G.R. No.
139028 April 12, 2000 Ruling of the Comelec
HADJI RASUL BATADOR BASHER, petitioner,
vs.
COMMISSION ON ELECTIONS and ABULKAIR AMPATUA, respondents.
PANGANIBAN, J.:
An election must be held at the place, date and time prescribed by law. Likewise, its
suspension or postponement must comply requirements. Otherwise, it is irregular and void.
The Case
Petitioner 1 assails before us the June 8, 1999 Resolution of the Commission on Elections
(Comelec) 2 in SPA Case No. 97-276 which dismissed a Petition to Declare a Failure of
Election and to Call Special Election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del
Sur. The assailed Resolution disposed as follows:
In view of the foregoing considerations, We he[re]by hold that the special elections in
Barangay Maidan, Tugaya Lanao del Sur on August 30, 1997 did not fail. The result thereof
must therefore be accorded respect.
WHEREFORE, premises considered, the Commission En Banc RESOLVES to DISMISS the
petition for lack of merit. 3
The Facts
Petitioner Hadji Rasul Batador Basher and Private Respondent Abulkair Ampatua were both
candidates for the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur
during the May 12, 1997 barangay election. The election was declared a failure and a
special one was set for June 12, 1997. Again the election failed and was reset to August 30,
1997.
According to the Comelec, the voting started only around 9:00 p.m. on August 30, 1997
because the prevailing tension in the said locality. Election Officer Diana Datu-Imam
reported that she was allegedly advised by some religious leaders not to proceed with the
election because "it might trigger bloodshed." She also claimed the town mayor, "being too
hysterical, yelled and threatened me to declare [a] failure of election in Maidan."
Subsequently, the armed followers of the mayor pointed their guns at her military escorts,
who responded in a like manner towards the former. The parties were then pacified at the
PNP headquarters. With the arrival of additional troops, the election officer proceeded to
Maidan to conduct the election starting at 9:00 p.m. until the early morning of the following
day. The holding of the election at that particular time was allegedly announced "over the
mosque." 4
The tally sheet for the said "election" showed the following results: private respondent —
250 votes; petitioner — 15 votes; and Baulo Abdul Razul, a third candidate — 10
votes. 5 Private respondent was proclaimed winner.
Petitioner then filed a Petition before the Comelec praying that the election be declared a
failure. Alleging that no election was conducted in place and at the time prescribed by law,
petitioner narrated that there was a dispute that day (August 30, 1997) among the
candidates regarding the venue of the election in the lone voting precinct of the barangay.
In order to avoid bloodshed, they ultimately agreed that no election would be conducted.
Accordingly, the election officer turned over for safekeeping the ballot box containing
election paraphernalia to the acting station commander (OIC) of the Philippine National
Police (PNP). The following day, petitioner and the third candidate were surprised to learn
that the election officer had directed the Board of Election Tellers to conduct the election
and to fill up the election returns and certificates of canvass on the night of August 30, 1997
at the residence of the former mayor. Petitioner also stated that no announcement to hold
the election at the former mayor's house that night was ever made. 6
As earlier stated, the Comelec dismissed the Petition. Hence, this recourse to this Court. 7
The Comelec ruled against a failure of election because the two conditions laid down
in Mitmug v. Comelec 8 were not established. It held that the "election was conducted on
the scheduled date. The precinct functioned. Actual voting took place, and it resulted not in
a failure to elect." 9
In justifying the balloting at the dead of night, the poll body cited Section 22, Article IV of
Comelec Resolution 2971, which provided in part that "[i]f at three o'clock, there are still
voters within thirty meters in front of the polling place who have no cast their votes, the
voting shall continue to allow said voters to cast their votes without interruption. . . ." The
Comelec then went on to state that "experience had shown that even when there is a long
delay in the commencement of the voting, voters continue to stay within the area of the
polling place." 10
Issue
Petitioner submits the following questions for the consideration of the Court:
1. Whether or not the election held at around 10:00 o'clock in the evening of August 30,
1997 after the Acting Election Officer had verbally declared or announced a failure of
election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur is contrary to law, rule
and jurisprudence;
2. Whether or not the election held at the residence of an Ex-mayor far from the designated
Polling Place of Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur is legal or valid;
3. Whether or not the proclamation of the private respondent as the duly elected Punong
Barangay of Barangay Maidan and the seven (7) Barangay is illegal, null and void ab
initio. 11
In the main, the crucial question that needs to be addressed is whether the "election" held
on the date, at the time and in the place other than those officially designated by the law
and by the Comelec was valid.
The Court's Ruling
The Petition is meritorious.
Main Issue:
Validly of the Special Election
Citing Mitmug v. Comelec, 12 the Comelec points our that a failure of election requires the
concurrence of two conditions, namely (1) no voting took place in the precinct or precincts
on the date fixed by law, or even if there was voting, the election resulted in a failure to
elect; and (2) the votes not cast would have affected the result of the election. It ruled that
these requirements were not met.1âwphi1.nêt
We do not agree. The peculiar set of facts in the present case show not merely a failure of
election but the absence of a valid electoral exercise. Otherwise stated, the disputed
"election" was illegal, irregular and void.
Election Situs Was Illegal
First, the place where the voting was conducted was illegal. Section 42 of the Omnibus
Election Code provides that "[t]he chairman of the board of election tellers shall designate
the public school or any other public buildingwithin the barangay to be used as polling place
in case the barangay has one election precinct . . .. " Petitioner, citing an
Affidavit 13 supposedly executed by the members of the Board of Election Tellers (BET) for
Barangay Maidan, alleges that the election of officials for said barangay was held at the
residence of former Mayor Alang Sagusara Pukunun, which is located at Barangay
Pandarianao, instead of the officially designated polling precinct at Cagayan Elementary
School. If this allegation were true, such "election" cannot be valid, as it was not held within
the barangay of the officials who were being elected. On the other hand, it is admitted that
there was a public school or building in Barangay Maidan — the Cagayan Elementary
School, which was the earlier validly designated voting center.
While the BET members later repudiated their Affidavit, they could only claim that the
election was held "in Barangay Maidan." 14 They, however, failed to specify the exact venue.
In fact, to this date, even the respondents have failed to disclose where exactly the voting
was conducted. This glaring omission definitely raises serious questions on whether the
election was indeed held in a place allowed by law.
Voting Time Was Likewise Irregular
Second, as to the time for voting, the law provides that "[t]he casting of votes shall start at
seven o'clock in the morning and shall end at three o'clock in the afternoon, except when
there are voters present within thirty meters in front of the polling place who have not yet
cast their votes, in which case the voting shall continue but only to allow said voters to cast
their votes without interruption." 15 Section 22, Article IV of Comelec Resolution No. 2971
also specifies that the voting hours shall start promptly at 7:00 a.m. and end at 3:00 p.m. of
the same day.
However, the "election" for Barangay Maidan officials was supposed to have been held after
9:00 p.m. of August 30, 1997 until the wee hours of the following day. Certainly, such
schedule was not in accordance with law or the Comelec Rules. The Comelec erred in
relying on the second sentence of Section 22, Article IV of Comelec Resolution 2971, which
states that "[i]f at three o'clock [in the afternoon], there are still voters within thirty meters
in front of the polling place who have not cast their votes, the voting shall continue to allow
said voters to cast their votes without interruption." This sentence presupposes that the
election commenced during the official time and is simply continued beyond 3:00 p.m. in
order to accommodate voters who are within thirty meters of the polling place, already
waiting for their turn to cast their votes. This is clearly the meaning and intent of the word
continue — "to go on in a specified course of action or condition." 16 The action or condition
already subsists and is allowed to go on. Otherwise, the law should have stated instead that
"the voting may also start even beyond 3:00 p.m. if there are voters within thirty meters in
front of the polling place."
The strained interpretation espoused by the Comelec encourages the conduct of
clandestine "elections," for it virtually authorizes the holding of elections beyond normal
hours, even at midnight when circumstances could be more threatening and conductive to
unlawful activities. On a doctrinal basis, such nocturnal electoral practice discourages the
people's exercise of their fundamental right of suffrage, by exposing them to the dangers
concomitant to the dead of night, especially in far-lung barangays constantly threatened
with rebel and military gunfires.
Election Date Was Invalid
Third, the Comelec scheduled the special election on August 30, 1997. Any suspension or
postponement of an election is governed by Section 2 of RA
6679, 17 which states that "[w]hen for any serious cause such as rebellion, insurrection,
violence, terrorism, loss or destruction of election paraphernalia, and any analogous causes
of such nature that the holding of a free, orderly and honest election should become
impossible in any barangay, the Commission on Election motu proprio or upon sworn
petition of ten (10) registered voters of a barangay, after summary proceedings of the
existence of such grounds, shall suspend or postpone the election therein to a date
reasonably close to the date of the election that is not held or is suspended or postponed,
or which resulted in a failure to elect, but not later than thirty (30) days after the cessation
of the cause for such suspension or postponement of the election or failure to elect, and in
all cases not later than ninety (90) days from the date of the original election."
Election Officer Diana Datu-Imam of Tugaya, Lanao del Sur practically postponed the
election in Barangay Maidan from the official original schedule of 7:00 a.m. to 3:00 p.m. of
August 30, 1997 to 10:00 p.m. of August 30, 1997 until the early morning of August 31,
1997. She attempted to justify her postponement of the election by citing threats of
violence and bloodshed in the said barangay. Allegedly because of the tension created by
armed escorts of the municipal mayor and the military, Datu-Imam declared a failure of
election in order "to ease their aggression." However, as election officer, she has no
authority to declare a failure of election. Indeed, only the Comelec itself has legal authority
to exercise such awesome power. An election officer alone, or even with the agreement of
the candidates, cannot validly postpone or suspend the elections.
Election Postponement Was Invalid
Fourth, Datu-Imam did not follow the procedure laid down by law for election postponement
or suspension or the declaration of a failure of election. She narrated the circumstances
surrounding her declaration as follows: 18
When I returned to [as]certain the situation in Maidan, the Mayor, being too hysterical,
yelled and threatened me to declare [a] failure of elections in Maidan. When I insisted to
personally confirm the probable cause of bloodshed (at Maidan), his armed
followers/escorts pointed their guns to me and my escorts. Likewise my military escorts
pointed their guns to the mayor and his men "Man to Man". The Datus and religious leaders
pacified us at the PNP Headquarters.
After a couple of hours, the military officers and I agreed to adapt another strategy just to
pursue with the elections in Maidan [by] hook or by crook. Considering that they forcibly
took away from us the ballot box containing paraphernalia of Maidan, I didn't have any
recourse but give them. I turned-over the ballot box to the Acting Chief of Police, Malik
Bantuas with proper receipt, taking away from the box the CEF 2 & 2-A, declaring verbally a
failure of elections in Maidan just to ease their aggression and so that we could pull-out of
the place freely.
It clearly appears from the very report of Datu-Imam to the Comelec that she did not
conduct any proceeding, summary or otherwise, to find out whether any of the legal
grounds for the suspension or postponement or the declaration of failure of the election
actually existed in the barangay concerned.
Notice Was Irregular
Finally and very significantly, the electorate was not given ample notice of the exact
schedule and venue of the election. The election officer herself
relates: 19
When the tension was slightly alleviated, I directed the military personnel to pull-out of the
Municipio and withdrew to a nearby Barangay (for safety) where some of the militaries (sic)
were deployed. After planning and coordinating with the Batallion (sic) Commander, we
waited for the additional troups (sic) that arrived at around 8:30 in the evening. At the
stroke of 9:00 o'clock, we started for Maidan via the national Highway thru the Municipality
of Balindong and others thru a short-cut way (sic) eastward of Tugaya. Utilizing the election
paraphernalia earlier shipped by the Commission as I have requested (sic) and a ballot box
from the PES, we went on with the election (after announcing it over the mosque)
peacefully orderly despite the tiredness (sic) and exhaustion felt by the people the whole
day waiting/expecting for the election as I have assured them earlier (sic). . . .
As can be gleaned easily from the above report, the electorate of Barangay Maidan was not
given due notice that the election would push through after 9:00 p.m. that same day.
Apparently, the election officer's decision to hold the election on the night of August 30,
1997 was precipitate. Only after additional military troops had arrived at their site in a
nearby barangay about 8:30 p.m. did the election officers proceed to Barangay Maidan.
Arriving at Maidan, they allegedly proceeded to conduct the election "after announcing it
over the mosque."
Such abbreviated announcement "over the mosque" at such late hour did NOT constitute
sufficient notice to the electorate. Consequently, not the entire electorate or even a
respectable number could have known of the activity and actually participated therein or
voluntarily and discerningly chosen not to have done so.
Indeed, the Court in Hassan v. Comelec 20 held that the notice given on the afternoon of the
election day resetting the election to the following day and transferring its venue was "too
short." We said that "[t]o require the voters to come to the polls on such short notice was
highly impracticable. . . . It is essential to the validity of the election that the voters have
notice in some form, either actual or constructive, of the time, place and purpose
thereof. 21 The time for holding it must be authoritatively designated in advance." 22
In the case at bar, the announcement was made only minutes before the supposed voting.
If one-day notice was held to be insufficient in Hassan, the much shorter notice in the
present case should all the more be declared wanting. It should in fact be equated with "no
notice."
In sum, the "election" supposedly held for officials of Barangay Maidan cannot be clothed
with any form of validity. It was clearly unauthorized and invalid. It had no legal leg to stand
on. Not only did the suspension/postponement not comply with the procedure laid down by
law and the Comelec Rules, neither was there sufficient notice of the time and date when
and the place where it would actually be conducted. It was thus as if no election was held at
all. Hence, its results could not determine the winning punong barangay.
WHEREFORE, the Petition is hereby GRANTED and the assailed Resolution SET ASIDE. The
proclamation of private respondent as punong barangay is hereby declared VOID.
Respondent Comelec is ORDERED to conduct a special election for punong barangay of
Maidan, Tugaya, Lanao del Sur as soon as possible. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Kapunan, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes
and Ynares-Santiago, JJ., concur.
Bellosillo, J., no part. Did not take part in deliberation.
Vitug, J., abroad on official business.
De Leon, Jr., see dissent.
Purisima, J., I join the dissent of Mr. Justice de Leon.
# Separate Opinions
DE LEON, JR., J., dissenting opinion;
With due respect, I dissent from the majority decision or ponencia of Mr. Justice Artemio V.
Panganiban which grants the petition in the case at bench.
Before us is a special civil action for certiorari under Rule 65 which seeks to set aside the
Resolution 1 dated June 8, 1999 of the Commission on Elections (COMELEC) en banc in SPA
Case No. 97-276, denying petitioner's petition to declare a failure of election in Precinct No.
12, Barangay Maidan, Tugaya, Lanao del Sur and to annul the proclamation of private
respondent and seven (7) others as winners of the August 30, 1997 barangay special
election.
The petitioner captioned and erroneously stated that the nature of this petition is a "petition
for review oncertiorari." However, in this verified petition, the petitioner alleges that
respondent COMELEC "acted without or in excess of jurisdiction and/or grave abuse of
discretion:" (a) in dismissing the petition in SPA No. 97-276 for alleged lack of merit; (b) in
not declaring a failure of election on August 30, 1997 and not calling for a special election in
Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur; and (c) in not declaring as illegal,
null and void ab initio the proclamation on August 30, 1997 of private respondent as the
duly elected Punong Barangay of Barangay Maidan. Petitioner then prays that COMELEC's
assailed Resolution be reversed, the proclamation of private respondent as Punong
Barangay be annulled and that COMELEC be ordered to set a special election in the same
precinct or barangay. Considering the well-settled rule that what determines the nature of
action are the allegations of the complaint or petition, and the character of the relief
sought, 2 and considering the interest of justice, we accordingly treat this petition as a
special civil action for certiorari under Rule 65.
During the May 12, 1997 barangay election, petitioner Hadji Rasul Batabor Basher, the
incumbent punong barangay, and private respondent Abulkair Ampatua were candidates for
the position of punong barangay. However, there was a failure of election in Precinct No. 12,
the lone precinct of Barangay Maiden, prompting the COMELEC to reset the election to June
11, 1997. Unfortunately, there was again a failure of election. Election was reset to August
30, 1997.
Reports submitted to the COMELEC indicated that election was held as re-scheduled, and
that private respondent along with Monatao Ebrahem, Lontowa Pokaan, Baser Abdala,
Saadia Gonteng, Kodos Mangebarat, Bonsa Mabatao and Kamilo Hadji Rasul were
proclaimed as duly elected punong barangay and barangay kagawads, respectively, of
Barangay Maidan, Tugaya, Lanao del Sur.
In his letters dated September 2, 1997 3 and September 5, 1997 4 to the COMELEC,
petitioner requested that a failure of election be declared in Precinct No. 12. Petitioner
claimed:
xxx xxx xxx
That in the early morning of August 30, 1997, I together with other candidates for Barangay
Officials and registered voters of Precinct No. 12, Barangay Maidan, and several others
including local officials and some candidates of other barangays, were in the Municipal Hall
of Tugaya, Lanao del Sur to observe and witness the releases (sic) of Ballot boxes and other
election paraphernalias (sic) intended for the eight (8) barangays where special elections
will be conducted including barangay Maidan;
That the ballot boxes and other election paraphernalia for the seven (7) barangays were
released to the Board of Election tellers and the special elections therein have (sic)
functioned but in Barangay Maidan, Tugaya, Lanao del Sur, there was again a failure of
election thereat (sic) because of the disagreement among candidates and watchers on (sic)
the venue of the voting on account of the presence of an estimated number (sic) of two
hundred (200) heavily armed persons in the nearby premises of the Polling Place (sic) of
Precinct No. 12, Barangay Maidan at Cayagan Elementary School who were determined to
commit violence or disrupt and/or disturb the election therein to ensure the victories of their
beloved candidates;
That on account of said serious disagreement and the intercession of local officials, civic
and religious not to conduct the special election in Barangay Maidan to avoid bloodshed and
loss of lives and damage to properties, it was agreed that no election will be held and so the
Acting Election Officer, Mrs. Diana T. Datu Imam, delivered and turn (sic) over the ballot box
containing all election paraphernalia intended for Barangay Maidan, Tugaya, Lanao del Sur
to Malic Bantuas, OIC Satition (sic) Commander or Chief of Police of said Municipality as
evidenced by an acknowledgment Receipt signed by said OIC Station Commander xerox
copy of which is hereto attached marked as Annex "A" and formed integral part hereof;
That after turning over and delivery of said ballot box to the aforesaid OIC Station
Commander, the Acting Election Officer left and never returned to the Municipal Hall where
I and other candidates had been waiting for further advice from the same Election Officer;
xxx xxx xxx
That to my great surprise with other candidates for barangay officials in our barangay and
the electors thereat (sic), we learned on the following morning of August 31, 1997, that
Acting Election Officer and her alleged designated Board of Election Teller's conducted an
election in an unknown place at around 2:00 A.M. of August 31, 1997, without any notice to
me and other candidates and the electors themselves (sic) and then allegedly proclaimed
some candidates for Punong Barangay and Barangay Kagawads as winners. 5
xxx xxx xxx
In her unrebutted report to COMELEC Commissioner Manolo B. Gorospe, Election Officer
Mrs. Diana T. Datu Imam recounted the events that took place on August 30, 1997 as
follows:
xxx xxx xxx
Prior to the Election, on August 29, 1997, I coordinated with the Battalion Commander, Col.
Luciano Campos of Malanang, Lanao del Sur and discussed the prevailing peace and order
condition of (sic) Tugaya. Later, I proceeded to the Municipality of Pualas to personally
confer with the my (sic) Military In-Charge regarding probable causes of failure of elections
that might be imposed (sic) by the people who doesn't (sic) want an election. At 1:30 in the
afternoon, the military personnel were deployed in Tugaya on that same day (sic).
On Election Day, as I was approaching the PNP Headquarters, some religious leaders
advised me not to pursue with the election because an election in Tugaya will cause trouble
and might trigger bloodshed. The Mayor invited me for a short conference and furnished me
a copy of then spurious resolution to bar the holding of election. In return, I gave him a copy
of the Memo of Atty. Pio Jose S. Joson and proceeded immediately to distribute the Election
Paraphernalia to the respective Military BETs.
Without further ado, I personally escorted the BETs to their respective polling places
westward (sic) of Tugaya at the same time directing the Military to go eastward for Brgy.
Maidan, so that I will be going back (sic) to personally supervise their election after
delivering the 7 Barangays (sic).
When I returned to certain (sic) the situation in Maidan, the Mayor, being too hysterical,
yelled and threatened me to declare failure of elections in Maidan. When I insisted to
personally confirm the probable cause of bloodshed (at Maidan), his armed
followers/escorts pointed their guns to me (sic) and my escorts. Likewise, my military
escorts pointed their guns to (sic) the mayor and his men men (sic) "Man to Man." The
Datus and religious leaders pacified us at the PNP Headquarters.
After a couple of hours, the military officer and I agreed to adapt (sic) another strategy just
to pursue with the elections in Maidan hook or by crook. Considering that they forcibly took
away from us the ballot box containing paraphernalia of Maidan, I didn't have any recourse
but give them (sic). I turned-over the ballot box to the Acting Chief of Police, Malik Bantuas
with proper receipt, taking away from the box the CEF 2 & 2-A, declaring verbally a failure
of elections in Maidan just to ease their aggression and so that we could pull-out of the
place freely (sic).
When the tension was slightly alleviated, I directed the military personnel to pull-out of the
Municipio and withdrew to a nearby Barangay (for safety) where some of the militaries (sic)
were deployed. After planning and coordinating with the Batallion (sic) Commander, we
waited for the additional troups (sic) that arrived at around 8:30 in the evening. At the
stroke of 9:00 O'clock, we started for Maidan via the national Highway thru the Municipality
of Balindong and others thru a short-cut way (sic) eastward of Tugaya. Utilizing the election
paraphernalia earlier shipped by the Commission as I have requested (sic) and a ballot box
from the PES, we went on with the election (after announcing it over the mosque)
peacefully and orderly despite the tiredness (sic) and exhaustion felt by the people the
whole day waiting/expecting for the election as I have assured them earlier (sic). The
people were very thankful and relieved because the alleged report of creating bloodshed
were brazen lie and merely tricks (sic).
The Special Elections in Tugaya was finished at 3 O-clock in the morning. All of the 8
Barangays functioned. 6
Petitioner then filed a petition with the COMELEC, docketed as SPA Case No. 97-276,
praying that the barangay special election in Precinct No. 12 be declared a failure and that
the proclamation of private respondent and the other kagawads be declared null and void.
The COMELEC dismissed the petition and found that the barangay special election was held
in fact in Barangay Maidan and that it started only at 9:00 o'clock p.m. due to the presence
of the Mayor's armed followers who earlier in the day confiscated the original ballot box and
pointed their guns at Election Officer Datu Imam and her military escorts. Hence, COMELEC
held that the said election is valid inasmuch as Section 22, Article IV of COMELEC Resolution
No. 2971 permits the casting of ballots even after 3:00 o'clock p.m. if there are voters
within thirty (30) meters from the polling place who have not cast their votes. The COMELEC
also considered the importance attached to barangay elections by the barangay electorate
as evidenced by the fact that voters of the said Precinct No. 12, which significantly is the
lone precinct in Barangay Maidan, continued to stay within the vicinity of the polling place
obviously to be able to vote even when the commencement of voting has long been
delayed. The COMELEC stressed that this was precisely the case in Barangay Maidan,
considering that the barangay election therein has already been postponed twice. The
COMELEC pointed out that the two (2) conditions for declaring a failure of election cited
in Mitmug v. COMELEC, 7namely (1) no voting has taken place in the precinct or precincts on
the date fixed by law or, even if there was voting, the election nevertheless results in failure
to elect, and (2) the votes not cast would affect the result of the election, are not present in
this case.
Dissatisfied, petitioner filed the instant petition.
The petition is not meritorious.
Petitioner assails the validity of the August 30, 1997 barangay special election on two (2)
grounds: first, as to the time when it was conducted, and second, as to the place where it
was held. It is not disputed that the said barangay special election in Barangay Maidan was
finally conducted from 9:00 o'clock p.m. on August 30, 1997 until 3:00 o'clock a.m. of the
following day in view of the presence of the Mayor's armed followers who earlier in the day
pointed their guns at Election Officer Datu Imam and her military escorts. It cannot be
denied that the COMELEC has the power to declare a failure of election. 8
Petitioner, alleges that candidates and voters were not given prior notice that the said
barangay special election would take place in the evening of August 30, 1997; that the
designated time for the special election was contrary to Section 22, Article IV of COMELEC
Resolution No. 2971, which specifies that voting hours shall promptly start at 7:00 o'clock
a.m. and shall end at 3:00 o'clock p.m.; and that the barangay election was held at the
residence of a former mayor, allegedly in an area far from the designated polling place, and
that only one or a few individuals allegedly accomplished the ballots. As a consequence
thereof, petitioner, his running mates for barangay kagawad and their respective supporters
were allegedly unable to cast their votes thereby warranting a declaration by the COMELEC
that there was a failure of election.
The time during which the election in Barangay Maidan was conducted on August 30, 1997
was somewhat unusual due to the extraordinary circumstances. However, that it was
allegedly contrary to COMELEC Resolution No. 2971 and Section 190 of the Omnibus
Election Code was not actually so. We bear in mind our disquisition in Hassan
v.COMELEC 9 that:
It is essential to the validity of the election that the voters have notice in some form, either
actual or constructive, of the time, place and purpose thereof. The time for holding it must
be authoritatively designated in advance. The requirement of notice even becomes stricter
in cases of special elections where it was called by some authority after the happening of a
condition precedent, or at least there must be a substantial compliance therewith so it may
fairly and reasonably be said that the purpose of the statute has been carried out. The
sufficiency of notice is determined on whether the voters generally have knowledge of the
time, place and purpose of the elections so as to give them full opportunity to attend the
polls and express their will or on other hand, whether the omission resulted in depriving a
sufficient number of the qualified electors of the opportunity of exercising their franchise so
as to change the result of the election. 10
In Hassan which involves a municipal election, we held that notice given in the afternoon of
May 28, 1995, resetting the special election to May 29, was insufficient. However, in the
case at bench which involves a barangay special election in Precinct No. 12 which is the
sole precinct in Barangay Maidan, the announcement was made in the mosque a few hours
before voting actually commenced. Unlike Hassan, the circumstances of the case at bench,
impel us to arrive at a different conclusion. In Hassan, we found that only 328 out of the
1,546 registered voters in five (5) precincts of Madalum, Lanao del Sur were able to cast
their votes. In the case at bench, the records are bereft of any evidence that the said
announcement or notice made in the mosque of Barangay Maidan whose populace is
predominantly Muslim living in the small territorial jurisdiction of said barangay, resulted in
the disenfranchisement of a substantial number of voters and that the votes not cast would
materially affect the results of the election. Petitioner merely alleges that private
respondent, who is one of his opponents for the position of punong barangay, garnered 250
votes whereas he (petitioner) was credited with only 15 votes. Petitioner disputes the
probability of these results in view of the fact that he was the incumbent punong barangay
with several relatives, friends and supporters in Barangay Maidan. Apart from his bare
assertions, there was no indication in the subject petition, much less evidence, as to the
total number of registered voters in Barangay Maidan and the number of voters who were
allegedly unable to exercise their right of suffrage in the said barangay special election.
With respect to petitioner's allegation that the barangay election in Barangay Maidan was
held at the house of former Mayor Alang S. Fukunum in Pandiaranao, Tugaya, Lanao del
Sur, we find the same unworthy of credence. In support of his allegation, petitioner
presented the affidavits of Cpl. Conrado Doroy, Cpl. Ale Garcia and Pfc. Ferdinand
Bangayan. However, as found by the COMELEC, the said affiants testified before the
Provincial Election Supervisor of Lanao del Sur that voting was actually held in Barangay
Maidan. More importantly, the said affiants executed another affidavit 11 disclaiming the
contents of their first affidavit on the ground that they were "ready made" and that they
had no knowledge of its contents as their first affidavit was not translated to them in the
vernacular. In his petition before this Court, petitioner alleges that the barangay election
was held at the house of the former mayor while in his affidavit, 12 which was executed
three (3) days after the barangay special election, he states that the election was allegedly
held at an unknown place. Those conflicting allegations cast doubt on the petitioner's
credibility. On the other hand, this Court, not being a trier of facts, has to give due weight
and credence to the findings of facts of COMELEC, and more particularly to the unrebutted
Report 1 of Election Officer Datu Imam that the subject barangay special election, was in
fact held in Barangay Maidan, Tugaya, Lanao del Sur, and that the registered voters of said
barangay were sufficiently notified as to the place and time of said barangay special
election which was in fact a neighborhood election. The notification or announcement was
made in the mosque in that barangay because the voters of Barangay Maidan
predominantly Muslim.
The power to declare a failure of election and to set aside the results thereof is an
extraordinary remedy. As early as Mandac v. Samonte, 14 we held that courts should be slow
in nullifying elections, exercising the power only when it is shown that the irregularities and
frauds are so numerous as to show an unmistakable intention or design to defraud, and
which in fact defeat the true expression of the will of the electorate. 15 As a rule, therefore,
the following conditions must be satisfied before the COMELEC can favorably act upon a
petition to declare a failure of election: (1) that no voting has taken place in the precinct or
precincts on the date fixed by law or, even if there was voting, the elections nevertheless
result in a failure to elect; and (2) the votes not cast would affect the result of the
election. 16 In the light of the facts as borne in the records, these two conditions do not
obtain in the case at bench. Consequently, in Balindong v. COMELEC, 17 and Co
v. COMELEC, 18 we refused to declare a failure of election despite alleged irregularities in
the conduct of elections in the absence of evidence that the right of suffrage of a
substantial portion of the electorate was prejudiced thereby. We find no compelling reason
to deviate from these jurisprudential rulings of this Court. In the case at bar, there is
certainly absence of evidence that the right of suffrage of a substantial portion of the
electorate of Barangay Maidan was allegedly prejudiced in the said barangay special
election in Precinct No. 12 which is the only precinct of the said barangay. On the other
hand, to grant the Petition, in the light of the unique circumstances in this case, means to
declare a failure of the barangay special election for the third time, and thereby unwittingly
frustrate the will of the majority of the barangay electorate to elect the private respondent
as Punong Barangay and to reject the petitioner who resorted to legal technicalities and
relied on the presence of the threatening armed followers of the Mayor who is obviously
sympathetic to the petitioner. Is that just and equitable?
IN VIEW OF ALL THE FOREGOING, I vote to deny the Petition. It is my considered opinion
that respondent COMELEC, in rendering its subject Resolution dated June 8, 1999 in SP Case
No. 97-276, did not act with grave abuse of discretion. The Petition in the case at bench
should be as it is hereby DISMISSED.1âwphi1.nêt
G.R. No. 160427 September 15, 2004
POLALA SAMBARANI, JAMAL MIRAATO, SAMERA ABUBACAR and MACABIGUNG
MASCARA, petitioners,
vs.
COMMISSION ON ELECTIONS and EO ESMAEL MAULAY,
Acting Election Officer, Tamparan, Lanao del Sur or whoever is acting on his
behalf, respondents.
DECISION
CARPIO, J.:
The Case
Challenged in this petition for certiorari1 with prayer for temporary restraining order and
preliminary injunction is the Resolution of the Commission on Elections en
banc ("COMELEC")2 dated 8 October 2003. The COMELEC declared a failure of election but
refused to conduct another special election.
The Facts
In the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections
("elections"), Polala Sambarani ("Sambarani"), Jamal Miraato ("Miraato"), Samera Abubacar
("Abubacar"), Macabigung Mascara ("Mascara") and Aliasgar Dayondong ("Dayondong") ran
for re-election as punong barangay in their respective barangays, namely: Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, and Tatayawan South ("five
barangays"), all in Tamparan, Lanao del Sur.
Due to a failure of elections in eleven barangays in Lanao del Sur, the COMELEC issued
Resolution No. 5479 setting special elections on 13 August 2002 in the affected barangays
in Lanao del Sur including the five barangays. On 14 August 2002, Acting Election Officer
Esmael Maulay ("EO Maulay") issued a certification that there were no special elections held
on 13 August 2002.
Consequently, Sambarani, Miraato, Abubacar, Mascara and Dayondong ("joint-petitioners")
filed a Joint Petition seeking to declare a failure of elections in the five barangays and the
holding of another special election. The Joint Petition attributed the failure of the special
elections to EO Maulay’s non-compliance with COMELEC Commissioner Mehol K. Sadain’s
("Commissioner Sadain") directive. Commissioner Sadain had directed EO Maulay to use the
Autonomous Region of Muslim Mindanao ("ARMM") 2001 computerized Voter’s List and the
Voter’s Registration Records of the Provincial Election Officer during the December 2001
registration of new voters.
The parties did not attend the hearing scheduled on 11 September 2002 despite due notice.
In the 1 October 2002 hearing, counsel for joint-petitioners as well as EO Maulay and his
counsel appeared. The COMELEC ordered the parties to submit their memoranda within 20
days. The COMELEC also directed EO Maulay to explain in writing why he should not be
administratively charged for failing to comply with Commissioner Sadain’s directive. The
joint-petitioners filed their Memorandum on 25 October 2002. EO Maulay did not file a
memorandum or a written explanation as directed. The COMELEC considered the case
submitted for resolution.
On 8 October 2003, the COMELEC issued the assailed Resolution, disposing as follows:
ACCORDINGLY, the Department of Interior and Local Government is hereby DIRECTED to
proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK
Chairmen and SK Kagawads in Barangays Occidental Linuk, Pindolonan
Moriatao Sarip, Talub, Tatayawan South, and New Lumbacaingud, all of Tamparan, Lanao
del Sur, in accordance with the pertinent provisions of Republic Act No. 7160, otherwise
known as the Local Government Code of 1991, and other related laws on the matter.
Let a copy of this Resolution be furnished to the Department of Interior and Local
Government, the Municipality of Tamparan, Lanao [d]el Sur, and the respective
Sangguniang Barangays of Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub,
Tatayawan South and New Lumbacaingud, of Tamparan.
Finally, let a copy of this Resolution be furnished to the Law Department for Preliminary
Investigation of Respondent ESMAEL MAULAY for possible commission of election offense/s,
and consequently, the filing of administrative charges against him if warranted.
SO ORDERED.3
Sambarani, Miraato, Abubacar and Mascara ("petitioners") filed the instant petition.4
The COMELEC’s Ruling
The COMELEC agreed with petitioners that the special elections held on 13 August 2002 in
the five barangays failed. The COMELEC, however, ruled that to hold another special
election in these barangays as prayed for by petitioners is untenable. The COMELEC
explained that it is no longer in a position to call for another special election since Section 6
of the Omnibus Election Code provides that "special elections shall be held on a date
reasonably close to the date of the election not held, but not later than thirty days after
cessation of the cause of such postponement." The COMELEC noted that more than thirty
days had elapsed since the failed election.
The COMELEC also pointed out that to hold another special election in these barangays will
not only be tedious and cumbersome, but a waste of its precious resources. The COMELEC
left to the Department of Interior and Local Government ("DILG") the process of appointing
the Barangay Captains and Barangay Kagawads as well as the Sangguniang Kabataan
("SK") Chairmen and SK Kagawads in these barangays "in accordance with the Local
Government Code of 1991 and other related laws on the matter."5
The Issues
Petitioners contend that the COMELEC acted with grave abuse of discretion amounting to
lack of jurisdiction in –
1. Denying the prayer to call for another special election in barangays Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud ("subject barangays");
2. Directing the DILG to proceed with the appointment of the barangay captains, barangay
kagawads, SK chairmen and SK kagawads in the subject barangays;
3. Not declaring the petitioners as the rightful incumbent barangay chairmen of their office
until their successors have been elected and qualified.
The Court’s Ruling
The petition is meritorious.
First Issue:
Whether To Call Another Special Election
Petitioners fault the COMELEC for not holding another special election after the failed 13
August 2002 special election. Petitioners insist that the special barangay and SK elections in
the subject barangays failed because EO Maulay did not use the voter’s list used during the
2001 ARMM elections. Neither did Maulay segregate and exclude those voters whose
Voter’s Registration Records ("VRRs") were not among those 500 VRRs bearing serial
numbers 00097501 to 0009800 allocated and released to Tamparan. Finally, Maulay did not
delete from the certified list of candidates the name of disqualified candidate Candidato
Manding. Petitioners contend that COMELEC’s refusal to call another special election
conflicts with established jurisprudence, specifically the ruling in Basher v. Commission on
Elections.6
The Solicitor General supports the COMELEC’s stance that a special election can be held
only within thirty days after the cause of postponement or failure of election has ceased.
The Solicitor General also maintains that the DILG has the power to appoint and fill
vacancies in the concerned elective barangay and SK offices.
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." Indisputably, the text and intent of this
constitutional provision is to give COMELEC all the necessary and incidental powers for it to
achieve its primordial objective of holding free, orderly, honest, peaceful and credible
elections.7
The functions of the COMELEC under the Constitution are essentially executive and
administrative in nature. It is elementary in administrative law that "courts will not interfere
in matters which are addressed to the sound discretion of government agencies entrusted
with the regulation of activities coming under the special technical knowledge and training
of such agencies."8 The authority given to COMELEC to declare a failure of elections and to
call for special elections falls under its administrative function.9
The marked trend in our laws has been to grant the COMELEC ample latitude so it can more
effectively perform its duty in safeguarding the sanctity of our elections. But what if, as in
this case, the COMELEC refuses to hold elections due to operational, logistical and financial
problems? Did the COMELEC gravely abuse its discretion in refusing to conduct a second
special Barangay and SK elections in the subject barangays?
Neither the candidates nor the voters of the affected barangays caused the failure of the
special elections. The COMELEC’s own acting election officer, EO Maulay, readily admitted
that there were no special elections in these barangays. The COMELEC also found that the
Provincial Election Supervisor of Lanao del Sur and the Regional Election Director of Region
XII did not contest the fact that there were no special elections in these barangays.
An election is the embodiment of the popular will, the expression of the sovereign power of
the people.10 It involves the choice or selection of candidates to public office by popular
vote.11 The right of suffrage is enshrined in the Constitution because through suffrage the
people exercise their sovereign authority to choose their representatives in the governance
of the State. The fact that the elections involved in this case pertain to the lowest level of
our political organization is not a justification to disenfranchise voters.
COMELEC anchored its refusal to call another special election on the last portion of Section
6 of the Omnibus Election Code ( "Section 6") which reads:
SEC. 6. Failure of election. – If, on account of force majeure, violence, terrorism, fraud, or
other analogous cases 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 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. (Emphasis supplied)
The Court construed Section 6 in Pangandaman v. COMELEC,12 as follows –
In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be
later than thirty (30) days after the cessation of the cause of the postponement or
suspension of the election or the failure to elect; and, 2.] it should be reasonably close to
the date of the election not held, suspended or which resulted in the failure to elect. The
first involves a question of fact. The second must be determined in the light of the peculiar
circumstances of a case. Thus, the holding of elections within the next few months from the
cessation of the cause of the postponement, suspension or failure to elect may still be
considered "reasonably close to the date of the election not held." (Emphasis supplied)
The prohibition on conducting special elections after thirty days from the cessation of the
cause of the failure of elections is not absolute. It is directory, not mandatory, and the
COMELEC possesses residual power to conduct special elections even beyond the deadline
prescribed by law. The deadline in Section 6 cannot defeat the right of suffrage of the
people as guaranteed by the Constitution. The COMELEC erroneously perceived that the
deadline in Section 6 is absolute. The COMELEC has broad power or authority to fix other
dates for special elections to enable the people to exercise their right of suffrage. The
COMELEC may fix other dates for the conduct of special elections when the same cannot be
reasonably held within the period prescribed by law.
More in point is Section 45 of the Omnibus Election Code ("Section 45") which specifically
deals with the election of barangay officials. Section 45 provides:
SEC. 45. Postponement or failure of election. – When for any serious cause such as violence,
terrorism, loss or destruction of election paraphernalia or records, force majeure, and other
analogous causes of such nature that the holding of a free, orderly and honest election
should become impossible in any barangay, the Commission, upon a verified petition of an
interested party and after due notice and hearing at which the interested parties are given
equal opportunity to be heard, shall postpone the election therein for such time as it may
deem necessary.
If, on account of force majeure, violence, terrorism, fraud or other analogous causes, the
election in any barangay has not been held on the date herein fixed or has been suspended
before the hour fixed by law for the closing of the voting therein and such failure or
suspension of election would affect the result of the election, the Commission, on the basis
of a verified petition of an interested party, and after due notice and hearing, at which the
interested parties are given equal opportunity to be heard shall call for the holding or
continuation of the election within thirty days after it shall have verified and found that the
cause or causes for which the election has been postponed or suspended have ceased to
exist or upon petition of at least thirty percent of the registered voters in the barangay
concerned.
When the conditions in these areas warrant, upon verification by the Commission, or upon
petition of at least thirty percent of the registered voters in the barangay concerned, it shall
order the holding of the barangay election which was postponed or suspended. (Emphasis
supplied)
Unlike Section 6, Section 45 does not state that special elections should be held on a date
reasonably close to the date of the election not held. Instead, Section 45 states that special
elections should be held within thirty days from the cessation of the causes for
postponement. Logically, special elections could be held anytime, provided the date of the
special elections is within thirty days from the time the cause of postponement has ceased.
Thus, in Basher13 the COMELEC declared the 27 May 1997 barangay elections a failure and
set special elections on 12 June 1997 which also failed. The COMELEC set another special
election on 30 August 1997 which this Court declared irregular and void. On 12 April 2000,
this Court ordered the COMELEC "to conduct a special election for punong barangay of
Maidan, Tugaya, Lanao del Sur as soon as possible." This despite the provision in Section
214 of Republic Act No. 6679 ("RA 6679")15 stating that the special barangay election should
be held "in all cases not later than ninety (90) days from the date of all the original
election."
Had the COMELEC resolved to hold special elections in its Resolution dated 8 October 2003,
it would not be as pressed for time as it is now. The operational, logistical and financial
problems which COMELEC claims it will encounter with the holding of a second special
election can be solved with proper planning, coordination and cooperation among its
personnel and other deputized agencies of the government. A special election will require
extraordinary efforts, but it is not impossible. In applying election laws, it would be better to
err in favor of popular sovereignty than to be right in complex but little understood
legalisms.16 In any event, this Court had already held that special elections under Section 6
would entail minimal costs because it covers only the precincts in the affected barangays.17
In this case, the cause of postponement after the second failure of elections was
COMELEC’s refusal to hold a special election because of (1) its erroneous interpretation of
the law, and (2) its perceived logistical, operational and financial problems. We rule that
COMELEC’s reasons for refusing to hold another special election are void.
Second and Third Issues: Whether the DILG may Appoint
the Barangay and SK Officials
Petitioners contend that the COMELEC gravely abused its discretion in directing the DILG to
proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK
chairmen and SK Kagawads in the four barangays. Petitioners argue that as the incumbent
elective punong barangays in the four barangays,18 they should remain in office in a hold-
over capacity until their successors have been elected and qualified. Section 5 of Republic
Act No. 9164 ("RA 9164")19 provides:
Sec. 5. Hold Over. – All incumbent barangay officials and sangguniang kabataan officials
shall remain in office unless sooner removed or suspended for cause until their successors
shall have been elected and qualified. The provisions of the Omnibus Election Code relative
to failure of elections and special elections are hereby reiterated in this Act.
RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes the
term of office of barangay and SK officials, and provides for the qualifications of candidates
and voters for the SK elections.
As the law now stands, the language of Section 5 of RA 9164 is clear. It is the duty of this
Court to apply the plain meaning of the language of Section 5. Since there was a failure of
elections in the 15 July 2002 regular elections and in the 13 August 2002 special elections,
petitioners can legally remain in office as barangay chairmen of their respective barangays
in a hold-over capacity. They shall continue to discharge their powers and duties as punong
barangay, and enjoy the rights and privileges pertaining to the office. True, Section 43(c) of
the Local Government Code limits the term of elective barangay officials to three years.
However, Section 5 of RA 9164 explicitly provides that incumbent barangay officials may
continue in office in a hold over capacity until their successors are elected and qualified.
Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that "[A]ll incumbent
barangay officials xxx shall remain in office unless sooner removed or suspended for cause
xxx until their successors shall have been elected and qualified." Section 8 of the same RA
6679 also states that incumbent elective barangay officials running for the same office
"shall continue to hold office until their successors shall have been elected and qualified."
The application of the hold-over principle preserves continuity in the transaction of official
business and prevents a hiatus in government pending the assumption of a successor into
office.20 As held in Topacio Nueno v. Angeles,21 cases of extreme necessity justify the
application of the hold-over principle.
WHEREFORE, we GRANT the instant petition. The Resolution of the Commission on Elections
dated 8 October 2003 is declared VOIDexcept insofar as it directs its Law Department to
conduct a preliminary investigation of Esmael Maulay for possible commission of election
offenses. Petitioners have the right to remain in office as barangay chairmen in a hold-over
capacity until their successors shall have been elected and qualified. The Commission on
Elections is ordered to conduct special Barangay elections in Barangays Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, all in Tamparan, Lanao del Sur within
thirty (30) days from finality of this decision.
SO ORDERED.
G.R. No. 133676 April 14, 1999
TUPAY T. LOONG, petitioner,
vs.
COMMISSION ON ELECTIONS and ABDUSAKUR TAN, respondents.
YUSOP JIKIRI, intervenor.
PUNO, JIn 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 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 the consultations, the experts told him that the
problem was caused by 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 Abdusakar 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 Alejandro, gubernational candidates Tan
and Tulawie and congressional candidate Bensandi Tulawie. Those who insisted on an
automated count were gubernational 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 commucations 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
xxx xxx xxx
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
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, Amkanta
Hajirul, Dulba Kadil, Teddy Mirajuli, Rainer Talcon, Mike Jupakal, Armina Akmad, Romulo
Roldan and Lerma Amrawali 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 tested by us.
While the commission does not agree with the conclusions stated in the petition, and the
failure of the machine to read 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
errors 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.1âwphi1.nêt
In view of the error discovered in Pata and the undersigned's order to suspend that
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 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 Resurrection Z. Borra. The Resolution reads: 9
In the matter of the Memorandum dated 13 May 1998 of Executive Director Resurrection 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 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 allow each political party to have at least one (1)
escort/watcher for municipality to acompany the flight. Two C130s were used for 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 Resurrection 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;
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
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 necessary.
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.
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 retrival of the ballots, saying "tayo, tayo lang mga watchers, pag-usapan natin,"
clearly 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;
xxx xxx xxx
On June 8, 1998, private respondents Tan was proclaimed governor-elect of Sulu on the
basis of the manual count. 14 Private respondents 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. The Court noted his intervention. 17 A 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 argument 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 "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
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 . . .." The issue is not only legal but one of first impression and
undoubtedly suffered with significance to the entire nation. It is adjudicatory of the right of
the petitioner, the private respondents 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 Pata, 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 the
automated machines. They traced the problem to the printing of local ballots by he National
Printing Office. In the case of the 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 locals 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 desively 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:
xxx xxx xxx
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 shown 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:
xxx xxx xxx
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". . . 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 3rd Marine Brigade
travesty of the sovereignty of the electorate. Its aftermath could have been a bloodbath. 3. Provincial Dir. Charlemagne Alejandrino
COMELEC avoided this imminent probality by ordering a manual count of the votes. It would Sulu PNP Command
be the height of irony if the Court condemns COMELEC for aborting violence in the Sulu 4. Gubernatorial Candidate Tupay Loong
elections. LAKAS-NUCD Loong Wing
Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied process. The 5. Gubernatorial Candidate Abdusakur Tan
Tolentino memorandum clearly shows that they were given every opportunity to oppose the LAKAS-NUCD Tan Wing
manual in count of the local ballots in Sulu. They were orally heard. They later submitted 6. Gubernatorial Candidate Yusop Jikiri
written position papers. Their representatives escorted the transfer of the ballots and the LAKAS-NUCD Tan Wing
automated machines from Sulu to Manila. Their watchers observed the manual count from 7. Gubernatorial Candidate Kimar Tulawie
beginning to end. We quote the Tolentino memorandum, viz: LAMMP
xxx xxx xxx 8. Congressional Candidate Bensaudi Tulawie
On or about 6:00 a.m. of May 12, 1998, while automated counting of all the ballots for the LAMMP
province of Sulu was being conducted at the counting center located at the Sulu State During said meeting, all of the above parties verbally advanced their respective positions.
College, the COMELEC Sulu Task Force Head (TF Head) proceeded to the room where the Those in favor of a manual count were:
counting machine assigned to the municipality of Pata was installed to verify the cause of 1. Brig. Gen. Edgardo Espinoza
the commotion therein. 2. Brig. Gen. Percival Subala
During the interview conducted by the TF Head, the members of the Board of Election 3. Provincial Dir. Charlemagne Alejandrino
Inspectors (BEI) and watchers present in said room stated that the counting machine 4. Gubernatorial Candidate Abdusakur Tan
assigned to the municipality of Pata did not reflect the true results of the voting thereat. 5. Gubernatorial Candidate Kimar Tulawie
The members of the BEI complained that their votes were not reflected in the printout of 6. Congressional Candidate Bensaudi Tulawie
the election returns since per election returns of their precincts, the candidate they voted and those in favor of an automated count were:
for obtained "zero". After verifying the printout of some election returns as against the 1. Gubernatorial Candidate Tupay Loong
official ballots, the TF Head discovered that votes cast in favor of a mayoralty candidate 2. Gubernatorial Candidate Yusop Jikiri
were credited in favor of his opponent. Said parties were then requested by the TF Head to submit their respective position papers
In his attempt to remedy the situation, the TF Head suspended the counting of all ballots for so that the same map be forwarded to the Commission en banc, together with the
said municipality to enable COMELEC field technicians to determine the cause of the recommendations of the TF Head.
technical error, rectify the same, and thereafter proceed with automated counting. In the The TF Head returned to the counting center at the Sulu State College and called his
meantime, the counting of the ballots for the other municipalities proceeded under the technical staff to determine the extent of the technical error and to enable him to submit
automated system. the appropriate recommendation to the Commission en banc.
Technical experts of the supplier based in Manila were informed of the problem and after Upon consultation with the technical staff, it was discovered that in the Municipality of
numerous consultations through long distance calls, the technical experts concluded that Talipao, some of the local ballots were rejected by the machine. Verification showed that
the cause of the error was in the manner the ballots for local positions were printed by the while the ballots were genuine, ballot paper bearing a wrong "sequence code" was used by
National Printing Office (NPO), namely, that the ovals opposite the names of the candidates the NPO during the printing process.
were not properly aligned. As regards the ballots for national positions, no error was found. Briefly, the following is the manner by which a "sequence code" determined genuineness of
Since the problem was not machine-related, it was obvious that the use of counting a ballot. A municipality is assigned a specific (except for Jolo, which assigned two (2)
machines from other municipalities to count the ballots of the municipality of Pata would machines, and sharing of one (1) machine by two (2) municipalities, namely, H.P. Tahil and
still result in the same erroneous count. Thus, it was found necessary to determine the Maimbung, Apandami and K. Caluang, Pata and Tongkil and Panamao and Lugus). A
extent of the error in the ballot printing process before proceeding with the automated machine is then assigned a specific "sequence code" as one of the security features to
counting. detect whether the ballots passing through it are genuine. Since a counting machine is
To avoid a situation where proceeding with automation will result in an erroneous count, the programmed to read the specific "sequence code" assigned to it, ballots which bear a
TF Head, on or about 11:45 a.m. ordered the suspension of the counting of all ballots in the "sequence code" assigned to another machine/municipality, even if said ballots were
province to enable him to call a meeting with the heads of the political parties which fielded genuine will be rejected by the machine.
candidates in the province, inform them of the technical error, and find solutions to the Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had the same problem of
problem. rejected ballots. However, since the operators were not aware that one of the reasons for
On or about 12:30 p.m., the TF Head presided over a conference at Camp General Bautista rejection of ballots is the use of wrong "sequence code", they failed to determine whether
(3rd Marine Brigade) to discuss the process by which the will of the electorate could be the cause for rejection of ballots for said municipalities was the same as that for the
determined. Present during the meeting were: municipality of Talipao.
1. Brig. Gen. Edgardo Espinoza In the case of "misaligned ovals", the counting machine will not reject the ballot because all
Marine Forces, Southern Philippines. the security features, such as "sequence code", are present in the ballot, however, since the
2. Brig. Gen. Percival Subala 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 A shown by the Tolentino memorandum, representatives of the political parties escorted the
rejecting the ballot, the machine will credit the votes of a candidate in favor of his transfer of ballots from Sulu to PICC. Indeed, in his May 14, 1992 letter to Atty. Tolentino, Jr.,
opponent, or in the adjacent space where the oval should be properly placed. petitioner Tupay Loong himself submitted the names of his representative who would
It could not be determined if the other municipalities also had the same technical error in company the ballot boxes and other election paraphernalia,viz: 20
their official ballots since the "misaligned ovals" were discovered only after members of the Dear Atty. Tolentino:
Board of Election Inspectors of the Municipality of Pata complained that their votes were not Submitted herewith are the names of escort(s) to accompany the ballot boxes and other
reflected in the printout of the election results. election pharaphernalia to be transported to COMELEC, Manila, to wit:
As the extent or coverage of the technical errors could not be determined, the TF Head, 1. Jolo — Joseph Lu
upon consultation with his technical staff, was of the belief that it would be more prudent to 2. Patikul — Fathie B. Loong
count the ballots manually than to proceed with an automated system which will result in 3. Indanan — Dixon Jadi
an erroneous count. 4. Siasi — Jamal Ismael
The TF Head thus ordered the indefinite suspension of counting of ballots until such time as 5. K. Kaluang — Enjimar Abam
the Commission shall have resolved the petition/position papers to be submitted by the 6. Pata — Marvin Hassan
parties. The TF Head and his staff returned to Camp General Bautista to await the 7. Parang — Siyang Loong
submission of the position papers of the parties concerned. 8. Pangutaran — Hji. Nasser Loong
Upon receipt of the position papers of the parties, the TF Head faxed the same in the 9. Marunggas — Taib Mangkabong
evening of May 12, 1998, together with his handwritten recommendation to proceed with a 10. Luuk — Jun Arbison
manual count. Attached are copies of the recommendations of the TF Head (Annex "1"), and 11. Pandami — Orkan Osman
the position papers of the Philippine Marines and Philippine National Police (Annex "2"), 12. Tongkil — Usman Sahidulla
LAKAS-NUCD Tan Wing Annex (Annex "3"), Lakas-NUCD Loong Wing (Annex "4"), LAKAS- 13. Tapul — Alphawanis Tupay
NUCD-MNLF Wing (Annex "5") and LAMMP (Annex "6"). Said recommendations and position 14. Lugus — Patta Alih
papers were the bases for the promulgation of COMELEC Minute Resolution No. 98-1750 15. Maimbong — Mike Bangahan
dated May 13, 1998 (Annex "7"), directing, among other things, that the ballots and 16. P. Estino — Yasir Ibba
counting machines be transported by C130 to Manila for both automated and manual 17. Panamso — Hamba Loong
operations. 18. Talipao — Ismael Sali
Minute Resolution No. 98-1750 was received by the TF Head through fax on or about 5:30 in Hoping for your kind and (sic) consideration for approval on this matter.
the evening of May 13, 1998. Copies were then served through personal delivery to the Thank you.
heads of the political parties, with notice to them that another conference will be conducted Very truly yours,
at the 3rd Marine Brigade on May 14, 1998 at 9:00 o'clock in the morning, this time, with Lt. (Sgd.) Tupay T. Loong
General Joselin Nazareno, then AFP Commander, Southern Command. Attached is a copy of (sgd.) Asani S. Tammang
said notice (Annex "8") bearing the signatures of candidates Tan (Annex "8-A") and Loong The ballot boxes were consistently under the watchful eyes of the parties representatives.
(Annex "8-B") and the representatives of candidates Tulawie (Annex "8-C") and Jikiri (Annex They were placed in an open space at the PICC. The watchers stationed themselves some
"8-D"). five (5) meters away form the ballot boxes. They watched 24 hours a day and slept at the
On May 14, 1998, the TF Head presided over said conference in the presence of the heads PICC. 21
of the political parties of Sulu, together with their counsel, including Lt. Gen. Nazareno, Brig. The parties' watchers again accompanied the transfer of the ballot boxes from PICC to the
Gen. Subala, representatives of the NAMFREL, media and the public. public schools of Pasay City where the ballots were counted. After the counting, they once
After hearing the sides of all parties concerned, including that of NAMFREL, the procedure more escorted the return of the ballot boxes to
by which the ballots and counting machines were to be transported to Manila was finalized, PICC. 22
with each political party authorized to send at least one (1) escort/watcher for every In fine, petitioner's charge that the ballots could have been tampered with before the
municipality to accompany the ballot boxes and counting machines from the counting manual counting is totally unfounded.
center at the Sulu State College to the Sulu Airport to the PICC, where the COMELEC was Sixth. The evidence also reveals that the result of the manual count is reliable.
then conducting its Senatariol Canvass. There being four parties, a total of seventy-two (72) It bears stressing that the ballots used in the case at bar were specially made to suit an
escorts/watchers accompanied the ballots and counting machines. automated election. The ballots were uncomplicated. They had fairly large ovals opposite
Two C130s left Sulu on May 15, 1998 to transport all the ballot boxes and counting the names of candidates. A voter needed only to check the oval opposite the name of his
machines, accompanied by all the authorized escorts. Said ballots boxes reached the PICC candidate. When the COMELEC ordered a manual count of the votes, it issued special rules
on the same day, with all escorts/watchers allowed to station themselves at the ballot box as the counting involved a different kind of ballot, albeit, more simple ballots. The Omnibus
storage area. On May 17, 1998, another C130 left Sulu to ferry the members of the board of Election Code rules on appreciation of ballots cannot apply for they only apply to elections
canvassers. where the names of candidates are handwritten in the ballots. The rules were spelled out in
Fifth. The evidence is clear that the integrity of the local ballots was safeguarded when they Minute Resolution 98-1798, viz: 23
were transferred from Sulu to Manila and when they were manually counted. In the matter of the Memorandum dated 17 May 1998 of Executive Director Resurreccion Z.
Borra, reprocedure 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 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:
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;
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.
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. Counting of Votes
A. 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. The said returns shall then be placed in corresponding envelopes for distribution;
B. Local Ballots:
1. Group the local ballots in piles of fifty (50);
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. Place the election returns in their respective envelopes and distribute them accordingly;
6. Return all pertinent election documents and paraphernalia inside the ballot box.
III. Consolidation of Results
A. National Ballots
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;
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 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. G1oria 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. Jocelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Teresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
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. 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 shows 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 LAKAS-Loong 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.1âwphi1.nêt
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 give 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 . . .. 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, . . . 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 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 unforeseen 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 off-line. 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 bancafter due notice and hearing to the parties. In the case
at bar, petitioner never asked the COMELEC en banc to call for a special election in Sulu.
Even 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.
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 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 . . .. 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,
COMELEC 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
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 xxx 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 of means taken by the
Commission on Elections, unless they are clearly illegal or constitute grave abuse of
discretion, should not be interfered with.
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 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 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.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing, Purisima,
Buena and Gonzaga-Reyes, JJ., concur.
Panganiban, J., Please see dissenting opinion.
Pardo and Santiago, JJ., took no part.
Separate Opinions
PANGANIBAN, J., dissenting opinion;
With due respect, I dissent. I submit that the Commission on Elections (Comelec) blatantly
violated its express and specific statutory mandate to conduct automated elections in the
Province of Sulu without any adequate legal or factual bases. Specifically, the Comelec
gravely abused its discretion in the following acts:
1. In peremptorily stopping the ongoing automated counting of ballots in the Municipality of
Pata and in the entire Province of Sulu on the flimsy ground that three ballots for a
mayoralty candidate in said municipality were not tallied by the counting machine assigned
to said town
2. In changing the venue and the mode of counting from automated to manual, due to
alleged imminent danger of violence
3. In violating its own Resolution ordering both an automated count and a parallel manual
count, by actually holding only a manual count, without giving any reason for completely
abandoning the automated system which was already 65 percent complete in the entire
province
4. In counting and appreciating the automated ballots with the use of the rules peculiar to
manual elections, not to the automated election system; that is, the Comelec manually
tallied the ballots in a way different from how the automated machines would have counted
them; hence, the results as manually appreciated substantially differed from the machine-
generated ones
5. In issuing, without due process of law, its assailed Minute Resolutions relating to the
change in the manner and venue of counting
Let me explain each of these grounds.
1. Stoppage of Automated Count
Legally and Factually Flawed
To begin with, there is absolutely no dispute that Congress required the Comelec to conduct
automated, not manual, elections in the Autonomous Region in Muslim Mindanao (ARMM),
including the Province of Sulu, during the May 11, 1998 elections. Republic Act (RA) 8436
explicitly mandates the Comelec to "use an automated election system . . . for process of
voting, counting of votes and canvassing/consolidation of results" 1 in the ARMM.
However, contrary to its above clear mandate, the Comelec abondoned the ongoing
automated counting of votes in Sulu during the last elections and substituted it mid-stream
with the manual system. This reversion to the manual election system is nowhere
authorized in the same or any other law. Clearly, the poll body has no legislative power to
modify, much less to contravene, the law. 2 Neither can it assume powers not granted to it
either by the Constitution or by Congress.
On the other hand, the majority justifies this reversion to the manual method as a valid
exercise of the Comelec's discretion to ensure a free, orderly, honest, and credible electoral
exercise, stressing that this Court's ruling is "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." I respectfully say, however, that such
"movement" should be canalized by the proposition that the Comelec may exercise its
discretion only in accordance with law and never in violation of it.
In any event, let me delve deeper into the factual and legal antecedents which led to the
stoppage of the automated count, if only to demonstrate the utter lack of prudence in the
Comelec's actions.
Factual Antecedents of
Stoppage of Count
About 6:00 a.m. on May 12, 1998, the day after the election, while the automated counting
of the ballots was being conducted at the Sulu State College, some election inspectors as
well as watchers called the attention of the Comelec Task Force head in Sulu, Atty. Jose
Tolentino Jr., to allegedly patent discrepancies between the printed election returns and the
actual votes cast for the mayoralty candidates in the Municipality of Pata. On the spot, Atty.
Tolentino picked out three local ballots that had already been counted. He noticed that
while they contained votes for a certain mayoralty candidate, such votes were not credited
in the latter's favor in the precinct election return, which showed zero (0) vote for that
candidate (Mr. Anton Burahan). Atty. Tolentino then took it upon himself to immediately
order the suspension of the automated counting of the ballots from Pata. Tracing the error
to misprinted ballots, he forthwith ordered a province-wide suspension of the automated
count, on the suspicionthat the printing defect was prevalent province-wide. At that point,
about 65 percent of the ballots cast in Sulu were already machine-counted. Intervenor Jikiri
alleged he was at the time leading the count.
I believe that Atty. Tolentino acted with grave abuse of discretion. First, he had no legal
authority to order even a temporary stoppage of the counting. During the Oral Argument on
September 15, 1998, he candidly admitted that he had no statutory or even regulatory
basis for his action. 3 Second, the verbal manifestation of a BEI member or a watcher that a
vote for a certain candidate was not reflected in the election return conferred no legal
authority upon the election official to examine the ballots personally. Third, granting that
Atty. Tolentino had such authority, the factual basis of his exercise of discretion was sorely
insufficient. He saw only three (3) ballots out of about 200 from a single precinct in Pata,
which had 27 precincts; noted that the votes for a certain mayoralty candidate, which were
indicated in the three ballots, were not reflected on the election return, which instead
printed zero vote for such candidate; when without much ado, ordered the stoppage of the
counting of the rest of the ballots from Pata. At the time, only 13 ballot boxes had been, and
14 more remained to be, counted. Under RA 8436, it would have taken only one (1) minute
for the counting machine to process 100 to 150 ballots. 4 Thus, it would not have taken very
long to finish the count for the entire municipality.
Atty., Tolentino did not even try to get the aggregate votes cast in the municipality for each
mayoral candidate, in order to see if three or even 200 votes would spell a material
difference in the result. Even under the manual election system, election cases are heard
on the assumption that the protested ballots or returns would, if validated, change the
election results. By analogy, the same logic should apply to automated elections. But Atty.
Tolentino immediately assumed that the three ballots would be determinative of the
election results in the municipality, where about 5,400 5 votes had been cast. Not even the
manual election system allows a suspension of the entire counting process on the mere
allegation that a few ballots or votes for one candidate in one precinct are questionable.
Doctrinally, it would be imprudent, even dangerous, to discard the automated system
cavalierly and thereafter resort to manual count on the flimsy basis that a few ballots were
allegedly miscounted. Such holding would give losing parties and candidates a convenient
device to scuttle the automated system by the simple expedient of alleging that a few
ballots were improperly counted by the machine. It would give them a convenient excuse to
revive and use an antiquated and fraud-ridden electoral method and thus lead to a
prolonged counting and canvassing, the very evil sought to be remedied by RA 8436.
Remedy in Cases of False Returns
and Questionable Ballots
Moreover, since verbal complaints of incorrect tallying by the machine were not a valid
reason to suspend the counting, the charges made by the candidates' watchers should have
prompted Atty. Tolentino to require the complaining parties to file their protests for proper
action in accordance with law and the Comelec rules. During the canvassing (which, under
the automated system, is also done separately from the counting), the adversely affected
parties could have objected to the inclusion of the questioned election return and followed,
by analogy, the procedure for a pre-proclamation controversy laid down in Section 243 of
the OEC, as amended by Section 20 of RA 7166. Had that recourse failed, the aggrieved
candidate's remedy was an election protest. Suspending and finally stopping the automated
count were completely uncalled for. There simply was no basis for it.
Making matters worse, Atty. Tolentino directed the suspension of the automated count in all
the 18 municipalities of Sulu, even the alleged errors were reportedly discovered in partial
returns from only six (6) municipalities — Pata, Talipao, Siasi, Indanan, Tapul and Jolo.
If only on this basis, the assailed Comelec Minute Resolutions authorizing the manual count
must be set aside and declared null and void for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction. 6 But there are even more odious
grounds, as I will now show.
2. No Imminent
Danger of Violence
The ponencia justifies the Comelec's precipitate shift to manual counting "in view of the fast
deteriorating peace and order situation caused by the delay in the counting of the votes." It
pays heed to the unsubstantiated report of Atty. Tolentino, but totally ignores the PNP
provincial director's Comprehensive Report on the Sulu Election 7dated May 18, 1998, which
was submitted to this Court by, Private Respondent Tan. Said Report makes no mention of
or reference to any incident that would substantiate Tolentino's statement. Rather, it bares
the relative tranquillity of the recent, electoral process in the province, viz.
1. The conduct of election in the province of Sulu, by her own standard, was generally
peaceful sans some isolated cases of mortar shelling and failure of voting in some
barangays of Panamao, ballot boxes damaged resulting from pump boat capsizing in
Tongkil and failure of conducting elections in two precincts is Siasi, all of Sulu. Automated
counting of the ballots, however, was stopped the day after the election when inconsistency
in the print out of results were discovered in the counting machine assigned to Pata
municipality. This prompted the COMELEC to order the counting to be done in Manila.
xxx xxx xxx
SIGNIFICANT INCIDENTS
Voting in the areas assigned to Sulu PPO was generally peaceful and orderly except for
some minor hitches. In Tongkil, three ballot boxes fell into the sea when the pump boat
carrying them capsized. There was also allegation of ballot snatching thereat and this
matter is being investigated by this PPO. In Indanan, there was a minor misunderstanding
between the Ahajan brothers of Brgy. Panabuan but this was immediately resolved. In Jolo,
particularly at the polling places at Hadji Butu School of Arts and Trade there was a short
commotion among followers of candidates.
In the areas covered by the 3rd MBde, violence erupted only in Talipao, and Panamao.
Reportedly, there [was] gunfire heard in the outskirts of Tapul but neither opposing group
reacted.
xxx xxx xxx
3. ASSESSMENT
The conduct of election in Sulu was generally peaceful compared with the previous
elections. Political rivalry was less intense; the extent of cheating was also less; and a good
number of registered voters actually voted. This phenomenon may have been brought
about by the fact that since there were four sets of candidates, the partisan armed groups
were thinly distributed, meaning the more number of groupings, the lesser is the threat of
violence.
Even assuming arguendo that imminent violence threatened the counting center, such
situation would justify only the transfer of the counting venue. Even then, the concurrence
of the majority of the watchers for such transfer is still required under the OEC. It does not
appear on record that the consent of the watchers was ever sought, not to say given. On
the contrary, Minute Resolution No. 98-1750 (dated May 13, 1998), which ordered the
change of venue for the counting, was issued ex parte by the Comelec en banc, without any
petition, recommendation or proper investigation for said purpose. Such arbitrary and
peremptory issuance, in violation of law, again amounted to an abusive exercise of
discretion.
But, even granting arguendo that the transfer of the counting venue was valid, the
abandonment of the automated count was definitely not a necessary legal consequence
thereof. In other words, only the venue could have been changed, but not the method of
counting. If the Comelec had conducted an automated count in Manila, that may even be
arguably sustained. I repeat, the alleged imminent threat of violence did not at all justify
the manualization of the counting process; if at all, it only authorized a change of venue of
the automated count.
3. No Justification to
Abandon Automated Count
Please note that the Comelec, in its Minute Resolution 98-1796 8 dated May 15, 1998,
actually resolved "to conduct a parallel manual counting [i]n all 18 municipalities of
Sulu . . .. 9 Originally, it would appear that the Commission intended to conduct in Manila an
automated count first, and then a parallel manual count. Hence, it ordered the air-lifting to
its head office of all the relevant election paraphernalia, including the automated machines.
However, the Comelec did not obey its own Resolution. Worse, it did not explain why this
vital provision requiring an automated count was not implemented, and why only a manual
count was conducted. I could have conceded the propriety of a parallel manual count —
which plainly means that both automated and manual counts were to be performed.
Although not expressly sanctioned by law, such parallel manual count may arguably be
regarded as falling within the residual regulatory authority of the Comelec. Unfortunately
and inexplicably, however, only a manual count was done; the Resolution ordering an
automated count was simply ignored without the Comelec giving any reason therefor.
To repeat, there was no reason at all to completely abandon the automated count. The
Comelec had a duty to comply with the mandate of Congress. Yet, for unstated and I
submit, unexplainable reasons, it simply substituted the will of Congress with its own
arbitrary action. Clearly, the Comelec acted without or in excess of its jurisdiction.
4. Rules for Manual Elections Different from
Those for the Automated System
I would like to emphasize that the resort to a manual appreciation of the ballots is
precluded by the basic features of the automated election system, 10 which requires
minimum human intervention, the use of a special quality of ballot paper, the use of
security codes, the mere shading of an oval corresponding to the name of the candidate
voted for, and the mechanized discrimination of genuine from spurious ballots, as well as
rejection of fake or counterfeit ones. The automated system takes away the discretion of
the boards of election inspectors (BEI) in appreciating ballots. 11
A simple cursory reading of the rules 12 laid down in the Omnibus Election Code (OEC) for
the appreciation and counting of ballots cast in a manual election easily discloses that they
are inappropriate, if not downright useless, to the proper appreciation and reading of the
ballots used in the automated system, wherein the names of the candidates are printed on
the ballots beforehand and are not handwritten by the voters themselves, and wherein each
name has a corresponding oval which must have its own exact location on the ballot,
conforming to the design that has been programmed in the counting machine. In other
words, the automated election system has peculiar features designed for electronic, not
manual, verification.
Under the automated system, the machines are programmed to recognize or read only the
presence of carbon in the ovals. To erase a vote is, in fact, not advisable (the voter may,
under Comelec rules, ask for a new ballot), because some carbon content may be left in the
oval that would still be recognized and tallied by the machine. Human handling of the
automated ballots will also make it all too easy to nullify the voter's will. A blank ballot (in
which the voter intentionally refrained from voting for any candidate) can be easily pencil-
marked in favor a certain candidate. Or a vote can be facilely nullified by simply marking
the oval of another candidate for the same office. The point is: human handling of
automated ballots is fraught with dangers to the integrity of the votes therein; it actually
makes the political exercise more vulnerable to electoral fraud.
To be more concrete and specific, during the physical examination of the ballots used in
several precincts in Pata and Jolo, conducted pursuant to the Court's Resolution dated
February 9, 1999, as well as in the operation of the counting machines to which these
ballots were fed, 13 there were significant discrepancies between the results of the manual
count, as reflected in the official election returns, and those of the machine count. 14 Such
were brought about by the following:
1. Ovals that were ink-shaded were validated by the BEIs pursuant to the OEC 15 and the
Comelec rules. 16On the other hand, these were ignored by the machines, which could
detect only ovals with sufficient carbon content.
2. Some ovals that were only partly shaded were not read by the machines, but were
counted by the BEI, pursuant to said Comelec rules.
3. In some ballots, several ovals for candidates for one office were shaded but, except for
one, also crossed out or marked with an "X." The counting machine invalidated these votes,
because it could not recognize the difference between an "X" mark and any other mark on
the oval. All it could "read" was the carbon content, and due to the presence of carbon on
more than one oval for a single office, the machine concluded that there was an "over-
vote." Under the automated program, an "over-vote" is considered "no vote." However, the
BEIs counted the remaining uncrossed vote, considering it the voter's true and valid vote,
pursuant to the OEC rules.17
4. Ballots on which the voter manually wrote the candidates' names were considered
marked ballots by some BEIs, pursuant to the OEC. But the machines counted the votes
therein and ignored such writings, as long as they were not found inside the ovals.
I could cite several other examples of why the manual count was not reflective of the
machine count. Inspite of theponencia's plain admission that the OEC Rules on the
appreciation of ballots "only apply to elections where the names of the candidates are
handwritten in the ballots," the stark fact is that such Rules were actually (and erroneously)
used here.
Indeed, he use of inappropriate Rules by the BEIs necessarily begot a misappreciation of the
ballots. Such misappreciation, in turn, led to a substantial difference in the election results,
as yielded by the manual and the automated counts. In sum, the manual count was not
reflective of the automated count.
This Court's Ruling
Sets Back Election Modernization
It must be borne in mind that, verily, the consistency and the accuracy of the machine
count were the underlying factors in adopting the automated system of election. Precisely,
human error, inconsistency and fraud were intended to be eliminated in the automated
system. In fact, the BEIs had no role in the counting and canvassing. Thus, the resort to a
manual count under the facts of this case was antithetical to the rationale and intent behind
RA 8436. The very purpose of the law was defeated by the cumbersome, inaccurate and
error-prone manual system of counting automated votes.
Indeed, to uphold the results of the manual count would set a dangerous precedent. It
would be tantamount to validating the arbitrary and illegal acts of the Comelec. It would
provide the candidates a degenerated means to delay the proclamation of winners. It would
effectively nullify the purpose of delivering speedy and accurate election results and thus
defeat the election modernization ordained by Congress. Definitely, it would critically set
back efforts at eliminating electoral fraud. To paraphrase then Vice President, now
President, Joseph E. Estrada, the automated election system, which was prescribed as the
"cure for electoral fraud," may, in the imprudent hands of an indiscreet poll body, be truly
"worse than the disease."
5. Lack of Due Process in Issuance
of Assailed Comelec Resolutions
The ponencia, citing the Tolentino Memorandum, states that Petitioner Loong and
Intervenor Jikiri "were given every opportunity to oppose the manual count of the local
ballots in Sulu." Hence, contrary to their allegations, they were not denied due process.
Again, I beg to disagree. Some factual antecedents have to be brought up to set the record
straight.
The meeting among the candidates and other parties concerned, which Atty. Tolentino
convened in the early afternoon of May 12, 1998, was already post facto. The talking points
in that meeting related to the alleged incorrect reading of ballots for Pata, Sulu. They did
not discuss the issue of whether to stop the tallying because much earlier in the morning of
that same day, Atty. Tolentino had already suspended the counting in that municipality and,
shortly thereafter, in the entire province. Furthermore, the group that convened did not yet
take up the alleged rejection by the machines of ballots in other municipalities, since the
reports thereon came only after the said meeting. And such stoppage, as I discussed
earlier, was based merely on the verbal complaints of some watchers and members of the
BEI and Atty. Tolentino's personal, albeit unauthorized, examination of three ballots from
one precinct, which showed that votes for a certain mayoralty candidate were not reflected
in the election return.
Immediately after that meeting adjourned, Private Respondent Abdusakur Tan sent his
petition 18 directly to the Comelec, requesting the immediate suspension of the automated
count and the holding of a manual count in the entire Province of Sulu. In response, the
Comelec en banc forthwith issued on the very same day — May 12, 1998 — assailed Minute
Resolution 98-1747, 19 granting the petition insofar as the votes in the Municipality of Pata
were concerned.
The assailed Resolution was issued even before the report-recommendation of Atty.
Tolentino was submitted to the Comelec en banc, close to midnight of that day. 20 While the
effectivity of Minute Resolution 98-1747 was expressly "subject to notice to all parties
concerned," its very issuance by the Comelec en banc was obviously (1) without notice to
the other candidates, (2) without any hearing at all, and (3) without an independent
investigation by the Comelec. It relied totally on the contents of the petition itself.
Clearly, while the parties may have been heard by Atty. Tolentino, their inputs were
definitely not communicated to nor required by the Commission en banc prior to its
issuance of Minute Resolution 98-1747. Besides, the Tolentino meeting took up the
problems in the Municipality of Pata only, for the alleged problems in the five other
municipalities of Sulu were discovered after that meeting was adjourned already. Such
meeting, therefore, did not serve as a sufficient basis for the Comelec to abandon the
automated count in the entire province; to transfer the counting venue from Sulu to Manila;
and to totally shift to the manual count. In making these decisions and issuing the
resolutions therefor, the Comelec clearly did not accord the parties due process. It did not
give them any opportunity to be heard prior the promulgation of its rulings. The Comelec
simply acted on its own.
Epilogue
Special Election as
the Equitable Remedy
The assailed Comelec Resolutions have heretofore been shown to be tainted with grave
abuse of discretion; hence, the manual count has no legal leg to stand on. Consequently, its
results cannot be upheld. That which proceeds from a void order is likewise void. The
invalidity of the manual count resulted in no count at all. Equally important, the manual
count was not reflective of the results of an automated count because the ballots were not
appreciated in the manner the scanning machine would have counted them.
During the Oral Argument, the parties, as well as the solicitor general, agreed that an
automated count was no longer possible because, after the ballots had been manually
handled (and blemished or rumpled in the process), the scanning machines could not
accurately read all of them anymore. 21 While the great majority of the ballots could still be
counted by the machines, there were those that could no longer be electronically processed
— ballots that were torn, dirty or sticky; and the damp ones that the machine found difficult
to disengage.
The ultimate effect of the invalidity of the manual count and the futility of an automated
count at this time is the annulment or junking of the votes of the people of Sulu in the last
elections. The will of the electorate, expressed through the ballots, has been frustrated or
virtually canceled by the unauthorized acts of the Comelec. There is then no basis for the
proclamation of Private Respondent Tan as the duly elected governor of Sulu.
It must be pointed out, however, that the nullity of Tan's proclamation is not equivalent to a
judicial disenfranchisement of the Sulu electorate. Indeed, there is no evidence showing
that the voting process itself was tainted with undue irregularity. It was the counting
process, rather, that was shrouded with uncertainty. The manual count, I repeat, was not
the prescribed or even the appropriate method of validating the ballots intended to be
electronically verified.
Time and again, the Court has held that the sovereign will must prevail over legal
technicalities. 22 But when the popular will itself is placed in serious doubt due to the
irregularity of the very method used in determining it, we must allow the people involved
another chance to express their true choice. We simply cannot impose upon the people of
Sulu one who was not their clear choice, or whose election was, at the very least, placed in
serious doubt by the spuriousness of the method used in counting the votes.
The consequent loss of a legal and appropriate means to ascertain the genuine will of the
voters during the last election in Sulu necessitates the holding of a special election. I
believe that this is the only equitable remedy left under the circumstances, if we are to give
true justice to the people of Sulu and let their sovereign will prevail. 23Such special election
will, however, concern only the position of governor of the Province of Sulu. Only this
position was contested in the instant petition; only the candidates therefor have timely
sought relief from this Court to assail the manual count and the subject Minute Resolutions
of the Comelec. The same relief cannot be granted to the candidates for the other positions
who, insofar as they are concerned, are deemed to have accepted the results of the manual
count as truly reflective of the will of the people of Sulu. Their failure to object in due time
to the process, as well as the results, manifests their conformity and acceptance. They are
now estopped from questioning the validity of the assumption into office of the duly
proclaimed winners of the other positions in the province, whose rights cannot be adversely
affected in these proceedings without them being haled to and accorded their day in
court. 24 Even this Court has admitted the wisdom of this caveat as it denied the late
intervention of Vice Gubernatorial Candidate Abdulwahid Sahidulla.
The Need for Legislative Action
The foregoing disquisition shows that RA 8436 had not foreseen flaws in the automated
system that were unrelated to the counting machines or components thereof; thus, the
lacuna of the proper recourse in such event. No remedies were expressly prescribed (1) for
candidates who believe there was a wrong count or canvass by the machine, or more
relevantly, (2) on whether Comelec may resort to a manual count of automated ballots, and
if so, under what circumstances. 25
Well-settled is the rule, that courts have no jurisdiction to make legislative
pronouncements. 26 They have no power to fill a vacuum in the law. Thus, the Court, I
submit, should not give its imprimatur to the Comelec's resort to the manual method of
determining election results, where Congress has categorically prescribed the automated
system. Only Congress, the legislative arm of the government, can prescribe a precise
remedy that will address the flaws identified in this case. For the courts or the Comelec to
do so (like a resort to manual count) would be tantamount to judicial or administrative
legislation, a course diametrical to the constitutional principle of separation of powers.
WHEREFORE, I vote that the petition be GRANTED. Assailed Comelec Resolution Nos. 98-
1747, 98-1750, 98-1796 and 98-1798 should be declared NULL and VOID. The manually
determined election results for the position of governor of Sulu and the proclamation of
Respondent Abdusakur Tan as the elected governor of said province must thus be SET
ASIDE and the Comelec ORDERED to call a special election for such position as soon as
practicable.
Separate Opinions
PANGANIBAN, J., dissenting opinion;
With due respect, I dissent. I submit that the Commission on Elections (Comelec) blatantly
violated its express and specific statutory mandate to conduct automated elections in the
Province of Sulu without any adequate legal or factual bases. Specifically, the Comelec
gravely abused its discretion in the following acts:
1. In peremptorily stopping the ongoing automated counting of ballots in the Municipality of
Pata and in the entire Province of Sulu on the flimsy ground that three ballots for a
mayoralty candidate in said municipality were not tallied by the counting machine assigned
to said town
2. In changing the venue and the mode of counting from automated to manual, due to
alleged imminent danger of violence
3. In violating its own Resolution ordering both an automated count and a parallel manual
count, by actually holding only a manual count, without giving any reason for completely
abandoning the automated system which was already 65 percent complete in the entire
province
4. In counting and appreciating the automated ballots with the use of the rules peculiar to
manual elections, not to the automated election system; that is, the Comelec manually
tallied the ballots in a way different from how the automated machines would have counted
them; hence, the results as manually appreciated substantially differed from the machine-
generated ones
5. In issuing, without due process of law, its assailed Minute Resolutions relating to the
change in the manner and venue of counting
Let me explain each of these grounds.
1. Stoppage of Automated Count
Legally and Factually Flawed
To begin with, there is absolutely no dispute that Congress required the Comelec to conduct
automated, not manual, elections in the Autonomous Region in Muslim Mindanao (ARMM),
including the Province of Sulu, during the May 11, 1998 elections. Republic Act (RA) 8436
explicitly mandates the Comelec to "use an automated election system . . . for process of
voting, counting of votes and canvassing/consolidation of results" 1 in the ARMM.
However, contrary to its above clear mandate, the Comelec abondoned the ongoing
automated counting of votes in Sulu during the last elections and substituted it mid-stream
with the manual system. This reversion to the manual election system is nowhere
authorized in the same or any other law. Clearly, the poll body has no legislative power to
modify, much less to contravene, the law. 2 Neither can it assume powers not granted to it
either by the Constitution or by Congress.
On the other hand, the majority justifies this reversion to the manual method as a valid
exercise of the Comelec's discretion to ensure a free, orderly, honest, and credible electoral
exercise, stressing that this Court's ruling is "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." I respectfully say, however, that such
"movement" should be canalized by the proposition that the Comelec may exercise its
discretion only in accordance with law and never in violation of it.
In any event, let me delve deeper into the factual and legal antecedents which led to the
stoppage of the automated count, if only to demonstrate the utter lack of prudence in the
Comelec's actions.
Factual Antecedents of
Stoppage of Count
About 6:00 a.m. on May 12, 1998, the day after the election, while the automated counting
of the ballots was being conducted at the Sulu State College, some election inspectors as
well as watchers called the attention of the Comelec Task Force head in Sulu, Atty. Jose
Tolentino Jr., to allegedly patent discrepancies between the printed election returns and the
actual votes cast for the mayoralty candidates in the Municipality of Pata. On the spot, Atty.
Tolentino picked out three local ballots that had already been counted. He noticed that
while they contained votes for a certain mayoralty candidate, such votes were not credited
in the latter's favor in the precinct election return, which showed zero (0) vote for that
candidate (Mr. Anton Burahan). Atty. Tolentino then took it upon himself to immediately
order the suspension of the automated counting of the ballots from Pata. Tracing the error
to misprinted ballots, he forthwith ordered a province-wide suspension of the automated
count, on the suspicionthat the printing defect was prevalent province-wide. At that point,
about 65 percent of the ballots cast in Sulu were already machine-counted. Intervenor Jikiri
alleged he was at the time leading the count.
I believe that Atty. Tolentino acted with grave abuse of discretion. First, he had no legal
authority to order even a temporary stoppage of the counting. During the Oral Argument on
September 15, 1998, he candidly admitted that he had no statutory or even regulatory
basis for his action. 3 Second, the verbal manifestation of a BEI member or a watcher that a
vote for a certain candidate was not reflected in the election return conferred no legal
authority upon the election official to examine the ballots personally. Third, granting that
Atty. Tolentino had such authority, the factual basis of his exercise of discretion was sorely
insufficient. He saw only three (3) ballots out of about 200 from a single precinct in Pata,
which had 27 precincts; noted that the votes for a certain mayoralty candidate, which were
indicated in the three ballots, were not reflected on the election return, which instead
printed zero vote for such candidate; when without much ado, ordered the stoppage of the
counting of the rest of the ballots from Pata. At the time, only 13 ballot boxes had been, and
14 more remained to be, counted. Under RA 8436, it would have taken only one (1) minute
for the counting machine to process 100 to 150 ballots. 4 Thus, it would not have taken very
long to finish the count for the entire municipality.
Atty., Tolentino did not even try to get the aggregate votes cast in the municipality for each
mayoral candidate, in order to see if three or even 200 votes would spell a material
difference in the result. Even under the manual election system, election cases are heard
on the assumption that the protested ballots or returns would, if validated, change the
election results. By analogy, the same logic should apply to automated elections. But Atty.
Tolentino immediately assumed that the three ballots would be determinative of the
election results in the municipality, where about 5,400 5 votes had been cast. Not even the
manual election system allows a suspension of the entire counting process on the mere
allegation that a few ballots or votes for one candidate in one precinct are questionable.
Doctrinally, it would be imprudent, even dangerous, to discard the automated system
cavalierly and thereafter resort to manual count on the flimsy basis that a few ballots were
allegedly miscounted. Such holding would give losing parties and candidates a convenient
device to scuttle the automated system by the simple expedient of alleging that a few
ballots were improperly counted by the machine. It would give them a convenient excuse to
revive and use an antiquated and fraud-ridden electoral method and thus lead to a
prolonged counting and canvassing, the very evil sought to be remedied by RA 8436.
Remedy in Cases of False Returns
and Questionable Ballots
Moreover, since verbal complaints of incorrect tallying by the machine were not a valid
reason to suspend the counting, the charges made by the candidates' watchers should have
prompted Atty. Tolentino to require the complaining parties to file their protests for proper
action in accordance with law and the Comelec rules. During the canvassing (which, under
the automated system, is also done separately from the counting), the adversely affected
parties could have objected to the inclusion of the questioned election return and followed,
by analogy, the procedure for a pre-proclamation controversy laid down in Section 243 of
the OEC, as amended by Section 20 of RA 7166. Had that recourse failed, the aggrieved
candidate's remedy was an election protest. Suspending and finally stopping the automated
count were completely uncalled for. There simply was no basis for it.
Making matters worse, Atty. Tolentino directed the suspension of the automated count in all
the 18 municipalities of Sulu, even the alleged errors were reportedly discovered in partial
returns from only six (6) municipalities — Pata, Talipao, Siasi, Indanan, Tapul and Jolo.
If only on this basis, the assailed Comelec Minute Resolutions authorizing the manual count
must be set aside and declared null and void for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction. 6 But there are even more odious
grounds, as I will now show.
2. No Imminent
Danger of Violence
The ponencia justifies the Comelec's precipitate shift to manual counting "in view of the fast
deteriorating peace and order situation caused by the delay in the counting of the votes." It
pays heed to the unsubstantiated report of Atty. Tolentino, but totally ignores the PNP
provincial director's Comprehensive Report on the Sulu Election 7dated May 18, 1998, which
was submitted to this Court by, Private Respondent Tan. Said Report makes no mention of
or reference to any incident that would substantiate Tolentino's statement. Rather, it bares
the relative tranquillity of the recent, electoral process in the province, viz.
1. The conduct of election in the province of Sulu, by her own standard, was generally
peaceful sans some isolated cases of mortar shelling and failure of voting in some
barangays of Panamao, ballot boxes damaged resulting from pump boat capsizing in
Tongkil and failure of conducting elections in two precincts is Siasi, all of Sulu. Automated
counting of the ballots, however, was stopped the day after the election when inconsistency
in the print out of results were discovered in the counting machine assigned to Pata
municipality. This prompted the COMELEC to order the counting to be done in Manila.
xxx xxx xxx
SIGNIFICANT INCIDENTS
Voting in the areas assigned to Sulu PPO was generally peaceful and orderly except for
some minor hitches. In Tongkil, three ballot boxes fell into the sea when the pump boat
carrying them capsized. There was also allegation of ballot snatching thereat and this
matter is being investigated by this PPO. In Indanan, there was a minor misunderstanding
between the Ahajan brothers of Brgy. Panabuan but this was immediately resolved. In Jolo,
particularly at the polling places at Hadji Butu School of Arts and Trade there was a short
commotion among followers of candidates.
In the areas covered by the 3rd MBde, violence erupted only in Talipao, and Panamao.
Reportedly, there [was] gunfire heard in the outskirts of Tapul but neither opposing group
reacted.
xxx xxx xxx
3. ASSESSMENT
The conduct of election in Sulu was generally peaceful compared with the previous
elections. Political rivalry was less intense; the extent of cheating was also less; and a good
number of registered voters actually voted. This phenomenon may have been brought
about by the fact that since there were four sets of candidates, the partisan armed groups
were thinly distributed, meaning the more number of groupings, the lesser is the threat of
violence.
Even assuming arguendo that imminent violence threatened the counting center, such
situation would justify only the transfer of the counting venue. Even then, the concurrence
of the majority of the watchers for such transfer is still required under the OEC. It does not
appear on record that the consent of the watchers was ever sought, not to say given. On
the contrary, Minute Resolution No. 98-1750 (dated May 13, 1998), which ordered the
change of venue for the counting, was issued ex parte by the Comelec en banc, without any
petition, recommendation or proper investigation for said purpose. Such arbitrary and
peremptory issuance, in violation of law, again amounted to an abusive exercise of
discretion.
But, even granting arguendo that the transfer of the counting venue was valid, the
abandonment of the automated count was definitely not a necessary legal consequence
thereof. In other words, only the venue could have been changed, but not the method of
counting. If the Comelec had conducted an automated count in Manila, that may even be
arguably sustained. I repeat, the alleged imminent threat of violence did not at all justify
the manualization of the counting process; if at all, it only authorized a change of venue of
the automated count.
3. No Justification to
Abandon Automated Count
Please note that the Comelec, in its Minute Resolution 98-1796 8 dated May 15, 1998,
actually resolved "to conduct a parallel manual counting [i]n all 18 municipalities of
Sulu . . .. 9 Originally, it would appear that the Commission intended to conduct in Manila an
automated count first, and then a parallel manual count. Hence, it ordered the air-lifting to
its head office of all the relevant election paraphernalia, including the automated machines.
However, the Comelec did not obey its own Resolution. Worse, it did not explain why this
vital provision requiring an automated count was not implemented, and why only a manual
count was conducted. I could have conceded the propriety of a parallel manual count —
which plainly means that both automated and manual counts were to be performed.
Although not expressly sanctioned by law, such parallel manual count may arguably be
regarded as falling within the residual regulatory authority of the Comelec. Unfortunately
and inexplicably, however, only a manual count was done; the Resolution ordering an
automated count was simply ignored without the Comelec giving any reason therefor.
To repeat, there was no reason at all to completely abandon the automated count. The
Comelec had a duty to comply with the mandate of Congress. Yet, for unstated and I
submit, unexplainable reasons, it simply substituted the will of Congress with its own
arbitrary action. Clearly, the Comelec acted without or in excess of its jurisdiction.
4. Rules for Manual Elections Different from
Those for the Automated System
I would like to emphasize that the resort to a manual appreciation of the ballots is
precluded by the basic features of the automated election system, 10 which requires
minimum human intervention, the use of a special quality of ballot paper, the use of
security codes, the mere shading of an oval corresponding to the name of the candidate
voted for, and the mechanized discrimination of genuine from spurious ballots, as well as
rejection of fake or counterfeit ones. The automated system takes away the discretion of
the boards of election inspectors (BEI) in appreciating ballots. 11
A simple cursory reading of the rules 12 laid down in the Omnibus Election Code (OEC) for
the appreciation and counting of ballots cast in a manual election easily discloses that they
are inappropriate, if not downright useless, to the proper appreciation and reading of the
ballots used in the automated system, wherein the names of the candidates are printed on
the ballots beforehand and are not handwritten by the voters themselves, and wherein each
name has a corresponding oval which must have its own exact location on the ballot,
conforming to the design that has been programmed in the counting machine. In other
words, the automated election system has peculiar features designed for electronic, not
manual, verification.
Under the automated system, the machines are programmed to recognize or read only the
presence of carbon in the ovals. To erase a vote is, in fact, not advisable (the voter may,
under Comelec rules, ask for a new ballot), because some carbon content may be left in the
oval that would still be recognized and tallied by the machine. Human handling of the
automated ballots will also make it all too easy to nullify the voter's will. A blank ballot (in
which the voter intentionally refrained from voting for any candidate) can be easily pencil-
marked in favor a certain candidate. Or a vote can be facilely nullified by simply marking
the oval of another candidate for the same office. The point is: human handling of
automated ballots is fraught with dangers to the integrity of the votes therein; it actually
makes the political exercise more vulnerable to electoral fraud.
To be more concrete and specific, during the physical examination of the ballots used in
several precincts in Pata and Jolo, conducted pursuant to the Court's Resolution dated
February 9, 1999, as well as in the operation of the counting machines to which these
ballots were fed, 13 there were significant discrepancies between the results of the manual
count, as reflected in the official election returns, and those of the machine count. 14 Such
were brought about by the following:
1. Ovals that were ink-shaded were validated by the BEIs pursuant to the OEC 15 and the
Comelec rules. 16On the other hand, these were ignored by the machines, which could
detect only ovals with sufficient carbon content.
2. Some ovals that were only partly shaded were not read by the machines, but were
counted by the BEI, pursuant to said Comelec rules.
3. In some ballots, several ovals for candidates for one office were shaded but, except for
one, also crossed out or marked with an "X." The counting machine invalidated these votes,
because it could not recognize the difference between an "X" mark and any other mark on
the oval. All it could "read" was the carbon content, and due to the presence of carbon on
more than one oval for a single office, the machine concluded that there was an "over-
vote." Under the automated program, an "over-vote" is considered "no vote." However, the
BEIs counted the remaining uncrossed vote, considering it the voter's true and valid vote,
pursuant to the OEC rules.17
4. Ballots on which the voter manually wrote the candidates' names were considered
marked ballots by some BEIs, pursuant to the OEC. But the machines counted the votes
therein and ignored such writings, as long as they were not found inside the ovals.
I could cite several other examples of why the manual count was not reflective of the
machine count. Inspite of theponencia's plain admission that the OEC Rules on the
appreciation of ballots "only apply to elections where the names of the candidates are
handwritten in the ballots," the stark fact is that such Rules were actually (and erroneously)
used here.
Indeed, he use of inappropriate Rules by the BEIs necessarily begot a misappreciation of the
ballots. Such misappreciation, in turn, led to a substantial difference in the election results,
as yielded by the manual and the automated counts. In sum, the manual count was not
reflective of the automated count.
This Court's Ruling
Sets Back Election Modernization
It must be borne in mind that, verily, the consistency and the accuracy of the machine
count were the underlying factors in adopting the automated system of election. Precisely,
human error, inconsistency and fraud were intended to be eliminated in the automated
system. In fact, the BEIs had no role in the counting and canvassing. Thus, the resort to a
manual count under the facts of this case was antithetical to the rationale and intent behind
RA 8436. The very purpose of the law was defeated by the cumbersome, inaccurate and
error-prone manual system of counting automated votes.
Indeed, to uphold the results of the manual count would set a dangerous precedent. It
would be tantamount to validating the arbitrary and illegal acts of the Comelec. It would
provide the candidates a degenerated means to delay the proclamation of winners. It would
effectively nullify the purpose of delivering speedy and accurate election results and thus
defeat the election modernization ordained by Congress. Definitely, it would critically set
back efforts at eliminating electoral fraud. To paraphrase then Vice President, now
President, Joseph E. Estrada, the automated election system, which was prescribed as the
"cure for electoral fraud," may, in the imprudent hands of an indiscreet poll body, be truly
"worse than the disease."
5. Lack of Due Process in Issuance
of Assailed Comelec Resolutions
The ponencia, citing the Tolentino Memorandum, states that Petitioner Loong and
Intervenor Jikiri "were given every opportunity to oppose the manual count of the local
ballots in Sulu." Hence, contrary to their allegations, they were not denied due process.
Again, I beg to disagree. Some factual antecedents have to be brought up to set the record
straight.
The meeting among the candidates and other parties concerned, which Atty. Tolentino
convened in the early afternoon of May 12, 1998, was already post facto. The talking points
in that meeting related to the alleged incorrect reading of ballots for Pata, Sulu. They did
not discuss the issue of whether to stop the tallying because much earlier in the morning of
that same day, Atty. Tolentino had already suspended the counting in that municipality and,
shortly thereafter, in the entire province. Furthermore, the group that convened did not yet
take up the alleged rejection by the machines of ballots in other municipalities, since the
reports thereon came only after the said meeting. And such stoppage, as I discussed
earlier, was based merely on the verbal complaints of some watchers and members of the
BEI and Atty. Tolentino's personal, albeit unauthorized, examination of three ballots from
one precinct, which showed that votes for a certain mayoralty candidate were not reflected
in the election return.
Immediately after that meeting adjourned, Private Respondent Abdusakur Tan sent his
petition 18 directly to the Comelec, requesting the immediate suspension of the automated
count and the holding of a manual count in the entire Province of Sulu. In response, the
Comelec en banc forthwith issued on the very same day — May 12, 1998 — assailed Minute
Resolution 98-1747, 19 granting the petition insofar as the votes in the Municipality of Pata
were concerned.
The assailed Resolution was issued even before the report-recommendation of Atty.
Tolentino was submitted to the Comelec en banc, close to midnight of that day. 20 While the
effectivity of Minute Resolution 98-1747 was expressly "subject to notice to all parties
concerned," its very issuance by the Comelec en banc was obviously (1) without notice to
the other candidates, (2) without any hearing at all, and (3) without an independent
investigation by the Comelec. It relied totally on the contents of the petition itself.
Clearly, while the parties may have been heard by Atty. Tolentino, their inputs were
definitely not communicated to nor required by the Commission en banc prior to its
issuance of Minute Resolution 98-1747. Besides, the Tolentino meeting took up the
problems in the Municipality of Pata only, for the alleged problems in the five other
municipalities of Sulu were discovered after that meeting was adjourned already. Such
meeting, therefore, did not serve as a sufficient basis for the Comelec to abandon the
automated count in the entire province; to transfer the counting venue from Sulu to Manila;
and to totally shift to the manual count. In making these decisions and issuing the
resolutions therefor, the Comelec clearly did not accord the parties due process. It did not
give them any opportunity to be heard prior the promulgation of its rulings. The Comelec
simply acted on its own.
Epilogue
Special Election as
the Equitable Remedy
The assailed Comelec Resolutions have heretofore been shown to be tainted with grave
abuse of discretion; hence, the manual count has no legal leg to stand on. Consequently, its
results cannot be upheld. That which proceeds from a void order is likewise void. The
invalidity of the manual count resulted in no count at all. Equally important, the manual
count was not reflective of the results of an automated count because the ballots were not
appreciated in the manner the scanning machine would have counted them.
During the Oral Argument, the parties, as well as the solicitor general, agreed that an
automated count was no longer possible because, after the ballots had been manually
handled (and blemished or rumpled in the process), the scanning machines could not
accurately read all of them anymore. 21 While the great majority of the ballots could still be
counted by the machines, there were those that could no longer be electronically processed
— ballots that were torn, dirty or sticky; and the damp ones that the machine found difficult
to disengage.
The ultimate effect of the invalidity of the manual count and the futility of an automated
count at this time is the annulment or junking of the votes of the people of Sulu in the last
elections. The will of the electorate, expressed through the ballots, has been frustrated or
virtually canceled by the unauthorized acts of the Comelec. There is then no basis for the
proclamation of Private Respondent Tan as the duly elected governor of Sulu.
It must be pointed out, however, that the nullity of Tan's proclamation is not equivalent to a
judicial disenfranchisement of the Sulu electorate. Indeed, there is no evidence showing
that the voting process itself was tainted with undue irregularity. It was the counting
process, rather, that was shrouded with uncertainty. The manual count, I repeat, was not
the prescribed or even the appropriate method of validating the ballots intended to be
electronically verified.
Time and again, the Court has held that the sovereign will must prevail over legal
technicalities. 22 But when the popular will itself is placed in serious doubt due to the
irregularity of the very method used in determining it, we must allow the people involved
another chance to express their true choice. We simply cannot impose upon the people of
Sulu one who was not their clear choice, or whose election was, at the very least, placed in
serious doubt by the spuriousness of the method used in counting the votes.
The consequent loss of a legal and appropriate means to ascertain the genuine will of the
voters during the last election in Sulu necessitates the holding of a special election. I
believe that this is the only equitable remedy left under the circumstances, if we are to give
true justice to the people of Sulu and let their sovereign will prevail. 23Such special election
will, however, concern only the position of governor of the Province of Sulu. Only this
position was contested in the instant petition; only the candidates therefor have timely
sought relief from this Court to assail the manual count and the subject Minute Resolutions
of the Comelec. The same relief cannot be granted to the candidates for the other positions
who, insofar as they are concerned, are deemed to have accepted the results of the manual
count as truly reflective of the will of the people of Sulu. Their failure to object in due time
to the process, as well as the results, manifests their conformity and acceptance. They are
now estopped from questioning the validity of the assumption into office of the duly
proclaimed winners of the other positions in the province, whose rights cannot be adversely
affected in these proceedings without them being haled to and accorded their day in
court. 24 Even this Court has admitted the wisdom of this caveat as it denied the late
intervention of Vice Gubernatorial Candidate Abdulwahid Sahidulla.
The Need for Legislative Action
The foregoing disquisition shows that RA 8436 had not foreseen flaws in the automated
system that were unrelated to the counting machines or components thereof; thus, the
lacuna of the proper recourse in such event. No remedies were expressly prescribed (1) for
candidates who believe there was a wrong count or canvass by the machine, or more
relevantly, (2) on whether Comelec may resort to a manual count of automated ballots, and
if so, under what circumstances. 25
Well-settled is the rule, that courts have no jurisdiction to make legislative
pronouncements. 26 They have no power to fill a vacuum in the law. Thus, the Court, I
submit, should not give its imprimatur to the Comelec's resort to the manual method of
determining election results, where Congress has categorically prescribed the automated
system. Only Congress, the legislative arm of the government, can prescribe a precise
remedy that will address the flaws identified in this case. For the courts or the Comelec to
do so (like a resort to manual count) would be tantamount to judicial or administrative
legislation, a course diametrical to the constitutional principle of separation of powers.
WHEREFORE, I vote that the petition be GRANTED. Assailed Comelec Resolution Nos. 98-
1747, 98-1750, 98-1796 and 98-1798 should be declared NULL and VOID. The manually
determined election results for the position of governor of Sulu and the proclamation of
Respondent Abdusakur Tan as the elected governor of said province must thus be SET
ASIDE and the Comelec ORDERED to call a special election for such position as soon as
practicable.
G.R. No. 84462-63 March 29, 1989
GABRIEL CASIMIRO and UNIDO PARTY, petitioners,
vs.
HON. COMMISSION ON ELECTIONS, LAS PINAS BOARD OF CANVASSERS, RASALINO
RIGUERA, ALFREDO JUNTILLA, REMIGIO RAMOS, EDUARDO CASTILLO and REYNALDO
SALVADOR, respondents.
G.R. No. 84678-79 March 29, 1989
RUSTICO ANTONIO, JAIME BULALACAO, ERNESTO CAAMPUED, RODOLFO FRANCISCO,
LORETA MIRANDA, JUANITO MOJE, ERLINDA PERICO, PEDRO SALVADOR, MIGUEL SORIANO,
JR. and ROMAN VILLAME, petitioners,
vs.
COMMISSION ON ELECTIONS, LAS PINAS BOARD OF CANVASSERS, JAIME MARTIN, MAXIMO
SANTOS, LUIS BUSTAMANTE, EDUARDO JIMENEZ, LORETO VILLANUEVA, BENJAMIN
GONZALES, JAIME AGUILAR, ERNESTO LUCENA and RENATO MIRANDA, respondents.
Jose G. de Leon, Jr. for petitioners in G.R. Nos. 84462-63.
Miguel P. Soriano, Jr. for petitioners in G.R. Nos. 8467879.
Edilberto Bacle for respondent A. Juntilla.
Byron S. Anastacio for respondent R. Riguera.
MELENCIO-HERRERA, J.:
In the local elections of 18 January 1988 Gabriel P. Casimiro was the UNIDO candidate for
Mayor of the Municipality of Las Pinas, Metro Manila. Alfredo Juntilla and Rosalino Riguera
were also candidates for the same position of Mayor, with Riguera having been ultimately
proclaimed Mayor.
Remigio Ramos and Eduardo Castillo were both candidates for Vice-Mayor; while Reynaldo
Salvador was a candidate for Councilor, all in the same municipality.
During the canvassing of votes, the following cases, pertinent to these petitions, were filed
before public respondent Commission on Elections (COMELEC):
SPC No. 88-210-Juntilla, et al., vs. Rosalino Riguera, et al.
SPC No. 88-218-In Re: Petition to Suspend Canvass of Election Return transfer the Venue for
the Canvass of Election Returns to the COMELEC Main Office in Intramuros, Manila and/or
Suspend the proclamation of any winning candidate for Mayor, Vice-Mayor and Councilors in
the Municipality of Las Pinas, or to Declare the Nullity of Proclamation, if any.
Gabriel P. Casimiro, Petitioner.
SPC No.88-360-InRe:Petition to Enjoin Board of Canvassers from Canvassing of Votes of Las
Pinas and/or Tabulating Unofficial Election Returns,
UNIDO Party, Petitioner.
SPC No. 88-619 In the Matter of the Pre-Proclamation Controversy in Las Pinas, M.M.
Reynaldo Salvador, Petitioner, vs. Las Pinas M.M. Board of Canvassers, et al., Respondents.
Resolving the aforesaid cases, the COMELEC (Second Division) rendered a consolidated
Decision on 25 March 1988, decreeing in part:
22. Both the law and jurisprudence on this matter clearly dictate the dismissal of this
petition. This is beyond the jurisdiction of this electoral body. The issues should be properly
ventilated in an election protest filed with a court of general jurisdiction.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, Special Proceeding Cases Nos. 88-210, 88-
218, 88-360 and 88-619 are hereby dismissed. The order (in Minute Resolution No. 88-251
dated 27 January 1988) restraining the proclamation of any winning candidate is hereby
lifted. The Municipal Board of Canvassers of Las Pinas, Metro Manila, is hereby ordered to
reconvene, complete the canvass if not yet completed, and proclaim the winning
candidates, if warranted.
SO ORDERED. (p. 113, Rollo)
With the lifting of the Restraining Order, respondent Rosalino Riguera and the other winning
candidates for local officials were proclaimed.
On 8 June 1988 the COMELEC en banc denied a Motion for Reconsideration of the aforesaid
Decision, as follows:
WHEREFORE, premises considered, the instant Motion for reconsideration filed on March 30,
1988 by movants Gabriel P. Casimiro and UNIDO party, is hereby DENIED. Accordingly, the
Decision of the Second Division dated March 25, 1988 dismissing SPC Nos. 88-210, 88-218,
88-360 and 88-619 is hereby SUSTAINED. The proclamation of the winning candidates for
local officials of the Municipality of Las Pinas is hereby AFFIRMED.
SO ORDERED. (pp. 139-140, Rollo)
On 13 July 1988 the COMELEC en banc disposed of a Motion for Clarification and/or Partial
Reconsideration filed by Casimiro in SPC No. 88-218, thus:
The Commission en banc notes that movant Casimiro, instead of presenting new issues or
new evidence, merely invokes the Commission's sense of fairness and equity. Considering
that the issue raised by movant Casimiro in this instant motion (legality of the continuation
of the canvass from Las Pinas to the Comelec Central Office) is the same issue which has
been squarely passed and ruled upon in the subject Resolution of June 9, 1988, the pending
incident is nothing but a pro-formamotion.
WHEREFORE, premises considered, the instant Motion for Clarification and/or Partial
Reconsideration filed by movant Gabriel "Ben" Casimiro is hereby DENIED.
SO ORDERED. (p. 151, Rollo)
On 19 August 1988 petitioners Gabriel Casimiro and the UNIDO Party availed of the instant
Petition for Certiorari and Mandamus against the COMELEC, the Las Pinas Board of
Canvassers, and Rosalino Riguera as the principal respondents, docketed as G.R. Nos.
84462-63, seeking to annul and set aside:
(a) a portion of the Decision of the Second Division of the COMELEC promulgated on March
25,1988;
(b) the Resolution of the COMELEC En Banc promulgated on June 8,1988;and
(c) the Resolution of the COMELEC En Banc dated July 13, 1988."
all for allegedly having been issued with grave abuse of discretion and in excess of
jurisdiction, and praying for judgment:
xxx
(ii) directing the respondent COMELEC to constitute a new Board of Canvassers for the
purpose of recanvassing the deferred 340 election returns which were unlawfully and
irregularly canvassed in the Manila COMELEC Office.
(iii) annulling the proclamation of respondent Rosalino Riguera for having been premature
and a nullity; and
(iv) after the recanvass of the above 340 election returns and a determination that
petitioner Gabriel Casimiro had won the said local elections for the Office of Mayor, that
respondent COMELEC declare said petitioner Casimiro as the winner and thereafter
proclaimed accordingly." (p. 46, Rollo)
Respondents were required to file their Comment, which they have, respectively, done.
Replies, Rejoinders, Sur-rejoinders and a Counter-manifestation have also been presented.
In the meantime, an electoral protest (Election Case No. 88505) was filed by Reynaldo
Salvador, a candidate for Councilor in Las Pinas, before the Regional Trial Court (RTC) of
Makati, Branch 137. Acting thereon, Presiding Judge Santiago Ranada, Jr. scheduled the
verification of the tally sheets and the opening of seven (7) ballot boxes relevant to the
protest. Accordingly, the ballot boxes were transferred from the COMELEC Main Office to
the RTC, Makati.
Believing that the opening of said ballot boxes would adversely affect the outcome of this
Petition, petitioners prayed before this Court for a Restraining Order enjoining Judge Ranada
from enforcing his aforesaid Order.
On 20 September 1988, this Court ordered "that Status Quo be maintained in this case by
not opening the ballot boxes which is scheduled on September 22, 1988 before Judge
Santiago Ranada until further orders from this Court and after the Court receives aforesaid
comment of the Solicitor General on the main petition and on said motion for issuance of a
temporary restraining order" (p. 174, Rollo).
It also appears that on 1 September 1988 Rustico Antonio and nine (9) other defeated
UNIDO candidates for Councilors of Las Pinas filed another Petition for Certiorari and
Mandamus before this Court, docketed as G.R. Nos. 84678-79, against the COMELEC, the
Las Pinas Board of Canvassers and the proclaimed councilors seeking the nullification of the
same COMELEC Decision (2nd Division) and Resolutions en banc) sought to be set aside in
G.R. Nos. 84462-63. On 13 December 1988, upon motion duly filed in G.R. Nos. 84678-79
by Rustico Antonio, et al., this Court ordered consolidation of all said cases considering that
the issues raised "are similar and/or identical."
Petitioners' attribution of errors to the COMELEC reads:
I (sic) to the COMELEC Central office at Intramuros Manila this afternoon at 1:00 P.M.
THE RESPONDENT COMELEC COMMITTED A SERIOUS ERROR AND A GRAVE ABUSE OF
DISCRETION IN COMPLETELY DEPRIVING PETITIONERS OF THEIR BASIC, FUNDAMENTAL AND
CARDINAL RIGHTS TO DUE PROCESS WHEN IT UPHELD THE VALIDITY OF THE CANVASSING
OF ELECTION RETURNS CONDUCTED BY RESPONDENT MUNICIPAL BOARD OF CANVASSERS
AT THE COMELEC MAIN OFFICE IN MANILA;
II
THE RESPONDENT COMELEC COMMITTED A SERIOUS ERROR AND A GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT THE EVIDENCE PRESENTED BY PETITIONERS TO
SUBSTANTIATE THEIR ELECTION CHARGE ARE NOT CLEAR, SUFFICIENT AND CONVINCING;
III
THE RESPONDENT COMELEC SERIOUSLY ERRED AND GRAVELY ABUSED IT'S DISCRETION
WHEN IT FOUND THAT THE CHARGES OF PETITIONERS OF TAMPERED, PADDED AND
SPURIOUS ELECTION RETURNS HAVE NOT BEEN PROVED WITH SUFFICIENT AND
CONVINCING EVIDENCE AND THAT THE ELECTION RETURNS CANVASSED WERE TAMPERED
WITH, FRAUDULENT AND SPURIOUS;
IV
THE RESPONDENT COMELEC SERIOUSLY ERRED AND COMMITTED A GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT THE ALLEGATIONS IN ATTY. PATERNO LUBATON'S
AFFIDAVIT, ONE OF THE COUNSEL OF THE PETITIONERS, REGARDING THE FRAUD,
IRREGULARITIES AND ANOMALIES DURING THE CANVASSING PROCEEDINGS WERE ALL
GENERALITIES THAT THE DENIAL BY THE BOARD OF CANVASSERS OF THEIR OBJECTIONS TO
THE PROCEEDINGS CAN NO LONGER BE RAISED BEFORE THE RESPONDENT COMELEC;
V that Affidavit reveal a "clear pattern of anomalous acts" and that the Affidavit detailed with
THE RESPONDENT COMELEC SERIOUSLY ERRED Al COMMITTED A GRAVE ABUSE OF
DISCRETION IN FINDING THAT THE ALLEGED FAILURE OF PETITIONERS TO OBJECT TO
SPECIFIC ELECTION RETURNS AT THE CANVASSING BOARD LEVEL IS FATAL TO PETITIONERS'
CASE; and
VI
THE PROCLAMATION OF CANDIDATE ROSALINO RIGUERA DESPITE THE PENDENCY OF THE
MOTION FOR RECONSIDERATION FILED BY PETITIONERS BEFORE THE RESPONDENT
COMELEC WAS HASTY AND IN CONTRAVENTION OF ELECTION LAW AND RULES, HENCE, A
NULLITY." (pp. 17-19, Rollo)
We find the Petitions without merit and accordingly dismiss them.
I. Petitioners contend that the canvass proceedings in the COMELEC Central Office were
illegal for having been made without prior notice to them as to the date and time of
canvassing for which reason they left the proceedings. They claim that their counsel was
present at the COMELEC Main Office not for purposes of the canvassing on 2 February 1988
but only to accompany the transfer of the election returns and ballot boxes; that they had
asked for the postponement of the canvassing for the following day as they had no
watchers, tabulators and election paraphernalia, but that postponement was precipitately
denied, by reason of which they were deprived of their basic and fundamental right to due
process.
The transfer of the canvassing from Las Pinas to the COMELEC Main Office in Manila was at
petitioners' instance. The full text of the letter from the Municipal Board of Canvassers
granting their request reads:
"Feb. 2, 1988
"THE Unido Party
Las Pinas, M.M.
Please be informed that as per order of the Commission on Elections dated 29 January 1988
the venue of the Canvass of Election Returns in the Municipality of Las Pinas will be transfer
February 2, 1988.
Note that we need your representative to accompany us in transferring the remaining
election returns in the Central Office." (Annex "E", supra, p. 74, Rollo)
The letter having clearly referred also to transfer of "the venue of the canvass", petitioners
cannot justifiably claim that notice was lacking or that said notice was meant only for the
transfer of election returns. If petitioners' representatives were absent during the
canvassing it was because they had opted to leave the proceedings for reasons of their
own. No grave abuse of discretion can be attributed to the COMELEC, therefore, in
upholding the validity of the canvassing at its Main Office.
At any rate, when petitioners objected to the canvassing held by the Board at the COMELEC
Main Office for alleged lack of prior notice, it actually contested its proceedings. The Board,
by continuing with the canvass, in effect overruled the objections. Under Section 244 of the
Omnibus Election Code, the proceedings of the Board having been contested, petitioners
should have appealed the matter within five (5) days from the time the contested ruling or
proceeding was held. As found by the COMELEC, however, said appeal was not made within
the reglementary period.
Errors II, III, and IV may be considered jointly.
To substantiate their charge of anomalies and irregularities including the allegations that
many election returns were canvassed more than once; that ghost precincts were credited
with election returns, and that election returns were tampered with, padded and were
spurious, petitioners relied on the Affidavit of Atty. Florencio Dalupang their own Head
Watcher/ Representative. Petitioners claim that the totality of the circumstances recited in
particularity the illegalities committed, as well as the individual precincts where the
anomalies existed; and that said Affidavit meets the standard of substantial evidence.
Petitioners likewise submitted the Affidavit of Atty. Paterno Lubaton one of petitioners'
lawyers, which they claim showed in detail all the fraud, irregularities and anomalies
concerning the election returns before and during the canvassing of the returns first in Las
Pinas and later at the COMELEC main office. Petitioners claim that the latter part of the
Affidavit also detailed the "patently partial and biased actuations of the Board of
Canvassers, especially its Chairman." Petitioners further decry the fact that no hearing was
conducted by the Second Division of the COMELEC where petitioners could have presented
the affiants as their witnesses.
Obviously, the evidence relied upon mainly by petitioners to support their charges of fraud
and irregularities in the election returns and in the canvassing consisted of Affidavits
prepared by their own representatives. The self-serving nature of said Affidavits cannot be
discounted. As this Court has pronounced, reliance should not be placed on mere affidavits
(Pimentel, Jr. vs. COMELEC, 140 SCRA 126,148).
Aside from said sworn statements, the records do not indicate any other substantial
evidence that would justify the exclusion of election returns in the canvassing for being
fraudulent in character or a declaration that the proceedings wherein the returns were
canvassed were null and void. The evidence presented by petitioners is not enough to
overturn the presumption that official duty had been regularly performed (Section 5[m],
Rule 131). In the absence of clearly convincing evidence, the election returns and the
canvassing proceedings must be upheld. A conclusion that an election return is obviously
manufactured or false and consequently should be disregarded in the canvass must be
approached with extreme caution, and only upon the most convincing proof (Estrada vs.
COMELEC, 21 SCRA 1514, 1519).
Nor can COMELEC be faulted for merely requiring the parties to submit their respective
Memoranda in support of their respective positions. The requirement under Section 246 of
the Omnibus Election Code is that the parties be notified and heard. Petitioners were so
notified. They were also given an opportunity to submit evidence in support of their
allegations. They were required to submit a Memorandum in amplification of their position.
Such procedure is fair, valid and acceptable and is consistent with the summary character
of proceedings in election cases. As held in Alonto vs COMELEC (22 SCRA 878), the policy of
election laws is that pre-proclamation cases should be summarily decided, consistent with
the law's desire that the canvass and proclamation be delayed as little as possible.
Moreover, the issue as to whether the election returns objected to by petitioners are
fraudulent in character, tampered with, or spurious, clearly necessitates factual
determinations on matters within the exclusive function of the Commission.
V. Petitioners claim that the COMELEC seriously erred and gravely abused its discretion in
ruling that they bad failed to object to specific election returns at the canvassing Board
level because they did interpose written objections to the Canvassing Board. In the same
breath they allege, however, that "they could not have intelligently and effectively
registered their objections during the proceedings as the defects, anomalies and
irregularities were not apparent or noticeable on the face of the election returns" (p. 42,
Rollo). These inconsistent assertions cast doubts on the credibility of petitioners'
allegations.
And even assuming that the alleged failure of petitioners to object to specific election
returns at the canvassing board level is not fatal to their cause because Section 241 of the
Omnibus Election Code allows them to bring their case directly to the COMELEC, the fact
remains that the letter body passed upon petitioners' allegations and charges concerning
the election returns and the canvassing proceedings, and the verdict of the poll body was
that the charges are either unsubstantiated or mere generalities, taking note of the self-
serving nature of the affidavits petitioners presented as evidence to support their charges.
VI. True, candidate Rosalino Riguera was proclaimed soon after the promulgation of the
Decision of the COMELEC Second Division of 25 March 1988. It cannot be denied, however,
that the Board of Canvassers has the legal obligation, after canvass of the returns, to
proclaim the elected candidates (Abes vs. COMELEC, 21 SCRA 1252). The duty of the Board
to so proclaim is ministerial after the mechanical or mathematical act of counting the votes
cast has been accomplished. Neither should it be lost sight of that the Board proclaimed the
winners pursuant to the COMELEC Decision dated 25 March 1988 ordering the board "to
reconvene, complete the canvass if not yet completed, and proclaim the winning
candidates. . ." The proclamation, therefore, was in compliance with that di restive. The
Motion for Reconsideration filed by petitioners was dated 29 March 1988 (p. 126, Rollo)
while the proclamation was made right after the promulgation of the COMELEC Second
Division's Decision on 25 March 1988. Hence, petitioners' allegation that the proclamation
was improper because it was made during the pendency of a Motion for Reconsideration
suffers from inaccuracy.
Finally, it must be stressed that private respondent Rosalino Riguera and the other winning
candidates bad already been proclaimed and bad assumed office. The Petitions below had
ceased to be pre-proclamation controversies. As held in Padilla vs. COMELEC (137 SCRA
424) and in a number of cases, a pre-proclamation controversy is no longer viable at this
point of time and should be dismissed, the proper remedy being an electoral protest before
the proper forum. Instead of the submission of mere affidavits, the parties would be able to
present witnesses subject to the right of confrontation. Recourse to such a remedy would
settle the matters in controversy conclusively and once and for all.
WHEREFORE, the instant Petitions are hereby DISMISSED for petitioners' failure to
demonstrate that public respondent COMELEC committed grave abuse of discretion
amounting to lack of jurisdiction in issuing the questioned Decision and Resolutions.
The status quo Order directed to the Regional Trial Court of Makati, Branch 137, restraining
the said Branch from opening the seven (7) ballot boxes in connection with the electoral
protest filed before it by Reynaldo Salvador is hereby LIFTED.
SO ORDERED.
G.R. Nos. 166143-47 November 20, 2006
ABDUSAKUR M. TAN and BASARON BURAHAN, Petitioners,
vs.
COMMISSION ON ELECTIONS, THE PROVINCIAL BOARD OF CANVASSERS OF SULU, THE
MUNICIPAL BOARDS OF CANVASSERS OF MAIMBUNG, LUUK, TONGKIL, PANAMAO, ALL
PROVINCE OF SULU, BENJAMIN LOONG and NUR-ANA SAHIDULLA, Respondents.
x-------------------------------------------------x
G.R. No. 166891 November 20, 2006
BENJAMIN T. LOONG, Petitioner,
vs.
COMMISSION ON ELECTIONS (First Division) and YUSOP H. JIKIRI, Respondents.
DECISION
VELASCO, JR., J.:
We have found it necessary to regulate liberty;
so we find it necessary to regulate competition. [1]
—former U.S. Supreme Court Justice Louis Dembitz Brandeis
Election cases, indeed, "involve not only the adjudication of the private interests of rival
candidates, but also the paramount need of dispelling the uncertainty which beclouds the
real choice of the electorate x x x." 2 The public nature of election cases is ensconced in the
people’s suffrage—which encompasses public choices and interests. In their capacity as
having sovereign authority, the Filipino people are accorded the constitutional right of
suffrage to select the representatives to public office. To ensure that Filipinos fully and
freely enjoy this right and that their choices are recognized, the right of suffrage must be
safeguarded. Courts should thus be vigilant in protecting this constitutional right so that the
people’s voice would not be stifled.
The Case
Before us are two petitions under Rule 65 of the Rules of Court. The first is the Petition for
Certiorari and Prohibition with Prayer for the Issuance of a Writ of Preliminary Injunction
and/or a Temporary Restraining Order 3 under G.R. Nos. 166143-47 which seeks to set aside
the October 18, 2004 Joint Resolution 4 of the COMELEC en banc which rejected the prayer
for declaration of failure of elections by petitioners Tan and Burahan in SPA Nos. 04-336, 04-
337, 04-339, and 04-340, and by Yusop Jikiri in SPA No. 04-334 which is not under
consideration in this petition. The other is a Petition for Certiorari with Prayer for a
Temporary Restraining Order and/or Writ of Preliminary Injunction 5under G.R. No. 166891
which seeks to annul and set aside the December 14, 2004 6 and February 7, 2005 7 Orders
of the COMELEC First Division, which denied petitioner Loong’s motion to dismiss in EPC
Case No. 2004-66.
Through the Supreme Court en banc September 12, 2006 Resolution, these cases were
consolidated because they arose substantially out of the same facts set forth below:
The Facts
Petitioners Abdusakur M. Tan and Basaron Burahan were the gubernatorial and vice-
gubernatorial candidates, respectively, of Sulu Province in the May 10, 2004 national and
local elections. On May 17, 2004, petitioners, together with other local candidates for
congressman, mayor, and vice-mayor, filed with the COMELEC four (4) Petitions for
Declaration of Failure of Elections in the towns of Maimbung, Luuk, Tongkil, and Panamao,
all of Sulu Province, docketed as SPA Nos. 04-336, 8 04-337, 9 04-339, 10 and 04-
340, [11]respectively. For the municipality of Luuk, Sulu, another Petition for Declaration of
Failure of Elections was filed by another gubernatorial candidate, Yusop Jikiri, and it was
docketed as SPA No. 04-334. [12]
Petitioners Tan and Burahan alleged systematic fraud, terrorism, illegal schemes, and
machinations allegedly perpetrated by private respondents and their supporters resulting in
massive disenfranchisement of voters. Petitioners submitted various affidavits and
photographs to substantiate their allegations: [13]
In SPA No. 04-336 (Maimbung, Sulu), petitioners submitted the affidavits of poll watchers
Ramil P. Singson, Otal Ibba, Sahak P. Ibrahim, Randy J. Jurri, Hayudini S. Jamuri, and
municipal councilor candidate Jumdani Jumlail. [14]
In SPA No. 04-337 (Luuk, Sulu), petitioners submitted the affidavits of poll watchers Nijam
Daud, Arsidan Abdurahman, Bensali Kamlian, Gamar Basala, Najir Ahamad, Apal A. Emamil,
Say Abdurasi, Faizal Husbani, Sikal Lastam, Muktar Ailadja, Rujer Abdulkadil, Jurmin Suraid,
Bakkar Jamil, Musid Madong, Nasib Nurin, Jul-Islam Benhar, Basiri Hamsah, and registered
voters Sahaya Muksan, Juratol Asibon, Nuluddin Malihul, Tantung Tarani, Jul Ambri Abbil,
and Harahun Arola. [15]
In SPA No. 04-339 (Tongkil, Sulu), petitioners submitted the affidavits of poll watchers Talib
Usama, Lingbird Sabtal, Yusop Mirih, Kasim Akol, Ammad Madon, Dayting Imamil, Nonoy T.
Kiddang, Nilson Bakil, Boy Sabtal, Reagan Bensali, Alguiser Abdulla, Gaming Talib, Munir
Ukkang, Abdurahim Sairil, Alcafon Talib, Rosefier Talib, Julbasil Sabtal, Darwin Lalik,
Merinisa T. Abdurasid, Lim Tingkahan, and Mujina G. Talib, [16]over-all coordinators of
Tongkil mayoralty candidate Olum Sirail.
Affiant poll watcher Merinisa T. Abdurasid attested to taking seven (7)
photographs [17] allegedly showing electoral irregularities.
In SPA No. 04-340 (Panamao, Sulu), petitioners submitted the affidavits of poll watchers
Amina D. Undug, Dinwaza Undug, Sitti Aiza Undug, Amina Undug, Indah Taas Undug,
Fadzrama Aukasa, Moreno Adjani, Nurhaida S. Undug, Nurjaina S. Abubakar, and Altimir A.
Julhani. [18]
Affiant poll watcher Altimir A. Julhani attested to taking five (5) photographs [19] allegedly
showing electoral irregularities.
Petitioners submitted additional affidavits and photographs, particularly the affidavits of
Maimbung, Sulu poll watchers Aminkadra Abubakar, Abdulla Abubakar, Mhar Sappari,
Nasirin Al-Najib, Marvin Saraji, Naufal Abubakar, Rhino Gumbahali, Basik Abton, Abzara H.
Mudahi, Ayatulla Jakaria, Uttal Iba, Sin-sin Buklasan, Mardison I. Bakili, Abdurasmin
Abdurahman, Binnar Pitong, Mahrif Sumlahani, Albinar S. Asaad, including that of
photojournalist Alfred Jacinto-Corral [20] who attested taking nine (9)
photographs [21] showing election irregularities.
Likewise, a report was submitted by Philippine Army 1Lt. Arthur V. Gelotin, Commanding
Officer of Alpha Company, 563rd Infantry (Matapat) BN 11D, Tanduh Patong, Maimbung,
Sulu, which allegedly showed massive failure of voters to cast their ballots. [22]
Meanwhile, the COMELEC Second Division, acting on the Petitions for Declaration of Failure
of Elections, issued its May 17, 2004 Order suspending the proclamation of the winning
gubernatorial candidate of Sulu, [23] but lifted the suspension three (3) days later. In the
May 20, 2004 lifting Order, the COMELEC Second Division directed the Sulu PBOC to
complete the canvass of votes and "to bring all canvass documents to Manila, and to
proclaim the winning candidates for Governor in Manila." [24]
Even before the filing of the four (4) aforesaid petitions, Abdusakur M. Tan had filed four (4)
other petitions, one before the Municipal Board of Canvassers of Parang, Sulu for the
exclusion of election returns from several precincts docketed as SPA No. 04-138, and the
other three before the Provincial Board of Canvassers of Sulu to exclude certificates of
canvass from Luuk, Panamao, and Parang docketed as SPA Nos. 04-163, 04-164 and 04-
165, respectively. All these petitions were dismissed by the Boards concerned, prompting
petitioner Tan to file an appeal with the COMELEC First Division which issued an
Order [25] on May 24, 2004 directing the concerned boards of canvassers to suspend their
proceedings and to refrain from proclaiming any winning candidate.
However, on the same day that the COMELEC First Division issued the said Order, private
respondent Benjamin Loong was proclaimed the winning governor of Sulu and he assumed
office. This prompted petitioner Tan to file a Petition for Annulment of the Proclamation with
the COMELEC First Division, docketed as SPA No. 04-205.
On June 21, 2004, the COMELEC First Division issued an Order [26] which granted the
petition and annulled the proclamation of respondent Loong as governor of Sulu Province.
In the meantime, on July 19, 2004, respondent Yusop H. Jikiri filed before the COMELEC a
Petition of Protest Ad Cautelam, [27] docketed as EPC No. 2004-66 praying, inter alia, for
the recount or revision of the ballots cast and the examination of election returns in four (4)
municipalities of Sulu, namely, Luuk, Tongkil, Maimbung, and Parang.
The COMELEC en banc, through its October 18, 2004 Joint Resolution, dismissed all five (5)
petitions filed on May 17, 2004 to declare a failure of elections. This prompted respondent
Jikiri to immediately convert his petition ad cautelam into a regular election protest which
was granted by the COMELEC First Division in an Order [28] dated October 28, 2004.
Ruling of the Commission on Elections En Banc in
SPA Nos. 04-334, 04-336, 04-337, 04-339, and 04-340
On October 18, 2004, the COMELEC en banc, through a Joint Resolution, [29] dismissed the
five (5) Petitions to Declare Failure of Elections in the towns of Maimbung, Luuk, Tongkil,
and Panamao, for lack of merit.
The COMELEC en banc ruled that there was no failure of election in the subject
municipalities of Sulu. It reasoned that it could only exercise the extraordinary remedy of
declaring a failure of election in the three instances mentioned in Carlos v. Angeles, [30] in
relation to Section 6 of the Omnibus Election Code [31] and Section 4 of RA 7166, which in
gist are: (1) the election is not held, (2) the election is suspended, or (3) the election results
in a failure to elect.
In dismissing the petitions, the COMELEC held that none of the grounds relied upon by
petitioners fall under any of the three instances justifying a declaration of failure of election.
First, the COMELEC found that based upon the evidence presented by the parties, a valid
election was held as scheduled. Second, there was no suspension of the election as voting
continued normally. Third, private respondent Loong was elected by a plurality of votes as
proclaimed by the Provincial Board of Canvassers (PBC).
While the authenticity and integrity of the election returns from the municipalities of Luuk
and Panamao were questioned by petitioner Tan, those of Maimbung and Tongkil were left
undisturbed throughout the preparation, transmission, custody, and canvass of the returns.
Petitioners alleged that fraud and terrorism took place in Luuk and Panamao because voters
were forced to affix their signatures and thumbprints; and the ballots in Luuk and Panamao
were filled out by respondents’ poll watchers and supporters.
Citing Grand Alliance for Democracy v. COMELEC, [32] the COMELEC en banc ruled that the
grounds raised by petitioners were best ventilated in an election protest.
The COMELEC did not give credence to petitioners’ evidence in support of their allegations
of fraud and terrorism since their evidence consisted mainly of affidavits executed by their
own poll watchers. The Commission considered the affidavits self-serving and insufficient to
annul the results of the election. Besides, it pointed out that petitioners presented only a
single affidavit of an alleged disenfranchised voter. Thus, on October 18, 2004, the
COMELEC, through a Joint Resolution, dismissed the petitions for lack of merit. Petitioners’
counsel received a copy of the Joint Resolution on October 21, 2004.
However, the Joint Resolution was not concurred in by COMELEC Commissioner Mehol K.
Sadain who signed it with a note: "DISSENTING. DISSENTING OPINION TO FOLLOW."
Subsequently, Commissioner Sadain submitted his Dissenting Opinion [33] on November
23, 2004 or 36 days after the joint resolution was issued. The Commissioner opined that
there was failure of elections as the voters were allegedly not sufficiently informed about
the change and transfer of polling places (clustering of precincts) approved [34] by the
COMELEC en banc on May 9, 2004 or on the eve of the May 10, 2004 elections.
Commissioner Sadain cited Hassan v. COMELEC [35] and Basher v. COMELEC[36] which
held that insufficient notice of the change of date and venue deprived voters of the
opportunity to participate in the elections.
This basis of Commissioner Sadain’s Dissenting Opinion, however, was not raised by the
petitioners in their May 17, 2004 petitions (for declaration of failure of elections) before the
COMELEC.
The Sadain Dissenting Opinion was released on November 23, 2004, and a copy of the
opinion was served on petitioners’ counsel on November 24, 2004. Petitioners filed the
instant petition in G.R. Nos. 166143-47 on December 13, 2004, 19 days after they received
a copy of the Sadain Dissenting Opinion, and 53 days after they received a copy of the
October 18, 2004 Joint Resolution.
Denial by the COMELEC First Division of
Petitioner Loong’s motion to dismiss in EPC No. 2004-66
After the dismissal of the petitions to declare failure of elections on October 18, 2004 and
the conversion of respondent Jikiri’s protest ad cautelam to a regular election protest on
October 28, 2004, petitioner Benjamin T. Loong filed on November 8, 2004 his Answer with
Motion to Dismiss and/or with Counter Protest. [37] Petitioner Loong anchored his motion to
dismiss on the ground that the COMELEC had no jurisdiction to take cognizance of an
election protest filed out of time.
On December 14, 2004, the COMELEC First Division issued the first assailed
Order [38] denying petitioner Loong’s motion to dismiss, ruling that the protest was not
filed out of time as there were still pending pre-proclamation cases before it, the result of
which could affect Loong’s motion. It further held that it did not matter that these pre-
proclamation cases were not filed by respondent Jikiri but by another candidate, Abdusakur
M. Tan, as Section 248 of the Omnibus Election Code does not require that the petition to
annul or suspend the proclamation be filed by the protestant. Thus, the COMELEC First
Division concluded that these pending pre-proclamation cases would not prevent
respondent Jikiri from converting his protest ad cautelam into a regular one, and which fact
would not preclude the Commission from deciding the election protest case. After all, the
COMELEC First Division noted that pre-proclamation controversies and election protest
cases have different causes of action, and thus, could proceed independently. Finally, the
COMELEC First Division directed the concerned parties to take the appropriate steps to
address the financial and personnel requirements for the protest and counter-protest
proceedings.
Subsequently, petitioner Loong’s Motion for Reconsideration [39] was denied through the
second assailed February 7, 2005 Order [40]which directed COMELEC field personnel to
comply with the directives of the December 14, 2004 Order. However, in a subsequent
order, the COMELEC First Division stayed the implementation of these directives pending
resolution of the instant petition in G.R. No. 166891.
Meanwhile, on March 18, 2005, the COMELEC First Division’s dismissal of the appeal filed by
petitioner Abdusakur M. Tan in SPA Nos. 04-163, 04-164, and 04-165 for the exclusion of
certificates of canvass, [41] rendered moot and academic the issue on the annulment of the
proclamation of Benjamin Loong as governor of Sulu.
The Issues
In G.R. Nos. 166143-47, petitioners Tan and Burahan raise the following issues for our
consideration:
Whether [or not] the respondent COMELEC committed grave abuse of discretion amounting
to lack or excess of jurisdiction, in dismissing the consolidated petitions despite the evident
massive disenfranchisement of the voters.
Whether [or not] the proclamation of the respondents, albeit patently null and void, bars the
filing of the instant petitions for declaration of failure of elections. [42]
In G.R. No. 166891, petitioner Loong simultaneously raises the following issues before us:
Whether [or not] the COMELEC has jurisdiction to entertain electoral protests filed beyond
ten (10) days after the proclamation of the results of an election for a given provincial
office.
Whether [or not] the COMELEC has jurisdiction to entertain simultaneously pre-proclamation
controversies and electoral protests.
The Court’s Ruling
The petitions are bereft of merit.
G.R. Nos. 166143-47
Preliminary Issue: Timeliness of the Petition
Petitioners Tan and Burahan maintain that the 30-day reglementary period to file the
petition for certiorari only started to run on November 24, 2004, the day they received a
copy of the November 23, 2004 Dissenting Opinion, which completed the Joint Resolution.
Moreover, they contend that the assailed October 18, 2004 Joint Resolution received by
petitioners on October 21, 2004 was incomplete since the sole Dissenting Opinion was
withheld and they could not intelligently and reasonably file the instant petition without it.
On the other hand, both the Office of the Solicitor General (OSG) and private respondent
Loong strongly assert that the instant petition was filed out of time as the start of the
reglementary period to file the appeal must be counted from the receipt of the October 18,
2004 Joint Resolution—since it is the judgment and not the Sadain Dissenting Opinion being
assailed. They also point out that the withheld Dissenting Opinion is only Commissioner
Sadain’s view and, thus, neither is it essential to nor does it affect the ruling of the
COMELEC en banc.
Constitution and Rules silent on when a Decision is Complete
To resolve the preliminary procedural matter on whether the appeal was filed on time, the
Court must first determine whether a separate dissenting opinion in an election case before
the COMELEC is a part or component of a resolution or decision.
Section 13, Article VIII of the 1987 Constitution provides:
The conclusions of the Supreme Court in any case submitted to it for decision en banc or in
division shall be reached in consultation before the case is assigned to a Member for the
writing of the opinion of the Court. A certification to this effect signed by the Chief Justice
shall be issued and a copy thereof attached to the record of the case and served upon the
parties. Any Member who took no part, or dissented, or abstained from a decision or
resolution, must state the reason therefor. The same requirement shall be observed by all
lower collegiate courts. (Emphasis supplied)
This constitutional directive was adopted in Section 1, Rule 18 on Decisions of the COMELEC
Rules of Procedure which states:
Section 1. Procedure in Making Decisions.—The conclusions of the Commission in any case
submitted to it for decision en banc or in Division shall be reached in consultation before the
case is assigned by raffle to a Member for the writing of the opinion of the Commission or
the Division and a certification to this effect signed by the Chairman or the Presiding
Commissioner, as the case may be, shall be incorporated in the decision. Any Member who
took no part, or dissented, or abstained from a decision or resolution must state the reason
therefor.
Every decision shall express therein clearly and distinctly the facts and the law on which it
is based.
The above-quoted Sections from the Constitution and the COMELEC Rules of Procedure are
silent as to what constitutes a decision—whether it is solely the majority opinion or whether
the separate concurring or dissenting opinions are considered integral parts of it.
Decision complete with the required majority opinion
The Court rules that a resolution or decision of the COMELEC is considered complete and
validly rendered or issued when there isconcurrence by the required majority of the
Commissioners. Section 7 of Article IX-A, 1987 Constitution pertinently provides that:
SEC. 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.
There is nothing from the above constitutional proviso nor in the COMELEC Rules of
Procedure that requires the submission of a dissenting opinion before a decision or
resolution concurred by the required majority is validly rendered, i.e. complete. Put
otherwise, with the required majority vote, the majority opinion embodied in a decision or
resolution duly promulgated is validly rendered and issued despite dissent or inhibition of
the minority, and even if the reason for the dissent or inhibition is submitted much later
than its promulgation.
Moreover, the dissenting opinion, which is only Commissioner Sadain’s view, is not essential
to nor does it affect the ruling of the COMELECen banc. Separate opinions not approved by
the required majority of the court members, whether they be concurring or dissenting
opinions, must be distinguished from the opinion of the court. [43] Verily, the joint
resolution is the ruling being assailed and not the dissenting opinion. It is clear that, not
being essential to the assailed joint resolution, the dissenting opinion merely serves to
comply with the constitutional proviso that any member who dissented from a decision or
resolution must state the reason therefor. [44]
In sum, the 30-day reglementary period must be reckoned from the receipt of the decision,
order or resolution and not from the receipt of a dissenting opinion issued later. In the
instant case, the dissenting opinion was submitted and promulgated 36 days after the
assailed joint resolution.
Sections 3 and 4, Rule 18 of COMELEC Rules
of Procedure: Unconstitutional
Under the COMELEC Rules of Procedure there is an instance when the 30-day reglementary
period to appeal is reckoned other than the date of receipt of the resolution or decision.
This is when an extended opinion is reserved. The 30-day reglementary period starts to run
only upon the receipt by the parties of the reserved extended opinion released within 15
days from the promulgation of the resolution or decision. Sections 3 and 4 of Rule 18,
COMELEC Rules of Procedure provides thus—
Section 3. When Extended Opinion Reserved.—When in a given resolution or decision the
writing of an extended opinion is reserved, the extended opinion shall be released within
fifteen (15) days after the promulgation of the resolution.
Section 4. Period to Appeal or File Motion for Reconsideration When Extended Opinion is
Reserved.—If an extended opinion is reserved in a decision or resolution, the period to file a
petition for certiorari with the Supreme Court or to file a motion for reconsideration shall
begin to run only from the date the aggrieved party received a copy of the extended
opinion. (Emphasis supplied.)
From the above-quoted rules, it may be considered that the dissenting opinion duly noted
"to follow" in the joint resolution is an extended reserved opinion. But such won’t serve to
help petitioners’ position. While we are sympathetic to the predicament of petitioners, we
however declare that Sections 3 and 4 of Rule 18, COMELEC Rules of Procedure are
unconstitutional and must perforce be struck down. The 1987 Constitution, under Article IX-
A, Section 6 [45] and Article IX-C, Section 3, [46] grants and authorizes the COMELEC to
promulgate its own rules of procedures as long as such rules concerning pleadings and
practice do not diminish, increase or modify substantive rights; on the other hand, this
Court has a rule-making power provided in Article VIII, Section 5, paragraph (5) [47]—the
constitutional prerogative and authority to strike down and disapprove rules of procedure of
special courts and quasi-judicial bodies.
Thus, we exercise this power and authority in voiding Sections 3 and 4 of Rule 18, COMELEC
Rules of Procedure for contravening Article IX, Section 7 of the 1987 Constitution which
pertinently provides:
Sec. 7. x x x 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 [30] days from receipt of a copy thereof (emphasis supplied).
The above quoted constitutional proviso clearly posits the unequivocal scenario that a
decision, order, or ruling is issued complete with separate opinions duly incorporated upon
its promulgation. It does not envision what Sections 3 and 4 of Rule 18 provide—an
unwarranted extension of the period to file an appeal on certiorari.
Besides, striking down Sections 3 and 4 of Rule 18 will obviate future confusion as to when
the 30-day reglementary period is reckoned and forestall unnecessary delays in the
processing and adjudication of election cases and proceedings. It will reinforce the correct
judicial practice—which public respondent COMELEC practices—of promulgating all separate
opinions together with the majority opinion. Thus, in line with this ruling, we leave it to
respondent COMELEC to promulgate a more orderly rule pursuant to its rule making power
under the Constitution to ensure that the majority and separate opinions are collated and
appended together to constitute a complete decision, order, or ruling before it is
promulgated by the clerk of court and to devise a procedure that makes certain of the
prompt submission of the reserved extended or separate opinion within a fixed period.
Petition filed out of time
Foregoing considered, the instant petition was clearly filed out of time. Having received the
joint resolution on October 21, 2004 petitioners had until November 20, 2004, the last day
of the 30-day reglementary period, within which to file the petition for certiorari. For filing
the instant petition only on December 13, 2004 or 23 days beyond the 30-day reglementary
period, the instant petition must be dismissed for being filed out of time.
Separate opinions submitted before promulgation
Nonetheless, it has to be made clear that decisions, resolutions or orders of collegiate
courts must have separate concurring or dissenting opinions appended to the majority
opinion before these are promulgated. And it is the responsibility of the clerk of court to
ensure that these separate opinions are submitted within the required period so that the
decision, resolution or order is timely promulgated.
There are two (2) salient reasons why this principle must be followed, to wit:
First, both parties deserve to know all the views of the collegiate court who voted for the
majority and minority opinions and the reasons why they voted in such manner, especially
the losing party deciding to appeal to a higher court.
Second, if the separate opinions are not appended to the main opinion, the parties will have
difficulty understanding the dissertation in theponencia of the majority that addressed the
points raised and reasons presented in the separate opinions, more particularly in the
dissenting opinion.
Even if we concede that Tan and Burahan’s petition was filed on time, we find that the
petition failed to establish that the COMELEC en banc committed grave abuse of discretion.
First Issue: No Disenfranchisement of Voters
Ground not raised below cannot be raised on appeal
The records of the case from the COMELEC show that petitioners did not raise the alleged
abrupt change of polling place as an issue.
Petitioners now modify their theory on appeal. Quoting extensively Commissioner Sadain’s
Dissenting Opinion which applied Hassan [48]and Basher, [49] petitioners now allege that
the sudden change in the polling places deprived the candidates and voters of sufficient
notice which afforded private respondents undue advantage and enabled them to engage
the alleged election irregularities to ensure their victory.
The aforementioned issue is now raised only for the first time on appeal before this Court.
Settled is the rule that issues not raised in the proceedings below (COMELEC en banc)
cannot be raised for the first time on appeal. Fairness and due process dictate that
evidence and issues not presented below cannot be taken up for the first time on
appeal. [50]
Thus, in Matugas v. Commission on Elections, [51] we reiterated this rule, saying:
The rule in appellate procedure is that a factual question may not be raised for the first time
on appeal, [52] and documents forming no part of the proofs before the appellate court will
not be considered in disposing of the issues of an action. [53] This is true whether the
decision elevated for review originated from a regular court [54] or an administrative
agency or quasi-judicial body, [55] and whether it was rendered in a civil case, [56] a
special proceeding, [57] or a criminal case. [58] Piecemeal presentation of evidence is
simply not in accord with orderly justice.
Moreover, in Vda. De Gualberto v. Go, [59] we also held:
In Labor Congress of the Philippines v. NLRC, [60] we have made it clear that "to allow fresh
issues on appeal is violative of the rudiments of fair play, justice and due
process." [61] Likewise, in Orosa v. Court of Appeals, [62] the Court disallowed it because
"it would be offensive to the basic rule of fair play, justice and due process if it considered
[the] issue[s] raised for the first time on appeal." We cannot take an opposite stance in the
present case.
Information on clustering of polling places duly
disseminated to the electorate
Even granting arguendo that the issue of the alleged change and transfer of polling places
was raised before the COMELEC, it would still not justify a declaration of failure of election in
the subject municipalities.
The records sufficiently shed light on this issue and dispel any doubt as to the failure of
election as alleged. It is apparent that the May 9, 2004 approval of the change and transfer
of polling places—which was duly disseminated to the parties, candidates, and voters—was
a mere formality to confirm what was already set way before the May 10, 2004 elections.
The April 13, 2004 COMELEC Resolution No. 6695 [63] granted authority to the
Commissioners-in-Charge of regions to decide on all administrative matters not covered by
specific resolutions or policies. The clustering of precincts in Sulu Province was an
administrative matter that COMELEC Commissioner Manuel A. Barcelona, Commissioner-in-
Charge of Region IX, approved and caused to be disseminated through COMELEC Regional
Director of Region IX, Helen G. Aguila-Flores, in conjunction with the AFP and Election
Officers. Consequently, the concerned political parties, candidates, and registered voters of
Sulu Province had sufficient time to be informed about the location of the polling places and
the clustering of precincts before the May 10, 2004 elections.
Pursuant to COMELEC Resolution No. 6695 of April 13, 2004, Commissioner Barcelona
submitted for confirmation to the COMELEC en banchis memorandum [64] on the approval
of clustering of precincts in Sulu Province. Consequently, COMELEC Resolution No.
6932 [65] was issued on May 9, 2004 confirming Commissioner Barcelona’s prior approval
of the clustering of precincts. Contrary to Commissioner Sadain’s Dissenting Opinion and
what petitioners want us to believe, there was no lack of ample notice to petitioners, their
poll watchers and supporters, and the voters of the subject municipalities in Sulu Province
about the clustering of precincts and the transfer of polling centers before the May 10, 2004
elections. As a matter of fact, petitioners had their poll watchers in place, particularly those
who executed affidavits on the alleged irregularities. This explains why petitioners avoided
raising this issue in their Petitions for Declaration of Failure of Election before the
COMELEC en banc. Thus, petitioners cannot rely on this argument for support. Significantly,
Commissioner Sadain approved and signed COMELEC Resolution Nos. 6695 and 6932. [66]
No failure of election
Petitioners argue that there was failure of elections in the four (4) subject municipalities as
there was really no election held because all the ballots in these municipalities were filled
out by private respondents’ relatives and supporters. They assert that there was merely a
sham election followed by a similar sham canvassing, and the voters were consequently
disenfranchised. They strongly maintain that this instant case falls within the first instance
under Section 6 of the Omnibus Election Code [67] where a failure of election may be
declared by COMELEC.
We are not persuaded.
The COMELEC correctly dismissed the Petitions for Declaration of Failure of Election since
the electoral anomalies alleged in the petitions should have been raised in an election
protest, not in a petition to declare a failure of election.
Under Republic Act No. 7166, otherwise known as "The Synchronized Elections Law of
1991," [68] the COMELEC en banc is empowered to declare a failure of election under
Section 6 of the Omnibus Election Code. Section 6 of the Code prescribes the conditions for
the exercise of this power, thus:
Section 6. Failure of Election.—If, on account of force majeure, violence, terrorism, fraud or
other analogous causes[,] the election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for 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 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.
From the above-cited proviso, three (3) instances justify the declaration of failure of
election, to wit:
(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 electionresults in a failure to elect on account of force
majeure, violence, terrorism, fraud, or other analogous causes. [69]
In these three (3) instances, there must be a resulting failure to elect. As stated in Banaga,
Jr. v. Commission on Elections, "this is obvious in the first two scenarios, where the election
was not held and where the election was suspended." [70] As to the third scenario, where
the preparation and the transmission of the election returns give rise to the consequence of
failure to elect must, as mentioned earlier, be interpreted to mean that nobody emerged as
a winner. [71]
In Banaga, we held that:
Before the COMELEC can act on a verified petition seeking to declare a failure of election
two conditions must concur, namely (1) no voting took place in the precinct or precincts on
the date fixed by law, or even if there was voting, the election resulted in a failure to elect;
and (2) the votes not cast would have affected the result of the election. [72] Note that the
cause of such failure of election could only be any of the following: force majeure, violence,
terrorism, fraud or other analogous causes. [73]
A scrutiny of the petitions filed before the COMELEC shows that petitioners never alleged
that no voting was held nor was voting suspended in the subject municipalities. Neither did
petitioners allege that no one was elected. Petitioners only allege that there was a sham
election and similar sham canvassing. As noted earlier, to warrant a declaration of failure of
election, the alleged irregularities must be proven to have prevented or suspended the
holding of an election, or marred fatally the preparation and transmission, custody, and
canvass of the election returns. These essential facts should have been clearly alleged by
petitioners before the COMELEC en banc, but they were not.
No evidence of massive disenfranchisement
Petitioners want us to examine the evidence and the findings of facts by the COMELEC en
banc asserting that there was evident massive disenfranchisement of voters. While this
Court is not a trier of facts, and under the Constitution, this Court resolves "cases in which
only an error or question of law is involved." [74] Nevertheless, after a thorough
examination of the documentary evidence presented by petitioners in the proceedings
below, we find no cogent reason to alter the findings and conclusions of respondent
COMELEC en banc.
Factual findings of the COMELEC which has the expertise in the enforcement and
administration of all election laws and regulations are binding on the Court [75] and must
be respected. Besides, based on the COMELEC en banc’s scrutiny of the facts, the
allegations do not constitute sufficient grounds to nullify the election. We agree with the
finding of the COMELEC en banc that the evidence relied upon by petitioners to support
their charges of fraud and irregularities in the conduct of elections in the questioned
municipalities consisted of affidavits prepared and executed by their own representatives;
and that the other pieces of evidence submitted by petitioners were not credible and
inadequate to substantiate petitioners’ charges of fraud and irregularities in the conduct of
elections. [76] Mere affidavits are insufficient, [77] more so, when they were executed by
petitioners’ poll watchers. The conclusion of respondent COMELEC is correct that although
petitioners specifically alleged violence, terrorism, fraud, and other irregularities in the
conduct of elections, they failed to substantiate or prove said allegations. Had there been
massive disenfranchisement, petitioners should have presented the affidavits of these
disenfranchised voters, instead of only a single affidavit of one allegedly disenfranchised
voter. [78]
We go along with the COMELEC en banc in giving more weight to the affidavits and
certifications executed by the members of the Board of Election Inspectors and the PNP and
military authorities that the elections held were peaceful and orderly, under the
presumption that their official duties had been regularly performed. [79]
Verily, the above-mentioned sole affidavit of Miriam H. Binang, an alleged disenfranchised
voter from the Municipality of Luuk, Sulu presented by gubernatorial candidate respondent
Yusop Jikiri in SPA No. 04-334, is not enough to annul the election. Considering petitioners’
allegation of massive disenfranchisement of voters wherein legitimate voters were simply
ordered to affix their signatures and thumbprints, we agree with public respondent that
petitioners should have presented the affidavits of the alleged disenfranchised voters from
the subject four (4) municipalities, but they did not.
Grounds raised proper for election contest
Hassan [80] and Basher [81] do not apply to the instant case. Unlike in these cases, there
was sufficient notice to the political parties, candidates, and voters regarding the clustering
of precincts and transfer of polling places. Moreover, the election proceeded as scheduled,
and none of the extreme irregularities that marred the elections in Hassan and Basher were
present. In Banaga, [82] we reiterated the rule that there is failure of election only if the will
of the electorate is muted and cannot be ascertained. [83] If the will of the people is
determinable, the same must be respected as much as possible. [84] In the instant case,
the will of the people was evident as the PBC duly proclaimed the winning candidates. As
aptly ruled by respondent COMELEC, petitioners should have filed an election protest to
substantiate their allegations of election anomalies, not a petition to declare a failure of
election.
Therefore, we find no abuse of discretion, much less grave abuse, committed by the
COMELEC en banc in dismissing the Petitions for Declaration of Failure of Election for lack of
merit.
Anent the second issue raised on "whether or not the proclamation of the respondents,
albeit patently null and void, bars the filing of the instant petitions for declaration of failure
of election," we find that this matter is already moot as a non-issue, as due course was
given to the instant petitions even if the annulment of the proclamation of respondent
Loong through the June 21, 2004 COMELEC First Division Order was set aside and
superseded by March 18, 2005 Order dismissing the appeal of petitioner Tan in SPA Nos.
04-163, 04-164, and 04-165.
G.R. No. 166891
First Issue: Timeliness of election protest
Distinction between electoral protests filed under
Sections 248 and 258 of the Omnibus Election Code
Moving to the issues raised in the second petition (G.R. No. 166891), we note that while
petitioner Loong doubtlessly concedes the original jurisdiction of COMELEC over election
protests involving provincial officials, among others, he excepts, at the first instance, to its
assumption of jurisdiction over such contest which, to him, was filed after the reglementary
period.
Section 250 of the Omnibus Election Code [85] under which the petitioner anchors his case
provides as follows:
Section 250. Election contests for Batasang Pambansa, regional, provincial and city offices.
– A sworn petition contesting the election of … any regional, provincial or city official shall
be filed with the Commission by any candidate who has duly filed a certificate of candidacy
and has been voted for the same office, within ten days after the proclamation of the
results of the election. (Underscoring added)
The complementing Section 1, Rule 20 of the COMELEC Rules of Procedure practically says
the same thing.
The petitioner’s formulation of his basic submission and the premises holding it together
run as follows: The PBOC of Sulu proclaimed the results of the gubernatorial election, or, in
fine, declared him as the duly elected governor of Sulu, on May 24, 2004. Accordingly, a
protest contesting his election ought to have been filed on or before June 3, 2004 or ten
(10) days from May 24, 2004. A belated protest, as what private respondent Jikiri filed on
July 19, 2004 or a little over fifty (50) days after the proclamation, effectively deprived the
COMELEC of jurisdiction to entertain the said protest. According to petitioner, the COMELEC
First Division acted without jurisdiction or with grave abuse of discretion when it
nonetheless entertained respondent Jikiri’s election protest filed beyond the reglementary
10-day period.
Petitioner’s basic posture may be accorded plausibility, except that it glossed over a
statutory provision which, in the light of certain proceedings as thus narrated, militates
against his stance. Under Section 248 of the Election Code, the filing of certain petitions
works to stop the running of the reglementary period to file an election protest, thus:
Section 248. Effect of filing petition to annul or to suspend the proclamation. – The filing
with the Commission of a petition to annul or to suspend the proclamation of any candidate
shall suspend the running of the period within which to file an election protest or quo
warrantoproceedings.
As may be noted, the aforequoted Section 248 contemplates two (2) points of reference,
that is, pre- and post-proclamation, under which either of the petitions referred to therein is
filed. Before the proclamation, what ought to be filed is a petition to "suspend" or stop an
impending proclamation. After the proclamation, an adverse party should file a petition to
"annul" or undo a proclamation made. Pre-proclamation controversies partake of the nature
of petitions to suspend. The purpose for allowing pre-proclamation controversies, the filing
of which is covered by the aforequoted Section 248 of the Omnibus Election Code, is to nip
in the bud the occurrence of what, in election practice, is referred to as "grab the
proclamation and prolong the protest" situation. [86]
Correlating the petitions mentioned in Section 248 with the 10-day period set forth in the
succeeding Section 250, a petition to suspend tolls the 10-day period for filing an election
protest from running, while a petition to annul interrupts the running of the period. In other
words, in aSection 248 petition to suspend where the 10-day period did not start to run at
all, the filing of a Section 250 election contest after the tenth (10th) day from proclamation
is not late. On the other hand, in a Section 248 petition to annul, the party seeking
annulment must file the petition before the expiration of the 10-day period.
Election protest case filed on time
In the case at bench, the petitioner’s arguments on the belated filing of the respondent’s
election protest may merit consideration had the petitions against him been only for the
annulment of his May 24, 2004 proclamation. However, the numerous election-related
petitions, which were filed against petitioner Loong by the other Sulu gubernatorial
candidates, sought to suspend his then impending proclamation which, as turned out, was
eventually made on May 24, 2004. And as events unfolded, some of the petitions adverted
to resulted in the issuance on May 17, 2004 of an Order suspending the proclamation of the
governor-elect of Sulu. [87] Petitioner Loong himself admitted as much: "x x x on May 17,
2004, the COMELEC Second Division issued an Order suspending the proclamation of the
winning candidate for Governor of the province of Sulu." [88]
Not to be overlooked, because a corresponding position could have preceded it, is the June
21, 2004 Order of the COMELEC First Division annulling petitioner Loong’s proclamation as
governor-elect. The fallo of said annulling order reads:
In view of the foregoing but without prejudice to any resolution which would issue in
disposition of the pending appeals and petitions involved in SPC 04-138, SPA No. 04-163,
SPA No. 04-164 and SPA No. 04-165, [SPC instead of SPA should have been used] the
Commission (FIRST DIVISION) hereby ANNULS the precipitate and premature proclamation
of BENJAMIN LOONG as the winning candidate of governor of Sulu. [89]
Upon the foregoing considerations, the filing of the election protest ad cautelam on July 19,
2004 or fifty-six (56) days after the May 24, 2004 proclamation was contextually on
time. This is because the 10-day reglementary period to file such protest––which ordinarily
would have expired on June 3, 2004––did not start to run at all. It cannot be over-
emphasized that the pre-proclamation controversies Abdusakur Tan initiated right after the
May 10, 2004 elections, that is, SPC Nos. 04-163, 04-164, and 04-165, were only resolved
on March 18, 2005. We reproduce with approval what the public respondent said,
respecting the denial of the motion to dismiss filed by petitioner Loong against the election
protest of respondent Jikiri:
Records show that there are still pre-proclamation cases pending before the Commission,
the result of which could affect the protestee [petitioner Loong], to wit: SPC 04-163
(Abdusakur Tan vs. The Provincial Board of Canvassers of Sulu), SPC 04-164 (Abdusakur Tan
vs. Provincial Board of Canvassers of Sulu) and SPC 04-165 (Abdusakur Tan vs. Provincial
Board of Canvassers of Sulu). This situation distinguishes the instant case from that of
Dagloc vs. COMELEC (321 SCRA 273) to which the protestee is anchoring his defense.
It is likewise of no moment that the pre-proclamation cases were filed not by the protestant
but by another candidate. Section 248 of the Omnibus Election Code does not require that
the petition to annul or to suspend the proclamation be filed by the protestant. This liberal
interpretation likewise sits well with our policy to forego with technicalities if they stand in
the way of determining the true will of the people.
That the cases are still pending with the Commission will not prevent the protestant from
converting his election protest ad cautela into a regular one. Such conversion is an option
which the protestant enjoys. Said fact likewise does not preclude us from deciding the
election protest case. Pre-proclamation controversies and election protest cases have
different causes of action. They can proceed independently.[90]
Thus, the imputation of grave abuse of discretion, on the part of respondent COMELEC’s
First Division, in refusing to dismiss respondent Jikiri’s Petition of Protest Ad Cautelam (EPC
No. 2004-66) on the stated ground that he filed the same after the lapse of the period for
filing an election protest is untenable.
Rules prescribed to promote substantive justice
It may be well to point out at this juncture that the rules on reglementary periods, perhaps,
like any rule issued by judicial and quasi-judicial bodies, are prescribed to ensure stability in
the administration of justice, as well as to promote substantive justice. Indeed, they should
be disregarded when they pose obstruction to the attainment of such lofty ends, which, in
election-related cases, as here, is the determination of the popular will. While the facts
in Bince, Jr. v. COMELEC [91] are not on all fours similar, what we said therein is most apt:
Assuming for the sake of argument that the petition was filed out of time, this incident
alone will not thwart the proper determination and resolution of the instant case on
substantial grounds. Adherence to a technicality that would put a stamp of validity on a
palpably void proclamation, with the inevitable result of frustrating the people’s will cannot
be countenanced. [92]
Second Issue: Simultaneous prosecution of
pre-proclamation controversies and election protests
On the last issue of the propriety of prosecuting simultaneously pre-proclamation
controversies and an electoral protest, petitioner Loong holds the negative view,
submitting, in gist, that an election contest should be put on hold until pre-proclamation
controversies are concluded. He thus faults and goes on to ascribe grave abuse of
discretion on the COMELEC First Division for holding otherwise, stating as follows:
Clearly, the [ruling of the COMELEC First Division] is illogical and absurd. What will happen if
the pre-proclamation appeals of … Tan are sustained and the defeated candidate … Tan is
found to be the winner in his pre-proclamation appeals? Obviously, the ruling of the
COMELEC does not promote orderly procedure in the resolution of election cases. It
promotes useless, unnecessary, and vexatious litigations. [93]
As earlier stated, it is not legally possible for the COMELEC First Division to declare Jikiri the
elected governor in the electoral protest filed against petitioner [Loong] and at the same
time issue a decision in the pre-proclamation appeals of Abdusakur Tan that the latter is the
elected governor. The grave abuse of discretion amounting to lack of jurisdiction is very
obvious. [94]
Petitioner Loong’s arguments, for all their easily-perceptible merit, are not anchored on any
legal provision. They are common sensical to be sure. Nonetheless, laying grave abuse of
discretion on the doorsteps of the respondent COMELEC First Division for giving due course
to respondent Jikiri’s electoral protest without waiting for the final result of the pre-
proclamation appeals is a different matter altogether.
No rule or law prohibits simultaneous prosecution
For one, there is no law or rule prohibiting the simultaneous prosecution or adjudication of
pre-proclamation controversies and elections protests. Allowing the simultaneous
prosecution scenario may be explained by the fact that pre-proclamation controversies and
election protests differ in terms of the issues involved and the evidence admissible in each
case [95] and the objective each seeks to achieve. Moreover, the Court, under certain
circumstances, even encourages the reinforcement of a pre-proclamation suit with an
election protest. As we held in Matalam v. Commission on Elections: [96]
The Court agonized over its inability to fully look into the election irregularities alleged by
petitioner, due to the very limited scope of pre-proclamation controversy. Thus, the Court
reminds lawyers handling election cases to make a careful choice of remedies. Where it
becomes apparent that a pre-proclamation suit is inadequate, they should immediately
choose another timely remedy, like a petition to annul the election results or to declare a
failure of elections or even an election protest, so that election irregularities may be fully
ventilated and properly adjudicated by the competent tribunal. [97]
Speedy disposition paramount
For another, simultaneous adjudications offer more practical features than piecemeal
adjudications in expediting the resolution of cases. We must stress the importance of
speedy disposition of election cases because a late decision, such as one that comes out
when the term of office in dispute is about to expire, is a veritable useless scrap of paper.
We reiterate what we said in Espidol v. COMELEC:
It bears reiterating x x x that the COMELEC is with authority to annul any canvass and
proclamation illegally made. The fact that a candidate illegally proclaimed has assumed
office is not a bar to the exercise of such power. It is also true that as a general rule, the
proper remedy after the proclamation of the winning candidate for the position contested
would be to file a regular election protest or quo warranto. This rule, however, admits of
exceptions and one of those is where the proclamation was null and void. In such a
case, i.e., where the proclamation is null and void, the proclaimed candidate’s assumption
of office cannot deprive the COMELEC of the power to declare such proclamation a nullity.
The rationale therefor is aptly elucidated thus:
We draw from past experience. A pattern of conduct observed in past elections has been
the "pernicious grab-the-proclamation-prolong-the-protest-slogan of some candidates or
parties." Really, where a victim of a proclamation to be precluded from challenging the
validity thereof after that proclamation and the assumption of office thereunder, baneful
effects may easily supervene. It may not be out of place to state that in the long history of
election contests in this country, x x x successful contestant in an election protest often
wins but "a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire
or has expired." Protests, counter-protests, revisions of ballots, appeals, dilatory tactics,
may well frustrate the will of the electorate. And what if the protestant may not have the
resources and an unwavering determination with which to sustain a long drawn-out election
contest? In this context therefore all efforts should be strained – as far as is humanly
possible – to take election returns out of the reach of the unscrupulous; and to prevent
illegal or fraudulent proclamation from ripening into illegal assumption of office. [98]
WHEREFORE, the instant petitions are DISMISSED for lack of merit. The assailed October 18,
2004 Joint Resolution of the Commission of Elections En Banc in SPA Nos. 04-334, 04-336,
04-337, 04-339, and 04-340 in G.R. Nos. 166143-47, as well as the assailed Orders of the
Commission of Elections First Division in EPC No. 2004-66 dated December 14, 2004 and
February 7, 2005 in G.R. No. 166891, are herebyAFFIRMED IN TOTO. Sections 3 and 4, Rule
18 of the COMELEC Rules of Procedure are hereby voided and declared unconstitutional for
contravening Article IX-A, Section 7 of the 1987 Constitution. Costs against petitioners.
SO ORDERED.
G.R. No. 106270-73 February 10, 1994
SULTAN MOHAMAD L. MITMUG, petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO,
LANAO DEL SUR, and DATU GAMBAI DAGALANGIT, respondents.
Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.
Brillantes, Nachura, Navarro & Arcilla for private respondent.
BELLOSILLO, J.:
The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur,
was abnormally low. As a result, several petitions were filed seeking the declaration of
failure of election in precincts where less than 25% of the electorate managed to cast their
votes. But a special election was ordered in precincts where no voting actually took place.
The Commission on Elections (COMELEC) ruled that for as long as the precincts functioned
and conducted actual voting during election day, low voter turnout would not justify a
declaration of failure of election. We are now called upon to review this ruling.
Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI
DAGALANGIT were among the candidates for the mayoralty position of Lumba-Bayabao
during the 11 may 1992 election. There were sixty-seven (67) precincts in the municipality.
As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49)
precincts where the average voter turnout was 22.26%, i.e., only 2,330 out of 9,830
registered voters therein cast their votes. Five (5) of these precincts did not conduct actual
voting at all. 1
Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the
five (5) precincts which failed to function during election day. On 30 July 1992 another
special election was held for a sixth precinct. 2
In the interim, petitioner filed a petition seeking the annulment of the special election
conducted on 30 May 1992 alleging various irregularities such as the alteration, tampering
and substitution of ballots. But on 13 July 1992, COMELEC considered the petition moot
since the votes in the subject precincts were already counted. 3
Other petitions seeking the declaration of failure of election in some or all precincts of
Lumba-Bayabao were also filed with COMELEC by other mayoralty candidates, to wit:
1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an
urgent petition praying for the holding of a special election in Precinct No. 22-A alleging
therein that when the ballot box was opened, ballots were already torn to pieces. On 14 July
1992, the petition was granted and a special election for Precinct No. 22-A was set for 25
July 1992. 4
2. SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate,
filed a petition to declare failure of election in twenty-nine (29) more precincts as a result of
alleged tampering of ballots 5 and clustering of precincts. 6 On 16 July 1992, the petition was
dismissed. COMELEC ruled that there must be a situation where there is absolute inability to
vote before a failure of election can be declared. 7 Since voting was actually conducted in
the contested precincts, there was no basis for the petition.
3. SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time
seeking to exclude from the counting the ballots cast in six (6) precincts on the ground that
the integrity of the ballot boxes therein was violated. 8 Again, on 14 July 1992, COMELEC
considered the petition moot, as the issue raised therein was related to that of SPA No. 92-
311 which on 9 July 1992 was already set aside as moot. 9
4. SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty candidate,
filed a petition which in the main sought the declaration of failure of election in all sixty-
seven (67) precincts of
Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of
voters. 10 On 9 July 1992, COMELEC dismissed the petition, ruling that the allegations
therein did not support a case of failure of election. 11
On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But
COMELEC treated the same as a motion for reconsideration and promptly denied it
considering that under the COMELEC Rules of Procedure such motion was a prohibited
pleading. 13
Thereafter, a new board of Election Inspectors was formed to conduct the special election
set for 25 July 1992. Petitioner impugned the creation of this Board. Nevertheless, on 30 July
1992, the new Board convened and began the canvassing of votes. Finally, on 31 July 1992,
private respondent was proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del
Sur.
On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of
failure of election in forty-nine (49) precincts where less than a quarter of the electorate
were able to cast their votes. He also prayed for the issuance of a temporary restraining
order to enjoin private respondent from assuming office.
On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of
Lanao del Sur disputing the result not only of some but all the precincts of Lumba-Bayabao,
del Sur. 14
Respondents, on the other hand, assert that with the filing of an election protest, petitioner
is already deemed to have abandoned the instant petition.
It may be noted that when petitioner filed his election protest with the Regional Trial Court
of Lanao del Sur, he informed the trial court of the pendency of these proceedings.
Paragraph 3 of his protest states "[T]hat on August 3, 1992, your protestant filed a Petition
for Certiorari with the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation
of the herein protestee. . . ." 15 Evidently, petitioner did not intend to abandon his recourse
with this Court. On the contrary, he intended to pursue it. Where only an election protest ex
abundante ad cautela is filed, the Court retains jurisdiction to hear the petition seeking to
annul an election. 16
The main issue is whether respondent COMELEC acted with grave abuse of discretion
amounting to lack of jurisdiction in denying motu proprio and without due notice and
hearing the petitions seeking to declare a failure of election in some or all of the precincts in
Lumba-Bayabao, Lanao del Sur. After all, petitioner argues, he has meritorious grounds in
support thereto, viz., the massive disenfranchisement of voters due to alleged terrorism and
unlawful clustering of precincts, which COMELEC should have at least heard before
rendering its judgment.
Incidentally, a petition to annul an election is not a pre-proclamation controversy.
Consequently, the proclamation of a winning candidate together with his subsequent
assumption of office is not an impediment to the prosecution of the case to its logical
conclusion. 17
Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a
verified petition to declare a failure to elect, notices to all interested parties indicating
therein the date of hearing should be served through the fastest means available. 18 The
hearing of the case will also be summary in nature. 19
Based on the foregoing, the clear intent of the law is that a petition of this nature must be
acted upon with dispatch only after hearing thereon shall have been conducted. Since
COMELEC denied the other petitions 20 which sought to include forty-three (43) more
precincts in a special election without conducting any hearing, it would appear then that
there indeed might have been grave abuse of discretion in denying the petitions.
However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2, Rule
26, thereof which was lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus Election
Code of the Philippines, indicates otherwise. It reads —
Sec. 2. Failure of election. — If, on account of force majeure, violence, terrorism, fraud or
other analogous causes the election in any precinct has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the
custody of canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the election, the
Commission shall, on the basis of a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election not held, suspended
or which resulted in a failure to elect on a date reasonably close to the date of the election
not held, suspended or which resulted in a failure to elect but not later than thirty (30) days
after the cessation of the cause of such postponement or suspension of the election or
failure to elect.
Before COMELEC can act on a verified petition seeking to declare a failure of election, two
(2) conditions must concur: first, no voting has taken place in the precinct or precincts on
the date fixed by law or, even if there was voting, the election nevertheless results in failure
to elect; and, second, the votes not cast would affect the result of the election. 21
In the case before us, it is indubitable that the votes not cast will definitely affect the
outcome of the election. But, the first requisite is missing, i.e., that no actual voting took
place, or even if there is, the results thereon will be tantamount to a failure to elect. Since
actual voting and election by the registered voters in the questioned precincts have taken
place, the results thereof cannot be disregarded and excluded. 22 COMELEC therefore did
not commit any abuse of discretion, much less grave, in denying the petitions outright.
There was no basis for the petitions since the facts alleged therein did not constitute
sufficient grounds to warrant the relief sought. For, the language of the law expressly
requires the concurrence of these conditions to justify the calling of a special election. 23
Indeed, the fact that a verified petition is filed does not automatically mean that a hearing
on the case will be held before COMELEC will act on it. The verified petition must still show
on its face that the conditions to declare a failure to elect are present. In the absence
thereof, the petition must be denied outright.
Considering that there is no concurrence of the two (2) conditions in the petitions seeking to
declare failure of election in forty-three (43) more, precincts, there is no more need to
receive evidence on alleged election irregularities.
Instead, the question of whether there have been terrorism and other irregularities is better
ventilated in an election contest. These irregularities may not as a rule be invoked to
declare a failure of election and to disenfranchise the electorate through the misdeeds of a
relative few. 24 Otherwise, elections will never be carried out with the resultant
disenfranchisement of innocent voters as losers will always cry fraud and terrorism.
There can be failure of election in a political unit only if the will of the majority has been
defiled and cannot be ascertained. But, if it can be determined, it must be accorded
respect. After all, there is no provision in our election laws which requires that a majority of
registered voters must cast their votes. All the law requires is that a winning candidate
must be elected by a plurality of valid votes, regardless of the actual number of ballots
cast. 25 Thus, even if less than 25% of the electorate in the questioned precincts cast their
votes, the same must still be respected. There is prima facie showing that private
respondent was elected through a plurality of valid votes of a valid constituency.
WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is
DISMISSED.
SO ORDERED.
[G.R. No. 134696. July 31, 2000]
TOMAS T. BANAGA, JR., Petitioner, vs. COMMISSION ON ELECTIONS and FLORENCIO M.
BERNABE, JR.,Respondents.
DECISION
QUISUMBING, J.: chanroblesvirtuallawlibrary
This special civil action for certiorari seeks to annul the en banc resolution of public
respondent Commission on Elections promulgated on June 29, 1998, in a COMELEC special
action case, SPA No. 98-383. chanroblesvirtuallawlibrary
The factual antecedents of this case are as follows: chanroblesvirtuallawlibrary
Petitioner and private respondent were the candidates for vice-mayor of the City of
Paraaque in the May 11, 1998 election. On May 19, 1998, the city board of canvassers
proclaimed private respondent, Florencio M. Bernabe, Jr., the winner for having garnered a
total of Seventy One Thousand Nine Hundred Seventy Seven (71,977) votes of the total
votes cast for the vice-mayoralty position. On the other hand, Petitioner, Tomas T. Banaga,
Jr., received the second highest number of votes for the said position, with Sixty Eight
Thousand Nine Hundred Seventy (68,970) of the total votes cast. Thus, the difference
between the votes received by the private respondent and the petitioner is three thousand
seven (3,007) votes. chanroblesvirtuallawlibrary
Dissatisfied, petitioner filed with the COMELEC on May 29, 1998, an action denominated
as Petition to Declare Failure of Elections and/or For Annulment of Elections,[1] alleging
that: chanroblesvirtuallawlibrary
3. xxx the local elections for the office of Vice-Mayor in the City of Paraaque, Metro Manila,
held on 11 May 1998, amounts to a denigration of the expression of the true will of the
people, as it was tainted with widespread election anomalies which constitutes election
fraud. The local elections for the position of Vice-Mayor in the City of Paraaque, Metro
Manila, was replete with election offenses, specifically vote buying and flying voters being
allowed to vote. Moreover, during the canvassing of votes before the Board of Canvasser,
numerous Election Returns were discovered to contain glaring discrepancies and are replete
with blatant omissions, not to mention the fact that numerous election returns appeared to
be tampered with. All told, it is readily apparent that the portion of the Election Returns
pertaining to the position of Vice-Mayor in the City of Paraaque, appear to be altered,
falsified or fabricated. chanroblesvirtuallawlibrary
4. The will of the legitimate voters of the City of Paraaque were denigrated during the 11
May 1998 election as a consequence of the fact that an indeterminable number of flying
voters were allowed to vote.
xxx chanroblesvirtuallawlibrary
5. The 11 May 1998 elections for local officials in the City of Paraaque has likewise been
marred by massive vote buying. To cite but one example, in Precinct Nos. 111-112 at the
Tambo Elementary School in the City of Paraaque, a certain Dennis Sambilay Agayan
(Agayan) was arrested for voting in substitution of registered voter Ramon Vizcarra. Agayan
admitted before SPO1 Alberto V. Parena that he was paid One Hundred Fifty Pesos
(P150.00) to vote at precincts No. 111-112 and use the name Ramon Vizcarra. As proof of
the foregoing, attached hereto as Annex E is the Information dated 11 May 1998 filed
against Agayan. chanroblesvirtuallawlibrary
The magnitude of the vote buying in the 11 May 1998 local elections in the City of
Paraaque, is such that the voters involved number in the thousands. Evidence in this regard
shall be presented in the proper time. chanroblesvirtuallawlibrary
6. Also, there have been several instances where purported voters were depositing more
than one (1) ballot inside the ballot box. As evidence thereof, attached hereto as Annex F is
the Affidavit of a certain Rosemarie Pascua of Barangay Baclaran, City of
Paraaque. chanroblesvirtuallawlibrary
7. The foregoing incidents alone actually suffices to establish that a failure of elections
should be declared on the ground that the will of the electorate of the City of Paraaque has
been denigrated. The elections for the office of the Vice-Mayor in the City of Paraaque, on
11 May 1998 cannot be considered as reflective of the true will of the electorate. However,
the anomalies do not stop there. chanroblesvirtuallawlibrary
8. In addition to the foregoing, during the canvassing of votes before the Board of
Canvassers, it was discovered that numerous election returns contain glaring discrepancies
and are replete with blatant omissions, not to mention the fact that several election returns
appeared to be tampered with or appear to be fabricated. The Honorable Commission
should seriously consider these anomalies specially on account of the fact that the lead of
the respondent over the petitioner is a mere Three Thousand Seven (3,007) votes.
xxx chanroblesvirtuallawlibrary
9. Moreover, several Election Returns are found to have glaring discrepancies which may
materially alter the results of the election for the office of Vice-Mayor in the City of
Paraaque.
xxx chanroblesvirtuallawlibrary
10. Finally, what seriously casts doubt on the legitimacy of the elections for the office of the
Vice-Mayor in the City of Paraaque is the fact that the results thereof are statistically
improbable. A case in point is precinct number 483 where petitioner shockingly is supposed
to have received zero (0) votes. Petitioner is the incumbent Vice-Mayor of the City of
Paraaque. It is, thus, impossible that he will receive zero (0) votes in any given precinct.
[2] chanroblesvirtuallawlibrary
Petitioner asked the COMELEC for the following reliefs: chanroblesvirtuallawlibrary
1. After trial, judgment be rendered as follows: chanroblesvirtuallawlibrary
1.1 Declaring a failure of elections, or declaring the annulment of the elections, for the
office of the Vice-Mayor in the City of Paraaque, Metro Manila; chanroblesvirtuallawlibrary
1.2. Annulling the proclamation of the respondent as the elected Vice-Mayor of the City of
Paraaque, Metro Manila, during the 11 May 1998 elections; and chanroblesvirtuallawlibrary
1.3. Declaring that special elections should be held for the office of Vice-Mayor in the City of
Paraaque, Metro Manila.chanroblesvirtuallawlibrary
2. Alternatively, in the remote event that the Honorable Commission does not render
judgment as aforesaid, an order be issued to the Treasurer of the City of Paraaque to bring
and present before this Honorable Commission on or before the day of the hearing of the
Election Protest, the ballot boxes, copies of the registry lists, election returns, the minutes
of election in all precincts, and the other documents used in the local elections for the Office
of the Vice-Mayor held on 11 May 1998 in the said City, for the Honorable Commission to re-
examine and revise the same; andchanroblesvirtuallawlibrary
3. After due trial judgment be rendered as follows: chanroblesvirtuallawlibrary
3.1. The election of respondent FLORENCIO M. BERNABE, JR., for the office of Vice-Mayor in
the City of Paraaque, Metro Manila be annulled; chanroblesvirtuallawlibrary
3.2. The petitioner, TOMAS T. BANAGA, JR., be adjudged as the duly elected Vice-Mayor in
the City of Paraaque, during the 11 May 1998 local elections;
and chanroblesvirtuallawlibrary
3.3. The expenses, costs and damages incurred in these proceedings be assessed against
the respondent. chanroblesvirtuallawlibrary
Other just and equitable reliefs are likewise prayed for.[3] chanroblesvirtuallawlibrary
On June 29, 1998, the COMELEC dismissed petitioners suit. It held that the grounds relied
upon by petitioner do not fall under any of the instances enumerated in Section 6 of the
Omnibus Election Code. The election tribunal concluded that based on the allegations of the
petition, it is clear that an election took place and that it did not result in a failure to elect.
[4] chanroblesvirtuallawlibrary
Considering that a motion for reconsideration of a COMELEC en banc ruling is prohibited,
except in a case involving an election offense,[5] and aggrieved by the COMELECs dismissal
of his suit, petitioner timely filed the instant petition for certiorari with this
Court. chanroblesvirtuallawlibrary
Before us, petitioner now claims that the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it dismissed his petition motu
propio without any basis whatsoever and without giving him the benefit of a hearing. He
contends that:
I chanroblesvirtuallawlibrary
THE PETITION DATED 28 MAY 1998 IS ESSENTIALLY AN ELECTION PROTEST. HENCE, THE
COMELEC COULD NOT LEGALLY DISMISS THE ENTIRE PETITION MERELY ON THE GROUND
THAT THERE WAS ALLEGEDLY NO FAILURE OF ELECTION IN THE CITY OF PARANAQUE
DURING THE 11 MAY 1998 ELECTIONS.
II chanroblesvirtuallawlibrary
THE AUTHORITY RELIED UPON BY THE COMELEC AS BASIS FOR THE DISMISSAL OF THE
PETITION DATED 28 MAY 1998, THAT OF EDWIN SAR[D]EA, ET. AL. V. COMELEC, ET. AL.,
AND MITMUG V. COMELEC, ARE NOT APPLICABLE TO THE CASE AT BAR CONSIDERING THAT
ASIDE FROM BEING AN ELECTION PROTEST, THE SAID PETITION SEEKS THE ANNULMENT OF
AN ELECTION PURSUANT TO THE DOCTRINE LAID DOWN BY THE HONORABLE SUPREME
COURT IN LOONG V. COMELEC.[6] chanroblesvirtuallawlibrary
Clearly, the issue for our resolution is whether or not public respondent acted with grave
abuse of discretion in dismissing petitioners petition, in the light of petitioners foregoing
contentions. chanroblesvirtuallawlibrary
While petitioner may have intended to institute an election protest by praying that said
action may also be considered an election protest, in our view, petitioners action is a
petition to declare a failure of elections or annul election results. It is not an election
protest. chanroblesvirtuallawlibrary
First, his petition before the COMELEC was instituted pursuant to Section 4 of Republic Act
No. 7166 in relation to Section 6 of the Omnibus Election Code. Section 4 of RA 7166 refers
to postponement, failure of election and special elections[7] while Section 6 of the Omnibus
Election Code relates to failure of election. It is simply captioned asPetition to Declare
Failure of Elections and/or For Annulment of Elections. chanroblesvirtuallawlibrary
Second, an election protest is an ordinary action while a petition to declare a failure of
elections is a special action under the 1993 COMELEC Rules of Procedure as amended. An
election protest is governed by Rule 20 on ordinary actions, while a petition to declare
failure of elections is covered by Rule 26 under special actions. chanroblesvirtuallawlibrary
In this case, petitioner filed his petition as a special action and paid the corresponding fee
therefor. Thus, the petition was docketed as SPA-98-383. This conforms to petitioners
categorization of his petition as one to declare a failure of elections or annul election
results. In contrast, an election protest is assigned a docket number starting with EPC,
meaning election protest case. chanroblesvirtuallawlibrary
Third, petitioner did not comply with the requirements for filing an election protest. He
failed to pay the required filing fee and cash deposits for an election protest. Failure to pay
filing fees will not vest the election tribunal jurisdiction over the case. Such procedural lapse
on the part of a petitioner would clearly warrant the outright dismissal of his
action. chanroblesvirtuallawlibrary
Fourth, an en banc decision of COMELEC in an ordinary action becomes final and executory
after thirty (30) days from its promulgation, while an en banc decision in a special action
becomes final and executory after five (5) days from promulgation, unless restrained by the
Supreme Court.[8] For that reason, a petition cannot be treated as both an election protest
and a petition to declare failure of elections. chanroblesvirtuallawlibrary
Fifth, the allegations in the petition decisively determine its nature. Petitioner alleged that
the local elections for the office of vice-mayor in Paraaque City held on May 11, 1998,
denigrates the true will of the people as it was marred with widespread anomalies on
account of vote buying, flying voters and glaring discrepancies in the election returns. He
averred that those incidents warrant the declaration of a failure of elections.
[9] chanroblesvirtuallawlibrary
Given these circumstances, public respondent cannot be said to have gravely erred in
treating petitioners action as a petition to declare failure of elections or to annul election
results. chanroblesvirtuallawlibrary
The COMELECs authority to declare a failure of elections is provided in our election laws.
Section 4 of RA 7166 provides that the COMELEC sitting en banc by a majority vote of its
members may decide, among others, the declaration of failure of election and the calling of
special election as provided in Section 6 of the Omnibus Election Code. Said Section 6, in
turn, provides as follows: chanroblesvirtuallawlibrary
Section 6. Failure of Elections. --- If, on account of force majeure, violence, terrorism, fraud
or other analogous causes the election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for the closing of the voting, or
after the voting and during the preparation and the transmission of the election returns or
in the custody or canvass thereof, such election results in a failure to elect, and in any 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. chanroblesvirtuallawlibrary
There are three instances where a failure of election 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 has been suspended before the hour fixed by law for the closing of the voting on
account of force majeure, violence, terrorism, fraud or other analogous causes; or (c) after
the voting and during the preparation and transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect on account of force
majeure, violence, terrorism, fraud or other analogous causes. In these instances, there is a
resulting failure to elect. This is obvious in the first two scenarios, where the election was
not held and where the election was suspended. As to the third scenario, where the
preparation and the transmission of the election returns give rise to the consequence of
failure to elect must as aforesaid, is interpreted to mean that nobody emerged as a winner.
[10] chanroblesvirtuallawlibrary
Before the COMELEC can act on a verified petition seeking to declare a failure of election
two conditions must concur, namely (1) no voting took place in the precinct or precincts on
the date fixed by law, or even if there was voting, the election resulted in a failure to elect;
and (2) the votes not cast would have affected the result of the election.[11]Note that the
cause of such failure of election could only be any of the following: force majeure, violence,
terrorism, fraud or other analogous causes. chanroblesvirtuallawlibrary
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. chanroblesvirtuallawlibrary
In Mitmug vs. COMELEC,[12] petitioner instituted with the COMELEC an action to declare
failure of election in forty-nine precincts where less than a quarter of the electorate were
able to cast their votes. He also lodged an election protest with the Regional Trial Court
disputing the result of the election in all precincts in his municipality. The COMELEC
denied motu propio and without due notice and hearing the petition to declare failure of
election despite petitioners argument that he has meritorious grounds in support thereto,
that is, massive disenfranchisement of voters due to terrorism. On review, we ruled that the
COMELEC did not gravely abuse its discretion in denying the petition. It was not proven that
no actual voting took place. Neither was it shown that even if there was voting, the results
thereon would be tantamount to failure to elect. Considering that there is no concurrence of
the conditions seeking to declare failure of election, there is no longer need to receive
evidence on alleged election irregularities.chanroblesvirtuallawlibrary
In Sardea vs. COMELEC,[13] all election materials and paraphernalia with the municipal
board of canvassers were destroyed by the sympathizers of the losing mayoralty candidate.
The board then decided to use the copies of election returns furnished to the municipal trial
court. Petitioner therein filed a petition to stop the proceedings of the board of canvassers
on the ground that it had no authority to use said election returns obtained from the
municipal trial court. The petition was denied. Next, he filed a petition assailing the
composition of the board of canvassers. Despite that petition, the board of canvassers
proclaimed the winning candidates. Later on, petitioner filed a petition to declare a failure
of election alleging that the attendant facts would justify declaration of such failure. On
review, we ruled that petitioners first two actions involved pre-proclamation controversies
which can no longer be entertained after the winning candidates have been proclaimed.
Regarding the petition to declare a failure of election, we held that the destruction and loss
of copies of election returns intended for the municipal board of canvassers on account of
violence is not one of the causes that would warrant the declaration of failure of election.
The reason is that voting actually took place as scheduled and other valid election returns
still existed. Moreover, the destruction or loss did not affect the result of the election. We
also declared that there is failure of elections only when the will of the electorate has been
muted and cannot be ascertained. If the will of the people is determinable, the same must
as far as possible be respected. chanroblesvirtuallawlibrary
These aforecited cases are instructive in the resolution of the present case because they
involve similar actions and issues. No error could be attributed to public respondent for its
reliance on these precedents. chanroblesvirtuallawlibrary
In Loong vs. Comelec,[14] the petition for annulment of election results or to declare failure
of elections in Parang, Sulu, on the ground of statistical improbability and massive fraud
was granted by the COMELEC.[15] Even before the technical examination of election
documents was conducted, the COMELEC already observed badges of fraud just by looking
at the election results in Parang. Nevertheless, the COMELEC dismissed the petition for
annulment of election results or to declare failure of elections in the municipalities of Tapul,
Panglima Estino, Pata, Siasi and Kalinggalang Calauag. The COMELEC dismissed the latter
action on ground of untimeliness of the petition, despite a finding that the same badges of
fraud evident from the results of the election based on the certificates of canvass of votes
in Parang, are also evident in the election results of the five mentioned municipalities. We
ruled that COMELEC committed grave abuse of discretion in dismissing the petition as there
is no law which provides for a reglementary period to file annulment of elections when there
is yet no proclamation. The election resulted in a failure to elect on account of
fraud. Accordingly, we ordered the COMELEC to reinstate the aforesaid petition. Those
circumstances, however, are not present in this case, so that reliance on Loong by
petitioner Banaga is misplaced. chanroblesvirtuallawlibrary
Petitioner argues that the COMELEC should not have treated his prayer for annulment of
elections as a prayer for declaration of failure of elections.[16] This argument is plainly
gratuitous as well as immaterial. A prayer to declare failure of elections and a prayer to
annul the election results for vice mayor in this case are actually of the same nature.
Whether an action is for declaration of failure of elections or for annulment of election
results, based on allegations of fraud, terrorism, violence or analogous cause, the Omnibus
Election Code denominates them similarly.[17] No positive gain will accrue to petitioners
cause by making a distinction without a difference. chanroblesvirtuallawlibrary
Finally, petitioner claims that public respondent gravely abused its discretion when it
dismissed his petition motu propio. However, the fact that a verified petition has been filed
does not mean that a hearing on the case should first be held before COMELEC can act on
it. The petition to declare a failure of election and/or to annul election results must show on
its face that the conditions necessary to declare a failure to elect are present. In their
absence, the petition must be denied outright.[18] Public respondent had no recourse but to
dismiss petition. Nor may petitioner now complain of denial of due process, on this score,
for his failure to properly file an election protest. The COMELEC can only rule on what was
filed before it. It committed no grave abuse of discretion in dismissing his petition to declare
failure of elections and/or for annulment of elections for being groundless, hence without
merit. chanroblesvirtuallawlibrary
WHEREFORE, the instant petition is DISMISSED. The assailed RESOLUTION of public
respondent is AFFIRMED. Costs against petitioner. chanroblesvirtuallawlibrary
SO ORDERED. chanroblesvirtuallawlibrary
G.R. No. 164225 April 19, 2006
JUHARY A. GALO, Petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF LUMBA-
BAYABAO, LANAO DEL SUR, and MINDA DAGALANGIT, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us for resolution is the Petition1 for Certiorari,2 assailing the Resolution3 dated July 2,
2004 of the Commission on Elections
(COMELEC) En Banc in SPA No. 04-348.
Juhary A. Galo, petitioner, and Minda P. Dagalangit, private respondent, were among the
five candidates for mayor in the Municipality of Lumba-Bayabao, Lanao del Sur in the May
10, 2004 national and local elections.
On May 10, 2004, however, there was a failure of election in Lumba-Bayabao due to serious
disagreements among the various local candidates involving the clustering of precincts, the
distribution of election paraphernalia, and the appointment of the members of the various
Boards of Election Inspectors. As a consequence, the COMELEC scheduled and held a
special election on May 12, 2004.
On May 19, 2004, petitioner Galo filed with the COMELEC En Banc a petition4 to declare a
failure of election and to annul the results of the May 12, 2004 special election involving six
precincts located in six Barangays of Lumba-Bayabao, namely: Precinct Nos. 1A (Barangay
Maribu), 34A (Barangay Sunggod), 29B (Barangay Rumayas), 22A (Barangay Lubo Basara),
31A (Barangay Salaman), and 36A (Barangay Tamlang). Galo’s petition, docketed as SPA
No. 04-348, is based on his claim that there were "serious and massive irregularities
committed by the supporters of Dagalangit, in conspiracy with members of the Board of
Election Inspectors." Specifically, petitioner alleged that respondent Dagalangit’s supporters
succeeded in placing fake ballots inside a ballot box in Precinct No. 1A (Barangay Maribo);
that in Precinct No. 34A (Barangay Sunggod), the voting was irregular because the election
inspectors hid a ballot box allegedly to protect it from being forcibly taken; that during the
counting of votes, fake ballots were found in the ballot boxes in Precinct Nos. 22A
(Barangay Lubo Basara), 29B (Barangay Rumayas), 31A (Barangay Salaman), 34A
(Barangay Sunggod), and 36A (Barangay Tamlang); that the election inspectors in the said
precincts refused to enter in the minutes their valid objections; that all the election returns
accomplished based on the fake ballots do not reflect the true will of the electorate; and
that the said irregularities justify the annulment of the election held. Petitioner thus prayed
that the COMELEC issue a temporary restraining order (TRO) directing the Board of
Canvassers to desist from canvassing the election returns from the said precincts. Petitioner
further prayed that after due hearing, the results of the election be annulled; and that an
immediate investigation of the anomalies committed during the election be conducted.
On May 21, 2004, the COMELEC En Banc issued a TRO directing the Municipal Board of
Canvassers of Lumba-Bayabao to SUSPEND its proceedings, particularly the proclamation of
the winning candidates, until further orders.
In her Answer dated May 24, 2004, respondent Dagalangit denied petitioner’s allegations of
the existence of fake ballots in the specified precincts. She averred that during the May 12,
2004 special election, all the 39 precincts of Lumba-Bayabao functioned in an orderly and
peaceful manner; that the ballots have been properly appreciated, counted and entered in
the election returns duly accomplished by the Board of Election Inspectors under the close
scrutiny of the candidates’ watchers; and that the use of fake ballots is not a valid ground
for nullifying the elections. She then prayed that SPA No. 04-348 be dismissed.1avvphil.net
During the May 27, 2004 hearing, petitioner did not appear before the COMELEC En Banc.
Instead, he filed an "Urgent Ex-Parte Motion/Manifestation"5 stating that he was already
proclaimed as the winning candidate on May 20, 2004, thereby rendering his petition "moot
and academic;" and that he "has lost interest in the prosecution of the same." He prayed
that his petition be considered withdrawn.
Thereafter, pursuant to the order of the COMELEC En Banc, the contending parties filed
their respective memoranda.
On July 2, 2004, the COMELEC En Banc issued the assailed Resolution (1) dismissing the
petition for lack of merit; (2) annulling petitioner’s proclamation on May 20, 1994 for having
been "made surreptitiously and in contravention of the May 21, 2004 Order of the
Commission;" and (3) ordering the Municipal Board of Canvassers of Lumba-Bayabao "to
immediately convene, complete the canvass, and proclaim the winning candidates." The
COMELEC En Banc held that pursuant to the Omnibus Election Code, the alleged use of fake
ballots in the questioned precincts is not one of the grounds for nullifying the election
results. In fact, all the 39 precincts of Lumba-Bayabao functioned during the May 12, 2004
special elections.
On July 4, 2004, the Municipal Board of Canvassers of Lumba-Bayabao completed its
canvass proceedings and proclaimed respondent Dagalangit as the winning candidate for
mayor of that municipality.6
Petitioner now comes to this Court through the instant Petition for Certiorari alleging that
the COMELEC, in issuing the challenged Resolution, acted with grave abuse of discretion
amounting to lack or excess of jurisdiction.
Respondents, in their respective Comments, vehemently opposed the petition and prayed
that the same be dismissed for being utterly unmeritorious.
The petition is bereft of merit.
We cannot sustain petitioner’s contention that the COMELEC En Banc gravely abused its
discretion in dismissing his petition for a declaration of a failure of elections and for the
annulment of the election results. Section 6 of the Omnibus Election Code prescribes the
conditions for such a declaration, thus:
Section 6. Failure of Election – If, on account of force majeure, violence, terrorism, fraud or
other analogous causes the election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for closing of the voting, or after
the voting and during the preparation and the transmission of the 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 the 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. (Underscoring supplied)
In Tan v. COMELEC,7 we held that the above provisions lay down three instances where a
failure of election may be declared, namely: (1) the election in any polling place has not
been held on the date fixed on account of force majeure, violence, terrorism, fraud or other
analogous causes; (2) the election in any polling place has been suspended before the hour
fixed by law for the closing of the voting on account of any of such causes; or (3) after the
voting and during the preparation, transmission, custody or canvass of the election returns, Elections (COMELEC) en banc dated July 14, 1998, 3 the dispositive portion of which reads as
the election results in a failure to elect on account of any of said aforementioned causes. In follows:
all instances, there must have been a failure to elect. This is obvious in the first two WHEREFORE, premises considered, special elections for the municipalities, namely
scenarios, where the election was not held and where the election was suspended. As to the Butig Lumbayabague
third scenario, the circumstances attending the preparation, transmission, custody or Kapatagan Sultan Dumalondong
canvass of the election returns cause a failure to elect. The term failure to elect means Maguing Sultan Gumander
"nobody emerges as a winner."8 Masiu Marawi City
The established rule is that the nature of an action and the jurisdiction of the tribunal are Lumbabayabao
determined by the law and the allegations in the petition regardless of whether or not the shall be held on 18 July 1998.
petitioner is entitled to the relief sought.9 Here, it is not disputed that all the 39 precincts in Special elections shall also be held on July 25, 1998 for the municipalities of
Lumba-Bayabao functioned in the May 12, 2004 special elections. And as correctly observed Ganassi Lumbatan
by respondent COMELEC En Banc, petitioner himself failed to allege in his petition that no Malabang Pagayawan
election was conducted; and that the use of fake ballots is not a ground to declare a failure Marantao Tubaran
of elections. There shall be machine counting and consolidation of votes for all municipalities except
In Mitmug v. Commission on Elections,10 we further held that before the COMELEC can act Maguing and those precincts where ballots for manual count will be used.
on a verified petition seeking to declare a failure of election, two conditions must concur: The Education and Information Department, the Acting PES of Lanao del Sur and the
first, no voting has taken place in the precinct or precincts on the date fixed by law or, even Election Officers in these municipalities are hereby directed to cause the immediate
if there was voting, the election nevertheless results in a failure to elect; and, second, the publication of this Omnibus Order in their respective municipality (sic).
votes cast would affect the result of the election. In the case at bar, both conditions are not Schedule for special elections in the municipalities of Madalum and Tugaya is temporarily
present. withheldpending unresolved issues before the Commission.
Petitioner himself admits in his petition that during the special election, voting took place in Let the Executive Director for Operation[s] of the Commission execute this order with
the questioned precincts. He also failed to show that the votes cast would affect the results dispatch.
of the election. SO ORDERED.
Petitioner also questions the COMELEC’s nullification of his proclamation on May 20, 2004 The COMELEC's challenged Omnibus Order summarizes the relevant facts of the
by the Municipal Board of Canvassers. We sustain the COMELEC En Banc’s action. As shown controversy thus:
by the records, petitioner was proclaimed as mayor on the basis of the results of "the The instant cases were filed by petitioners praying that the Commission declare [a] failure
elections held on May 10, 2004."11 As stated earlier, no election was held on that day. of elections in their respective municipalities and to hold special elections thereafter. The
In fine, the COMELEC, in issuing the assailed Resolution, did not act with grave abuse of petitions were reinforced by reports received by the Commission from its field officers and
discretion. deputies. A pre-trial for all cases in Lanao del Sur involving failure of elections was set and
WHEREFORE, the petition is DISMISSED. Costs against petitioner. parties, their counsels, and the election officers of concerned municipalities appeared.
SO ORDERED. During the pre-trial of the above cases, it was shown and admitted by the parties that total
failure of election[s] took place in the following municipalities:
G.R. No. 134340 November 25, 1999 1. Butig 7. Maguing
LININDING PANGANDAMAN, petitioner, 2. Kapatagan 8. Masiu
vs. 3. Lumbatan 9. Sultan Dumalondong
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF LANAO DEL SUR, 4. Lumba Bayabao 10. Sultan Gumander
MAHED MUTILAN, ALEEM, AMERRODIN SARANGANI and NARRA ABDUL JABBAR 5. Lumbayanague 11. Tubaran
JIALIL, respondents. 6. Madalum 12. Tugaya
No precinct in the above towns was able to function on election day.
YNARES-SANTIAGO, J.: It was also shown and admitted by the parties that in the following municipalities, partial
Recently, this Court emphatically stated that "[U]pholding the sovereignty of the people is failure of election[s] took place as follows:
what democracy is all about. When the sovereignty of the people expressed thru the ballot 1. Ganassi
is at stake, it is not enough for this Court to make a statement but it should do everything 2. Malabang
to have that sovereignty obeyed by all. Well done is always better than well 3. Marantao
said." 1 Corollarily, laws and statutes governing election contests especially the appreciation 4. Pagayawan
of ballots must be liberally construed to the end that the will of the electorate in the choice 5. Marawi City
of public officials may not be defeated by technical infirmities. 2 These standards will be the TOTAL FAILURE OF ELECTIONS
legal matrix within which this controversy will be adjudged. It was found that the cause of failure of election[s] in the twelve municipalities where there
Challenged in this petition for certiorari and prohibition with prayer for temporary was total failure of election[s] as follows:
restraining order and preliminary injunction is the Omnibus Order of the Commission on 1. BUTIG — armed confrontation of opposing political groups and vehement disagreement
on the clustering of precincts.
+ Acting election officer reported that all election paraphernalia are available except for
200 ballots for precinct 5A.
2. KAPATAGAN — allegedly, Camad Benito, husband of mayoralty candidate Bailo Benito,
terrorized the Acting Municipal Treasurer Okuo Macaumbas thus preventing the distribution
of ballots and other election paraphernalia to the members of the Board of Election
Inspectors (BEIs for brevity). Similarly, there were only twenty two (22) public school
teachers who were available as BEIs and eighteen (18) of them were disqualified to act due
to relationship to candidates within the prohibited degree.
In Election Case No. 571, the Municipal Circuit Trial Court of Kapatagan, Lanao del Sur
issued an order dated April 30, 1998 ordering the Election Officer of Kapatagan, Lanao del
Sur to delete, erase, and cancel all Voters Registration Records with serial numbers
3676001 to 3676500 after finding that said VRRs were received only on December 15, 1998
by EA Camal Calandada from Atty. Muslemin Tahir. And yet, said VRRs appeared to be filled
up, used and dated 14 December 1997. A copy of said order was received on 10 May 1998
by the Election Officer. The court having found by implication that said VRRs were
irregularly/unlawfully issued, and its order having become final, this Commission in
compliance with said court order hereby orders the Election Officer of Kapatagan to delete
from the records said VRRs with serial nos. from 36767001 to 3676500.
Pursuant to said order, the Law Department is directed to conduct a joint investigation —
administrative and preliminary investigation for election offenses — against Camal
Calandada and Muslemin Tahir to determine their criminal and administrative liability and
to submit to the Commission its findings and recommendation within sixty (60) days from
receipt of this Order.
The PNP, thru the Criminal Investigation Group in Region XII is similarly directed to initiate
an investigation on the conduct of Camad Benito in contributing to the failure of election[s]
in Kapatagan.
+ All election paraphernalia are available.
3. LUMBATAN — all the members of the different Board of Inspectors are disqualified to act
as such by reason of relationship either by consanguinity or affinity, within the prohibited
degree.
+ All election paraphernalia for 39 precincts are intact and available.
4. LUMBABAYABAO — candidates could not agree on the venue of the distribution of the
election supplies and there was vehement disagreement on the clustering of precincts.
+ All election paraphernalia for fifty nine (59) precincts are available.
5. LUMBAYANAGUE — there was non-completion of the composition of the BEIs in all
precincts because almost all appointed members of [the] BEI are disqualified by reason of
relationship either by affinity or consanguinity, within the prohibitive degree.
+ All election paraphernalia for the 35 precincts are available.
6. MADALUM — the twenty (20) appointed teachers to act as members of the different BEIs
did not arrive on election day.
The issue on the existence of alleged ghost barangays/precincts is not yet resolved by the
Commission considering that the alleged ghost precincts are being investigated and an
ocular inspection is being made by an investigating team. The issue being factual and the
findings determinative of a clean, honest and credible elections, it is the desire of the
Commission that the issue on ghost precincts be resolved first before a special election in
Madalum shall be scheduled.
+ All election paraphernalia are available.
7. MAGUING — no members of the different Boards of Election Inspectors arrived in all
precincts.
+ There is a need to print new ballots for all forty-nine (49) precincts and other election
forms due to the inadvertent non inclusion of a candidate's name in the original ballots.
8. MASIU — the Municipal Treasurer did not get the election paraphernalia from the
Provincial Treasurer. Neither could the Municipal Treasurer be located on election day.
Hence, there was nothing to distribute to the BEIs on election day. Similarly, the Acting
Election Officer, EA Cayansalam Benaning, on her admission during the pre-trial hearing on
June 25, 1998, arrived only at 7:00 A.M. of election day thus preventing the distribution of
election paraphernalia from her office. Some parties claim in fact that she was only seen at
noontime of election day while she was in the house of the incumbent mayor of Masiu.
+ All election paraphernalia for eighty (80) precincts are available.
9. SULTAN DUMALONDONG — Municipal Treasurer did not appear on May 10 & 11, 1998 at
the office of the Provincial Treasurer to receive the ballots and other election paraphernalia
for distribution to the BEIs so there was no election supplies for distribution on election day.
+ All election paraphernalia for 16 precincts are available.
10. SULTAN GUMANDER — no BEIs appeared on election day because most of them are
disqualified by law to act as such; the remaining 12 who are not disqualified also did not
appear; there was also disagreement on the venue of distribution of election supplies.
+ All election paraphernalia for 51 precincts are available.
11. TUBARAN — non-appearance of all the members of the different BEIs due to intense
rivalry among the opposing candidates.
+ All election supplies are intact and available.
12. TUGAYA — widespread terrorism causing intimidation of the electorate to cast their
vote. The order of inclusion by the Municipal Court of Tugaya, covering 4,075 voters, will be
the subject of a petition to declare its nullity to be filed by the Law Department of the
Commission before the Regional Trial Court in Marawi City. It is the desire of the
Commission to put to rest the issue on the controversy surrounding the 4,075 voters to
allow honest election in this municipality. After the controversy is put to rest, then the
special election shall be scheduled.
PARTIAL FAILURE OF ELECTION
In the following municipalities and City of Marawi, there was partial failure of election in the
specified precincts due to the following reasons:
1. GANASSI — members of the BEIs for nine precincts as herein below enumerated did not
appear thus election supplies were not distributed on election day for the following
precincts:
Barangay Name Precinct No.
1. Poblacion 1A2
1A3/1A4
2. Baya 8A
3. Linuk 14A
14A1
14A2
4. Macaguiling 18A
18A1
18A2
There was also failure of election in precinct 1A1 and 17A1 due to ballot box snatching. The
ballot box containing official ballots and other election paraphernalia for precinct 17A1,
Brgy. Macabao whose polling place was at Ganassi Central Elementary School was snatched
allegedly by the incumbent mayor of Ganassi, Maning Diangka and his armed escorts.
In precinct 2A in Brgy. Bagoingud, failure of election is declared and special election shall
be held considering that the ballot box, official ballots and other election paraphernalia
were illegally brought to a private dwelling in said barangay and voting irregularly took
place therein despite the fact that the designated polling place was Gadungan Elementary
School at Gadungan. This could not take place unless the BEIs assigned in Precinct 2A 3. MARANTAO — thirty-five (35) precincts failed to function due to terrorism in the area. Out
cooperated in these acts. of these 35, eight (8) precincts lost to armed groups their ballot boxes, ballots and other
The acts complained of against Ex-Mayor Maning Diangka shall be referred to the Provincial election paraphernalia. These eight are:
Prosecutor of Lanao del Sur for possible prosecution. Similarly, the Election Officer of Name of Barangay Precinct No.
Ganassi is directed to inform the Commission of the identity of the BEIs for precinct 2A for 1. Daana Ingud Proper 3A
possible prosecution. 2. -do- 3A1/3A2
Considering the charge of Maimona Diangka in SPA 98-404 that Baguio Macapodi, candidate 3. Tuca Kialdan 7A
for Vice Mayor of the Ompia Party and his cohort Bai Sa Ganassi terrorized registered voters 4. -do- 7A1
in Precincts 32, 32A, 32A1, and 32A2 in Barangay Taliogan, Ganassi and that they were 5. Banga Pantar 22A/22A-1
allegedly aided by the Barangay Chairman therein, said acts shall be referred immediately 6. Inudaran Campong 29A
to the office of the Provincial Prosecutor of Lanao del Sur for investigation. 7. -do- 29A-2
During the special election, the members of the Municipal Board of Canvassers of Ganassi 8. Mapantao Goo 34A-2
are hereby directed to suspend the proclamation of Baguio Macapodi for vice mayor, if Ballots are to be printed for these precincts by the Commission. Canvassing forms and
winning, until further orders from this Commission. other paraphernalia shall also be provided. In Precincts No. 12A, 24A and 24A-1, ballots
+ All election paraphemalia for the nine (9) precincts where there was non-appearance of were cast but were not yet counted due to complaints that their integrity had been violated.
BEIs are available. The Commission shall cause the printing of ballots and other election There being no proof that the integrity of the ballots had been violated in these precincts,
forms for precincts 1A1 (Poblacion), 17A1 (Brgy. Macabao), and 2A (Brgy. Bagoingud) for the members of the Municipal Board of Canvassers of Marantao are directed to include the
use in the special election since the snatched ballot box were not recovered. same in the canvass.
2. MALABANG — twenty three (23) precincts failed to function due to shooting incidents. 4. PAGAYAWAN — casting of votes was aborted due to widespread terrorism. Fifteen (15)
Ballot boxes containing election paraphernalia for five precincts out of these 23 precincts precincts failed to function.
were snatched and never recovered. The following are the precincts that failed to function + All election paraphernalia are available. However, in precinct 5A/5A1, some commotion
on election day or whose ballot boxes were snatched: took place. Eleven voters out of two hundred and sixty-eight (268) have already cast their
Barangay Name Precinct No. votes at the time but only one ballot was found inside the ballot box after the commotion.
1. Banday 4A2 The Commission deems it proper that the casting of votes by the eleven voters be annulled
2. Betayan 5A/5A1 and a special election shall be conducted therein.
3. BPS Billage 7A2/7A3 5. Marawi City — there was partial failure of election in sixteen precincts (16), namely —
4. Bunkhouse < 8A1 Name of Barangay Precinct No.
5. Calumbog 11A/11A1 1. Brgy. Banggolo 6A2
6. Campo Muslim < 12A2 2. -do- 6A3
7. Chinatown 13A 3. Brgy. Lilod Madaya 42A-4
8. -do- 13A4 4. Brgy. South Madaya 85A
9. Curahab 14A 5. Brgy. Sangkai Dansalan 83A-3
10. Diamaru 15A 6. Brgy. Raya Madaya I 74A-6
11. -do- 15A1 7. Brgy. Bacolod Chico 3A
12. Matampay < 26A 8. -do- 3A-1
13. Pasir < 29A 9. -do- 3A-2
14. -do- 29A1 10. Brgy. Raya Saduc 76A
15. -do- 29A2 11. Brgy. Guimba 38A
16. Sumbagarogong 33A 12. -do- 38A-1/38A-2
17. -do- 33A1 13. Brgy. Lolod Saduc 73A-5
18. Tacub < 34A 14. Brgy. Bangco 5A-5A-1
19. Tiongcop 36A 15. Brgy. Timbangalan 88A
20. -do- 36A1/36A2 16. -do- 88A-1/88A-2
21. Tubok 37A2 due to non-appearance of the BEIs. All election paraphernalia are in order and available
22. -do- 37A5 except for one ballot box intended for Precinct 5A/5A-1 in Brgy. Banco which is missing or
23. -do- 37A6 undelivered or without ballots contained therein.
< ballot box snatched The petition for declaration of failure of election in the municipality of Calanogas, Lanao del
+ All election paraphernalia for eighteen precincts are intact and available. The Commission Sur will be covered by a different resolution.
will cause the printing of 1,000 ballots and other election forms for five precincts (8A1, To avoid the risk of another failure of elections and to encourage public trust in the process
12A2, 26A, 34A). and results of the special elections, the following changes shall be undertaken:
a. Only elements of the Armed Forces of the Philippines and the Philippine National Police
who are assigned to the affected areas shall serve as members of the Board of Election
Inspectors (BEIs). The Acting Provincial Election Supervisor (PES) of Lanao del Sur, Atty.
Suharto Ambolodto, shall ensure that said BEIs are given adequate briefing for this task;
Considering that under-aged persons succeeded in registering voters, a complaint that is
common in many areas in Lanao del Sur, the BEIs are given explicit authority to prevent
from voting all those registered voters who are visibly under-aged and shall reflect their
names and VRR numbers in the Minutes of Voting for future prosecution.
For this purpose, all poll watchers are encouraged to provide themselves with camera and
provide indubitable proof of under-aged voters.
b. Election officers from areas outside of Lanao del Sur shall be tapped to act as Election
Officers, while the regular election officers in Lanao del Sur shall perform such duties as
directed by the Acting PES;
c. The special election in the municipality of Madalum shall be scheduled only after the
Investigating Team aforementioned has finished its investigation of alleged ghost precincts
therein and the Commission has acted on their findings of facts and recommendation(s);
d. The special election in the municipality of Tugaya shall be scheduled after the
controversy on the four thousand and seventy-five (4,075) voters shall have been settled;
e. Considering the complaints received by the Commission against certain actuations of the
Provincial Board of Canvassers, the same shall be replaced with a new Provincial Board of
Canvassers whose members shall be designated by the Commission;
f. The PNP, thru the Criminal Investigation Group in Region XII and the Prosecution Offices in
Lanao del Sur shall actively help in the filing of criminal complaint for election offenses
committed during the election period.
Petitioner asserts that the COMELEC acted with grave abuse of discretion amounting to lack
of jurisdiction in issuing the assailed Omnibus Order —
1.] By insisting on holding special elections on July 18 and 25, 1998 more than thirty (30)
days after the failure to elect, in certain municipalities, in contravention of the clear and
explicit provisions of Section 6 of the Omnibus Election Code;
2.] By failing to declare a total failure of elections in the entire province of Lanao del Sur
and to certify the same to the President of the Philippines and Congress so that the
necessary legislation may be enacted for the holding of a special election;
3.] By ordering only elements of the Armed Forces of the Philippines and the Philippine
National Police who are not assigned to the affected areas as members of the Board of
Election Inspectors, in contravention of Sections 166, 170, 175 and 176 of the Omnibus
Election Code;
4.] By insisting on machine counting despite the proven unreliability and undependability of
the counting of votes with use of computer machines.
In support of his cause, petitioner insists on a strict compliance with the holding of special
elections not later than thirty (30) days after failure to elect pursuant to Section 6 of the
Omnibus Election Code which provides that:
Sec. 6. Failure of elections. — 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 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 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.
Petitioner argues that the above-quoted provision is mandatory because of the word "shall".
He further asserts that the prescribed time frame actually "delimits" COMELEC's authority to
call for a special election and that instead, the power to call for a special election after the
30th day now resides in Congress.
The provision invoked can not be construed in the manner as argued by petitioner for it
would defeat the purpose and spirit for which the law was enacted.
It is a basic precept in statutory construction that a statute should be interpreted in
harmony with the Constitution and that the spirit, rather than the letter of the law
determines its construction; for that reason, a statute must be read according to its spirit
and intent. 4 Thus, a too literal interpretation of the law that would lead to absurdity
prompted this Court to —
. . . [a]dmonish against a too-literal reading of the law as this is apt to constrict rather than
fulfill its purpose and defeat the intention of its authors. That intention is usually found not
in "the letter that killeth but in the spirit that vivifieth" . . . 5
Sec. 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." There can hardly be any doubt that the text
and intent of this constitutional provision is to give COMELEC all the necessary and
incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful
and credible elections.
Pursuant to this intent, this Court has been liberal in defining the parameters of the
COMELEC's powers in conducting elections. As stated in the old but nevertheless still very
much applicable case of Sumulong v.COMELEC: 6
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 . . . . 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 . . . we must not by any excessive zeal take away from the Commission on
Elections that initiative which by constitutional and legal mandates properly belongs to it.
More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al., 7 that "[O]ur
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 unforeseen 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."
The purpose of the governing statutes on the conduct of elections —
. . . [i]s to protect the integrity of elections 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 of means taken by the Commission on Elections, unless they are clearly illegal or
constitute grave abuse of discretion, should not be interfered with. 8
Guided by the above-quoted pronouncement, the legal compass from which the COMELEC elections were "conducted on a staggered basis" on July 4, 18 and 25, 1998.14 For another,
should take its bearings in acting upon election controversies is the principle that "clean the petition questions the membership of the Board of Election Inspectors for being
elections control the appropriateness of the remedy." 9 composed of elements of the Armed Forces of the Philippines and the Philippine National
In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be Police as well as the machine counting of the votes when these events have been
later than thirty (30) days after the cessation of the cause of the postponement or superseded by the recent issuance of the Certificates Of Canvass Of Votes And
suspension of the election or the failure to elect; and, 2.] it should be reasonably close to Proclamation Of The Winning Candidates For Provincial Offices dated August 7, 1998. 15 In
the date of the election not held, suspended or which resulted in the failure to elect. The face of these supervening events, the arguments proffered by the petitioner to seek the
first involves a question of fact. The second must be determined in the light of the peculiar annulment of the challenged Omnibus Order rings hollow. Verily —
circumstances of a case. 10 Thus, the holding of elections within the next few months from At balance, the question really boils down to a choice of philosophy and perception of how
the cessation of the cause of the postponement, suspension or failure to elect may still be to interpret and apply laws relating to elections; literal or liberal; the letter or the spirit; the
considered "reasonably close to the date of the election not held." 11 naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or
In this case, the COMELEC can hardly be faulted for tardiness. The dates set for the special in the context of social conditions; harshly against or gently in favor of the voter's obvious
elections were actually the nearest dates from the time total/partial failure of elections was choice. In applying election laws, it would be far better to err in favor of popular sovereignty
determined, which date fell on July 14, 1998, the date of promulgation of the challenged than to be right in complex but little understood legalisms. 16
Omnibus Order. Needless to state, July 18 and 25, the dates chosen by the COMELEC for the Indeed, to embark upon the costly electoral exercise insisted upon by petitioner in terms of
holding of special elections were only a few days away from the time a total/partial failure time and taxpayer's money is an unwarranted imposition on the people of the affected
of elections was declared and, thus, these were "dates reasonably close" thereto, given the areas and is an unacceptable option to the judicial conscience.
prevailing facts herein. Furthermore, it bears stressing that in the exercise of the plenitude WHEREFORE, in view of all the foregoing, the petition is DISMISSED for lack of merit.
of its powers to protect the integrity of elections, the COMELEC should not and must not be SO ORDERED.
straitjacketed by procedural rules in the exercise of its discretion to resolve election
disputes. 12
Petitioner's argument that respondent COMELEC gravely abused its discretion by failing to
declare a total failure of elections in the entire province of Lanao del Sur and to certify the
same to the President and Congress so that the necessary legislation may be enacted for
the holding of a special election, likewise fails to persuade.
No less than petitioner himself concedes that there was total failure of elections in twelve
(12) municipalities and partial failure in eleven (11). Yet he now insists a total failure of
elections should have been declared in the entire province of Lanao del Sur. Suffice it to
state that the propriety of declaring whether or not there has been a total failure of
elections in the entire province of Lanao del Sur is a factual issue which this Court will not
delve into considering that the COMELEC, through its deputized officials in the field, is in the
best position to assess the actual conditions prevailing in that area. Absent any showing of
grave abuse of discretion, the findings of fact of the COMELEC or any administrative agency
exercising particular expertise in its field of endeavor, are binding on the Court. 13 There is
no cogent reason to depart from the general rule in this case.
The insistence of petitioner that the COMELEC violated Sections 166, 170, 175 and 176 of
the Omnibus Election Code when it ordered elements of the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP) who are not assigned to the affected areas as
members of the Board of Election Inspectors (BEIs) is likewise unconvincing vis-à-vis the
underlying reason of the public respondent to have an effective and impartial military
presence "to avoid the risk of another failure of election."
So too must fall the argument that machine counting being allegedly "undependable and
unreliable" should not be resorted to as the reasoning of petitioner, by itself, invokes the
answer. If the COMELEC saw it fit to order a machine counting of votes in the municipalities
enumerated, it could only mean that the decree of R.A. No. 8436 could be implemented
without the interference of the claimed "unreliability, inaccuracy and undependability" of
the computer sets. The absence of any satisfactory proof to support petitioner's allegations
to the contrary reduces them to mere self-serving claims.
Be that as it may, we agree with the Solicitor General that the petition has been rendered
moot by supervening events. For one, it seeks to enjoin the holding of special elections
scheduled for July 18 and 25, 1998. However, petitioner himself admits that special