections, et al.,[21] that there are only three (3) instances where a failure of election may be declared, namely: x x x (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes.[22] While fraud is a ground to declare a failure of election, such fraud must be one that prevents or suspends the holding of an election, including the preparation and transmission of the election returns. Failure to elect must be understood in its literal sensewhich is, nobody emerges as a winner.[23] The barefaced fact that a candidate has been proclaimed and has assumed office does not deprive the COMELEC of its authority to annul any canvass and illegal proclamation.[24] A petition for the annulment of election is not the same as one involving a pre-proclamation controversy. In the fairly recent case of Tomas T. Banaga, Jr. vs. Commission on Elections, et al.[25] with a factual backdrop similar to this case, the Court held: We have painstakingly examined the petition filed by petitioner Banaga before the COMELEC. But we found that petitioner did not allege at all that elections were either not held or suspended. Neither did he aver that although there was voting, nobody was elected. On the contrary, he conceded that an election took place for the office of vice-mayor of Paraaque City, and that private respondent was, in fact, proclaimed elected to that post. While petitioner contends that the election was tainted with widespread anomalies, it must be noted that to warrant a declaration of failure of election the commission of fraud must be such that it prevented or suspended the holding of an election, or marred fatally the preparation and transmission, custody and canvass of the election returns. These essential facts ought to have been alleged clearly by the petitioner below, but he did not. Private respondent alleged in his petition with the COMELEC En Banc that the elections ensued in the subject precincts and that petitioner herein emerged as the winner and was in fact proclaimed as such by the Board of Election Inspectors.

In sum then, the grounds alleged by private respondent in his petition before the COMELEC are those for a regular election protest and are not proper in a pre-proclamation controversy; nor is such petition one for annulment of the elections or for a declaration of failure of elections in the municipality of Saguiran, Lanao del Sur. The COMELEC should have ordered the dismissal of the petition instead of issuing the assailed order. The COMELEC thus committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the same. The error is correctible by the special civil action for certiorari. PREMISES CONSIDERED, the petition is GRANTED. The assailed order is SET ASIDE. The petition of herein private respondent with the public respondent is DISMISSED, without prejudice to the filing of a regular election protest, the period for the filing of which is deemed suspended by the filing of the petition before the Commission on Elections which gave rise to the petition at bar. SO ORDERED.

FERDINAND THOMAS M. SOLLER, petitioner, vs. COMMISSION ON ELECTIONS, REGIONAL TRIAL COURT OF PINAMALAYAN, ORIENTAL MINDORO (Branch 42) and ANGEL M. SAULONG, respondents. RESOLUTION QUISUMBING, J.:

[I] ... IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS PRIVATE RESPONDENT'S ELECTION PROTEST DESPITE HIS (sic) LACK OF JURISDICTION OVER THE SAME BY REASON OF THE FAILURE OF THE PRIVATE RESPONDENT TO PAY ALL THE REQUISITE FILING FEES. [II]

This special civil action for certiorari seeks to annul the resolution promulgated on August 31, 1999, in COMELEC special relief case SPR No. 10-99. The resolution dismissed petitioner's petition to set aside the orders of the Regional Trial Court of Pinamalayan, Oriental Mindoro, dated October 1, 1998 and February 1, 1999, which denied petitioner's motion to dismiss the election protest filed by private respondent against petitioner and the motion for reconsideration, respectively. Petitioner and private respondent were both candidates for mayor of the municipality of Bansud, Oriental Mindoro in the May 11, 1998 elections. On May 14, 1998, the municipal board of canvassers proclaimed petitioner Ferdinand Thomas Soller duly elected mayor. On May 19, 1998, private respondent Angel Saulong filed with the COMELEC a "petition for annulment of the proclamation/exclusion of election return".[1] On May 25, 1998, private respondent filed with the Regional Trial Court of Pinamalayan, Oriental Mindoro, an election protest against petitioner docketed as EC-31-98. On June 15, 1998, petitioner filed his answer with counter-protest. Petitioner also moved to dismiss private respondent's protest on the ground of lack of jurisdiction, forum-shopping, and failure to state cause of action.[2] On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by private respondent. On October 1, 1998, the trial court denied petitioner's motion to dismiss. Petitioner moved for reconsideration but said motion was denied. Petitioner then filed with the COMELEC a petition for certiorari contending that respondent RTC acted without or in excess of jurisdiction or with grave abuse of discretion in not dismissing private respondent's election protest. On August 31, 1999, the COMELEC en banc dismissed petitioner's suit. The election tribunal held that private respondent paid the required filing fee. It also declared that the defect in the verification is a mere technical defect which should not bar the determination of the merits of the case. The election tribunal stated that there was no forum shopping to speak of. Under the COMELEC Rules of Procedure, a motion for reconsideration of its en banc ruling is prohibited except in a case involving an election offense.[3] Since the present controversy involves no election offense, reconsideration is not possible and petitioner has no appeal or any plain, speedy and adequate remedy in the ordinary course of law. Accordingly, petitioner properly filed the instant petition for certiorari with this Court. On September 21, 1999, we required the parties to maintain the status quo ante prevailing as of September 17, 1999, the date of filing of this petition. Before us, petitioner asserts that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction:

... IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO DISMISS PRIVATE RESPONDENT'S ELECTION PROTEST DESPITE THE INSUFFICIENCY OF HIS PETITION IN FORM AND SUBSTANCE AND ITS FAILURE TO STATE A CAUSE OF ACTION. [III] ...IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS THE ELECTION PROTEST BELOW ON THE GROUNDS OF FORUM-SHOPPING AND FAILURE TO COMPLY WITH THE SUPREME COURT CIRCULAR REQUIRING A TRUTHFUL CERTIFICATION OF NON-FORUM SHOPPING DESPITE INCONTROVERTIBLE EVIDENCE THEREOF.[4] In our view, notwithstanding petitioner's formulation of issues, the principal question presented for our resolution is whether or not public respondent COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in not ordering the dismissal of private respondent's election protest. At the outset, even if not squarely raised as an issue, this Court needs to resolve the question concerning COMELEC's jurisdiction. Unless properly resolved, we cannot proceed further in this case. Section 3, Subdivision C of Article IX of the Constitution reads: "The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite the disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decision shall be decided by the Commission en banc." Thus, in Sarmiento vs. COMELEC[5] and in subsequent cases,[6] we ruled that the COMELEC, sitting en banc, does not have the requisite authority to hear and decide election cases including preproclamation controversies in the first instance. This power pertains to the divisions of the Commission. Any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void. As can be gleaned from the proceedings aforestated, petitioner's petition with the COMELEC was not referred to a division of that Commission but was, instead, submitted directly to the Commission en banc. The petition for certiorari assails the trial court's order denying the motion to dismiss private respondent's election protest. The questioned order of the trial court is interlocutory because it does not end the trial court's task of adjudicating the parties' contentions and determining their rights and liabilities as regards each other.[7] In our view, the authority to resolve petition for certiorari involving incidental issues of election protest, like the questioned order of the trial court, falls within the division of the COMELEC and not on the COMELEC en banc. Note that the order denying the motion to dismiss is but an incident of the election protest. If the principal case,

once decided on the merits, is cognizable on appeal by a division of the COMELEC, then, there is no reason why petitions for certiorari relating to incidents of election protest should not be referred first to a division of the COMELEC for resolution. Clearly, the COMELEC en banc acted without jurisdiction in taking cognizance of petitioner's petition in the first instance.

that this decision must not provide relief to parties in future cases involving inadequate payment of filing fees in election cases. Our decisions in Pahilan and Gatchalian bar any claim of good faith, excusable negligence or mistake in any failure to pay the full amount of filing fees in election cases. In Miranda vs. Castillo, private respondents each paid per assessment the amount of P465.00 as filing fees. Of this amount, P414.00 was allocated for the JDF, P 10.00 for legal research fund, P5.00 for victim compensation fee, and only the amount of P32.00 was regarded as filing fee. The Court considered the amount as partial payment of the P300.00 filing fee under the COMELEC rules and required payment of the deficiency in the amount of P268.00. But then again, the Court reiterated the caveat that in view of Pahilan, Gatchalian, and Loyola cases we would no longer tolerate any mistake in the payment of the full amount of filing fees for election cases filed after the promulgation of the Loyola decision on March 27, 1997. Clearly then, errors in the payment of filing fees in election cases is no longer excusable. And the dismissal of the present case for that reason is, in our view, called for. Besides, there is another reason to dismiss private respondent's election protest. We note that the verification of aforesaid protest is defective. In the verification, private respondent merely stated that he caused the preparation of his petition and he has read and understood all the allegations therein.[14] Certainly, this is insufficient as private respondent failed to state that the contents of his election protest are true and correct of his persoral knowledge.[15] Since the petition lacks proper verification, it should be treated as an unsigned pleading and must be dismissed.[16] Further, we find that private respondent did not comply with the required certification against forum shopping. Private respondent successively filed a "petition for annulment of the proclamation/exclusion of election return" and an election protest. Yet, he did not disclose in his election protest that he earlier filed a petition for annulment of proclamation/exclusion of election returns. It could be argued that private respondent's petition for annulment of proclamation/exclusion of election returns was a pre-proclamation case. The issues raised in that petition pertain to the preparation and appreciation of election returns and the proceedings of the municipal board of canvassers. But note that such petition was filed after the proclamation of petitioner as the winning candidate, thus, the petition was no longer viable, for pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidates have been proclaimed. It might even be claimed with some reason that private respondent, by resorting to the wrong remedy, abandoned his pre-proclamation case earlier filed.[17] Nonetheless, private respondent's belief that he no longer had a pending case before the COMELEC because he deemed it abandoned upon filing of his protest is not a valid reason for non-disclosure of the pendency of said pre-proclamation case. Note that the COMELEC dismissed private respondent's pre-proclamation case only on July 3, 1998. Before the dismissal, said case was legally still pending resolution. Similarly, the fact that private respondent's protest was not based on the same cause of action as his pre-proclamation case is not a valid excuse for not complying with the required disclosure in the certification against forum shopping. The requirement to file a certificate of non-forum shopping is mandatory. Failure to comply with this requirement cannot be excused by the fact that a party is not guilty of forum shopping. The rule applies to any complaint, petition, application or other initiatory pleading, regardless of whether the party filing it has actually committed forum shopping. Every party filing any initiatory pleading is required to swear under oath that he has not and will not commit forum shopping. Otherwise we would have an absurd situation,

Since public respondent COMELEC had acted without jurisdiction in this case, the petition herein is without doubt meritorious and has to be granted. But in order to write finis to the controversy at bar, we are constrained to also resolve the issues raised by petitioner, seriatim. Petitioner contends that private respondent's protest should have been dismissed outright as the latter failed to pay the amount of P300.00 filing fee required under the COMELEC rules.[8] Petitioner's contention is supported by Section 9, Rule 35 of the COMELEC Rules of Procedure[9] and corresponding receipts[10] itemized as follows: P368.00 - Filing fee in EC 31-98, O.R. 7023752; P 32.00 - Filing fee in EC 31-98, O.R. 7022478; P 46.00 - Summons fee in EC 31-98, O.R. 7023752; P 4.00 - Summons fee in EC 31-98, O.R. 4167602; P 10.00 -- Legal Research Fund fee, O.R. 2595144, and; P 5.00 -- Victim Compensation Fund, O.R. 4167979 P465.00 Close scrutiny of the receipts will show that private respondent failed to pay the filing fee of P300.00 for his protest as prescribed by the COMELEC rules. The amount of P368.00 for which OR 7023752 was issued for the Judiciary Development Fund as shown by the entries in the cash book of the clerk of court.[11] Thus, only P32.00 with OR 7022478 credited to the general fund could be considered as filing fee paid by private respondent for his protest. A court acquires jurisdiction over any case only upon the payment of the prescribed docket fee.[12] Patently, the trial court did not acquire jurisdiction over private respondent's election protest. Therefore, COMELEC gravely erred in not ordering the dismissal of private respondent's protest case. We have in a string of cases[13] had the occasion to rule on this matter. In Loyola vs. COMELEC, the clerk of court assessed private respondent therein the incorrect filing fee of P32.00 at the time of filing of the election protest. Upon filing his counter-protest, petitioner was assessed to pay the same amount. Subsequently, the trial court remedied the situation by directing the parties to pay the balance of P268.00. On review, we held that the lapse was not at all attributable to private respondent and there was substantial compliance with the filing fee requirement. The error lies in the Clerk's misapplication and confusion regarding application of Section 9 of Rule 35 of the COMELEC Rules of Procedure and this Court's resolution dated September 4, 1990 amending Rule 141 of the Rules of Court. An election protest falls within the exclusive original jurisdiction of the Regional Trial Court, in which case the Rules of Court will apply, and that the COMELEC Rules of Procedure is primarily intended to govern election cases before that tribunal. But the Court declared

as in this case, where the parties themselves would be the judge of whether their actions constitute a violation of the rule, and compliance therewith would depend on their belief that they might or might not have violated the requirement. Such interpretation of the requirement would defeat the very purpose of the rule.[18] Taking into account all the foregoing circumstances in this case, we are persuaded that respondent Regional Trial Court erred and committed grave abuse of discretion in failing to dismiss private respondent's election protest against petitioner. And to reiterate, respondent COMELEC en banc had no jurisdiction to affirm the refusal of respondent trial court to dismiss private respondent's election protest. WHEREFORE, the instant petition is GRANTED. The assailed RESOLUTION of public respondent COMELEC is hereby ANNULLED AND SET ASIDE. The temporary restraining order issued by this Court on September 21, 1999, is made permanent. The Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch 42, is hereby ordered to DISMISS election protest EC No. 31-98. Costs against private respondent. SO ORDERED.

G.R. No. 118861 April 27, 1995 EMMANUEL M. RELAMPAGOS, petitioner, vs. ROSITA C. CUMBA and the COMMISSION ON ELECTIONS, respondents. DAVIDE, JR., J.: This special civil action of certiorari under Rule 65 of the Rules of Court revives the issue of whether or not the Commission on Elections (COMELEC) has jurisdiction over petitions for, certiorari, prohibition, and mandamus in election cases where it has exclusive appellate jurisdiction In the split decision of 4 March 1992 in the consolidated cases of Garcia vs. De Jesus and Uy vs. Commission on Elections, 1 this Court ruled in the negative because of the absence of any specific conferment upon the COMELEC, either by the constitution or by legislative fiat, of jurisdiction to issue such extraordinary writs. It held that jurisdiction or the legal power to hear and determine a cause or causes of action, must exist as a matter of law, whether the jurisdiction is original or appellate, and since these two classes of jursdiction are exclusive of each other, each must expressly conferred by law. One does not flow, nor is inferred, from the other. This Court proceeded to state that in the Philippine setting, the authority to issue the aforesaid writs involves the exercise of original jurisdiction which has always been expressly conferred either by Constitution or by law. It is never derived by implication. Although the Constitution grants the COMELEC appellate jurisdiction, it does not grant it any power to exercise original jurisdiction over petitions for certiorari, prohibition, and mandamus unlike the case of this Court which is specifically conferred with such authority in Section 5(1) of Article VIII. It also pointed out that the doctrines laid down in Pimentel vs. COMELEC 2 that neither the Constitution nor any law has conferred jurisdiction on the COMELEC to issue such writs still finds application under the 1987 Constitution. In the decision of 29 July 1992 in Veloria vs. Commission on Elections, Garcia and Uy doctrine.
3

In the synchronized elections of 11 May 1992, the petitioner and private respondent Rosita Cumba were candidates for the position of Mayor in the municipality of Magallanes, Agusan del Norte. The latter was proclaimed the winning candidate, with a margin of only twenty-two votes over the former. Unwilling to accept defeat, the petitioner filed an election protest with the Regional Trial Court (RTC) of Agusan del Norte, which was assigned to Branch 2 thereof in Butuan City. On 29 June 1994, the trial court, per Judge Rosario F. Dabalos, found the petitioner to have won with a margin of six votes over the private respondent and rendered judgement in favor of the petitioner as follows: WHEREFORE, in view of the foregoing results, the court hereby declares the protestant as having won the mayoralty election and as duly elected Mayor of the Municipality of Magallanes, Agusan del Norte in the local election held on May 11, 1992, the protestant having obtained six (6) votes more than that of the protestee's votes. Copies of the decision were sent to and received by the petitioner and the private respondent on 1 July 1994. On 4 July 1994, the private respondent appealed the decision to the COMELEC by filing her notice of appeal and paying the appellate docket fees. On 8 July 1994, the trial court gave due course to the appeal. On 12 July 1994, the petitioner filed with the trial court a motion for execution pending appeal, which the private respondent opposed on 22 July 1994. On 3 August 1994, the trial court granted the petitioner's motion for execution pending appeal. The corresponding writ of execution was forthwith issued. Thereafter, the private respondent filed a motion for a reconsideration of the order of execution and the sheriff held in abeyance the implementation of the writ. This motion was denied on 5 August 1994. The private respondent then filed with the respondent COMELEC a petition for certiorari to annul the aforesaid other of the trial court granting the motion for execution pending appeal and the writ of execution. The petition was docketed as SPR No. 1-94. On 9 February 1995, the COMELEC promulgated its resolution granting the petition. 4 The dispositive portion thereof reads as follows: WHEREFORE, premises considered, the Commission RESOLVES that is [sic] has exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus in election cases as authorized by law, and therefore, assumes jurisdiction of the instant petition for certiorari which is hereby GRANTED. The Order of the court a quo of August 3, 1994 is hereby declared NULL and VOID and the Writ of Execution issued on August 4, 1994 LIFTED. Accordingly, petitioner Rosita Cumba is ordered restored to her position .as Municipality Mayor of Magallanes, Agusan del Norte, pending resolution of the appeal before this Commission in the case of Relampagos vs. Cumba in EAC No. 108-94.

this Court reiterated the

In the challenged resolution at bench, the respondent COMELEC adhered to the affirmative view of the issue, citing as authority therefore its own decision of 29 July 1993 in Dictado vs. Cosico and the last paragraph of Section 50 of B. P. Blg. 697, which reads: Sec. 50. Definition. xxx xxx xxx The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari prohibition, and mandamus involving election cases. The petitioner herein pleads that this resolution be set aside and nullified for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He contends that while the COMELEC's position is inherently compelling, it deserves scant consideration in view of Garcia and Uy and Veloria and the nature and purpose of B. P. Blg. 697 which was to govern solely the Batasang Pambansa election of 14 May 1984; hence, it was a temporary statute which selfdestructed after such election. The antecedent facts that led to the filing of this action are uncomplicated and undisputed.

In upholding its jurisdiction in certiorari, prohibition, and mandamus cases, the respondent COMELEC maintains that there is a special law granting it such jurisdiction, viz., Section 50 of B.P. Blg. 697, which remains in full force as it was not expressly repealed by the Omnibus Election Code (B.P. Blg. 881),and that it is not exactly correct that this law self-destructed after the May 1984 election. It further reasoned out that in the performance of its judicial functions, the COMELEC, is the most logical body to issue the extraordinary writs of certiorari, prohibition and mandamus in election cases where it has appellate jurisdiction. It ratiocinated as follows: It is therefore clear that if there is a law which specifically confers jurisdiction to issue the prerogative Writs, then the Commission has jurisdiction. Such a law exists. Section 50, B.P. Blg. 697 is that law. B.P. Blg. 697, approved on March 14, 1984, is entitled "AN ACT TO GOVERN THE ELECTION OF MEMBERS OF THE BATASANG PAMBANSA ON MAY 14, 1984 AND THE SELECTION OF SECTORAL REPRESENTATIVES THEREAFTER, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES. Section 50 provides: Sec. 50. Definition. Pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the Board of Canvassers which may be raised by any candidate, political party or coalition of political parties before the board or directly with the Commission. The Commission Elections shall be the sole judge and shall have exclusive jurisdiction over all preproclamation controversies. The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases.(Emphasis supplied). We have debated among ourselves whether Section 50, B.P. Blg. 697, has been repealed. We have come to the conclusion that it has not been repealed. The repealing provision in the Omnibus Election Code (BP Blg. 881, December 3, 1985), provides: Sec. 282. Repealing Clause. Presidential Decree No. 1296 otherwise known as the The 1978 Election Code, as amended, is hereby repealed. All other election Laws, decrees, executive orders, rules and regulations or parts thereof, inconsistent with the provisions of this Code is hereby repealed, except Presidential Decree No. 1618 and Batas Pambansa Blg. 20 governing the election of the members of the Sangguniang Pampook of Regions IX and XII. (Emphasis supplied). B.P. Blg. 697 has not been expressly repealed, and Section 50 thereof is not inconsistent with the provisions of the Omnibus Election Code. Besides, in the cited Garcia/Uy cases, as reiterated in the Veloria case, the Supreme Court itself said, reiterating previous cases, that implied repeal of statutes is frowned upon, thus: Just as implied repeal of statutes frowned upon, so also should the grant of original jurisdiction by mere implication to a quasi-judicial body be tabooed. (Garcia/Uy/Veloria Cases: Emphasis supplied). It is equally clear that Executive Order No. 90 . . . did not modify or repeal, whether expressly or impliedly, Section 23 of P.D. No. 1752. It is common place Learning that implied repeal are not favored in Law and are not casually to be assumed. The first effort of a court must always be to reconcile or adjust the provisions of one statute with those of another so as to give sensible effect to

both provisions (Jalandoni vs. Andaya, 55 SCRA 261 (1974); Villegas vs. Subido, 41 SCRA 190, 196197 (1971); National Power Corporation vs. ARCA, 25 SCRA 931 (1968); U.S. vs. Palacios, 33 Phil. 208 (1916); and Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377(1965). Only when there is clear inconsistency and conflict between the provisions of two (2) statutes, may a court hold that the provisions later in point of time have impliedly repealed the earlier ones" that (Philippine American Management Co., Inc., vs. Philippine American Management Employees Association, 49 SCRA 194 (1973); and Villegas vs. Subido, 41 SCRA 190 (1971) (Larga vs. Ranada, Jr., No. L-7976, August 3, 1984, 164 SCRA 25). It was even suggested that Batas Pambansa Blg. 697 self-destructed after the Batasang Pambansa elections of 1984; because of the provisions of Section 1 (Title and Applicability) which provides: "This act shall be known and cited as "The Law on the 1984 Batasang Pambansa Election." It shall govern the election for the regular Batasang Pambansa which shall be held on May 14, 1984, and the selection of sectoral representatives thereafter as provided by the Constitution. While that may be true with most of its provisions which were applicable only for the particular election (like election and campaign periods, voting constituency, etc.) most if not all of the remaining provisions could be applicable to future elections. It is not lost to the Commission that B.P. Blg. 697 was passed also "for other purposes." But the important consideration is that the authority granted to the Commission under B.P. Blg. 697 is not inconsistent with our election laws. It should be mentioned that the provisions of Republic Act No. 6638 which governed the local elections of January 18, 1988, as to the number of councilors in specified cities (Sec. 3) and the number of Sangguniang members in different provinces and cities (Sec. 4) are still applicable up to this day. In fact, it became one of the important controlling provision which governed the May 11, 1992 elections. If provisions of Republic Act No. 6636 which are not inconsistent with the present election laws did not self-destruct, why should Section 50 of B.P. Blg. 697? Another provision which did not self-destruct is that which provides that "any city or municipal judge, who includes or excludes any voter without any legal basis in inclusion and exclusion proceedings, shall be guilty of an election offense," although this provision is found in Section 10 of Executive Order No. 134 supposedly with limited application as the enabling act for the elections for Members of Congress on May 11, 1987 and for other purposes. Clearly the intent of the law, was to give certiorari, jurisdiction to the Commission on Elections because the Pimentel case said there was none, to fill a void in the law, and avoid an incongruous situation. A statute's clauses and phrases must not be taken separately but in its relation to the statute's totality. Each statute must, in fact, be construed as to "harmonized it with the pre-existing body of laws." Unless clearly repugnant, provisions of statutes must be reconciled. . . . (Commissioner of Customs vs. ESSO Standard Eastern, Inc. L-28329, August 7, 1975, 66 SCRA 113). xxx xxx xxx The statutory construction rule is: "When the Legislature enacts provision, it is understood that it is aware of previous statutes relating to the same subject matter and that in the absence of any express repeal or amendment therein, the new provision should be deemed enacted pursuant to

the legislative policy embodied in the prior statutes." (Legaspi vs. Executive Secretary, L-36153, November 28, 1975, 68 SCRA 253). The Commission is the most logical body whenever it performs judicial functions to take jurisdiction of petitions for certiorari, prohibition and mandamus because it has appellate jurisdiction in election cases granted by the Constitution itself. The Court of Appeals has no more appellate jurisdiction over such cases And in the case of the Supreme Court, Justice de Castro in the Pimentel case pointed out, in his dissenting opinion that under the Constitution the certiorari jurisdiction of the Supreme Court in election cases should properly be limited to decisions, orders or rulings of the Commission on Elections, not from lower courts. It was of course different under the Election Code of 1971 (R.A. No. 6388, September 2, 1971) because the Supreme Court and the Court of Appeals then had appellate jurisdiction in election case decided by the lower courts. In the Veloria case, it now appears that only the Supreme Court and the Court of Appeals have certiorari jurisdiction over election cases from the lower courts because after reiterating the ruling in the Garcia and Uy cases, the Supreme Court said: In view of this pronouncement, an original civil action of certiorari, prohibition or mandamus against a regional trial court in an election contest may be filed only in the Court of Appeals or in this Court being the only courts given such original jurisdiction under the Constitution and the Law. (Emphasis supplied). While these two appellate Courts do have the jurisdiction under the Constitution and the law, it is most logical for the Commission whenever it performs judicial functions to have the authority to issue these prerogative writs. . . In traversing the first issue, we are citing our decision laid down in the case of Antonio Dictado vs. Hon. Rodrigo N. Cosico and Emilio Tiongco promulgated on July 29, 1993. In this case, the Commission en banc had occasion to rule on the question of whether or not the Commission has the authority to hear and decide petitions for certiorari in election cases. The Commission En Banc, speaking through Hon. Commissioner Regalado E. Maambong, ruled that there is [a] law which grants the Commission, the exclusive authority to issue special writs of certiorari, prohibition and mandamus in election cases, and there are also Supreme Court decisions, recent in fact, which declare that the Commission has no such authority precisely because; according to the decisions, there is no law granting such authority, and without any hint whatsoever of the existence of Sec. 50 of Batas vs. Pambansa Blg. 697. As gleaned from the case of Dictado, respondents were arguing that Sec. 50 of BP Blg. 697 was repealed by the Omnibus Election Code (BP Blg. 881, December 3, 1985). Furthermore, in their answer, respondents cited Supreme Court decisions where it was declared that, indeed, the Commission has no jurisdiction to issue special writs of certiorari, prohibition and mandamus in aid of its appellate jurisdiction. It is still the position of this Commission that Sec. 50, BP Blg. 697 has not been repealed. As defined in the Constitution, "Judicial power" includes the duty of the Courts of Justice to settle actual controversies involving rights which are legally demandable and enforceable, and to

determine whether or not there has been a grave abuse of discretion amounting to lack or excess, of jurisdiction on the part of any branch or instrumentality of the government (Sec. 1, par. 2, Art. VII). Since the COMELEC, in discharging its appellate jurisdiction pursuant to Sec. 2 (2), Art. IX-C, acts as a court of justice performing judicial power and said power includes the determination of whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction, it necessarily follows that the Comelec, by constitutional mandate, is vested with jurisdiction to issue writs of certiorari in aid of its appellate jurisdiction. 5 It set aside, for having been issued with grave abuse of discretion, the trial court's order of execution pending appeal and the writ of execution because [a]t the time the Motion for Execution Pending Appeal was filed on July 12, 1994 the court a quo had already lost jurisdiction over the case for as early as July 8, 1994, it had already acknowledged through its order issued on that date, the perfection of the appeal of petitioner as in fact it ordered the elevation of the records of the case to this Honorable Commission. 6 Aggrieved by the resolution, the petitioner filed the instant special civil action. In the resolution of 21 February 1985, the Court required the respondents to comment on the petition and issued a temporary restraining order enjoining the respondent COMELEC to cease and desist from enforcing is challenged resolution. As naturally expected, the private respondent, in her Comment, opposed the petition by invoking the very arguments adduced by the respondent COMELEC in its challenged the resolution and the dissenting opinion in the Garcia and Uy cases. In its comment filed by the Office of the Solicitor General, the respondent COMELEC postulates that it issued the said resolution after it had taken cognizance of the appeal interposed by the private respondent from the RTC decision, unlike in the Garcia and Uy cases, and therefore, in the exercise of its appellate jurisdiction, thus: it cannot be gainsaid that [it] possesses inherent powers to employ means necessary to carry into effect the powers conferred upon it by law (Sec. 6, Rule 135 of the Revised Rules of Court) and verily, there was no need for any statutory grant for that purpose. Indeed, in annulling the Order of Execution of the Regional Trial Court, public respondent did not exceed its jurisdiction since its action in this regard was necessary to preserve the subject of the appeal and to maintain the status quo of the parties pending the final outcome of its review of the correctness of the appealed decision. 7 It tried to show that in Pimentel and Garcia, the trial courts still had jurisdiction over the cases unlike in the instant case where the trial court had already given due course to the appeal and elevated the records of the case to the COMELEC which had taken cognizance of the appeal. This Court resolved to give due course to this petition and to decide it on its merits. The contention of the respondent COMELEC as advanced by the Office of the Solicitor General is unacceptable. It goes against its theory in the assailed resolution and is not supported by the facts. The challenged resolution involves a case which the COMELEC docketed as a special relief case

(SPR. No. 1-94). Under Rule 28 of its Rules of Procedure, the special relief cases are petitions for certiorari, prohibition, mandamus, and contempt proceedings. The ordinary appeal from the RTC decision was, as disclosed in the challenged resolution; docketed as EAC No. 108-94. 8 Clearly then, the COMELEC had recognized and taken cognizance of two cases: one, the ordinary appeal from the RTC decision (EAC No. 108-94), and two, the special civil action for certiorari docketed as SPR No. 194. The two cases were not consolidated. The dissimilarities between them need no further elaboration. Since it issued the challenged resolution under the latter case, it cannot now be heard to state that it issued it as an incident in the former, the ordinary appeal. This erroneous contention of the Office of the of the Solicitor General notwithstanding, the position taken by the COMELEC in its resolution now in question paves the way for a re-examination of this Court's pronouncement in the Garcia and Uy cases. As earlier stated, in Garcia and Uy, 9 and later, in Veloria, 10 this Court ruled that the COMELEC has no jurisdiction over the extraordinary writs of certiorari, prohibition, and mandamus because there is no specific constitutional or statutory conferment to it of such jurisdiction. The respondent COMELEC, however, points out that Section 50 of B.P. Blg. 697 expressly granted it such jurisdiction. Indeed, it did. Nevertheless, considering that the said law was, per Section 1 thereof, "to govern the election for the regular Batasang Pambansa which shall be held on May 14, 1984, and the selection of sectoral representatives thereafter as provided by the Constitution," and in view of the passage of the Omnibus Election Code (B.P. Blg. 881) by the regular Batasang Pambansa, 11 this Court is then confronted with the twin issues of whether said B.P. Blg. 697 became functus officio after the 14 May 1984 election of members of the regular Batasang Pambansa or the selection thereafter of the sectoral representatives at the latest, and whether it was repealed by the Omnibus Election Code. The Court agrees with the respondent COMELEC that there are provisions in B.P. Blg. 697 whose lifetime go beyond the 14 May 1984 election or the subsequent selection of sectoral representatives. In fact, by the very wording of the last paragraph of its Section 50, to: wit: Sec. 50. Definition. xxx xxx xxx The Commission is hereby vested with the exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases. (Emphasis supplied). it is quite clear that the exercise of the power was not restricted within a specific period of time. Taken in the context of the conspicuous absence of such jurisdiction as ruled in Pimentel vs. Commission on Elections, 12 it seems quite obvious that the grant was intended as a remedial legislation to eliminate the seeming incongruity or irrationality resulting in a splitting of jurisdiction pointed out in the dissenting opinion of Justice De Castro in the said case. But did not the Omnibus Election Code (B.P. Blg. 881) repeal B.P. Blg. 697? The repealing clause of the latter reads as follows: Sec. 282. Repealing clause. Presidential decree No. 1296, otherwise known as The 1978 Election Code, as amended, is hereby repealed. All other election laws, decrees, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Code are hereby repealed,

except Presidential Decree No. 1618 .and Batas Pambansa Blg. 20 governing the election of the members of the Sangguniang Pampook of Regions IX and XII. The second sentence is in the nature of a general repealing clause. It has been said: An express general repealing clause to the effect that. all inconsistent enactments are repealed; is in legal contemplation a nullity. Repeals must either be expressed or result by implication. Although it has in some instances been held to be an express recognition that there are acts in conflict with the act in which it is included and as indicative of the legislative intent to repeal such acts, a general repealing clause cannot be deemed an express repeal because it fails to identify or designate any act to be repealed. It cannot be determinative of an implied repeal for if does not declare any inconsistency but conversely, merely predicates a repeal upon the condition that a substantial conflict is found under application of the rules of implied repeals. If its inclusion is more than mere mechahical verbiage, it is more often a detriment than an aid to the establishment of a repeal, for such clause is construed as an express limitation of the repeal to inconsistent acts. 13 This Court is not unaware of the equally settled rule in statutory construction that in the revision or codification of laws, all parts and provisions of the old laws that are omitted in the revised statute or code are deemed repealed, unless the statute or code provides otherwise expressly or impliedly. 14 By the tenor of its aforequoted Repealing Clause, it does not evidently appear that the Batasang Pambansa had intended to codify all prior election statutes and to replace them with the new Code. It made, in fact, by the second sentence, a reservation that all prior election statutes or parts thereof not inconsistent with any provisions of the Code shall remain in force. That sentence predicates the intended repeal upon the condition that a substantial conflict must be found on existing and prior acts of the same subject matter. Such being the case, the presumption against implied repeals and the rule on strict construction regarding implied repeals apply ex proprio vigore. For the legislature is presumed to know the existing laws so that, if repeal of particular or specific law or laws is intended, the proper step is to express it. The failure to add a specific repealing clause particularly mentioning the statute to be repealed indicates that the intent was not to repeal any existing law on the matter, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and the old laws. 15 This being the case, the Court painstakingly examined the aforesaid last paragraph of Section 50 of the Omnibus Election Code to determine if the former is inconsistent with any of the provisions of the latter, It found none. In the face of the foregoing disquisitions, the Court must, as it now does, abandon the ruling in the Garcia and Uy and Veloria cases, We now hold that the last paragraph of Section 50 of B.P. Blg. 697 providing as follows: The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases. remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction. Simply put, the COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition, and mandamus only in aid of its appellate jurisdiction.

The jurisdiction of the COMELEC having been settled, we now proceed to review the substance of the challenged resolution. That the trial court acted with palpable and whimsical abuse of discretion in granting the petitioner's motion for execution pending appeal and in issuing the writ of execution is all too obvious. Since both the petitioner and the private respondent received copies of the decision on 1 July 1994, an appeal therefrom may be filed within five days 16 from 1 July 1994, or on or before 6 July 1994. Any motion for execution pending appeal must be filed before the period for the perfection of the appeal. Pursuant to Section 23 of the Interim Rules Implementing B.P. Blg. 129, which is deemed to have supplementary effect to the COMELEC Rules of Procedures pursuant to Rule 43 of the latter, an appeal would be deemed perfected on the last day for any of the parties to appeal, 17 or on 6 July 1994. On 4 July 1994, the private respondent filed her notice of appeal and paid the appeal fee. On 8 July 1994, the trial court gave due course to the appeal and ordered the elevation of the records of the case to the COMELEC. Upon the perfection of the appeal, the trial court was divested of its jurisdiction over the case. 18 Since the motion for execution pending appeal was filed only on 12 July 1994, or after the perfection of the appeal, the trial court could no longer validly act thereon. It could have been otherwise if the motion was filed before the perfection of the appeal. 19 Accordingly, since the respondent COMELEC has the jurisdiction to issue the extraordinary writs of certiorari, prohibition, and mandamus, then it correctly set aside the challenged order granting the motion for execution pending appeal and writ of execution issued by the trial court. WHEREFORE, the instant petition is DENIED and the challenged resolution of 9 February 1995 of the Commission on Elections in SPR No. 1-94 entitled "Rosita Cumba vs. Manuel M. Relampagos, et al. " is AFFIRMED. The temporary restraining order issued on 21 February 1995 is hereby LIFTED. No pronouncemnt as to costs. SO ORDERED.

[G.R. No. 142907. November 29, 2000] JOSE EMMANUEL L. CARLOS, petitioner, vs. HON. ADORACION G. ANGELES, IN HER CAPACITY AS THE ACTING PRESIDING JUDGE OF THE REGIONAL TRIAL COURT IN CALOOCAN CITY (BRANCH 125) and ANTONIO M. SERAPIO, respondents. DECISION PARDO, J.: The Case The case before the Court is an original special civil action for certiorari and prohibition with preliminary injunction or temporary restraining order seeking to annul the decision of the Regional Trial Court, Caloocan City, Branch 125, the dispositive portion of which reads as follows: WHEREFORE, premises considered, the proclamation of the Protestee, Jose Emmanuel Carlos, by the Board of Canvassers is accordingly SET ASIDE. The Court hereby FINDS the Protestant, ANTONIO SERAPIO, as the DULY ELECTED MAYOR OF VALENZUELA CITY. SO ORDERED.[1] The Facts Petitioner Jose Emmanuel L. Carlos and respondent Antonio M. Serapio were candidates for the position of mayor of the municipality of Valenzuela, Metro Manila (later converted into a City) during the May 11, 1998 elections. On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro Manila proclaimed petitioner as the duly elected mayor of Valenzuela having obtained 102,688 votes, the highest number of votes in the election returns. On June 1, 1998, respondent Antonio M. Serapio who obtained 77,270 votes, the second highest number of votes, filed with the Regional Trial Court, Valenzuela, Metro Manila, an election protest challenging the results. Due to the inhibition of all judges of the Regional Trial Court in Valenzuela, the case was ultimately assigned to the Regional Trial Court, Caloocan City, Branch 125, presided over by respondent Judge Adoracion G. Angeles. On June 26, 1998, petitioner filed with the trial court an answer with affirmative defenses and motion to dismiss. The court denied the motion to dismiss by order dated January 14, 1999. Petitioner elevated the order to the Commission on Elections (Comelec) on petition for certiorari and prohibition,[2] which, however, has remained unresolved up to this moment. In the course of the protest, the municipal treasurer of Valenzuela, who by law has custody of the ballot boxes, collected the ballot boxes and delivered them to the Regional Trial Court, Caloocan City. The trial court conducted a pre-trial conference of the parties but it did not produce a substantial result as the parties merely paid superficial service and only agreed on the following:

1. Both parties admit their capacity to sue and be sued; 2. Both parties admit that the protestant was a candidate during the May 11, 1998 election;

3. Both parties admit that the protestee has been proclaimed as the elected mayor of Valenzuela, Metro Manila, on May 21, 1998; 4. Both parties admit that the protestee allegedly obtained 102,688 votes while the protestant obtained 77,270 votes per canvass of election returns of the Board of Canvassers. The pre-trial was then concluded and the parties agreed to the creation of seven (7) revision committees consisting of a chairman designated by the court and two members representing the protestant and the protestee. Meantime, on May 12, 1999, petitioner filed a consolidated motion that included a prayer for authority to photocopy all the official copies of the revision reports in the custody of the trial court. However, the trial court denied the issuance of such authorization.[3] The court likewise denied a motion for reconsideration of the denial.[4] Then petitioner raised the denial to the COMELEC on petition for certiorari and mandamus,[5] which also remains unresolved until this date. The Revision Results The revision of the ballots showed the following results: (1) Per physical count of the ballots: (a) protestant Serapio - 76,246 votes. (b) protestee Carlos - 103,551 votes. (2) Per revision, the court invalidated 9,697 votes of the protestant but validated 53 stray votes in his favor. The court invalidated 19,975 votes of the protestee and validated 33 stray votes in his favor. The final tally showed: (a) protestant Serapio - 66,602 votes. (b) protestee Carlos - 83,609 votes, giving the latter a winning margin of 17,007 votes. The Trial Courts Ruling Nevertheless, in its decision, the trial court set aside the final tally of valid votes because of its finding of significant badges of fraud, namely: 1. The keys turned over by the City Treasurer to the court did not fit into the padlocks of the ballot boxes that had to be forcibly opened;

2. Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes out of the seven (7) ballot boxes did not contain any election returns;

(4) The assailed decision is contrary to law, based on speculations and not supported by the evidence as shown in the decision itself.[11] The Issues

3. Some schools where various precincts were located experienced brownouts during the counting of votes causing delay in the counting although there was no undue commotion or violence that occurred; 4. Some of the assigned watchers of protestant were not in their posts during the counting of votes. On the basis of the foregoing badges of fraud, the trial court declared that there was enough pattern of fraud in the conduct of the election for mayor in Valenzuela. The court held that the fraud was attributable to the protestee who had control over the election paraphernalia and the basic services in the community such as the supply of electricity. On April 24, 2000, the trial court rendered a judgment ruling that the perpetuation of fraud had undoubtedly suppressed the true will of the electorate of Valenzuela and substituted it with the will of the protestee. Notwithstanding the plurality of valid votes in favor of the protestee, the trial court set aside the proclamation of protestee Jose Emmanuel Carlos by the Municipal Board of Canvassers and declared protestant Antonio M. Serapio as the duly elected mayor of Valenzuela City.[6] Hearing news that the protestant had won the election protest, the protestee secured a copy of the decision from the trial court on May 4, 2000. On the other hand, notice of the decision was received by the protestant on May 03, 2000. On May 4, 2000, protestant filed with the trial court a motion for execution pending appeal.[7] On May 4, 2000, the trial court gave protestee five (5) days within which to submit his comment or opposition to the motion.[8] Petitioners Appeal to Comelec Meantime, on May 04, 2000, petitioner filed a notice of appeal from the decision of the trial court to the Commission on Elections.[9] The Petition at bar On May 8, 2000, petitioner filed the present recourse.[10] Petitioner raised the following legal basis: (1) The Supreme Court has original jurisdiction to entertain special civil actions of certiorari and prohibition; (2) There are important reasons and compelling circumstances which justify petitioners direct recourse to the Supreme Court; (3) Respondent judge committed grave abuse of discretion when she declared respondent Serapio as the duly elected mayor of Valenzuela despite the fact that she found that petitioner obtained 17,007 valid votes higher than the valid votes of respondent Serapio;

The issues raised are the following: 1. Whether the Supreme Court has jurisdiction to review, by petition for certiorari as a special civil action, the decision of the regional trial court in an election protest case involving an elective municipal official considering that it has no appellate jurisdiction over such decision. 2. Whether the trial court acted without jurisdiction or with grave abuse of discretion when the court set aside the proclamation of petitioner and declared respondent Serapio as the duly elected mayor of Valenzuela City despite its finding that petitioner garnered 83,609 valid votes while respondent obtained 66,602 valid votes, or a winning margin of 17,007 votes. TRO Issued On May 8, 2000, we issued a temporary restraining order ordering respondent court to cease and desist from further taking cognizance of Election Protest No. 14-V-98 more specifically from taking cognizance of and acting on the Motion for Execution Pending Appeal filed by respondent Serapio on May 4, 2000.[12] Respondents Position On May 15, 2000, respondent Serapio filed his comment with omnibus motion to lift the temporary restraining order and to declare petitioner in contempt of court for violating the rule against forum shopping.[13] He submitted that Comelec and not the Supreme Court has jurisdiction over the present petition for certiorari assailing the decision dated April 24, 2000 of the regional trial court. Assuming that this Court and Comelec have concurrent jurisdiction and applying the doctrine of primary jurisdiction, the Comelec has jurisdiction since petitioner has perfected his appeal therewith before the filing of the instant petition. Certiorari cannot be a substitute for an appeal; the present petition is violative of Revised Circular No. 28-91 on forum-shopping; issues raised are factual, not correctible by certiorari; and that the temporary restraining order should be lifted, the petition dismissed, and petitioner and counsel should be made to explain why they should not be punished for contempt of court. The Courts Ruling We find the petition impressed with merit.[14] I. The Supreme Court is vested with original jurisdiction to issue writs of certiorari, prohibition and mandamus against the decision of the regional trial court in the election protest case before it, regardless of whether it has appellate jurisdiction over such decision. Article VIII, Section 5 (1) of the 1987 Constitution provides that: Sec. 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. Rule 65, Section 1 of the 1997 Rules of Civil Procedure, as amended, provides that: SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasijudicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. By Constitutional fiat, the Commission on Election (Comelec) has appellate jurisdiction over election protest cases involving elective municipal officials decided by courts of general jurisdiction, as provided for in Article IX (C), Section 2 of the 1987 Constitution: Sec. 2. The Commission on Elections shall exercise the following powers and functions: (1) x x x. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. In like manner, the Comelec has original jurisdiction to issue writs of certiorari, prohibition and mandamus involving election cases in aid of its appellate jurisdiction.[15] This point has been settled in the case of Relampagos vs. Cumba,[16] where we held: In the face of the foregoing disquisitions, the court must, as it now does, abandon the ruling in the Garcia and Uy and Veloria cases. We now hold that the last paragraph of Section 50 of B. P. Blg. 697 providing as follows: The Commission is vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases. remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction. Simply put, the COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition, and mandamus only in aid of its appellate jurisdiction. (Emphasis ours). Consequently, both the Supreme Court and Comelec have concurrent jurisdiction to issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of general jurisdiction (regional

trial courts) in election cases involving elective municipal officials. The Court that takes jurisdiction first shall exercise exclusive jurisdiction over the case.[17] Ergo, this Court has jurisdiction over the present petition of certiorari as a special civil action expressly conferred on it and provided for in the Constitution. Relative to the appeal that petitioner filed with the COMELEC, the same would not bar the present action as an exception to the rule because under the circumstances, appeal would not be a speedy and adequate remedy in the ordinary course of law.[18] The exception is sparingly allowed in situations where the abuse of discretion is not only grave and whimsical but also palpable and patent, and the invalidity of the assailed act is shown on its face.

II. Certiorari lies. The trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction. Its decision is void. The next question that arises is whether certiorari lies because the trial court committed a grave abuse of discretion amounting to lack or excess of jurisdiction in deciding the way it did Election Protest Case No. 14-V-98, declaring respondent Serapio as the duly elected mayor of Valenzuela, Metro Manila. In this jurisdiction, an election means the choice or selection of candidates to public office by popular vote[19] through the use of the ballot, and the elected officials of which are determined through the will of the electorate.[20] An election is the embodiment of the popular will, the expression of the sovereign power of the people.[21] Specifically, the term election, in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of votes.[22] The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election.[23] Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in all republican forms of government the basic idea is that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election.[24] In case of protest, a revision or recount of the ballots cast for the candidates decides the election protest case. The candidate receiving the highest number or plurality of votes shall be proclaimed the winner. Even if the candidate receiving the majority votes is ineligible or disqualified, the candidate receiving the next highest number of votes or the second placer, can not be declared elected.[25] The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes and does not entitle a candidate receiving the next highest number of votes to be declared elected.[26] In other words, a defeated candidate cannot be deemed elected to the office.[27] Election contests involve public interest, and technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. In an election case, the court has an imperative duty to ascertain by all means within its command who is the real candidate elected by the electorate. The Supreme Court frowns

upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results.[28] In this case, based on the revision of ballots, the trial court found that: First, by canvass of the Municipal Board of Canvassers the results were: Carlos Serapio - 102,668 votes - 77,270 votes, or a winning margin of 25,418 votes 20 votes.

compass.[30] On the other hand, the Summary of Votes as revised does not show any unaccounted precinct or whether there was any precinct without any ballot or election returns. It is a standard procedure of the Commission on Elections (Comelec) to provide extra empty ballot boxes for the use of the Board of Election Inspectors or the Board of Canvassers, in case of necessity. The empty ballot boxes found could be the empty reserve ballot boxes that were not used by the Board of Election Inspectors or the Board of Canvassers since there was neither proof nor even a claim of missing ballots or missing election returns. Third: Some schoolhouses experienced brownout during the counting of votes. There was nothing extraordinary that would invite serious doubts or suspicion that fraud was committed during the brownout that occurred. Indeed, one witness stated that it was the first time that he observed brownout in Dalandanan Elementary School and another stated that the brownout was localized in Coloong Elementary School. Since counting of votes lasted until midnight, the brownouts had caused only slight delay in the canvassing of votes because the election officials availed themselves of candles, flashlights and emergency lights. There were no reports of cheating or tampering of the election returns. In fact, witnesses testified that the counting of votes proceeded smoothly and no commotion or violence occurred. So, the brownouts had no effect on the integrity of the canvass. Fourth: The absence of watchers for candidate Serapio from their posts during the counting of votes. This cannot be taken against candidate Carlos since it is the candidates own look-out to protect his interest during the counting of votes and canvassing of election returns. As long as notices were duly served to the parties, the counting and canvassing of votes may validly proceed in the absence of watchers. Otherwise, candidates may easily delay the counting of votes or canvassing of returns by simply not sending their watchers. There was no incomplete canvass of returns, contrary to what the trial court declared. The evidence showed complete canvass in Valenzuela, Metro Manila.[31] We cannot allow an election protest on such flimsy averments to prosper, otherwise, the whole election process will deteriorate into an endless stream of crabs pulling at each other, racing to disembank from the water.[32] Assuming for the nonce that the trial court was correct in holding that the final tally of valid votes as per revision report may be set aside because of the significant badges of fraud, the same would be tantamount to a ruling that there were no valid votes cast at all for the candidates, and, thus, no winner could be declared in the election protest case. In short, there was failure of election. In such case, the proper remedy is an action before the Commission on Elections en banc to declare a failure of election or to annul the election.[33] However, the case below was an election protest case involving an elective municipal position which, under Section 251 of the Election Code, falls within the exclusive original jurisdiction of the appropriate regional trial court.[34] Nonetheless, the annulment of an election on the ground of fraud, irregularities and violations of election laws may be raised as an incident to an election contest. Such grounds for annulment of an election may be invoked in an election protest case. However, an election must not be nullified and the voters disenfranchised whenever it is possible to determine a winner on the basis of valid votes cast, and discard the illegally cast ballots. In this case, the petitioner admittedly received 17,007 valid votes more than the protestee, and therefore the nullification of the election would not lie. The power to nullify an election must be exercised with the greatest care with a view not to

Ramon Ignacio -

and consequently, the Board of Canvassers proclaimed petitioner Carlos the duly elected mayor of Valenzuela, Metro Manila. Second, by physical count of the ballots, the results were: Caros Serapio - 103,551 votes - 76,246 votes, or a winning margin of 27,305 votes.

Third, by revision of the ballots, the trial court found in a final tally that the valid votes obtained by the candidates were as follows: Carlos Serapio - 83,609 votes - 66,602 votes, or a winning margin of 17,007 votes.

Consequently, the final tally clearly showed petitioner Carlos as the overwhelming winner in the May 11, 1998 elections. However, the trial court set aside the final tally of votes because of what the trial court perceived to be significant badges of fraud attributable to the protestee.[29] These are: First: The failure of the keys turned over by the City Treasurer to the trial court to fit the padlocks on the ballot boxes that compelled the court to forcibly open the padlocks. The trial court concluded that the real keys were lost or the padlocks substituted pointing to possible tampering of the contents of the ballot boxes. Procedurally, the keys to the ballot boxes were turned over by the Board of Election Inspectors from the precinct level to the Municipal Board of Canvassers and finally to the municipal treasurer for safekeeping. The three-level turn-over of the keys will not prevent the possibility of these keys being mixed up. This is an ordinary occurrence during elections. The mere inability of the keys to fit into the padlocks attached to the ballot boxes does not affect the integrity of the ballots. At any rate, the trial court easily forced open the padlocks and found valid votes cast therein; Second: Seven (7) ballot boxes were found empty. Thus, the trial court concluded that there were missing ballots and missing election returns. This is pure speculation without factual basis. The sea of suspicion has no shore, and the court that embarks upon it is without rudder or

disenfranchise the voters, and only under circumstances that clearly call for such drastic remedial measure.[35] As heretofore stated, in this jurisdiction, elections are won on the basis of a majority or plurality of votes cast and received by the candidates. The right to hold an elective office is rooted on electoral mandate, not perceived entitlement to the office.[36] More importantly, the trial court has no jurisdiction to declare a failure of election.[37] Section 6 of the Omnibus Election Code provides that: Sec. 6. Failure of Election.If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody of canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days after the cessation of the cause of such postponement or suspension of the election or failure to elect. (Emphasis supplied) Likewise, RA 7166 provides that: Sec. 4. Postponement, Failure of Election and Special Elections.-- The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (Emphasis supplied) It is the Commission (Comelec) sitting en banc that is vested with exclusive jurisdiction to declare a failure of election.[38] In a petition to annul an election under Section 6, Batas Pambansa Blg. 881, two conditions must be averred in order to support a sufficient cause of action. These are: (1) the illegality must affect more than 50% of the votes cast and (2) the good votes can be distinguished from the bad ones. It is only when these two conditions are established that the annulment of the election can be justified because the remaining votes do not constitute a valid constituency.[39] We have held that: To declare a failure of election, two (2) conditions must occur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there were voting, the election nevertheless resulted in a failure to elect; and, second, the votes not cast would affect the result of the election.[40] Neither of these conditions was present in the case at bar. More recently, we clarified that, Under the pertinent codal provision of the Omnibus Election Code, there are only three (3) instances where a failure of elections may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure,

violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes.[41] Thus, the trial court in its decision actually pronounced a failure of election by disregarding and setting aside the results of the election. Nonetheless, as herein-above stated, the trial court erred to the extent of ousting itself of jurisdiction because the grounds for failure of election were not significant and even non-existent. More importantly, the commission of fraud can not be attributed to the protestee. There was no evidence on record that protestee had a hand in any of the irregularities that protestant averred. It is wrong for the trial court to state that the protestee had control over the election paraphernalia or over electric services. The Commission on Elections has control over election paraphernalia, through its officials and deputies.[42] The Comelec can deputize with the concurrence of the President, law enforcement agencies and instrumentalities of the government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.[43] On the other hand, electric utility services in Metro Manila, including Valenzuela are under the control of its franchise holder, particularly the Manila Electric Company, a public service company, certainly not owned or controlled by the protestee. In fact, during election period, Comelec has control over such utilities as electric and even telephone service.[44] What is important, however, is that the voters of Valenzuela were able to cast their votes freely and fairly. And in the election protest case, the trial court was able to recount and determine the valid votes cast. Assuming that the trial court has jurisdiction to declare a failure of election, the extent of that power is limited to the annulment of the election and the calling of special elections.[45] The result is a failure of election for that particular office. In such case, the court can not declare a winner.[46] A permanent vacancy is thus created. In such eventuality, the duly elected vice-mayor shall succeed as provided by law.[47] We find that the trial court committed a grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its decision proclaiming respondent Serapio the duly elected mayor of Valenzuela, Metro Manila, on the basis of its perception of the voice of the people of Valenzuela, even without a majority or plurality votes cast in his favor. In fact, without a single vote in his favor as the trial court discarded all the votes. Thus, the decision is not supported by the highest number of valid votes cast in his favor. This violated the right to due process of law of petitioner who was not heard on the issue of failure of election, an issue that was not raised by the protestant. A decision is void for lack of due process if, as a result, a party is deprived of the opportunity of being heard.[48] The trial court can not decide the election protest case outside the issues raised. If it does, as in this case, the trial court is ousted of its jurisdiction. Likewise, it is a basic principle that a decision with absolutely nothing to support it is void.[49] A void decision may be assailed or impugned at any time either directly or collaterally, by means of a petition filed in the same case or by means of a separate action, or by resisting such decision in any action or proceeding where it is invoked.[50] Here, the trial court indulged in speculations on its view of the voice of the people, and decided the case disregarding the evidence, but on its own intuition, ipse dixit.[51] How was this voice communicated to the trial court? Certainly not by competent evidence adduced before the court as it should be, but by extra-sensory perception. This is invalid in law. Contrary to its own finding that petitioner obtained 83,600 valid votes against 66,602 valid votes for the respondent as second placer, or a plurality of 17,007 votes, the trial court declared the second placer as the winner. This is a blatant abuse of judicial discretion by any account. It is a raw exercise of judicial

function in an arbitrary or despotic manner, amounting to evasion of the positive duty to act in accord with law.[52]

In a special civil action for certiorari, the burden is on petitioner to prove not merely reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent Judge. By grave abuse of discretion is meant capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[53] We must emphasize that election to office is determined by the highest number of votes obtained by a candidate in the election. The Judgment WHEREFORE, the Court GRANTS the petition. The Court ANNULS and DECLARES VOID the decision dated April 24, 2000 of the trial court in Election Protest Case No. V-14-98. The temporary restraining order we issued on May 8, 2000, is made permanent. Let Election Protest Case No. V-14-98 be remanded to the trial court for decision within a nonextendible period of fifteen (15) days from notice of this decision. The judge shall report to this Court on the decision rendered within five (5) days from rendition submitting a copy thereof to the Office of the Clerk of Court en banc. This decision is immediately executory. No costs. SO ORDERED.