G.R. No. 202202 March 19, 2013
SILVERIO R. TAGOLINO, Petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND LUCY MARIE TORRES-
GOMEZ, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this Petition for Certiorari and Prohibition under Rule 65 of the Rules of
Court is the March 22, 2012 Decision1 of the House of Representatives Electoral Tribunal
(HRET) in HRET Case No. 10-031 (QW) which declared the validity of private respondent
Lucy Marie Torres-Gomez’s substitution as the Liberal Party’s replacement candidate for
the position of Leyte Representative (Fourth Legislative District) in lieu of Richard
Gomez.
The Facts
On November 30, 2009, Richard Gomez (Richard) filed his certificate of candidacy 2 (CoC)
with the Commission on Elections (COMELEC), seeking congressional office as
Representative for the Fourth Legislative District of Leyte under the ticket of the Liberal
Party. Subsequently, on December 6, 2009, one of the opposing candidates,
Buenaventura Juntilla (Juntilla), filed a Verified Petition,3 alleging that Richard, who was
actually a resident of College Street, East Greenhills, San Juan City, Metro Manila,
misrepresented in his CoC that he resided in 910 Carlota Hills, Can-adieng, Ormoc City. In
this regard, Juntilla asserted that Richard failed to meet the one (1) year residency
requirement under Section 6, Article VI4 of the 1987 Philippine Constitution
(Constitution) and thus should be declared disqualified/ineligible to run for the said
office. In addition, Juntilla prayed that Richard’s CoC be denied due course and/or
cancelled.5
On February 17, 2010, the COMELEC First Division rendered a Resolution 6 granting
Juntilla’s petition without any qualification. The dispositive portion of which reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVE,
to GRANT the Petition to Disqualify Candidate for Lack of Qualification filed by
BUENAVENTURA O. JUNTILLA against RICHARD I. GOMEZ. Accordingly, RICHARD I.
GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth District of
Leyte, for lack of residency requirement.
SO ORDERED.
Aggrieved, Richard moved for reconsideration but the same was denied by the COMELEC
En Banc through a Resolution dated May 4, 2010.7 Thereafter, in a Manifestation of even
date, Richard accepted the said resolution with finality "in order to enable his substitute
to facilitate the filing of the necessary documents for substitution."8
On May 5, 2010, Lucy Marie Torres-Gomez (private respondent) filed her CoC9 together
with a Certificate of Nomination and Acceptance10 from the Liberal Party endorsing her
as the party’s official substitute candidate vice her husband, Richard, for the same
congressional post. In response to various letter-requests submitted to the COMELEC’s
Law Department (Law Department), the COMELEC En Banc, in the exercise of its
administrative functions, issued Resolution No. 889011 on May 8, 2010, approving,
among others, the recommendation of the said department to allow the substitution of
private respondent. The recommendation reads:
STUDY AND OBSERVATION
On the same date, this Department received an Opposition from Mr. Buenaventura O.
Juntilla, thru his counsel, opposing the candidacy of Ms. Lucy Marie Torres Gomez, as a
substitute candidate for Mr. Richard I. Gomez.
The crux of the opposition stemmed from the issue that there should be no substitution
because there is no candidate to substitute for.
It must be stressed that the resolution of the First Division, this Commission, in SPA No.
09-059 speaks for disqualification of candidate Richard I. Gomez and not of cancellation
of his Certificate of Candidacy:
‘Wherefore, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
GRANT the Petition to Disqualify Candidate for Lack of Qualification filed x x x against
RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for
the Office of Congressman, Fourth District of Leyte, for lack of residency requirement.’
The said resolution was affirmed by the Commission En Banc on May 04, 2010.
The disqualification of a candidate does not automatically cancel one’s certificate of
candidacy, especially when it is nominated by a political party. In effect, the political
party is still allowed to substitute the candidate whose candidacy was declared
disqualified. After all, the right to substitute is a privilege given to a political party to
exercise and not dependent totally to a candidate.
1
Nonetheless, in case of doubt, the same must always be resolved to the qualification of a
candidate to run in the public office.
The substitution complied with the requirements provided under Section 12 in relation
to Section 13 of Comelec Resolution No. 8678 dated October 6, 2009.
xxxx
In view of the foregoing, the Law Department RECOMMENDS the following:
xxxx
2. TO ALLOW CANDIDATE LUCY MARIE TORRES GOMEZ AS A SUBSTITUTE CANDIDATE
FOR RICHARD GOMEZ: (Emphasis and underscoring supplied)
xxxx
The following day, or on May 9, 2010, Juntilla filed an Extremely Urgent Motion for
Reconsideration12 (May 9, 2010 Motion) of the above-mentioned COMELEC En Banc
resolution
Pending resolution of Juntilla’s May 9, 2010 Motion, the national and local elections were
conducted as scheduled on May 10, 2010. During the elections, Richards, whose name
remained on the ballots, garnered 101, 250 votes while his opponents, namely, Eufrocino
Codilla, Jr. and herein petitioner Silverio Tagolino, obtained 76,549 and 493 votes,
respectively.13 In view of the aforementioned substitution, Richard’s votes were credited
in favor of private respondent and as a result, she was proclaimed the duly-elected
Representative of the Fourth District of Leyte.
On May 11, 2010, Juntilla filed an Extremely Urgent Motion to resolve the pending May 9,
2010 Motion relative to Resolution No. 8890.14 The said motion, however, remained
unacted.
On May 24, 2010, petitioner filed a Petition15 for quo warranto before the HRET in order
to oust private respondent from her congressional seat, claiming that: (1) she failed to
comply with the one (1) year residency requirement under Section 6, Article VI of the
Constitution considering that the transfer of her voter registration from San Rafael
Bulacan16 to the Fourth District of Leyte was only applied for on July 23, 2009; (2) she
did not validly substitute Richard as his CoC was void ab initio; and (3) private
respondent’s CoC was void due to her non-compliance with the prescribed notarial
requirements i.e., she failed to present valid and competent proof of her identity before
the notarizing officer.17
In her Verified Answer,18 private respondent denied petitioner’s allegations and claimed
that she validly substituted her husband in the electoral process. She also averred that
she personally known to the notary public who notarized her CoC, one Atty. Edgardo
Cordeno, and thus, she was not required to have presented any competent proof of
identity during the notarization of the said document. Lastly, she asserted that despite
her marriage to Richard and exercise of profession in Metro Manila, she continued to
maintain her residency in Ormoc City which was the place where she was born and
raised.
During the preliminary conference, and as shown in the Preliminary Conference Order
dated September 2, 2010, the parties agreed on the following issues for resolution:
1. Whether or not the instant petition for quo warranto is meritorious;
2. Whether or not the substitution of respondent is valid;
3. Whether or not a petition for quo warranto can be used as a substitute for
failure to file the necessary petition for disqualification with the COMELEC;
4. Whether or not respondent’s COC was duly subscribed; and
5. Whether or not respondent is ineligible for the position of Representative of the
Fourth District of Leyte for lack of residency requirement.19
Ruling of the HRET
After due proceedings, the HRET issued the assailed March 22, 2012 Decision 20 which
dismissed the quo warranto petition and declared that private respondent was a
qualified candidate for the position of Leyte Representative (Fourth Legislative District).
It observed that the resolution denying Richard’s candidacy i.e., the COMELEC First
Division’s February 17, 2010 Resolution, spoke of disqualification and not of CoC
cancellation. Hence, it held that the substitution of private respondent in lieu of Richard
was legal and valid.21 Also, it upheld the validity of private respondent’s CoC due to
petitioner’s failure to controvert her claim that she was personally known to the notary
public who notarized her CoC.22 Finally, the HRET ruled that while it had been admitted
that private respondent resides in Colgate Street, San Juan City and lived in San Rafael,
Bulacan, the fact was she continued to retain her domicile in Ormoc City given that her
absence therefrom was only temporary.
Hence, the instant petition.
Issues Before the Court
2
The crux of the present controversy is whatever or not the HRET gravely abused its
discretion in finding that Richard was validly substituted by private respondent as
candidate for Leyte Representative (Fourth Legislative District) in view of the former’s
failure to meet the one (1) year residency requirement provided under Section 6, Article
VI of the Constitution.
It is petitioner’s submission that the HRET gravely abused its discretion when it upheld
the validity of private respondent’s substitution despite contrary jurisprudence holding
that substitution is impermissible where the substituted candidate’s CoC was denied due
course to and/or cancelled, as in the case of Richard. On the other hand, respondents
maintain that Richard’s CoC was not denied due course to and/or cancelled by the
COMELEC as he was only "disqualified" and therefore, was properly substituted by
private respondent.
Ruling of the Court
The petition is meritorious.
A. Distinction between a petition for disqualification and a petition to deny due course
to/cancel a certificate of candidacy
The Omnibus Election Code23 (OEC) provides for certain remedies to assail a candidate’s
bid for public office. Among these which obtain particular significance to this case are:
(1) a petition for disqualification under Section 68; and (2) a petition to deny due course
to and/or cancel a certificate of candidacy under Section 78. The distinctions between
the two are well-perceived.
Primarily, a disqualification case under Section 68 of the OEC is hinged on either: (a) a
candidate’s possession of a permanent resident status in a foreign country;24 or (b) his or
her commission of certain acts of disqualification. Anent the latter, the prohibited acts
under Section 68 refer to election offenses under the OEC, and not to violations of other
penal laws.25 In particular, these are: (1) giving money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral functions;
(2) committing acts of terrorism to enhance one’s candidacy; (3) spending in one’s
election campaign an amount in excess of that allowed by the OEC; (4) soliciting,
receiving or making any contribution prohibited under Sections 89, 95, 96, 97 and 104 of
the OEC; and (5) violating Sections 80,26 83,27 85,28 8629 and 261, paragraphs
d,30 e,31 k,32 v,33 and cc, sub-paragraph 634 of the OEC. Accordingly, the same provision
(Section 68) states that any candidate who, in an action or protest in which he or she is a
party, is declared by final decision of a competent court guilty of, or found by the
COMELEC to have committed any of the foregoing acts shall be disqualified from
continuing as a candidate for public office, or disallowed from holding the same, if he or
she had already been elected.35
It must be stressed that one who is disqualified under Section 68 is still technically
considered to have been a candidate, albeit proscribed to continue as such only because
of supervening infractions which do not, however, deny his or her statutory eligibility. In
other words, while the candidate’s compliance with the eligibility requirements as
prescribed by law, such as age, residency, and citizenship, is not in question, he or she is,
however, ordered to discontinue such candidacy as a form of penal sanction brought by
the commission of the above-mentioned election offenses.
On the other hand, a denial of due course to and/or cancellation of a CoC proceeding
under Section 78 of the OEC36 is premised on a person’s misrepresentation of any of the
material qualifications required for the elective office aspired for. It is not enough that a
person lacks the relevant qualification; he or she must have also made a false
representation of the same in the CoC.37 The nature of a Section 78 petition was
discussed in the case of Fermin v. COMELEC,38 where the Court illumined:
Let it be misunderstood, the denial of due course to or the cancellation of the CoC is not
based on the lack of qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications required of the public
office he/she is running for. It is noted that the candidates states in his/her CoC that
he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be
read in relation to the constitutional and statutory provisions on qualifications or
eligibility for public office. If the candidate subsequently states a material representation
in the CoC that is false, the COMELEC, following the law, is empowered to deny due
course to or cancel such certificate. Indeed, the Court has already likened a proceeding
under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they
both deal with the eligibility or qualification of a candidate, with the distinction mainly in
the fact that a "Section 78" petition is filed before proclamation, while a petition for quo
warranto is filed after proclamation of the winning candidate. (Emphasis supplied)
Corollary thereto, it must be noted that the deliberateness of the misrepresentation,
much less one’s intent to defraud, is of bare significance in a Section 78 petition as it is
enough that the person’s declaration of a material qualification in the CoC be false. In this
relation, jurisprudence holds that an express finding that the person committed any
deliberate misrepresentation is of little consequence in the determination of whether
one’s CoC should be deemed cancelled or not.39 What remains material is that the
petition essentially seeks to deny due course to and/or cancel the CoC on the basis of
one’s ineligibility and that the same be granted without any qualification.40
3
Pertinently, while a disqualified candidate under Section 68 is still considered to have
been a candidate for all intents and purposes, on the other hand, a person whose CoC had
been denied due course to and/or cancelled under Section 78 is deemed to have not been
a candidate at all. The reason being is that a cancelled CoC is considered void ab initio
and thus, cannot give rise to a valid candidacy and necessarily, to valid votes.41 In Talaga
v. COMELEC42 (Talaga), the Court ruled that:
x x x x While a person who is disqualified under Section 68 is merely prohibited to
continue as a candidate, a person who certificate is cancelled or denied due course under
Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.
The foregoing variance gains utmost importance to the present case considering its
implications on candidate substitution.
B. Valid CoC as a condition sine qua non for candidate substitution
Section 77 of the OEC provides that if an official candidate of a registered or accredited
political party dies, withdraws or is disqualified for any cause, a person belonging to and
certified by the same political party may file a CoC to replace the candidate who died,
withdrew or was disqualified. It states that:
Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after
the last day for the filing of certificates of candidacy, an official candidate of a registered
or accredited political party dies, withdraws or is disqualified for any cause, only a
person belonging to, and certified by, the same political party may file a certificate of
candidacy to replace the candidate who died, withdrew or was disqualified. (Emphasis
supplied)
Evidently, Section 77 requires that there be an "official candidate" before candidate
substitution proceeds. Thus, whether the ground for substitution is death, withdrawal or
disqualification of a candidate, the said section unequivocally states that only an official
candidate of a registered or accredited party may be substituted.43
As defined under Section 79(a) of the OEC, the term "candidate" refers to any person
aspiring for or seeking an elective public office who has filed a certificate of candidacy by
himself or through an accredited political party, aggroupment, or coalition of parties.
Clearly, the law requires that one must have validly filed a CoC in order to be considered
a candidate. The requirement of having a CoC obtains even greater importance if one
considers its nature. In particular, a CoC formalizes not only a person’s public declaration
to run for office but evidences as well his or her statutory eligibility to be elected for the
said post. In Sinaca v. Mula,44 the Court has illumined:
A certificate of candidacy is in the nature of a formal manifestation to the whole world of
the candidate’s political creed or lack of political creed. It is a statement of a person
seeking to run for a public office certifying that he announces his candidacy for the office
mentioned and the be is eligible for the office, the name of the political party to which he
belongs, if he belongs to any, and his post-office address for all election purposes being
as well stated. (Emphasis and underscoring supplied).
In this regard, the CoC is the document which formally accords upon a person the status
of a candidate. In other words, absent a valid CoC one is not considered a candidate
under legal contemplation. As held in Talaga:45
x x x a person’s declaration of his intention to run for public office and his affirmation
that he possesses the eligibility for the position he seeks to assume, followed by the
timely filing of such declaration, constitute a valid CoC that render the person making the
declaration a valid or official candidate. (Emphasis supplied)
Considering that Section 77 requires that there be a candidate in order for substitution
to take place, as well as the precept that a person without a valid CoC is not considered as
a candidate at all, it necessarily follows that if a person’s CoC had been denied due course
to and/or cancelled, he or she cannot be validly substituted in the electoral process. The
existence of a valid CoC is therefore a condition sine qua non for a disqualified candidate
to be validly substituted.46
C. Divergent effects of disqualification and denial of due course to and/or cancellation of
CoC cases vis-à-vis candidate substitution
Proceeding, from the foregoing discourse, it is evident that there lies a clear-cut
distinction between a disqualification case under Section 68 and denial of due course to
and/or cancellation of COC case under Section 78 vis-à-vis their respective effects on
candidate substitution under Section 77.1âwphi1
As explained in the case of Miranda v. Abaya47 (Miranda), a candidate who is disqualified
under Section 68 can be validly substituted pursuant to Section 77 because he remains a
candidate until disqualified; but a person whose CoC has been denied due course to
and/or cancelled under Section 78 cannot be substituted because he is not considered a
candidate.48 Stated differently, since there would be no candidate to speak of under a
denial of due course to and/or cancellation of a CoC case, then there would be no
candidate to be substituted; the same does not obtain, however, in a disqualification case
since there remains to be a candidate to be substituted, although his or her candidacy is
discontinued.
4
On this note, it is equally revelatory that Section 77 expressly enumerates the instances
where substitution is permissible, that is when an official candidate of a registered or
accredited political party "dies, withdraws or is disqualified for any cause." Noticeably,
material misrepresentation cases are not included in the said section and therefore,
cannot be a valid basis to proceed with candidate substitution.
D. Application to the case at bar
In this case, it is undisputed that Richard was disqualified to run in the May 10, 2010
elections due to his failure to comply with the one year residency requirement.49 The
confusion, however, stemmed from the use of the word "disqualified" in the February 17,
2010 Resolution of the COMELEC First Division, which was adopted by the COMELEC En
Banc in granting the substitution of private respondent, and even further perpetuated by
the HRET in denying the quo warranto petition. In short, a finding that Richard was
merely disqualified – and not that his CoC was denied due course to and/or cancelled –
would mean that he could have been validly substitute by private respondent, thereby
legitimizing her candidacy.
Yet the fact that the COMELEC First Division’s February 17, 2010 Resolution did not
explicitly decree the denial of due course to and/or cancellation of Richard’s CoC should
not have obviated the COMELEC En Banc from declaring the invalidity of private
respondent’s substitution. It should be stressed that the clear and unequivocal basis for
Richard’s "disqualification" is his failure to comply with the residency requirement
under Section 6, Article VI of the Constitution which is a ground for the denial of due
course to and/or cancellation a CoC under Section 78 of the OEC, misrepresentation
contemplated under a Section 78 petition refers to statements affecting one’s
qualifications for elective office such as age, residence and citizenship or non-possession
of natural-born Filipino status.51 There is therefore no legal basis to support a finding of
disqualification within the ambit of election laws. Accordingly, given Richard’s non-
compliance with the one year residency requirement, it cannot be mistaken that the
COMELEC First Division’s unqualified grant of Juntilla’s "Verified Petition to Disqualify
Candidate for Lack of Qualification"52 – which prayed that the COMELEC declare Richard
"DISQUALIFIED and INELIGIBLE from seeking the office of Member of the House of
Representatives" and "x x x that his Certificate of Candidacy x x x be DENIED DUE
COURSE and/or CANCELLED"53 – carried with it the denial of due course to and/or
cancellation of Richard’s CoC pursuant to Section 78.
Case law dictates that if a petition prays for the denial of due course to and/or
cancellation of CoC and the same is granted by the COMELEC without any qualification,
the cancellation of the candidate’s CoC in in order. This is precisely the crux of the
Miranda ruling wherein the Court, in upholding the COMELEC En Banc’s nullification of
the substitution in that case, decreed that the COMELEC Division’s unqualified grant of
the petition necessarily included the denial of due course to and/or cancellation of the
candidate’s CoC, notwithstanding the use of the term "disqualified" in the COMELEC
Division’s resolution, as the foregoing was prayed for in the said petition:
The question to settle next is whether or not aside from Joiel "Pempe" Miranda being
disqualified by the COMELEC in its May 5, 1998 resolution, his certificate of candidacy
had likewise been denied due course and cancelled.
The Court rules that it was.
Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by
respondent for the position of Mayor for the City of Snatiago be not given due course
and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
In resolving the petition filed by private respondent specifying a very particular relief,
the COMELEC ruled favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the
Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for
the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local
elections.
SO ORDERED.
From a plain reading of the dispositive portion of the COMELEC resolution of May 5,
1998 in SPA No. 98-019, it is sufficiently clear that the prayer specifically and
particularly sought in the petition was GRANTED, there being no qualification on the
matter whatsoever. The disqualification was simply ruled over and above the granting of
the specific prayer for denial of due course and cancellation of the certificate of
candidacy.
xxxx
There is no dispute that the complaint or petition filed by private respondent in SPA No.
98-019 is one to deny due course and to cancel the certificate of candidacy of Jose
"Pempe" Miranda. There is likewise no question that the said petition was GRANTED
without any qualification whatsoever. It is rather clear, therefore, that whether or not
5
the COMELEC granted any further relief in SPA No. 98-019 by disqualifying the
candidate, the fact remains that the said petition was granted and that the certificate of
candidacy of Jose "Pempe" Miranda was denied due course and cancelled. (Emphasis and
underscoring supplied)
The same rule was later discussed in the case of Talaga, viz:
3. Granting without any qualification or petition in SPA No. 09-029(DC) manifested
COMELEC’s intention to declare Ramon disqualified and to cancel his CoC
xxxx
In Miranda v. Abaya, the specific relief that the petition prayed for was that the CoC "be
not given due course and/or cancelled". The COMELEC categorically granted "the
petition" and then pronounced – in apparent contradiction – that Joel Pempe Miranda
was "disqualified." The Court held that the COMELEC, by granting the petition without
any qualification, disqualified Joel Pempe Miranda and at the same time cancelled Jose
Pempe Miranda’s CoC.
xxxx
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the
particular relief of cancelling or denying due course to the CoC prayed for in the petition
by not subjecting that relief to any qualification. (Emphasis and underscoring supplied)
In view of the foregoing rulings, the COMELEC En Banc direly misconstrued the
COMELEC First Division’s February 17, 2010 Resolution when it adopted the Law
Department’s finding that Richard was only "disqualified" and that his CoC was not
denied due course to and/or cancelled, paving the way for the approval of private
respondent’s substitution. It overlooked the fact that the COMELEC First Division’s ruling
encompassed the cancellation of Richard’s CoC and in consequence, disallowed the
substitution of private respondent. It was therefore grave and serious error on the part
of the COMELEC En Banc to have approved private respondent’s substitution.
Consequently, in perpetuating the COMELEC En Banc’s error as above-discussed, the
HRET committed a grave abuse of discretion, warranting the grant of the instant petition.
Fundamental is the rule that grave abuse of discretion arises when a lower court or
tribunal patently violates the Constitution, the law or existing jurisprudence. 54 While it is
well-recognized that the HRET has been empowered by the Constitution to be the "sole
judge" of all contests relating to the election, returns, and qualifications of the members
of the House, the Court maintains jurisdiction over it to check "whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part
of the latter.55 In other words, when the HRET utterly disregards the law and settled
precedents on the matter before it, it commits a grave abuse of discretion.
Records clearly show that: (1) Richard was held ineligible as a congressional candidate
for the Fourth District of Leyte due to his failure to comply with the one year residency
requirement; (2) Juntilla’s petition prayed for the denial of due course to and/or
cancellation of his CoC; and (3) the COMELEC First Division granted the foregoing
petition without any qualification. By these undisputed and essential facts alone, the
HRET should not have adopted the COMELEC En Banc’s erroneous finding that the
COMELEC First Division’s February 17, 2010 Resolution "speaks only of "disqualification
and not of cancellation of Richard’s CoC"36 and thereby, sanctioned the substitution of
private respondent.
Lest it be misunderstood, the HRET is not bound by previous COMELEC pronouncements
relative to the qualifications of the Members of the House. Being the sole judge 57 of all
contests relating to the election, returns, and qualifications of its respective members,
the HRET cannot be tied down by COMELEC resolutions, else its constitutional
mandate58 be circumvented and rendered nugatory. Instructive on this point is the
Court’s disquisition in Fernandez v. HRET,59 to wit:
Private respondent concludes from the above that petitioner had no legal basis to claim
that the HRET, when reference to the qualification/s of Members of the House of
Representatives is concerned, is "co-equal", to the COMELEC respecting the matter of
eligibility and qualification of a member of the House of Representatives. The truth is the
other way around, because the COMELEC is subservient to the HRET when the dispute or
contest at issue refers to the eligibility and/or qualification of a Member of the House of
Representatives. A petition for quo warranto is within the exclusive jurisdiction of the
HRET as sole judge, and cannot be considered forum shopping even if another body may
have passed upon in administrative or quasi-judicial proceedings the issue of the
Member’s qualification while the Member was still a candidate. There is forum-shopping
only where two cases involve the same parties and the same cause of action. The two
cases here are distinct and dissimilar in their nature and character. (Emphasis and
underscoring supplied)
Notably, the phrase "election, returns, and qualifications" should be interpreted in its
totality as referring to all matters affecting the validity of the contestee’s title. More
particularly, the term "qualifications" refers to matters that could be raised in a quo
warranto proceeding against the pro-claimed winner, such as his disloyalty or
ineligibility, or the inadequacy of his certificate of candidacy.60 As used in Section 74 of
the OEC, the word "eligible" means having the right to run for elective public office, that
is, having all the qualifications and none of the ineligibilities to run for the public
6
office.61 In this relation, private respondent’s own qualification to run for public office –
which was inextricably linked to her husband’s own qualifications due to her
substitution – was the proper subject of quo warranto proceedings falling within the
exclusive jurisdiction of the HRET and independent from any previous proceedings
before the COMELEC, lest the jurisdiction divide between the two be blurred.

Nonetheless, it must be pointed out that the HRET’s independence is not without
limitation. As earlier mentioned, the Court retains certiorari jurisdiction over the HRET if
only to check whether or not it has gravely abused its discretion. In this regard, the Court
does not endeavor to denigrate nor undermine the HRET’s independence; rather, it
merely fulfills its duty to ensure that the Constitution and the laws are upheld through
the exercise of its power of judicial review.

In fine, the Court observes that the HRET wantonly disregarded the law by deliberately
adopting the COMELEC En Banc’s flawed findings regarding private respondent’s
eligibility to run for public office which essentially stemmed from her substitution. In
this light, it cannot be gainsaid that the HRET gravely abused its discretion.

Owing to the lack of proper substitution in its case, private respondent was therefore not
a bona fide candidate for the position of Representative for the Fourth District of Leyte
when she ran for office, which means that she could not have been elected. Considering
this pronouncement, there exists no cogent reason to further dwell on the other issues
respecting private respondent’s own qualification to office.

WHEREFORE, the petition is GRANTED. Accordingly, the March 22, 2012 Decision
rendered by the House of Representatives Electoral Tribunal in HRET Case No. 10-031
(QW) is hereby REVERSED and SET ASIDE.

SO ORDERED.

7
G.R. No. 206698 February 25, 2014
LUIS R. VILLAFUERTE, Petitioner,
vs.
COMMISSION ON ELECTIONS and MIGUEL R. VILLAFUERTE, Respondents.
DECISION
PERALTA, J.:
Assailed via petition for certiorari and prohibition with prayer for the issuance of a writ
of preliminary injunction and/or temporary restraining order is the Resolution 1 dated
April 1, 2013 issued by the Commission on Elections (COMELEC) En Banc, which
affirmed the Resolution2 dated January 15, 2013 of its First Division dismissing
petitioner Luis R. Villafuerte's verified petition to deny due course to or cancel the
certificate of candidacy of Miguel R. Villafuerte (respondent).
Petitioner and respondent were both candidates for the Gubernatorial position of the
Province of Camarines Sur in the May 13, 2013 local and national elections. On October
25, 2012, petitioner filed with the COMELEC a Verified Petition3 to deny due course to or
cancel the certificate of candidacy (COC) of respondent, alleging that respondent
intentionally and materially misrepresented a false and deceptive name/nickname that
would mislead the voters when he declared under oath in his COC that "L-RAY JR.-MIGZ"
was his nickname or stagename and that the name he intended to appear on the official
ballot was VILLAFUERTE, L-RAY JR.-MIGZ NP; that respondent deliberately omitted his
first name "MIGUEL" and inserted, instead "LRAY JR.," which is the nickname of his
father, the incumbent Governor of Camarines Sur, "LRay Villafuerte, Jr."
In his Answer with Special and Affirmative Defenses,4 respondent denied the
commission of any material misrepresentation and asserted, among others, that he had
been using the nickname "LRAY JR. MIGZ" and not only "MIGZ"; that the choice of
name/word to appear on the ballot was solely his choice or preference; and that the
presumption that the voters would be confused on the simple fact that his name would
be placed first in the ballot was misplaced.
On January 15, 2013, the COMELEC's First Division denied the petition for lack of merit
and disposed as follows:
x x x no compelling reason why the COC of respondent should be denied due course to or
cancelled on the sole basis of an alleged irregularity in his name/nickname. Laws and
jurisprudence on the matter are clear that material misrepresentation in the COC
pertains only to qualifications of a candidate, such as citizenship, residency, registration
as a voter, age, etc.
Nothing has been mentioned about a candidate's name/nickname as a ground to deny
due course or cancel his/her COC. When the language of the law is clear and explicit,
there is no room for interpretation, only application.5
Petitioner filed a motion for reconsideration with the COMELEC En Banc, which denied
the same in a Resolution dated April 1, 2013.
The COMELEC found that its First Division did not err in denying the petition as existing
law and jurisprudence are clear in providing that a misrepresentation in a certificate of
candidacy is material when it refers to a qualification for elective office and affects the
candidate's eligibility; and that a misrepresentation of a non-material fact is not a ground
to deny due course to or cancel a certificate of candidacy under Section 78 of the
Omnibus Election Code. It found that petitioner's allegations did not pertain to
respondent's qualifications or eligibility for the office to which he sought to be elected.
The candidate's use of a name or nickname is a not a ground to deny due course to or
cancel a certificate of candidacy.
Dissatisfied, petitioner filed the instant petition for certiorari and prohibition alleging the
following issues:
I
Respondent COMELEC palpably and seriously committed grave abuse of discretion
amounting to lack and/or in excess of jurisdiction when it whimsically and capriciously
limited the grounds provided in Section 78 in relation to Section 74 of the Omnibus
Election Code to a candidate's qualifications only and excluding as a ground a candidate's
material representation that is FALSE on his identity which renders him ineligible to be
voted for as a candidate, because a FALSE representation of ones' true name/nickname
as a candidate is a deliberate attempt to misinform, mislead, and deceive the electorate
and notwithstanding that Section 78 of the Omnibus Election Code expressly states that
"any" material misrepresentation in violation of Section 74 of the same Code is a ground
for cancellation of a Certificate of Candidacy.
II
Respondent COMELEC committed serious errors and patent grave abuse of discretion
amounting to lack and/or in excess of jurisdiction in failing or refusing to apply
prevailing jurisprudence and law, wherein it was held: that cancellation of COC is not
based on the lack of qualification although it may relate to qualification based on a
"finding that a candidate made a material representation that is false"; thereby
disregarding the well-entrenched rulings of this Honorable Court that material
misrepresentation may also include ineligibilities to run for office or to assume office and
is not limited to qualifications; utterly ignoring the ruling of this Honorable Court that
votes cast in favor of a candidate using a nickname in violation of Section 74 are STRAY
votes, and in turning a blind eye to its constitutional and statutory duty and
responsibility to protect the rights of the voters and the integrity of the electoral
processes in our country, among others.
8
III
Respondent COMELEC whimsically, capriciously and despotically allowed herein
respondent MIGUEL to use "LRAY JR.-MIGZ" and thereby illegally disregarded the effects
of R.A. 8436 as amended by R.A. 9369 or the Automation Law and the requirement
therein for the alphabetical arrangement of the names of the candidates and for allowing
respondent Miguel to deliberately and misleadingly omit his baptismal first name
MIGUEL which is mandatorily required by Section 74 to be included in his COC and for
respondent Miguel to use more than one nickname for which he is not generally or
popularly known in Camarines Sur.
IV
Material misrepresentation as contemplated by law is NOT to protect respondent as a
candidate, but MORESO, to protect the right of other candidates under the Automation
Law, and more importantly to protect the electorate from being misinformed, misled and
deceived.6
The main issue for resolution is whether respondent committed a material
misrepresentation under Section 78 of the Omnibus Election Code so as to justify the
cancellation of his COC.
Petitioner filed the petition under Section 78 of the Omnibus Election Code claiming that
respondent committed material misrepresentation when the latter declared in his COC
that his name/nickname to be printed in the official ballot was VILLAFUERTE, LRAY JR.-
MIGZ instead of his baptismal name, VILLAFUERTE, MIGUEL-MIGZ; that such declaration
made under oath constitutes material misrepresentation even if the material
misrepresentation did not refer to his qualifications but referred to his eligibility to be
validly voted for as a candidate and, consequently, to his eligibility to assume office.
We find no merit in the argument.
Section 73 of the Omnibus Election Code states that no person shall be eligible for any
elective public office unless he files a sworn COC within the period fixed herein. Section
74 thereof enumerates the contents of the COC, to wit:
Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that
the person filing it is announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the province, including
its component cities, highly urbanized city or district or sector which he seeks to
represent; the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and will maintain true
faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or
immigrant to a foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the facts stated
in the certificate of candidacy are true to the best of his knowledge.
Unless a candidate has officially changed his name through a court approved proceeding,
a certificate shall use in a certificate of candidacy the name by which he has been
baptized, or if has not been baptized in any church or religion, the name registered in the
office of the local civil registrar or any other name allowed under the provisions of
existing law or, in the case of a Muslim, his Hadji name after performing the prescribed
religious pilgrimage: Provided, That when there are two or more candidates for an office
with the same name and surname, each candidate, upon being made aware or such fact,
shall state his paternal and maternal surname, except the incumbent who may continue
to use the name and surname stated in his certificate of candidacy when he was elected.
He may also include one nickname or stage name by which he is generally or popularly
known in the locality.
The person filing a certificate of candidacy shall also affix his latest photograph, passport
size; a statement in duplicate containing his bio-data and program of government not
exceeding one hundred words, if he so desires.
And the proper procedure to be taken if a misrepresentation is committed by a candidate
in his COC is to question the same by filing a verified petition pursuant to Section 78,
thus:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy.- A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein
as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than fifteen days before the
election.
Clearly, Section 78 states that the false representation in the contents of the COC
required under Section 74 must refer to material matters in order to justify the
cancellation of the COC. What then constitutes a material misrepresentation?
In Salcedo II v. Commission on Elections,7 petitioner Victorino Salcedo II filed with the
COMELEC a petition seeking cancellation of respondent Ermelita Salcedo's (Ermelita)
COC on the ground that she had made material misrepresentation by stating her
surname as Salcedo. Petitioner claimed that Ermelita had no right to use the surname
Salcedo, since her marriage to Neptali Salcedo was void. The COMELEC En Banc found
that Ermelita did not commit any misrepresentation nor usurp another's name since she
had the right to use her husband's surname for being married to him, and thus, validated
her proclamation as Mayor of Sara, Iloilo. Salcedo appealed the COMELEC's resolution,
and we held:
9
In case there is a material misrepresentation in the certificate of candidacy, the Comelec
is authorized to deny due course to or cancel such certificate upon the filing of a petition
by any person pursuant to Section 78 x x x
As stated in the law, in order to justify the cancellation of the certificate of candidacy
under Section 78, it is essential that the false representation mentioned therein
pertain[s] to a material matter for the sanction imposed by this provision would affect
the substantive rights of a candidate — the right to run for the elective post for which he
filed the certificate of candidacy. Although the law does not specify what would be
considered as a "material representation," the Court has interpreted this phrase in a line
of decisions applying Section 78 of the Code.8
xxxx
Therefore, it may be concluded that the material misrepresentation contemplated by
Section 78 of the Code refer to qualifications for elective office. This conclusion is
strengthened by the fact that the consequences imposed upon a candidate guilty of
having made a false representation in his certificate of candidacy are grave — to prevent
the candidate from running or, if elected, from serving, or to prosecute him for violation
of the election laws. It could not have been the intention of the law to deprive a person of
such a basic and substantive political right to be voted for a public office upon just any
innocuous mistake.
xxxx
Aside from the requirement of materiality, a false representation under Section 78 must
consist of a "deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible." In other words, it must be made with an
intention to deceive the electorate as to one’s qualifications for public office. The use of
surname, when not intended to mislead, or deceive the public as to one's identity is not
within the scope of the provision.9
In Aratea v. Commission on Elections,10 we proclaimed Estela D. Antipolo, the alleged
second placer, as Mayor of San Antonio, Zambales, being the one who remained as the
sole qualified candidate for the mayoralty post and obtained the highest number of votes,
since the COC of Romeo D. Lonzanida, the first placer, was declared void ab initio. We
find that violation of the three-term limit is an eligibility affecting the qualification of a
candidate to elective office and the misrepresentation of such is a ground to grant the
petition to deny due course or cancel a COC. We said that:
Section 74 requires the candidate to certify that he is eligible for the public office he
seeks election. Thus, Section 74 states that "the certificate of candidacy shall state that
the person filing x x x is eligible for said office." The three-term limit rule, enacted to
prevent the establishment of political dynasties and to enhance the electorate’s freedom
of choice, is found both in the Constitution and the law. After being elected and serving
for three consecutive terms, an elective local official cannot seek immediate reelection
for the same office in the next regular election because he is ineligible. One who has an
ineligibility to run for elective public office is not "eligible for [the] office." As used in
Section 74, the word "eligible" means having the right to run for elective public office,
that is, having all the qualifications and none of the ineligibilities to run for the public
office.11
xxxx
In a certificate of candidacy, the candidate is asked to certify under oath his eligibility,
and thus qualification, to the office he seeks election. Even though the certificate of
candidacy does not specifically ask the candidate for the number of terms elected and
served in an elective position, such fact is material in determining a candidate’s
eligibility, and thus qualification for the office. Election to and service of the same local
elective position for three consecutive terms renders a candidate ineligible from running
for the same position in the succeeding elections. Lonzanida misrepresented his
eligibility because he knew full well that he had been elected, and had served, as mayor
of San Antonio, Zambales for more than three consecutive terms yet he still certified that
he was eligible to run for mayor for the next succeeding term. Thus, Lonzanida’s
representation that he was eligible for the office that he sought election constitutes false
material representation as to his qualification or eligibility for the office.12
In Justimbaste v. Commission on Elections,13 where petitioner therein claimed that
respondent committed material misrepresentation when he stated his name in the COC
as Rustico Besa Balderian instead of Chu Teck Siao, we found that it had been established
that in all of respondent's school records, he had been using Rustico Besa Balderian, the
name under which he was baptized and known since he can remember. He never used
the name Chu Teck Siao by which he was registered. It was also established that he had
filed a petition for change of name to avoid any confusion and which the RTC had
granted. We then said, that –
AT ALL EVENTS, the use of a name other than that stated in the certificate of birth is not
a material misrepresentation, as "material misrepresentation" under the earlier-quoted
Section 78 of the Omnibus Election Code refers to "qualifications for elective office." It
need not be emphasized that there is no showing that there was an intent to deceive the
electorate as to private respondent’s identity, nor that by using his Filipino name the
voting public was thereby deceived.14
Clearly, from the foregoing, for the petition to deny due course or cancel the COC of one
candidate to prosper, the candidate must have made a material misrepresentation
involving his eligibility or qualification for the office to which he seeks election, such as
the requisite residency, age, citizenship or any other legal qualification necessary to run
for local elective office as provided in the Local Government Code.15 Hence, petitioner’s
allegation that respondent’s nickname "LRAY JR. MIGZ" written in his COC is a material
misrepresentation is devoid of merit. Respondent's nickname written in the COC cannot
be considered a material fact which pertains to his eligibility and thus qualification to
run for public office.
10
Moreover, the false representation under Section 78 must consist of a deliberate attempt
to mislead, misinform, or hide a fact which would otherwise render a candidate
ineligible. As we said, respondent's nickname is not considered a material fact, and there
is no substantial evidence showing that in writing the nickname "LRAY JR. MIGZ" in his
COC, respondent had the intention to deceive the voters as to his identity which has an
effect on his eligibility or qualification for the office he seeks to assume.
Notably, respondent is known to the voters of the Province of Camarines Sur as the son
of the then incumbent Governor of the province, popularly known as "LRay." Their
relationship is shown by the posters, streamers and billboards displayed in the province
with the faces of both the father and son on them. Thus, the voters of the Province of
Camarines Sur know who respondent is. Moreover, it was established by the affidavits of
respondent’s witnesses that as the father and son have striking similarities, such as their
looks and mannerisms, which remained unrebutted, the appellation of LRAY JR. has been
used to refer to respondent. Hence, the appellation LRAY JR., accompanied by the name
MIGZ16 written as respondent’s nickname in his COC, is not at all misleading to the
voters, as in fact, such name distinguishes respondent from his father, the then
incumbent "Governor LRAY," who was running for a Congressional seat in the 2nd
District of Camarines Sur. As we ruled in Salcedo II v. COMELEC,17the use of a surname,
when not intended to mislead or deceive the public as to one’s identity, is not within the
scope of Section 78 of the Omnibus Election Code. Thus, respondent's nickname written
in his COC, without intending to mislead the voters as to his identity, cannot be canceled.
We find no grave abuse of discretion committed by the COMELEC En Banc in finding that
respondent did not commit material misrepresentation in his COC.
Petitioner relies on Villarosa v. House of Representatives Electoral Tribunal18 to justify
the annulment of respondent's COC. In Villarosa, which involves the counting of ballots
under the manual elections, respondent Quintos filed an election protest relating to the
proclamation of Amelita Villarosa (Villarosa) alleging that the "JTV" votes should not be
counted in the latter's favor. We then held that Villarosa’s use of "JTV" as her nickname
was a clever ploy to make a mockery of the election process; thus, votes of "JTV" were
considered stray votes. In so ruling, we found that "JTV" is the nickname of Villarosa’s
husband, who was then the incumbent representative of Occidental Mindoro; that when
Villarosa's husband ran and campaigned for as representative in both the 1992 and 1995
elections in the same legislative district where Villarosa ran in the May 1998 elections,
he was generally known as "JTV." We thus ruled that the voters who wrote "JTV" in the
ballots had no other person in mind except then incumbent representative Jose Tapales
Villarosa, or the same person whom they have known for a long time as "JTV." We also
took into consideration Villarosa's statement in her affidavit admitting that she was
generally and popularly known in every barangay in Occidental Mindoro as "GIRLIE"
before and after she filed her COC; and even her counsel asserted during the oral
argument that her other nickname before she filed her COC was "Mrs. JTV" and not "JTV."
We also found that since the name "GIRLIE" written on the space for representative was
in fact claimed by petitioner Villarosa and credited in her favor, then the "JTV" votes
under the idem sonans rule cannot be counted for Villarosa, because only one nickname
or stagename is allowed; and that Rule 13 of Section 211 of the Omnibus Election Code,
which allows the use of a nickname and appellation of affection and friendship, provided
that it is accompanied by the first name or surname of the candidate, was not applied
since the "JTV" votes were unaccompanied by her first name or surname. Thus, we found
that malice and bad faith on the part of Villarosa was evident when, in her COC and
campaign materials, she appropriated the initials or nickname of her husband, the
incumbent representative of the district in question.
Villarosa is not on all fours with this case. This case is a petition to deny due course and
to cancel COC on the ground of a statement of a material representation that is false; to
be material, such must refer to an eligibility or qualification for the elective office the
candidate seeks to hold. Here, respondent's nickname is not a qualification for a public
office which affects his eligibility. Notably, respondent's father, who won 3 consecutive
terms as Governor of the Province of Camarines Norte, is popularly known as "LRAY," so
when respondent wrote in his COC, "LRAY JR. MIGZ" as his nickname, he differentiated
himself from Governor "LRAY," which negates any intention to mislead or misinform or
hide a fact which would otherwise render him ineligible. Also, the appellation LRAY JR.
was accompanied by the name MIGZ which was not so in the Villarosa case.
It bears stressing that Section 74 requires, among others, that a candidate shall use in a
COC the name by which he has been baptized, unless the candidate has changed his name
through court-approved proceedings, and that he may include one nickname or
stagename by which he is generally or popularly known in the locality, which respondent
did. As we have discussed, the name which respondent wrote in his COC to appear in the
ballot, is not considered a material misrepresentation under Section 78 of the Omnibus
Election Code, as it does not pertain to his qualification or eligibility to run for an elective
public office. By invoking the case of Villarosa which is in the nature of an election
protest relating to the proclamation of Villarosa, petitioner should have instead filed an
election protest and prayed that the votes for respondent be declared as stray votes, and
not a petition to deny due course or cancel the COC.
Finally, petitioner claims that the false representation of respondent's nickname written
on the COC is meant to undermine the statutory requirement regarding the alphabetical
listing/arrangement of names of the candidate as provided under Section 13 19 of
Republic Act No. (RA) 9369 amending RA 8436, the automated election system; that he
would be put to a great and undue disadvantage as he became no. 5, while respondent
was in no. 4 in the list of candidates for Governor of Camarines Sur.
We are not persuaded.
Considering that respondent's name is VILLAFUERTE, LRAY JR.-MIGZ, his name would
indeed be ahead of petitioner's name, VILLAFUERTE, LUIS, in the official ballot which
contains the alphabetical listing of the candidates for the gubernatorial position of the
Province of Camarines Sur. However, petitioner's claim that such listing would lead to
confusion as to put him to undue disadvantage is merely speculative and without basis as
the voters can identify the candidate they want to vote for.
WHEREFORE, the petition is DENIED. The Resolution dated April 1, 2013, of the
Commission on Elections En Banc, is hereby AFFIRMED.
SO ORDERED.
11
G.R. No. 207900 April 22, 2014
MAYOR GAMAL S. HAYUDINI, Petitioner,
vs.
COMMISSION ON ELECTIONS and MUSTAPHA J. OMAR, Respondents.
DECISION
PERALTA, J.:
For the Court's resolution is a Petition for Certiorari and Prohibition1 under Rule 65,
which petitioner Gamal S. Hayudini (Hayudini) filed to set aside and annul the assailed
Resolutions of the Commission on Elections (COMELEC), dated June 20, 20132 and July
10, 2013,3 which cancelled his Certificate of Candidacy for the mayoralty seat in the 2013
local elections in South Ubian, Tawi-Tawi, for having been issued with grave abuse of
discretion amounting to lack or in excess of jurisdiction.
The antecedent facts are:
On October 5, 2012, Hayudini filed his Certificate ofCandidacy4 (CoC) for the position of
Municipal Mayor of South Ubian, Tawi-Tawi in the May 13, 2013 National and Local
Elections held in the Autonomous Region in Muslim Mindanao. Ten days after, or on
October 15, 2012, Mustapha J. Omar (Omar) filed a Petition to Deny Due Course or Cancel
Hayudini’s CoC, entitled Mustapha J. Omar v. Gamal S. Hayudini, docketed as SPA No. 13-
106(DC)(F).5Omar basically asserted that Hayudini should be disqualified for making
false representation regarding his residence. He claimed that Hayudini declared in his
CoC that he is a resident of the Municipality of South Ubian when, in fact, he resides in
Zamboanga City.
Thereafter, on November 30, 2012, Hayudini filed a Petition for Inclusion in the
Permanent List of Voters in Barangay Bintawlan, South Ubian before the Municipal
Circuit Trial Court (MCTC). Despite the opposition of Ignacio Aguilar Baki, the MCTC
granted Hayudini’s petition on January 31, 2013.6 On that same day, the COMELEC’s First
Division dismissed7 Omar’s earlier petition to cancel Hayudini’s CoC in SPA No. 13-
106(DC)(F) for lack of substantial evidence that Hayudini committed false
representation as to his residency.
Oppositor Baki, subsequently, elevated the case to the Bongao Regional Trial Court
(RTC), Branch 5. The RTC, on March 8, 2013, Reversed8 the MCTC ruling and ordered the
deletion of Hayudini’s name in Barangay Bintawlan’s permanent list of voters. In view of
said decision, Omar filed before the COMELEC a Petition to Cancel the Certificate of
Candidacy of Gamal S. Hayudini by Virtue of a Supervening Event on March 26, 2013. The
petition was docketed as SPA No. 13-249(DC)(F).9 Hayudini appealed the March 8, 2013
RTC decision to the Court of Appeals (CA), but on April 17, 2013, in CA-G.R. SP No.
05426,10 the same was denied.
On May 13, 2013, Hayudini won the mayoralty race in South Ubian, Tawi-Tawi. He was
proclaimed and, consequently, took his oath of office.
On June 20, 2013, the COMELEC Second Division issued a Resolution 11 granting Omar’s
second petition to cancel Hayudini’s CoC. The dispositive portion of the COMELEC
Resolution reads:
WHEREFORE, premises considered, the instant petition is hereby GRANTED.
Accordingly, the Certificate of Candidacy filed by Gamal S. Hayudini as Mayor of South
Ubian, Tawi-Tawi, in the 13 May 2013 elections, is hereby CANCELLED.
The Office of the Deputy Executive Director for Operations is hereby directed to
constitute a Special Board of Canvassers for the purpose of proclaiming the lawful
winner for mayoralty position in South Ubian, Tawi-Tawi during the 13 May 2013
elections.
SO ORDERED.12
Hayudini, thus, filed a Motion for Reconsideration with the COMELEC En Banc, arguing
that its Second Division committed grave error when it gave due course to a belatedly
filed petition and treated the March 8, 2013 RTC Decision as a supervening event.
On July 10, 2013, the COMELEC En Banc denied Hayudini’s Motion for Reconsideration
for lack of merit. The decretal portion of the En Banc’s assailed Resolution states:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES
to DENY this Motion for Reconsideration for LACK OF MERIT. Consequently, the June 20,
2013 Resolution of the Commission (Second Division) is hereby affirmed.
Corollary thereto, the proclamation of respondent GAMAL S. HAYUDINI is hereby
declared null and void and without any legal force and effect. SALMA A. OMAR is hereby
proclaimed as the duly-elected Mayor for South Ubian, Tawi-Tawi, being the qualified
candidate obtaining the highest number of votes, considering the doctrine laid down by
the case Aratea v. Comelec13 that a cancelled CoC cannot give rise to a valid candidacy,
and much less, to a valid vote, to wit:
"Ergo, since respondent Lonzanida was never a candidate for the position of mayor [of]
San Antonio, Zambales, the votes cast for him should be considered stray votes.
Consequently, Intervenor Antipolo, who remains as the sole candidate for the mayoralty
post and obtained the highest number of votes, should now be proclaimed as the duly-
elected Mayor of San Antonio, Zambales.
Lonzanida's certificate of candidacy was cancelled, because he was ineligible or not
qualified to run for Mayor. Whether his certificate of candidacy is cancelled before or
after elections is immaterial because the cancellation on such ground means he was
never a candidate from the very beginning, his certificate of candidacy being void ab
12
initio. There was only one qualified candidate for Mayor in the May 2010 elections -
Antipolo, who therefore received the highest number of votes."
The Office of the Deputy Executive Director for Operations is hereby directed to
constitute a Special Board of Canvassers for the purpose of proclaiming SALMA OMAR as
the winning candidate for mayoralty position in South Ubian, Tawi-Tawi during the May
13, 2013 elections.
SO ORDERED.14
Thus, Hayudini filed the instant petition for certiorari and prohibition.
Hayudini mainly advances the following arguments:
A.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR IN EXCESS OF JURISDICTION WHEN IT FAILED TO OUTRIGHTLY DISMISS
THE INSTANT PETITION TO CANCEL CERTIFICATE OF CANDIDACY DUE TO
SUPERVENING EVENT (SPA. NO. 13-249(DC)(F), DESPITE THE FAILURE OF
RESPONDENT OMAR TO COMPLY WITH THE MANDATORY REQUIREMENTS OF
SECTIONS 2 AND 4 OF THE COMELEC RESOLUTION NO. 9532.
xxxx
C.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR IN EXCESS OF JURISDICTION WHEN IT REVISITED AND MODIFIED THE
FINAL AND EXECUTORY RESOLUTION ISSUED BY THE FIRST DIVISION IN THE SPA NO.
13-106(DC)(F).
III.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR IN EXCESS OF JURISDICTION WHEN IT RESOLVED TO CANCEL PETITIONER
HAYUDINI’S CERTIFICATE OF CANDIDACY AND DECLARE HIS PROCLAMATION AS NULL
AND VOID.
xxxx
L.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR IN EXCESS OF JURISDICTION WHEN IT DECREED THE PROCLAMATION OF
SALMA A. OMAR AS THE DULY-ELECTED MAYOR FOR SOUTH UBIAN, TAWI-TAWI.15
The Court finds the petition to be without merit.
A special civil action for certiorari under Rule 65 is an independent action based on
thespecific grounds and available only if there is no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law. It will only prosper if grave abuse of
discretion is alleged and is actually proved to exist. Grave abuse of discretion has been
defined as the arbitrary exercise of power due to passion, prejudice or personal hostility;
or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion
or refusal to perform a positive duty enjoined by law or to act at all in contemplation of
law. For an act to be condemned as having been done with grave abuse of discretion,
such an abuse must be patent and gross.16 Here, Hayudini miserably failed to prove that
the COMELEC rendered its assailed Resolutions with grave abuse of discretion.
Hayudini contends that the COMELEC committed grave abuse of discretion when it
admitted, and later granted, Omar’s petition despite failure to comply with Sections 2
and 4 of Rule 23 of the COMELEC Rules of Procedure, as amended by Resolution No.
9523. The subject sections read:
Section 2. Period to File Petition. — The Petition must be filed within five (5) days from
the last day for filing of certificate of candidacy; but not later than twenty five (25) days
from the time of filing of the certificate of candidacy subject of the Petition. In case of a
substitute candidate, the Petition must be filed within five (5) days from the time the
substitute candidate filed his certificate of candidacy.
xxxx
Section 4. Procedure to be observed. — Both parties shall observe the following
procedure:
1. The petitioner shall, before filing of the Petition, furnish a copy of the Petition, through
personal service to the respondent. In cases where personal service is not feasible, or the
respondent refuses to receive the Petition, or the respondents’ whereabouts cannot be
ascertained, the petitioner shall execute an affidavit stating the reason or circumstances
therefor and resort to registered mail as a mode of service. The proof of service or the
affidavit shall be attached to the Petition to be filed;17
Here, Hayudini filed his CoC on October 5, 2012, which was also the last day of filing of
CoC for the May 13, 2013 elections. Omar, on the other hand, filed the subject petition
only on March 26, 2013. Under the COMELEC Rules, a Petition to Deny Due Course or
Cancel CoC must be filed within five days from the last day for filing a certificate of
candidacy, but not later than twenty-five days from the time of filing of the CoC subject of
the petition. Clearly, Omar’s petition was filed way beyond the prescribed period.
13
Likewise, he failed to provide sufficient explanation as to why his petition was not served
personally to Hayudini.
Notwithstanding the aforementioned procedural missteps, the Court sustains the
COMELEC’s liberal treatment of Omar’s petition.
As a general rule, statutes providing for election contests are to be liberally construed in
order that the will of the people in the choice of public officers may not be defeated by
mere technical objections. Moreover, it is neither fair nor just to keep in office, for an
indefinite period, one whose right to it is uncertain and under suspicion. It is imperative
that his claim be immediately cleared, not only for the benefit of the winner but for the
sake of public interest, which can only be achieved by brushing aside technicalities of
procedure that protract and delay the trial of an ordinary action. This principle was
reiterated in the cases of Tolentino v. Commission on Elections18 and De Castro v.
Commission on Elections,19 where the Court held that "in exercising its powers and
jurisdiction, as defined by its mandate to protect the integrity of elections, the COMELEC
must not be straitjacketed by procedural rules in resolving election disputes."20
Settled is the rule that the COMELEC Rules of Procedure are subject to liberal
construction.1âwphi1 The COMELEC has the power to liberally interpret or even
suspend its rules of procedure in the interest of justice, including obtaining a speedy
disposition of all matters pending before it. This liberality is for the purpose of
promoting the effective and efficient implementation of its objectives − ensuring the
holding of free, orderly, honest, peaceful, and credible elections, as well as achieving just,
expeditious, and inexpensive determination and disposition of every action and
proceeding brought before the COMELEC. Unlike an ordinary civil action, an election
contest is imbued with public interest. It involves not only the adjudication of private
and pecuniary interests of rival candidates, but also the paramount need of dispelling the
uncertainty which beclouds the real choice of the electorate. And the tribunal has the
corresponding duty to ascertain, by all means within its command, whom the people
truly chose as their rightful leader.21
Indeed, Omar had previously filed a Petition to Deny Due Course or Cancel Hayudini’s
CoC on October 15, 2012, docketed as SPA No. 13-106(DC)(F). This was dismissed on
January 31, 2013, or the same day the MCTC granted Hayudini’s petition to be included
in the list of voters. However, on March 8, 2013, the RTC reversed the MCTC ruling and,
consequently, ordered the deletion of Hayudini’s name in Barangay Bintawlan’s
permanent list of voters. Said deletion was already final and executory under the
law.22 Hayudini, however, still appealed the case to the CA, which was subsequently
denied. Notably, thereafter, he went to the CA again, this time to file a petition for
certiorari, docketed as CA-G.R. SP No. 05499.23 In a Resolution dated July 9, 2013, the CA
also denied said petition primarily because of Hayudini’s act of engaging in the
pernicious practice of forum shopping by filing two modes of appeal before said
court.24 Hence, by virtue of the finality of said RTC decision deleting his name from the
voters’ list, Hayudini, who had been previously qualified under the law25 to run for an
elective position, was then rendered ineligible.
Given the finality of the RTC decision, the same should be considered a valid supervening
event. A supervening event refers to facts and events transpiring after the judgment or
order had become executory. These circumstances affect or change the substance of the
judgment and render its execution inequitable.26 Here, the RTC’s March 8, 2013 decision,
ordering the deletion of Hayudini’s name in the list of voters, which came after the
dismissal of Omar’s first petition, is indubitably a supervening event which would render
the execution of the ruling in SPA No. 13-106(DC)(F) iniquitous and unjust. As the
COMELEC aptly ruled, the decision to exclude Hayudini was still non-existent when the
COMELEC first promulgated the Resolution in SPA No. 13-106(DC)(F) on January 31,
2013, or when the issues involved therein were passed upon.27 The First Division even
expressed that although the Election Registration Board (ERB) denied Hayudini’s
application for registration, it could not adopt the same because it was not yet final as
Hayudini was still to file a Petition for Inclusion before the MCTC.28 Thus, it is not far-
fetched to say that had this final RTC finding been existent before, the COMELEC First
Division could have taken judicial notice of it and issued a substantially different ruling
in SPA No. 13-106(DC)(F).29
The same ruling adequately equipped Omar with the necessary ground to successfully
have Hayudini’s CoC struck down. Under the rules, a statement in a certificate of
candidacy claiming that a candidate is eligible to run for public office when in truth he is
not, is a false material representation, a ground for a petition under Section 78 of the
Omnibus Election Code.
Sections 74 and 78 read:
Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that
the person filing it is announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the province, including
its component cities, highly urbanized city or district or sector which he seeks to
represent; the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and will maintain true
faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or
immigrant to a foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the facts stated
in the certificate of candidacy are true to the best of his knowledge.
xxxx
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
the person exclusively on the ground that any material representation contained therein
as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than fifteen days before the
election.
14
The false representation mentioned in these provisions must pertain to a material fact,
not to a mere innocuous mistake. A candidate who falsifies a material fact cannot run; if
he runs and is elected, cannot serve; in both cases, he or she can be prosecuted for
violation of the election laws. These facts pertain to a candidate's qualification for
elective office, such as his or her citizenship and residence. Similarly, the candidate's
status as a registered voter falls under this classification as it is a legal requirement
which must be reflected in the CoC. The reason for this is obvious: the candidate, if he or
she wins, will work for and represent the local government under which he or she is
running.30 Even the will of the people, as expressed through the ballot, cannot cure the
vice of ineligibility, especially if they mistakenly believed, as in the instant case, that the
candidate was qualified.31
Aside from the requirement of materiality, a false representation under Section 78 must
consist of a "deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible." Simply put, it must be made with a malicious
intent to deceive the electorate as to the potential candidate's qualifications for public
office.32
Section 74 requires the candidate to state under oath in his CoC "that he is eligible for
said office." A candidate is eligible if he has a right to run for the public office. If a
candidate is not actually eligible because he is not a registered voter in the municipality
where he intends to be elected, but still he states under oath in his certificate of
candidacy that he is eligible to run for public office, then the candidate clearly makes a
false material representation, a ground to support a petition under Section 78. 33 It is
interesting to note that Hayudini was, in fact, initially excluded by the ERB as a voter. On
November 30, 2012, the ERB issued a certificate confirming the disapproval of
Hayudini’s petition for registration.34 This is precisely the reason why he needed to file a
Petition for Inclusion in the Permanent List of Voters in Barangay Bintawlan before the
MCTC. Thus, when he stated in his CoC that "he is eligible for said office," Hayudini made
a clear and material misrepresentation as to his eligibility, because he was not, in fact,
registered as a voter in Barangay Bintawlan.
Had the COMELEC not given due course to Omar’s petition solely based on procedural
deficiencies, South Ubian would have a mayor who is not even a registered voter in the
locality he is supposed to govern, thereby creating a ridiculously absurd and outrageous
situation. Hence, the COMELEC was accurate in cancelling Hayudini’s certificate of
candidacy. Hayudini likewise protests that it was a grave error on the part of the
COMELEC to have declared his proclamation null and void when no petition for
annulment of his proclamation was ever filed. What petitioner seems to miss, however, is
that the nullification of his proclamation as a winning candidate is also a legitimate
outcome − a necessary legal consequence − of the cancellation of his CoC pursuant to
Section 78. A CoC cancellation proceeding essentially partakes of the nature of a
disqualification case.35 The cancellation of a CoC essentially renders the votes cast for the
candidate whose certificate of candidacy has been cancelled as stray votes.36 If the
disqualification or CoC cancellation or denial case is not resolved before the election day,
the proceedings shall continue even after the election and the proclamation of the
winner. Meanwhile, the candidate may be voted for and even be proclaimed as the
winner, but the COMELEC's jurisdiction to deny due course and cancel his or her CoC
continues. This rule likewise applies even if the candidate facing disqualification has
already taken his oath of office.37 The only exception to this rule is in the case of
congressional and senatorial candidates where the COMELEC ipso jure loses jurisdiction
in favor of either the Senate or the House of Representatives Electoral Tribunal after the
candidates have been proclaimed, taken the proper oath, and also assumed office. 38
It bears stressing that one of the requirements for a mayoralty candidate is that he must
be a resident of the city or municipality where he intends to be elected. Thus, under
Section 74 of the Omnibus Election Code, it is required that a candidate must certify
under oath that he is eligible for the public office he seeks election. In this case, when
petitioner stated in his CoC that he is a resident of Barangay Bintawlan, South Ubian,
Tawi Tawi and eligible for a public office, but it turned out that he was declared to be a
non-resident thereof in a petition for his inclusion in the list of registered voters, he
therefore committed a false representation in his CoC which pertained to a material fact
which is a ground for the cancellation of his CoC under Section 78 of the Omnibus
Election Code. Petitioner's ineligibility for not being a resident of the place he sought
election is not a ground for a petition for disqualification, since the grounds enumerated
under Section 6839 of the Omnibus Election Code specifically refer to the commission of
prohibited acts, and possession of a permanent resident status in a foreign country.
As held in Aratea v. COMELEC,40 which is a case for cancellation of CoC under Section 78
of the Omnibus Election Code, a cancelled certificate of candidacy void ab initio cannot
give rise to a valid candidacy, and much less to valid votes. Whether a certificate of
candidacy is cancelled before or after the elections is immaterial, because the
cancellation on such ground means he was never a candidate from the very beginning,
his certificate of candidacy being void ab initio. We then found that since the winning
mayoralty candidate's certificate of candidacy was void ab initio, he was never a
candidate at all and all his votes were considered stray votes, and thus, proclaimed the
second placer, the only qualified candidate, who actually garnered the highest number of
votes, for the position of Mayor.
We find the factual mileu of the Aratea case applicable in the instant case, since this is
also a case for a petition to deny due course or cancel a certificate of candidacy. Since
Hayudini was never a valid candidate for the position of the Municipal Mayor of South
Ubian, Tawi-Tawi, the votes cast for him should be considered stray votes, Consequently,
the COMELEC properly proclaimed Salma Omar, who garnered the highest number of
votes in the remaining qualified candidates for the mayoralty post, as the duly-elected
Mayor of South Ubian, Tawi Tawi.
Codilla v. De Venecia case has no application in this case, since it dealt with a petition for
disqualification under Section 68 of the Omnibus Election Code and not a petition to
deny due course or cancel certificate of candidacy under Section 78 which is the case at
bar.
Finally, contrary to Hayudini's belief, the will of the electorate is still actually respected
even when the votes for the ineligible candidate are disregarded. The votes cast in favor
of the ineligible candidate are not considered at all in determining the winner of an
election for these do not constitute the sole and total expression of the sovereign voice.
15
On the other hand, those votes for the eligible and legitimate candidates form an integral
part of said voice, which must equally be given due respect , if not more.41

WHEREFORE, the petition is DISMISSED. The COMELEC Resolutions dated June 20, 2013
and July 10, 2013 are hereby AFFIRMED. No pronouncement as to costs.

SO ORDERED.

16
G.R. No. 192856 March 8, 2011
FERNANDO V. GONZALEZ, Petitioner,
vs.
COMMISSION ON ELECTIONS, RENO G. LIM, STEPHEN C. BICHARA and THE SPECIAL
BOARD OF CANVASSERS constituted per Res. dated July 23, 2010 of the
Commission on Elections En Banc,Respondents.
DECISION
VILLARAMA, JR., J.:
This is a petition for certiorari, prohibition and mandamus under Rule 65 in relation to
Rule 64 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolution1 dated
May 8, 2010 of the Commission on Elections (COMELEC) Second Division and
Resolution2 dated July 23, 2010 of the Commission En Banc, in SPA No. 10-074 (DC).
The facts are uncontroverted.
Petitioner Fernando V. Gonzalez and private respondent Reno G. Lim both filed
certificates of candidacy for the position of Representative of the 3rd congressional
district of the Province of Albay in the May 10, 2010 elections. Lim was the incumbent
congressman of the 3rd district while Gonzalez was former Governor of Albay, having
been elected to said position in 2004 but lost his re-election bid in 2007.
On March 30, 2010, a Petition for Disqualification and Cancellation of Certificate of
Candidacy (COC)3 was filed by Stephen Bichara [SPA No. 10-074 (DC)] on the ground that
Gonzalez is a Spanish national, being the legitimate child of a Spanish father and a
Filipino mother, and that he failed to elect Philippine citizenship upon reaching the age of
majority in accordance with the provisions of Commonwealth Act (C.A.) No. 625. It was
further alleged that Gonzalez’s late registration of his certificate of birth with the Civil
Registry of Ligao City on January 17, 2006, even if accompanied by an affidavit of election
of Philippine citizenship, was not done within a reasonable time as it was in fact
registered 45 years after Gonzalez reached the age of majority on September 11, 1961.
In his Answer,4 Gonzalez denied having willfully made false and misleading statement in
his COC regarding his citizenship and pointed out that Bichara had filed the wrong
petition under Section 68 of the Omnibus Election Code(OEC) to question his eligibility
as a candidate. Gonzalez also argued that the petition which should have been correctly
filed under Section 78 of the OEC was filed out of time. He asserted that he is a Filipino
citizen as his Alien Certificate of Registration was issued during his minority. However,
he took an Oath of Allegiance to the Republic of the Philippines before the Justice of the
Peace in Ligao, Albay on his 21st birthday on September 11, 1961. Since then he had
comported himself as a Filipino considering that he is married to a Filipina; he is a
registered voter who voted during elections; he has been elected to various local
positions; he holds a Philippine passport; and most importantly, he has established his
life in the Philippines as a Filipino. Gonzalez contended that he is deemed a natural-born
Filipino citizen under the 1987 Constitution which includes in the definition of natural-
born citizens "[t]hose born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority."
On May 8, 2010, the COMELEC’s Second Division issued the assailed resolution which
decreed:
WHEREFORE, premises considered, we resolve to, as we do hereby, GRANT this Petition.
Respondent Fernando Vallejo Gonzalez is hereby declared disqualified to be a candidate
for the position of Member of the House of Representatives, 3rd District, Province of
Albay, in the forthcoming National and Local Elections on May 10, 2010.
SO ORDERED.5
Finding the petition to be both a petition for disqualification and cancellation of COC, the
Second Division ruled that the same was filed on time. On the election of Philippine
citizenship by Gonzalez, it held that what Gonzalez submitted is a mere photocopy of his
oath of allegiance which was not duly certified by the National Statistics Office, and hence
there was no compliance with the requirement of filing with the nearest civil registry, the
last act required of a valid oath of allegiance under C.A. No. 625. Further, the Second
Division found that in the late registration of Gonzalez’s birth on January 17, 2006, he
declared that he is a citizen of the Philippines; this at best, was his own conclusion, and at
worst, conflicts with his purported oath of allegiance for it would have been a superfluity
to express his choice of Philippine citizenship by taking the oath of allegiance if he was
already a Filipino citizen. And the fact that Gonzalez attended formal schooling in this
country, worked in private firms and in the government service, should not take the
place of the stringent requirements of constitutional and statutory provisions on
acquisition of Philippine citizenship.6
Gonzalez thru counsel received a copy of the aforesaid resolution on May 11, 2010 at
5:20 p.m.7 On even date, Lim petitioned the Provincial Board of Canvassers (PBOC) to
consider the votes cast for Gonzalez as stray or not counted and/or suspend his
proclamation, citing the Second Division’s May 8, 2010 resolution disqualifying Gonzalez
as a candidate for the May 10, 2010 elections.8 The PBOC, however, dismissed the
petition stating that the period for filing of a motion for reconsideration of the COMELEC
resolution has not yet lapsed, and hence the same is not yet final and executory.9 Lim
appealed the PBOC’s dismissal of his petition to the COMELEC (SPC No. 10-006) but his
appeal was eventually dismissed after he filed a motion to withdraw the same.10
Based on the results of the counting and canvassing of votes, Gonzalez emerged as the
winner having garnered a total of 96,000 votes while Lim ranked second with 68,701
votes. On May 12, 2010, the PBOC officially proclaimed Gonzalez as the duly elected
Representative of the 3rd district of Albay. Gonzalez took his oath of office on the same
day.11 On May 13, 2010, Bichara filed a Very Urgent Motion to Suspend the Effects of the
Proclamation of Fernando V. Gonzalez.12
17
On May 14, 2010, Gonzalez filed a motion for reconsideration of the May 8, 2010
resolution. Gonzalez reiterated that the Second Division’s finding that Bichara’s petition
is both a petition for disqualification and to cancel COC is not borne by the petition itself
and contrary to Section 68 of the OEC and COMELEC Resolution No. 8696. Applying
Section 78 of the OEC which is the proper petition based on alleged deliberate
misrepresentation and false statement in the COC, Gonzalez contended that Bichara’s
petition was filed out of time. It was further argued that the subsequent election,
proclamation and taking of oath of office of Gonzalez are events warranting the dismissal
of SPA No. 10-074 (DC). Stressing that the voice of the people must be respected in this
case, Gonzalez pointed out that his not being a Filipino was never an issue in the
previous elections where he ran and won (Ligao City Mayor for three terms and
Governor of Albay from 2004-2007). He claimed that the petition filed by Bichara, who
ran against Gonzalez’s wife, Linda Passi Gonzalez (for re-election as Ligao City Mayor) in
the recently concluded elections was indicative of harassment considering that a similar
petition for disqualification and cancellation of COC was also filed against his wife by
Anna Marie C. Bichara, said to be a sister of the petitioner in SPA No. 10-074 (DC).13
On May 22, 2010, Lim filed a Motion for Leave to Intervene as Petitioner stating that
being a candidate for the same position, he has legal interest in the success of the petition
in SPA No. 10-074 (DC).14
In its Resolution dated July 23, 2010, the COMELEC En Banc denied the motion for
reconsideration and affirmed its finding that Gonzalez failed to prove with sufficient
evidence that he had fully complied with the requirements for electing Philippine
citizenship under C.A. No. 625. It likewise emphasized that the motion for
reconsideration filed by Gonzalez was pro forma and hence it did not suspend the effects
of the May 8, 2010 resolution disqualifying him as a candidate, conformably with
Sections 1 and 4, Rule 19 of the COMELEC Rules of Procedure in relation to Section 7 of
COMELEC Resolution No. 8696. Invoking its power to suspend and set aside the
proclamation of winning candidates pursuant to Section 16 of COMELEC Resolution No.
8678 in relation to Section 6 of Republic Act (R.A.) No. 6646,15 the Commission held that
the proclamation of Gonzalez by the PBOC was premature and illegal. Finally, the motion
to intervene filed by Lim was found to be proper and was accordingly granted.
The dispositive portion of the resolution reads:
WHEREFORE, premises considered, the Commission (En Banc) RESOLVED to, as it does
hereby:
1. ANNUL the invalid proclamation of the respondent Fernando V. Gonzalez as
the elected Member of the House of Representative as he is DISQUALIFIED to
run and be voted for the position of Member of the House of Representatives in
the May 10, 2010 elections;
2. DENY for utter lack of merit the Motion for Reconsideration of respondent
FERNANDO V. GONZALEZ; and
3. AFFIRM the Resolution of the Second Division declaring respondent
Fernando V. Gonzalez DISQUALIFIED to run and be voted for as such.
4. Immediately CONSTITUTE a Special Provincial Board of Canvassers of Albay
who will PROCLAIM RENO G. LIM as the duly elected Member of the House of
Representative of the Third District of Albay for being the bona fide candidate
who garnered the highest number of votes in the May 10, 2010 elections.
SO ORDERED.16
Commissioner Rene V. Sarmiento dissented from the majority ruling denying the motion
for reconsideration of Gonzalez, stating that the people of the 3rd District of Albay has
already spoken as to who is their choice of Representative in the Lower House of
Congress and in case of doubt as to the qualification of the winning candidate, the doubt
will be resolved in favor of the will of the people.17
A separate opinion was written by Commissioner Armando C. Velasco stating that the
COMELEC no longer has jurisdiction to decide on the matter of the qualifications of
Gonzalez, the winning candidate who had already been proclaimed, taken his oath and
assumed the office as Representative of the 3rd District of Albay, for which reason the
COMELEC’s jurisdiction ends and that of the House of Representatives Electoral Tribunal
(HRET) begins. He likewise disagreed with the majority’s conclusion that Gonzalez’s
proclamation was invalid considering that: (1) records are bereft of indication that the
PBOC had been ordered to suspend the proclamation of Gonzalez; (2) the May 8, 2010
Resolution disqualifying Gonzalez had not yet become final and executory; (3) the date of
said resolution was not a previously fixed date as required by Section 6 of COMELEC
Resolution No. 8696, as the records do not show that the parties have been informed of
said date of promulgation beforehand; and (4) the three-day period for the filing of a
motion for reconsideration should be reckoned from the date of receipt by Gonzalez of
copy of the resolution which is May 11, 2010, hence the PBOC acted well within its
authority in proclaiming Gonzalez. Commissioner Velasco also disagreed with the
majority ruling that Gonzalez’s motion for reconsideration was pro forma, and
maintained that said motion was timely filed which effectively suspended the execution
of the May 8, 2010 Resolution. Lastly, he found the order to constitute a Special
Provincial Board of Canvassers for the purpose of proclaiming intervenor Lim without
basis. Since the May 8, 2010 Resolution was not yet final on election day, the votes cast
for Gonzalez cannot be considered stray. Besides, a minority or defeated candidate like
Lim cannot be deemed elected to the office in cases where the winning candidate is
declared ineligible.18
Gonzalez filed the instant petition on July 29, 2010 while Lim filed a Very Urgent Motion
For the Issuance of Writ of Execution which the COMELEC granted on August 5,
2010.19 On August 18, 2010, Lim was proclaimed by a Special Board of Canvassers and
subsequently took his oath of office before Assistant State Prosecutor Nolibien N.
Quiambao.20
18
In a letter dated August 23, 2010, Lim requested Speaker Feliciano R. Belmonte, Jr. for
the administration of his oath and registration in the Roll of the House of
Representatives representing the 3rd District of Albay. However, Speaker Belmonte
refused to grant Lim’s request saying that the issue of qualification of Gonzalez for the
position of Member of the House of Representatives is within the exclusive jurisdiction of
the HRET, citing this Court’s ruling in Limkaichong v. Commission on Elections21/22.
Gonzalez contends that the COMELEC gravely abused its discretion in issuing the
assailed resolutions insofar as –
1. It would install the Respondent Reno G. Lim as the Third District of Albay’s
Representative even though Lim never won the election, and who never
became a legal party in the case;
2. It would hold that the petitioner Gonzalez is not a Filipino citizen;
3. It would go on to convene a "Special Board of Canvassers of Albay" created
for the sole purpose of proclaiming the respondent Lim as the actual winner of
the May 10 elections in the Third District of Albay;
x x x the Commission’s resolutions, insofar as it was:
4. Issued with such great speed and haste that its mistakes are glaring;
5. Issued without the required (valid) certification;
6. Insofar as it did not hold that the respondent Reno [G.] Lim had committed
more than one act of forum-shopping.23
In his Comment,24 the Solicitor General found no grave abuse of discretion committed by
the COMELEC in issuing the assailed resolutions stating that the Commission correctly
ruled that Gonzalez is not a natural-born citizen of the Philippines by his failure to
perfect his election of Philippine citizenship in accordance with C.A. No. 625 and R.A. No.
562. He likewise adopted the position of the COMELEC that Limkaichong is not
applicable to the present case and that the motion for reconsideration filed by Gonzalez
was pro forma.
The petition presents the following issues for resolution: (1) whether the petition in SPA
No. 10-074 (DC) was timely filed; (2) whether Gonzalez was validly proclaimed as the
duly elected Representative of the 3rd District of Albay in the May 10, 2010 elections;
and (3) whether the COMELEC had lost jurisdiction over the issue of Gonzalez’s
citizenship.
We find the petition meritorious.
A petition to cancel a candidate’s COC may be filed under Section 78 of the OEC which
provides:
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. -- A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein
as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than fifteen days before the
election. (Underlining supplied.)
A petition for disqualification of a candidate may also be filed pursuant to Section 68 of
the same Code which states:
SEC. 68. Disqualifications. -- Any candidate who, in an action or protest in which he is a
party is declared by final decision of a competent court guilty of, or found by the
Commission of having: (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign
an amount in excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the
office. Any person who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws.
The prohibited acts covered by Section 68 refer to election campaign or political activity
outside the campaign period (Section 80); removal, destruction or defacement of lawful
election propaganda (Section 83); certain forms of election propaganda (Section 85);
violation of rules and regulations on election propaganda through mass media; coercion
of subordinates (Section 261 [d]); threats, intimidation, terrorism, use of fraudulent
device or other forms of coercion (Section 261 [e]); unlawful electioneering (Section 261
[k]); release, disbursement or expenditure of public funds (Section 261 [v]); solicitation
of votes or undertaking any propaganda on the day of the election (Section 261 [cc], sub-
par.6).
As to the ground of false representation in the COC under Section 78, we held in Salcedo
II v. Commission on Elections25 that in order to justify the cancellation of COC, it is
essential that the false representation mentioned therein pertain to a material matter for
the sanction imposed by this provision would affect the substantive rights of a candidate
– the right to run for the elective post for which he filed the certificate of candidacy.
Although the law does not specify what would be considered as a "material
representation", the Court concluded that this refers to qualifications for elective office.
Citing previous cases in which the Court interpreted this phrase, we held that Section 78
contemplates statements regarding age,26 residence27 and citizenship or non-possession
of natural-born Filipino status.28 Furthermore, aside from the requirement of materiality,
19
the false representation must consist of a deliberate attempt to mislead, misinform, or
hide a fact which would otherwise render a candidate ineligible. In other words, it must
be made with an intention to deceive the electorate as to one’s qualification for public
office.29
Significantly, we pointed out in Salcedo II the two remedies available for questioning the
qualifications of a candidate, thus:
There are two instances where a petition questioning the qualifications of a registered
candidate to run for the office for which his certificate of candidacy was filed can be
raised under the Omnibus Election Code (B.P. Blg. 881), to wit:
"(1) Before election, pursuant to Section 78 thereof which provides that:
xxx
and
"(2) After election, pursuant to Section 253 thereof, viz:
‘Sec. 253. Petition for quo warranto. - Any voter contesting the election of any Member of
the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility
or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo
warranto with the Commission within ten days after the proclamation of the results of the
election."
(emphasis supplied)
The only difference between the two proceedings is that, under Section 78, the
qualifications for elective office are misrepresented in the certificate of candidacy and
the proceedings must be initiated before the elections, whereas a petition for quo
warranto under Section 253 may be brought on the basis of two grounds - (1)
ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated
within ten days after the proclamation of the election results. Under Section 253, a
candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if
he lacks any of the qualifications for elective office.30 (Emphasis supplied.)
Clearly, the only instance where a petition questioning the qualifications of a candidate
for elective office can be filed before election is when the petition is filed under Section
78 of the OEC.
The petition in SPA No. 10-074 (DC) based on the allegation that Gonzalez was not a
natural-born Filipino which was filed before the elections, is in the nature of a petition
filed under Section 78. The recitals in the petition in said case, however, state that it was
filed pursuant to Section 4 (b) of COMELEC Resolution No. 8696 and Section 68 of the
OEC to disqualify a candidate for lack of qualifications or possessing some grounds for
disqualification. The COMELEC treated the petition as one filed both for disqualification
and cancellation of COC, with the effect that Section 68, in relation to Section 3, Rule 25 of
the COMELEC Rules of Procedure, is applicable insofar as determining the period for
filing the petition.
Rule 25 of the COMELEC Rules of Procedure on Disqualification of Candidates provides:
Section 1. Grounds for Disqualification. – Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.
xxxx
Sec. 3. Period to File Petition. -- The petition shall be filed any day after the last day for
filing of certificates of candidacy but not later than the date of proclamation. (Emphasis
supplied.)
On the other hand, the procedure for filing a petition for cancellation of COC is covered
by Rule 23 of the COMELEC Rules of Procedure, which provides:
Section 1. Grounds for Denial of Certificate of Candidacy. -- A petition to deny due course
to or cancel a certificate of candidacy for any elective office may be filed with the Law
Department of the Commission by any citizen of voting age or a duly registered political
party, organization, or coalition or political parties on the exclusive ground that any
material representation contained therein as required by law is false.
Sec. 2. Period to File Petition. – The petition must be filed within five (5) days following
the last day for the filing of certificate of candidacy.
x x x x (Emphasis supplied.)
In Loong v. Commission on Elections,31 we categorically declared that the period for
filing a petition for cancellation of COC based on false representation is covered by Rule
23 and not Rule 25 of the COMELEC Rules of Procedure. Further, we held that Section 3
of Rule 25 allowing the filing of a petition at any time after the last day for filing of COC’s
but not later than the date of proclamation, is merely a procedural rule that cannot
supersede Section 78 of the OEC. We quote the following pertinent discussion in said
case:
x x x Section 78 of the same Code states that in case a person filing a certificate of
candidacy has committed false representation, a petition to cancel the certificate of the
aforesaid person may be filed within twenty-five (25) days from the time the certificate
was filed.
20
Clearly, SPA No. 90-006 was filed beyond the 25-day period prescribed by Section 78 of
the Omnibus Election Code.
We do not agree with private respondent Ututalum’s contention that the petition for
disqualification, as in the case at bar, may be filed at any time after the last day for filing a
certificate of candidacy but not later than the date of proclamation, applying Section 3,
Rule 25 of the Comelec Rules of Procedure.
xxxx
The petition filed by private respondent Ututalum with the respondent Comelec to
disqualify petitioner Loong on the ground that the latter made a false representation in
his certificate of candidacy as to his age, clearly does not fall under the grounds of
disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the
Comelec Rules of Procedure governing petitions to cancel certificate of candidacy.
Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the
last day for the filing of certificates of candidacy but not later than the date of
proclamation, is merely a procedural rule issued by respondent Commission which,
although a constitutional body, has no legislative powers. Thus, it can not supersede
Section 78 of the Omnibus Election Code which is a legislative enactment.
We also do not find merit in the contention of respondent Commission that in the light of
the provisions of Section 6 and 7 of Rep. Act No. 6646, a petition to deny due course to or
cancel a certificate of candidacy may be filed even beyond the 25-day period prescribed
by Section 78 of the Code, as long as it is filed within a reasonable time from the
discovery of the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
"SEC. 6. Effect of Disqualification Case. - Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes
in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong."
"SEC. 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. - The
procedure hereinabove provided shall apply to petitions to deny due course to or cancel
a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881."
It will be noted that nothing in Sections 6 or 7 modifies or alters the 25-day period
prescribed by Section 78 of the Code for filing the appropriate action to cancel a
certificate of candidacy on account of any false representation made therein. On the
contrary, said Section 7 affirms and reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case which may be
based on grounds other than that provided under Section 78 of the Code. But Section 7 of
Rep. Act No. 6646 also makes the effects referred to in Section 6 applicable to
disqualification cases filed under Section 78 of the Code. Nowhere in Sections 6 and 7 of
Rep. Act No. 6646 is mention made of the period within which these disqualification
cases may be filed. This is because there are provisions in the Code which supply the
periods within which a petition relating to disqualification of candidates must be filed,
such as Section 78, already discussed, and Section 253 on petitions for quo warranto.
Thus, if a person qualified to file a petition to disqualify a certain candidate fails to file
the petition within the 25-day period prescribed by Section 78 of the Code for whatever
reasons, the election laws do not leave him completely helpless as he has another chance
to raise the disqualification of the candidate by filing a petition for quo warrantowithin
ten (10) days from the proclamation of the results of the election, as provided under
Section 253 of the Code. x x x32 (Additional emphasis supplied.)
COMELEC Resolution No. 8696 entitled "Rules on Disqualification Cases Filed in
Connection with the May 10, 2010 Automated National and Local Elections" was
promulgated on November 11, 2009. Section 4 thereof provides:
SEC. 4. Procedure in filing petitions. – For purposes of the preceding sections, the
following procedure shall be observed:
A. PETITION TO DENY DUE COURSE TO OR CANCEL CERTIFICATE OF
CANDIDACY
1. A verified petition to deny due course or to cancel certificate of candidacy
may be filed by any person within five (5) days from the last day for the filing of
certificate of candidacy but not later than twenty-five (25) days from the filing
of certificate of candidacy under Section 78 of the Omnibus Election Code
(OEC);
xxxx
B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE
OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF
QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR DISQUALIFICATION
1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC
and the verified petition to disqualify a candidate for lack of qualifications or
possessing some grounds for disqualification may be filed on any day after the
last day for filing of certificates of candidacy but not later than the date of
proclamation;
xxxx
21
As can be gleaned, Section 4(B) of Resolution No. 8696 allowing a petition to disqualify a
candidate based on his lack of qualifications for elective office such as age, residence and
citizenship to be filed "on any day after the last day for filing of certificates of candidacy
but not later than the date of proclamation" (the period provided in Section 68 of the
OEC), instead of the period for filing under Section 78 (not later than twenty-five days
from the filing of the certificate of candidacy) is similar to Rule 25 of the COMELEC Rules
of Procedure. Following our ruling in Loong v. Commission on Elections,33 we find that
Section 4(B) of Resolution No. 8696 represents another attempt to modify by a mere
procedural rule the statutory period for filing a petition to cancel COC on the ground of
false representation therein regarding a candidate’s qualifications. Like Rule 25 of the
COMELEC Rules of Procedure, Section 4(B) of Resolution No. 8696 would supplant the
prescribed period of filing of petition under Section 78 with that provided in Section 68
even if the latter provision does not at all cover the false representation regarding age,
residence and citizenship which may be raised in a petition under Section 78. Indeed, if
the purpose behind this rule promulgated by the COMELEC – allowing a petition to
cancel COC based on the candidate’s non-compliance with constitutional and statutory
requirements for elective office, such as citizenship, to be filed even beyond the period
provided in Section 78 – was simply to remedy a perceived "procedural gap" though not
expressly stated in Resolution No. 8696, the Court had already rejected such justification.
Thus, we declared in Loong:
It is true that the discovery of false representation as to material facts required to be
stated in a certificate of candidacy, under Section 74 of the Code, may be made only after
the lapse of the 25-day period prescribed by Section 78 of the Code, through no fault of
the person who discovers such misrepresentations and who would want the
disqualification of the candidate committing the misrepresentation. It would seem,
therefore, that there could indeed be a gap between the time of the discovery of the
misrepresentation, (when the discovery is made after the 25-day period under Sec. 78 of
the Code has lapsed) and the time when the proclamation of the results of the election is
made. During this so-called "gap" the would-be petitioner (who would seek the
disqualification of the candidate) is left with nothing to do except to wait for the
proclamation of the results, so that he could avail of a remedy against the
misrepresenting candidate, that is, by filing a petition for quo warranto against him.
Respondent Commission sees this "gap" in what it calls a procedural gap which,
according to it, is unnecessary and should be remedied.
At the same time, it can not be denied that it is the purpose and intent of the legislative
branch of the government to fix a definite time within which petitions or protests related
to eligibility of candidates for elective offices must be filed, as seen in Sections 78 and
253 of the Code. Respondent Commission may have seen the need to remedy this so-
called "procedural gap", but it is not for it to prescribe what the law does not provide, its
function not being legislative. The question of whether the time to file these petitions or
protests is too short or ineffective is one for the Legislature to decide and
remedy.34 (Emphasis supplied.)
In the more recent case of Fermin v. Commission on Elections,35 we stressed that a
petition filed under Section 78 must not be interchanged or confused with one filed
under Section 68. A petition which is properly a "Section 78 petition" must therefore be
filed within the period prescribed therein, and a procedural rule subsequently issued by
COMELEC cannot supplant this statutory period under Section 78. We further
distinguished the two petitions as to their nature, grounds and effects, to wit:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not
based on the lack of qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications required of the public
office he/she is running for. It is noted that the candidate states in his/her CoC that
he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be
read in relation to the constitutional and statutory provisions on qualifications or
eligibility for public office. If the candidate subsequently states a material
representation in the CoC that is false, the COMELEC, following the law, is
empowered to deny due course to or cancel such certificate. Indeed, the Court has
already likened a proceeding under Section 78 to a quo warranto proceeding under
Section 253 of the OEC since they both deal with the eligibility or qualification of a
candidate, with the distinction mainly in the fact that a "Section 78" petition is filed
before proclamation, while a petition for quo warranto is filed after proclamation of the
winning candidate.
At this point, we must stress that a "Section 78" petition ought not to be interchanged or
confused with a "Section 68" petition. They are different remedies, based on different
grounds, and resulting in different eventualities. Private respondent’s insistence,
therefore, that the petition it filed before the COMELEC in SPA No. 07-372 is in the nature
of a disqualification case under Section 68, as it is in fact captioned a "Petition for
Disqualification," does not persuade the Court. x x x x
Considering that the Dilangalen petition does not state any of these grounds for
disqualification, it cannot be categorized as a "Section 68" petition.
xxxx
In support of his claim that he actually filed a "petition for disqualification" and not a
"petition to deny due course to or cancel a CoC," Dilangalen takes refuge in Rule 25 of the
COMELEC Rules of Procedure, specifically Section 1 thereof, to the extent that it states,
"[a]ny candidate who does not possess all the qualifications of a candidate as provided
for by the Constitution or by existing law x x x may be disqualified from continuing as a
candidate," and COMELEC Resolution No. 7800 (Rules Delegating to COMELEC Field
Officials the Authority to Hear and Receive Evidence in Disqualification Cases Filed in
Connection with the May 14, 2007 National and Local Elections x x x
xxxx
We disagree. A COMELEC rule or resolution cannot supplant or vary the legislative
enactments that distinguish the grounds for disqualification from those of ineligibility,
and the appropriate proceedings to raise the said grounds. In other words, Rule 25 and
COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the law
for the filing of a petition for disqualification under Section 68, and a petition for the
22
denial of due course to or cancellation of CoC under Section 78 of the OEC. As aptly
observed by the eminent constitutionalist, Supreme Court Justice Vicente V. Mendoza, in
his separate opinion in Romualdez-Marcos v. Commission on Elections:
xxxx
Having thus determined that the Dilangalen petition is one under Section 78 of the OEC,
the Court now declares that the same has to comply with the 25-day statutory period for
its filing. Aznar v. Commission on Elections and Loong v. Commission on Elections give
ascendancy to the express mandate of the law that "the petition may be filed at any
time not later than twenty-five days from the time of the filing of the certificate of
candidacy." Construed in relation to reglementary periods and the principles of
prescription, the dismissal of "Section 78" petitions filed beyond the 25-day period must
come as a matter of course.
We find it necessary to point out that Sections 5 and 7 of Republic Act (R.A.) No. 6646,
contrary to the erroneous arguments of both parties, did not in any way amend the
period for filing "Section 78" petitions. While Section 7 of the said law makes reference to
Section 5 on the procedure in the conduct of cases for the denial of due course to the
CoCs of nuisance candidates (retired Chief Justice Hilario G. Davide, Jr., in his dissenting
opinion in Aquino v. Commission on Elections explains that "the ‘procedure hereinabove
provided’ mentioned in Section 7 cannot be construed to refer to Section 6 which does
not provide for a procedure but for the effects of disqualification cases, [but] can only
refer to the procedure provided in Section 5 of the said Act on nuisance candidates x x
x."), the same cannot be taken to mean that the 25-day period for filing "Section 78"
petitions under the OEC is changed to 5 days counted from the last day for the filing of
CoCs. The clear language of Section 78 certainly cannot be amended or modified by the
mere reference in a subsequent statute to the use of a procedure specifically intended for
another type of action. Cardinal is the rule in statutory construction that repeals by
implication are disfavored and will not be so declared by the Court unless the intent of
the legislators is manifest. In addition, it is noteworthy that Loong, which upheld the 25-
day period for filing "Section 78" petitions, was decided long after the enactment of R.A.
6646. In this regard, we therefore find as contrary to the unequivocal mandate of the law,
Rule 23, Section 2 of the COMELEC Rules of Procedure x x x.
xxxx
As the law stands, the petition to deny due course to or cancel a CoC "may be filed at any
time not later than twenty-five days from the time of the filing of the certificate of
candidacy."
Accordingly, it is necessary to determine when Fermin filed his CoC in order to ascertain
whether the Dilangalen petition filed on April 20, 2007 was well within the restrictive
25-day period. If it was not, then the COMELEC should have, as discussed above,
dismissed the petition outright.
x x x x36 (Additional emphasis supplied.)
Since the petition in SPA No. 10-074 (DC) sought to cancel the COC filed by Gonzalez and
disqualify him as a candidate on the ground of false representation as to his citizenship,
the same should have been filed within twenty-five days from the filing of the COC,
pursuant to Section 78 of the OEC. Gonzales filed his COC on December 1, 2009. Clearly,
the petition for disqualification and cancellation of COC filed by Lim on March 30, 2010
was filed out of time. The COMELEC therefore erred in giving due course to the petition.
Even assuming arguendo that the petition in SPA No. 10-074 (DC) was timely filed, we
find that the COMELEC gravely erred when it held that the proclamation of Gonzalez by
the PBOC of Albay on May 12, 2010 was premature and illegal.
Section 72 of the OEC, was amended by Section 6 of R.A. No. 6646 which reads:
Section 6. Effect of Disqualification Case. -- Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes
in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry, or protest and, upon motion of the complainant or any
intervenor may[,] during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is strong. (Emphasis supplied.)
In its July 23, 2010 Resolution, the COMELEC ruled that the motion for reconsideration of
the Second Division’s May 8, 2010 Resolution filed by Gonzalez on May 14, 2010 was pro
forma and hence did not suspend the execution of the May 8, 2010 resolution
disqualifying him as a candidate.
Section 7 of COMELEC Resolution No. 8696 provides:
SEC. 7. Motion for reconsideration. A motion to reconsider a Decision, Resolution, Order
or Ruling of a Division shall be filed within three (3) days from the promulgation thereof.
Such motion, if not pro-forma, suspends the execution or implementation of the Decision,
Resolution, Order or Ruling.
Within twenty-four (24) hours from the filing thereof, the Clerk of the Commission shall
notify the Presiding Commissioner. The latter shall within two (2) days thereafter, certify
the case to the Commission en banc.
The Clerk of the Commission shall calendar the Motion for Reconsideration for the
resolution of the Commission en banc within three (3) days from the certification
thereof.
Section 13, Rule 18 of the COMELEC Rules of Procedure on the Finality of Decisions or
Resolutions provides that –
23
(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a
Division shall become final and executory after the lapse of five (5) days in Special
actions and Special cases and after fifteen (15) days in all other actions or proceedings,
following its promulgation.
Section 2, Rule 19 of the COMELEC Rules of Procedure also states:
SEC. 2. Period for Filing Motions for Reconsideration. -- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5) days from
the promulgation thereof. Such motion, if not pro forma, suspends the execution or
implementation of the decision, resolution, order or ruling.
The Commission En Banc in its July 23, 2010 Resolution said:
As found by this Commission, the motion for reconsideration merely mentioned that
respondent was already proclaimed as the winning candidate for Representative of the
3rd District of Albay. Nothing was, however, averred nor any document was submitted to
attest to the fact that that respondent has complied with all the legal requirements and
procedure for the election of Philippine citizenship as laid down in Commonwealth Act
No. 625 which specifically requires that the oath of allegiance should be filed with the
nearest civil registry.37
We have held that mere reiteration of issues already passed upon by the court does not
automatically make a motion for reconsideration pro forma. What is essential is
compliance with the requisites of the Rules.38 Indeed, in the cases where a motion for
reconsideration was held to be pro forma, the motion was so held because (1) it was a
second motion for reconsideration, or (2) it did not comply with the rule that the motion
must specify the findings and conclusions alleged to be contrary to law or not supported
by the evidence, or (3) it failed to substantiate the alleged errors, or (4) it merely alleged
that the decision in question was contrary to law, or (5) the adverse party was not given
notice thereof.39
In the case at bar, the motion for reconsideration40 filed by Gonzalez failed to show that
it suffers from the foregoing defects. Although the motion repeatedly stressed that the
people of the Third District of Albay had spoken through the winning margin of votes for
Gonzalez that they chose the latter to represent them in the House of Representatives, it
also reiterated his position that the petition filed by Bichara is time-barred, adding that it
was just an act of political harassment. But the main argument asserts that the evidence
of petitioner Bichara was insufficient to justify the Second Division’s ruling that Gonzalez
is not a natural-born Filipino and hence disqualified to be a candidate for the position of
Member of the House of Representatives. Verily, under prevailing jurisprudence, to
successfully challenge herein Gonzalez’s disqualification, petitioner in SPA No. 10-074
(DC) must clearly demonstrate that Gonzalez’s ineligibility is so patently antagonistic to
constitutional and legal principles that overriding such ineligibility and thereby giving
effect to the apparent will of the people would ultimately create greater prejudice to the
very democratic institutions and juristic traditions that our Constitution and laws so
zealously protect and promote.41 The COMELEC thus seriously erred in ruling that
Gonzalez’s motion for reconsideration was pro forma.
Petitioner’s motion for reconsideration of the May 8, 2010 resolution of the Second
Division having been timely filed, the said resolution had not become final and executory.
Considering that at the time of the proclamation of Gonzalez who garnered the highest
number of votes for the position of Representative in the 3rd district of Albay, the said
Division Resolution declaring Gonzalez disqualified as a candidate for the said position
was not yet final, he had at that point in time remained qualified. Therefore, his
proclamation on May 12, 2010 by the PBOC was valid or legal.42 Moreover, the May 8,
2010 resolution cannot as yet be implemented for not having attained finality.
Despite recourse to this Court, however, we cannot rule on the issue of citizenship of
Gonzalez. Subsequent events showed that Gonzalez had not only been duly proclaimed,
he had also taken his oath of office and assumed office as Member of the House of
Representatives. We have consistently held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a member of the House of
Representatives, COMELEC’s jurisdiction over election contests relating to his election,
returns, and qualifications ends, and the HRET’s own jurisdiction begins.43 In Perez v.
Commission on Elections,44 we declared that the Court does not have jurisdiction to pass
upon the eligibility of the private respondent who was already a Member of the House of
Representatives at the time of filing of the petition for certiorari.45
Under Article VI, Section 17 of the 1987 Constitution, the HRET is the sole judge of all
contests relating to the election, returns, and qualifications of the members of the House
of Representatives. As this Court explained in Lazatin v. House Electoral Tribunal46:
The use of the word "sole" emphasizes the exclusive character of the jurisdiction
conferred x x x. The exercise of the power by the Electoral Commission under the 1935
Constitution has been described as "intended to be as complete and unimpaired as if it
had remained originally in the legislature" x x x. Earlier, this grant of power to the
legislature was characterized by Justice Malcolm "as full, clear and complete" x x x. Under
the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral
Tribunal x x x and it remained as full, clear and complete as that previously granted the
legislature and the Electoral Commission x x x. The same may be said with regard to the
jurisdiction of the Electoral Tribunals under the 1987 Constitution.
Limkaichong v. Commission on Elections47 recently reiterated this settled rule on the
COMELEC’s loss of jurisdiction over a petition questioning the qualifications of a
candidate upon his election, proclamation and assumption of office. In said case,
petitioner Limkaichong faced two disqualification cases alleging that she is not a natural-
born Filipino because her parents were Chinese citizens at the time of her birth. The
cases remained pending by the time the May 14, 2007 elections were held in which
Limkaichong emerged as the winner with 65,708 votes or by a margin of 7,746 votes.
Subsequently, another congressional candidate (Olivia Paras) who obtained the second
highest number of votes filed a motion for leave to intervene and to suspend the
proclamation of Limkaichong, which the COMELEC’s Second Division granted. The day
after the PBOC suspended her proclamation, the COMELEC issued Resolution No. 8062
24
adopting the policy-guidelines of not suspending the proclamation of winning candidates
with pending disqualification cases which shall be without prejudice to the continuation
of the hearing and resolution of the cases. Accordingly, Limkaichong moved to
reconsider the resolution disqualifying her as a candidate and to lift the order
suspending her proclamation. In compliance with Resolution No. 8062, the PBOC
reconvened and proclaimed Limkaichong as the duly elected Member of the House of
Representatives for the 1st district of Negros Oriental. Thereafter, Paras filed a petition
to annul Limkaichong’s proclamation, which was dismissed by the COMELEC’s First
Division, upon the ground that the disqualification cases were not yet final when
Limkaichong was proclaimed. Her proclamation being valid or legal, the COMELEC ruled
that it effectively divested the Commission of jurisdiction over the cases.
Limkaichong then moved to declare the disqualification cases as dismissed, contending
that with her proclamation, her having taken her oath of office and her assumption of the
position, the COMELEC was divested of jurisdiction to hear the disqualification cases.
Since the COMELEC did not resolve her motion despite her repeated pleas, Limkaichong
filed a petition for certiorari before this Court. Said petition was consolidated with the
petition for prohibition and injunction filed by Louis C. Biraogo, petition for certiorari
and injunction filed by Renald F. Villando and the petition for quo warranto, prohibition
and mandamus with prayer for temporary restraining order and preliminary injunction
instituted by Paras.
By Decision dated April 1, 2009, this Court upheld the validity of Limkaichong’s
proclamation and the HRET’s jurisdiction over the issue of disqualification of
Limkaichong, as follows:
The Court has held in the case of Planas v. COMELEC, that at the time of the proclamation
of Defensor, the respondent therein who garnered the highest number of votes, the
Division Resolution invalidating his certificate of candidacy was not yet final. As such, his
proclamation was valid or legal, as he had at that point in time remained qualified.
Limkaichong’s situation is no different from that of Defensor, the former having been
disqualified by a Division Resolution on the basis of her not being a natural-born Filipino
citizen. When she was proclaimed by the PBOC, she was the winner during the elections
for obtaining the highest number of votes, and at that time, the Division Resolution
disqualifying her has not yet became final as a result of the motion for reconsideration.
xxxx
In her petition x x x, Limkaichong argued that her proclamation on May 25, 2007 by the
PBOC divested the COMELEC of its jurisdiction over all issues relating to her
qualifications, and that jurisdiction now lies with the HRET.
Biraogo, on the other hand, believed otherwise. He argued x x x that the issue concerning
Limkaichong’s disqualification is still within the exclusive jurisdiction of the
COMELEC En Banc to resolve because when Limkaichong was proclaimed on May 25,
2007, the matter was still pending resolution before the COMELEC En Banc.
We do not agree. The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the House of
Representatives, the COMELEC’s jurisdiction over election contests relating to his
election, returns, and qualifications ends, and the HRET’s own jurisdiction begins.
It follows then that the proclamation of a winning candidate divests the COMELEC of its
jurisdiction over matters pending before it at the time of the proclamation. The party
questioning his qualification should now present his case in a proper proceeding before
the HRET, the constitutionally mandated tribunal to hear and decide a case involving a
Member of the House of Representatives with respect to the latter’s election, returns and
qualifications. The use of the word "sole" in Section 17, Article VI of the Constitution and
in Section 250 of the OEC underscores the exclusivity of the Electoral Tribunals’
jurisdiction over election contests relating to its members.
x x x x48 (Additional emphasis supplied.)
Maintaining that it retains jurisdiction over SPA No. 10-074 (DC), the COMELEC En Banc
declared in its July 23, 2010 Resolution that the ruling in Limkaichong v. Commission on
Elections does not apply to the case of Gonzalez since this Court found Limkaichong’s
proclamation to be valid pursuant to COMELEC Resolution No. 8062 which adopted the
policy guideline, in connection with the May 14, 2007 elections, of not suspending the
proclamation of winning candidates with pending disqualification cases which shall be
without prejudice to the continuation of the hearing and decision of the involved cases.
In the case of Gonzalez, the COMELEC said that the applicable rule is Section 16 of
COMELEC Resolution No. 8678 promulgated on October 6, 2009 which specifically
governs the proceedings for the May 10, 2010 Automated Elections. Said provision
reads:
SEC. 16. Effects of Disqualification. -- Any candidate who has been declared disqualified
by final judgment shall not be voted for and the votes cast in his favor shall not be
counted. If, for any reason, he is not declared disqualified by final judgment before the
election and he is voted for and receives the winning number of votes, the case shall
continue and upon motion of the petitioner, complainant, or intervenor, the
proclamation of such candidate may be ordered suspended during the pendency of the
said case whenever the evidence is strong.
a) where a similar complaint/petition is filed before the election and before the
proclamation of the respondent and the case is not resolved before the election,
the trial and hearing of the case shall continue and referred to the Law
Department for preliminary investigation.
b) where the complaint/petition is filed after the election and before the
proclamation of the respondent, the trial and hearing of the case shall be
suspended and referred to the Law Department for preliminary investigation.
25
In either case, if the evidence of guilt is strong, the Commission may order the
suspension of the proclamation of respondent, and if proclaimed, to suspend the effects
of proclamation. (Emphasis supplied.)
Invoking the last paragraph of the foregoing provision which the COMELEC said is in
harmony with Section 6 of R.A. No. 6646 (Electoral Reforms Law of 1987), the COMELEC
ruled that Gonzalez’s proclamation was premature and illegal, thus:
Third, as found by the Supreme Court in Limkaichong, the COMELEC en banc on August
16, 2007 ruled on Limkaichong’s manifestation and motion for clarification, thus:
"In view of the proclamation of Limkaichong and her subsequent assumption of office on
June 30, 2007, this Commission rules that all pending incidents relating to the
qualifications of Limkaichong should now be determined by the House of
Representatives Electoral Tribunal in accordance with the above-quoted provision of the
Constitution.
"xxx"
On the contrary, in the present case, the Second Division of the Commission, in the
exercise of its power to suspend such proclamation under the aforequoted provisions of
law, refused to set aside the proclamation and the effects thereof.
Clearly, therefore, there is no taint of doubt that with the Resolution of the Second
Division disqualifying the respondent, his proclamation by the Provincial Board of
Canvassers was pre-mature and illegal and should therefore be annulled. There is no
question that this Commission has the power to suspend such proclamation. Notably, in
several jurisprudence where the Supreme Court refused the annulment of proclamation
and held that the jurisdiction pertained already to HRET, it was the Comelec itself that
eventually allowed the proclamation and the effects thereof, as shown in [the] Decision
of the Supreme Court above-referred to. In stark contrast with the case at bar, this
Commission itself is exercising its prerogative and power to nullify an illegal and
premature proclamation of the respondent on the basis of the continued proceedings
pursuant to both Section 16 of Resolution 8678 and Section 6 of Republic Act 6646.
Lastly, it must be taken into consideration that, unlike in the previous elections, the
ballots were now already printed with the names of the candidates as of the date of
printing, and it was already impossible without incurring tremendous expense and delay
merely to remove the name of the disqualified candidate and program the PCOS
machines not to count the votes cast in favor of the disqualified candidate in a short
period of time prior to the actual elections. For said reason, this Commission has ample
power to suspend the effects of, and ultimately annul, the proclamation of the
disqualified candidate whose votes should not have been counted in the first place.
x x x x49 (Emphasis supplied.)
We find the above ruling contrary to our pronouncement in Limkaichong and
jurisprudence interpreting Section 72 of the OEC and Section 6 of R.A. No. 6646 which
amended said provision.
First, as already stated, there was no legal bar to the proclamation of Gonzalez as the
winning candidate on May 12, 2010 since the May 8, 2010 Resolution at that time had
not yet become final; in fact Gonzalez received a copy thereof only on May 11, 2010. We
have held that the five-day period for filing a motion for reconsideration under Rule 19,
Section 2 of the COMELEC Rules of Procedure should be counted from the receipt of the
decision, resolution, order, or ruling of the COMELEC Division.50 With his filing of a
motion for reconsideration within the three-day period provided in Section 7 of
COMELEC Resolution No. 8696, the execution of the said resolution was effectively
suspended.
Moreover, there is nothing in the May 8, 2010 Resolution of the Second Division ordering
the suspension of the proclamation of Gonzalez. From the language of Section 6 of R.A.
No. 6646 upon which the first paragraph of Section 16 of COMELEC Resolution No. 8678
was based, the Commission can order the suspension of the proclamation of the winning
candidate only upon motion during the pendency of the disqualification case. The Court
has ruled that the suspension of proclamation of a winning candidate is not a matter
which the COMELEC Second Division can dispose of motu proprio. Section 6 of R.A. No.
6646 requires that the suspension must be "upon motion by the complainant or any
intervenor."51
The rule then is that candidates who are disqualified by final judgment before the
election shall not be voted for and the votes cast for them shall not be counted. But those
against whom no final judgment of disqualification had been rendered may be voted for
and proclaimed, unless, on motion of the complainant, the COMELEC suspends their
proclamation because the grounds for their disqualification or cancellation of their
certificates of candidacy are strong.52 There being no final judgment of disqualification
yet at the time of his proclamation on May 12, 2010, it was grave error for the COMELEC
En Banc to rule that Gonzalez’s proclamation was illegal and premature. Also, the May 8,
2010 Resolution rendered by the Second Division cannot be construed as an implicit
exercise by the Commission of its power to suspend the proclamation of Gonzalez as it
could not have yet ordered such suspension considering that Bichara (petitioner in SPA
No. 10-074 [DC]) filed his "Urgent Motion to Stop/Suspend The Proclamation of
Fernando Vallejo Gonzalez" only on May 11, 2010 after the promulgation of the May 8,
2010 Resolution.53 Moreover, the COMELEC En Banc did not act on said motion of
Bichara even after Gonzalez had been proclaimed by the PBOC. Subsequently, Lim filed a
motion for leave to intervene and suspend the effects of proclamation of Gonzalez, which
was followed by ten very urgent motions for the COMELEC En Banc to resolve the
same.54
Neither can the COMELEC anchor its ruling that the May 12, 2010 proclamation of
Gonzalez was illegal and premature on the ground that votes for said candidate, who was
disqualified under the May 8, 2010 Resolution of the Second Division, should not have
been counted. This is apparent from the other reason cited by the COMELEC as one of the
circumstances distinguishing the present case from that of Limkaichong, thus:
26
Lastly, it must be taken into consideration that, unlike the previous elections, the ballots
were now already printed with the names of the candidates as of the date of printing,
and it was already impossible without incurring tremendous expense and delay merely
to remove the name of the disqualified candidate and program the PCOS machines not to
count the votes cast in favor of the disqualified candidate in a short period of time prior
to the actual elections. For said reason, this Commission has ample power to suspend the
effects of, and ultimately annul, the proclamation of the disqualified candidate whose
votes should not have been counted in the first place.55 (Emphasis supplied.)
The above proposition is untenable. The advent of automated elections did not make any
difference in the application of Section 6 of R.A. No. 6646 insofar as the effects of
disqualification are concerned. Even at the time when ballots were physically read by the
board of election inspectors and counted manually, it had not been absolutely necessary
to reprint the ballots or remove the names of candidates who were disqualified before
election. The votes cast for such candidates considered as "stray votes" even if read by
the PCOS machines will have to be disregarded by the board of canvassers upon proper
order from the COMELEC.
In any case, the point raised by the COMELEC is irrelevant in resolving the present
controversy.1avvphi1 It has long been settled that pursuant to Section 6 of R.A. No. 6646,
a final judgment before the election is required for the votes of a disqualified candidate
to be considered "stray." In the absence of any final judgment of disqualification against
Gonzalez, the votes cast in his favor cannot be considered stray.56 After proclamation,
taking of oath and assumption of office by Gonzalez, jurisdiction over the matter of his
qualifications, as well as questions regarding the conduct of election and contested
returns – were transferred to the HRET as the constitutional body created to pass upon
the same. The Court thus does not concur with the COMELEC’s flawed assertion of
jurisdiction premised on its power to suspend the effects of proclamation in cases
involving disqualification of candidates based on commission of prohibited acts and
election offenses. As we held in Limkaichong, any allegations as to the invalidity of the
proclamation will not prevent the HRET from assuming jurisdiction over all matters
essential to a member’s qualification to sit in the House of Representatives.57
It must be noted that sub-paragraphs (a) and (b), Section 16 of COMELEC Resolution No.
8678 which contemplate disqualification cases against candidates over which the
COMELEC retains jurisdiction even after those candidates have won the elections, duly
proclaimed and assumed office, cannot be applied to petitions filed against candidates
for the position of Member of the House of Representatives questioning their
constitutional and statutory qualifications for the office under Section 78 of the OEC. The
law is explicit in vesting jurisdiction over such cases in the HRET. In our Resolution
dated July 20, 2009 denying the motion for reconsideration with prayer for oral
argument filed by Biraogo in the Limkaichong case, we affirmed our ruling in our
Decision of April 1, 2009 that "the proper remedy of those who may assail Limkaichong’s
disqualification based on citizenship is to file before the HRET the proper petition at any
time during incumbency." That Lim had already withdrawn the petition for quo
warranto he had earlier filed before the HRET is of no consequence, considering that
citizenship is a continuing requirement for the holding of office of Members of the House
of Representatives.
Under the 1987 Constitution, Members of the House of Representatives must be natural-
born citizens not only at the time of their election but during their entire tenure. Anyone
who assails a Representative’s citizenship or lack of it may still question the same at any
time, even beyond the ten-day prescriptive period set in the 1998 HRET Rules.58
We also hold that there is no basis for the COMELEC’s order constituting a Special
Provincial Board of Canvassers for the purpose of proclaiming Lim who got the next
highest number of votes in the May 10, 2010 elections for the position of Representative
of the 3rd District of Albay. It is well-settled that the ineligibility of a candidate receiving
majority votes does not entitle the eligible candidate receiving the next highest number
of votes to be declared elected. A minority or defeated candidate cannot be deemed
elected to the office. The votes intended for the disqualified candidate should not be
considered null and void, as it would amount to disenfranchising the electorate in whom
sovereignty resides.59 The second placer is just that, a second placer – he lost in the
elections and was repudiated by either the majority or plurality of voters.60
Private respondent Lim argues that the second placer rule will not apply in this case
because Gonzalez was disqualified to be a candidate before election under the assailed
COMELEC resolutions which became final and executory after five (5) days without a
restraining order issued by this Court. The effect of the ruling on Gonzalez’s
disqualification retroacts to the day of election (May 10, 2010). As reflected in the recent
Statement of Votes prepared by the Special Board of Canvassers, the name of Fernando
V. Gonzalez has been delisted from the lists of official candidates for the Members of the
House of Representatives in the 3rd District of Albay.61
The exception to the second placer rule is predicated on the concurrence of the
following: (1) the one who obtained the highest number of votes is disqualified; and (2)
the electorate is fully aware in fact and in law of a candidate’s disqualification so as to
bring such awareness within the realm of notoriety but would nonetheless cast their
votes in favor of the ineligible candidate.62 These facts warranting the exception to the
rule are not present in the case at bar. As noted by Commissioner Velasco, the date of
promulgation of the resolution declaring Gonzalez disqualified to be a candidate in the
May 10, 2010 was not a previously fixed date as required by Section 6 63 of COMELEC
Resolution No. 8696 as the records do not show that the parties were given prior notice
thereof. In fact, Gonzalez through his counsel received a copy of the May 8, 2010
Resolution only on May 11, 2010, one day after the elections.
And as we held in Bautista v. Commission on Elections64
Thus, when the electorate voted for Bautista as Punong Barangay on 15 July 2002, it was
under the belief that he was qualified. There is no presumption that the electorate agreed
to the invalidation of their votes as stray votes in case of Bautista’s disqualification. The
Court cannot adhere to the theory of respondent Alcoreza that the votes cast in favor of
Bautista are stray votes. A subsequent finding by the COMELEC en banc that Bautista is
ineligible cannot retroact to the date of elections so as to invalidate the votes cast for
him. As held in Domino v. COMELEC:
27
Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the
public as an ineligible candidate. Although the resolution declaring him ineligible as
candidate was rendered before the election, however, the same is not yet final and
executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus
Resolution No. 3046 that allowed DOMINO to be voted for the office and ordered that the
votes cast for him be counted as the Resolution declaring him ineligible has not yet
attained finality. Thus the votes cast for DOMINO are presumed to have been cast in the
sincere belief that he was a qualified candidate, without any intention to misapply their
franchise. Thus, said votes can not be treated as stray, void, or meaningless.65 (Emphasis
supplied.)

We have declared that not even this Court has authority under any law to impose upon
and compel the people to accept a loser, as their representative or political leader.66 The
wreath of victory cannot be transferred from the disqualified winner to the repudiated
loser.67 The COMELEC clearly acted with grave abuse of discretion in ordering the
proclamation of private respondent Lim who lost by a wide margin of 29,292 votes, after
declaring Gonzalez, the winning candidate, disqualified to run as Member of the House of
Representatives.

WHEREFORE, the petition is GRANTED. The assailed Resolution of the Second Division
dated May 8, 2010 and COMELEC En Banc Resolution dated July 23, 2010 in SPA No. 10-
074 (DC) are hereby ANNULLED and SET ASIDE. The Petition for Disqualification and
Cancellation of Certificate of Candidacy of Fernando V. Gonzalez is DISMISSED, without
prejudice to the filing of a proper petition before the House of Representatives Electoral
Tribunal raising the same question on the citizenship qualification of Fernando V.
Gonzalez.

No costs.

SO ORDERED.

28
 In the May 14, 2007 elections, petitioner Martinez and private respondent

Salimbangon were among the candidates for Representative in the Fourth Legislative

District of Cebu Province. On March 29, 2007, Edilito C. Martinez, a resident of Barangay

Tambongon, Daan-Bantayan, Cebu, filed his certificate of candidacy for the same

CELESTINO A. MARTINEZ III, G.R. No. 189034 position.

Petitioner,
Present:
On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a nuisance
PUNO, C.J.,
CARPIO, candidate.[3] However, the Commission on Elections Second Division issued its
CORONA,
Resolution declaring Edilito C. Martinez a nuisance candidate only on June 12, 2007 or
CARPIO MORALES,
VELASCO, JR., almost one (1) month after the elections.
- versus - NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, On July 9, 2007, Salimbangon was proclaimed winner in the congressional elections
BERSAMIN, for the Fourth Legislative District of Cebu on the basis of official results showing that he
DEL CASTILLO,
ABAD, garnered sixty-seven thousand two hundred seventy-seven (67,277) votes as against
VILLARAMA, JR.,
PEREZ, and Martinez who garnered sixty-seven thousand one hundred seventy-three (67,173) votes,
MENDOZA, JJ. or a difference of one hundred four (104) votes.
HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL AND Promulgated:
BENHUR L. SALIMBANGON,
Respondents. January 12, 2010 Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July 26,
x-----------------------------------------------------------------------------------------x
2007, the HRET granted his motion to convert the same into a Regular Protest of all one
DECISION thousand one hundred twenty-nine (1,129) precincts of the Fourth Legislative District of

VILLARAMA, JR., J.: Cebu.

This petition for certiorari under Rule 65 seeks to nullify the Decision[1] dated May
The election protest is based on three hundred (300) ballots more or less with only
28, 2009 of the House of Representatives Electoral Tribunal in HRET Case No. 07-035
"MARTINEZ" or "C. MARTINEZ" written on the line for Representative which the Board
dismissing the election protest and declaring private respondent as the duly elected
of Election Inspectors (BEI) did not count for Martinez on the ground that there was
Representative of the Fourth Legislative District of Cebu, and the Resolution [2] dated July
another congressional candidate (Edilito C. Martinez) who had the same surname.
30, 2009 denying petitioner's motion for reconsideration thereof.
Martinez further alleged that he lost several thousand votes as a result of incorrect
The Facts
appreciation of ballots not counted in his favor while clearly marked ballots, groups of

ballots which appeared to have been prepared by one (1) person, individual ballots
29
which appeared to have been prepared by two (2) or more persons, and fake and
unofficial ballots were read and counted in favor of Salimbangon. He also claimed that
the votes reflected in the election returns were unlawfully increased in favor of
Salimbangon while votes in his favor were unlawfully decreased.[4]
Salimbangon filed his Answer with Counter-Protest stating that the Minutes of
Voting (MOV) inside the ballot boxes in all the protested precincts contain no recorded
objections regarding straying of votes claimed by Martinez, and that it was very seldom,
if at all, that there were ballots with only "MARTINEZ" or "C. MARTINEZ" written on the
line for Representative. He counter-protested 954 precincts on grounds of
coercion/intimidation and duress; massive vote-buying; "lansadera";
misreading/miscounting/misappreciation of votes; and other electoral anomalies and
irregularities.
During the revision, ballots with only "MARTINEZ" or "C. MARTINEZ" written on the
line for Representative were not counted and temporarily classified as stray. These
comprise majority of the 9,831 stray ballots claimed by Martinez.[5]
HRET Ruling
In its Decision dated May 28, 2009, the HRET resolved each of the claims and
objections respectively raised by protestant and protestee applying the rules for
appreciation of ballots. The Tribunal recognized as most crucial the issue of whether or
not ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for
Representative should be counted in favor of Martinez. Thus, the election protest "will
rise or fall on how the Tribunal [appreciates said] ballots."[6]
Ruling on the issue, the HRET sustained the BEI in considering the ballots as stray in
accordance with Sec. 211 (1) of the Omnibus Election Code which provides:
"Where only the first name of a candidate or only his surname
is written, the vote for such candidate is valid, if there is no other
candidate with the same first name or surname for the same
office."[7] [EMPHASIS SUPPLIED.]
Since the name of Edilito C. Martinez was still included in the official list of
candidates on election day (May 14, 2007), the HRET held that five thousand four
hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ" only written on the
line for Representative were properly denied on the ground that there was no way of
determining the real intention of the voter. These ballots were included in the 7,544
ballots denied as votes for Martinez in 961 precincts.[8]
Commiserating with Martinez on the delayed resolution of SPA Case No. 07-133
(PES), the HRET stated:
"We sympathize to (sic) the protestant that he is the victim of
the inaction of the Comelec in failing to decide the petition to
disqualify Edilito C. Martinez as nuisance candidate on or before the
May 14, 2007 elections. After all, it appears that the latter did not
even lift a finger to oppose the petition for his declaration as nuisance
candidate and that per its decision rendered only twenty-nine (29)
days after the May 14, 2007 elections, Edilito C. Martinez was indeed
a nuisance candidate.
"As it is, the delay committed by the Comelec in deciding the
petition to disqualify Edilito C. Martinez as nuisance candidate on or
before May 14, 2007 election did not only cause injustice to herein
protestant but worst, had resulted to (sic) the disenfranchisement of
five thousand four hundred one (5,401) electorates whose votes
could have changed the number of votes garnered by the parties
herein if not changed altogether the outcome of the election itself."[9]
The final overall results of recount and appreciation of ballots, election documents
and other evidence in the entire 1,129 precincts as determined by the HRET are as
follows :[10]
Overall Fourth District of Cebu Votes
30
 PROTESTANT PROTESTEE The Petition
1] Votes per physical count* in 961
precincts where there was ballot
appreciation 57,758 57,132 Petitioner alleges that the HRET gravely abused its discretion when it failed to credit
2] Votes in 12 precincts** without
the "MARTINEZ" or "C. MARTINEZ" votes in his favor despite the finality of the COMELEC
ballots found during revision (based
on election returns) 998 660 resolution declaring Edilito C. Martinez a nuisance candidate. Petitioner argues that the
3] Votes per election returns in 156 Decision disenfranchised 5,401 voters when it ruled that said votes cannot be counted as
precincts in which several spurious
ballots were placed after elections, votes for him since "there is no way of determining the real intention of the voter", in
counting and/or canvassing of votes 9,937 7,815
utter disregard of the mandate of Art. VIII, Sec. 14 of the Constitution. He maintains that
68,693 65,607
there is no clear and good reason to justify the rejection of those 5,401 ballots, and
Less: Objected ballots rejected*** 4,333 860 points out that at the time private respondent was proclaimed by the Board of
Add: Claimed ballots admitted*** 2,287 2,348 Canvassers, only 104 votes separated private respondent from him (private respondent
Unclaimed ballots admitted*** 8 11
was credited with 67,277 votes as against 67,173 votes of petitioner, while nuisance
Restored Ballots 2
candidate Edilito C. Martinez got a measly 363 votes.)[12]
Total Votes in the Contested
Precincts After Appreciation of
Evidence 66,655 67,108
Petitioner further alleges that the HRET invalidated ballots for him without stating
PLURALITY OF PROTESTEE'S VOTES
453 the legal and factual bases therefor, and on grounds other than the objections raised by

private respondent. He contends that the HRET erred in concluding that the ruling
* Taken from Revision Reports
** Namely Precinct Nos. 51A, Daan-Bantayan, 40A, 56A, 79A, all of in Bautista v. Commission on Elections[13] cannot be applied in view of circumstances
Bantayan,
which supposedly distinguish the present case from Bautista. Finally, petitioner cites the
15C, 19D, 66B/67A, 88A, 105A, all of Bogo, 40A/41A, 70A/71A, all of
Medellin, 30A, Sta. Fe. dissenting opinion of the Honorable Associate Justice Antonio Eduardo B. Nachura who
*** During appreciation of ballots in 961 precincts.
disagreed with the majority ruling and posited that the final declaration by COMELEC

that Edilito C. Martinez was a nuisance candidate and the cancellation of his certificate of
On the basis of the foregoing, the HRET dismissed the election protest, affirmed the
candidacy should be deemed effective as of the day of the election.[14]
proclamation of Salimbangon and declared him to be the duly elected Representative of

the Fourth Legislative District of Cebu, having won by a plurality margin of 453 votes.
In his Comment, private respondent assails the apparent desire of petitioner for this

Court to review the physical appreciation of ballots conducted by the HRET when he
Martinez moved for reconsideration of the Decision, but the HRET denied it by
assigned as issues the alleged erroneous invalidation by the HRET of petitioner's ballots
Resolution dated July 30, 2009.[11]
which were ruled as written by two (2) persons, and when he even appreciated ballots

that were declared by the HRET as marked ballots. Private respondent details the mostly
31

post-election anomalies and irregularities, particularly in Bogo City, perpetrated by the
petitioner as found by the HRET such as tampering of election returns and statement of
votes and vote padding/tampering.
As to the "MARTINEZ" and "C. MARTINEZ" ballots, private respondent asserts that
the HRET correctly refused to credit petitioner with these votes, stressing that there
were admittedly three (3) candidates for the position of Representative for the Fourth
Legislative District of Cebu as of May 14, 2007. Not a single voter in the district knew of
any nuisance congressional candidate on election day. Private respondent argues that it
would be illogical and most unfair to count the said ballots in favor of petitioner as it is
erroneous to base the voter's intent on the supervening circumstance which was
inexistent on the date the ballot was accomplished and cast. The HRET likewise did not
err in holding that the Bautista ruling is inapplicable, there being no announced
declaration yet of one (1) of the candidates as nuisance candidate when the voters cast
their ballots on election day.
The Issues
What then is the legal effect of declaring a nuisance candidate as such in a final
judgment after the elections? Should ballots containing only the similar surname of two
(2) candidates be considered as stray votes or counted in favor of the bona
fide candidate?
Our Ruling
The Court finds the petition meritorious.
Section 69 of the Omnibus Election Code provides:
"Section 69. Nuisance candidates. -- The Commission
may motu proprio or upon a verified petition of an interested party,
refuse to give due course to or cancel a certificate of candidacy if it is
shown that said certificate has been filed to put the election process in
mockery or disrepute or to cause confusion among the voters by the
similarity of the names of the registered candidates or by other
circumstances or acts which clearly demonstrate that the candidate
has no bona fide intention to run for the office for which the certificate
of candidacy has been filed and thus prevent a faithful determination
of the true will of the electorate."
Republic Act No. 6646, otherwise known as The Electoral Reforms Law of 1987"
provides in Section 5 thereof:
"SEC. 5. Procedure in Cases of Nuisance Candidates. --
(a) A verified petition to declare a duly registered candidate as
a nuisance candidate under Section 69 of Batas Pambansa Blg. 881
shall be filed personally or through duly authorized representative
with the Commission by any registered candidate for the same office
within five (5) days from the last day for the filing of certificates of
candidacy. Filing by mail shall not be allowed.
"(b) Within three (3) days from the filing of the petition, the
Commission shall issue summons to the respondent candidate
together with a copy of the petition and its enclosures, if any.
"(c) The respondent shall be given three (3) days from receipt
of the summons within which to file his verified answer (not a motion
to dismiss) to the petition, serving copy thereof upon the petitioner.
Grounds for a motion to dismiss may be raised as affirmative
defenses.
"(d) The Commission may designate any of its officials who are
lawyers to hear the case and receive evidence. The proceeding shall
be summary in nature. In lieu of oral testimonies, the parties may be
required to submit position papers together with affidavits or
counter-affidavits and other documentary evidence. The hearing
officer shall immediately submit to the Commission his findings,
reports, and recommendations within five (5) days from the
completion of such submission of evidence. The Commission shall
render its decision within five (5) days from receipt thereof.
"(e) The decision, order, or ruling of the Commission shall,
after five (5) days from receipt of a copy thereof by the parties, be
final and executory unless stayed by the Supreme Court.
32
 "(f) The Commission shall within twenty-four hours, through
the fastest available means, disseminate its decision or the decision of
the Supreme Court to the city or municipal election registrars, boards
of election inspectors and the general public in the political
subdivision concerned." [EMPHASIS SUPPLIED.]
By their very nature, proceedings in cases of nuisance candidates require prompt
disposition. The declaration of a duly registered candidate as nuisance candidate results
in the cancellation of his certificate of candidacy. The law mandates the Commission and
the courts to give priority to cases of disqualification to the end that a final decision shall
be rendered not later than seven days before the election in which the disqualification is
sought.[15] In many instances, however, proceedings against nuisance candidates
remained pending and undecided until election day and even after canvassing of votes
had been completed.
Here, petitioner sought to declare Edilito C. Martinez as a nuisance candidate
immediately after the latter filed his certificate of candidacy as an independent
candidate and long before the May 14, 2007 elections. Petitioner averred that Edilito C.
Martinez who was a driver of a motorcycle for hire, locally known as "habal-habal", did
not own any real property in his municipality, had not filed his income tax return for the
past years, and being an independent candidate did not have any political machinery to
propel his candidacy nor did he have political supporters to help him in his campaign.
Petitioner claimed that Edilito C. Martinez after the filing of his certificate of candidacy,
was never heard of again and neither did he start an electoral campaign. Given such lack
of bona fide intention of Edilito C. Martinez to run for the office for which he filed a
certificate of candidacy, petitioner contended that his candidacy would just cause
confusion among the voters by the similarity of their surnames, considering that
petitioner was undeniably the frontrunner in the congressional district in the Fourth
Legislative District of Cebu as his mother, Rep. Clavel A. Martinez, was the incumbent
Representative of the district.[16]
The COMELEC's Second Division granted the petition and declared Edilito C.
Martinez as a nuisance candidate. It noted that the failure of said candidate to answer
and deny the accusations against him clearly disclosed the fact that he had no bona
fide intention to run for public office. Thus, it concluded that his only purpose for filing
his certificate of candidacy was to put the election process into mockery and cause
confusion among the voters by the similarity of his surname with that of petitioner.[17]
No motion for reconsideration was filed by Edilito C. Martinez and neither did he
appeal before this Court the resolution declaring him a nuisance candidate. Said decision
had thus become final and executory after five (5) days from its promulgation in
accordance with the COMELEC Rules of Procedure.[18] But having come too late, the
decision was an empty victory for petitioner who lost to private respondent by a slim
margin of 104 votes. In his election protest, petitioner sought to have ballots with only
"MARTINEZ" or "C. MARTINEZ" written on the line for Representative counted in his
favor. The HRET, however, considered such ballots numbering 5,401 as stray and
rejected petitioner's argument that the ruling in Bautista v. Comelec (supra) is applicable
in this case.
Bautista involves a mayoralty candidate (Cipriano "Efren" Bautista) during the May
11, 1998 elections who filed a petition to declare as nuisance candidate Edwin "Efren"
Bautista, who filed a certificate of candidacy for the same position at the last minute. The
COMELEC granted the petition, declared Edwin Bautista a nuisance candidate and
ordered the cancellation of his certificate of candidacy. Consequently, Edwin Bautista's
name was not included in the official list of candidates for the position of mayor of
Navotas City and copies of the list were distributed to the boards of election inspectors
(BEI). On May 8, 1998, Edwin filed a motion for reconsideration and as a result, the
Election Officer of Navotas issued a directive to the BEI to include the name of Edwin
Bautista in the certified list of candidates, only to recall said order in the afternoon. In
view of the conflicting directives, counsel for petitioner requested the COMELEC that
33

instructions be given to the BEI to tally separately the votes for "EFREN BAUTISTA",
"EFREN", "E. BAUTISTA" and "BAUTISTA."
On May 13, 1998, the COMELEC denied Edwin Bautista's motion for
reconsideration. When the canvass of the election returns was commenced, the
Municipal Board of Canvassers refused to canvass as part of the valid votes of petitioner
the separate tallies of ballots on which were written "EFREN BAUTISTA," "EFREN," "E.
BAUTISTA" and "BAUTISTA." Petitioner then filed with the COMELEC a petition to
declare illegal the proceedings of the Municipal Board of Canvassers. Meanwhile Edwin
Bautista filed a petition for certiorari with this Court assailing the actions of COMELEC
declaring him a nuisance candidate and ordering the cancellation of his certificate of
candidacy. The Court dismissed said petition finding no grave abuse of discretion
committed by the COMELEC and subsequently also denied with finality the motion for
reconsideration filed by Edwin Bautista.
As to the petition to declare as illegal the proceedings of the Municipal Board of
Canvassers for its refusal to include the stray votes in the separate tally sheet, the
COMELEC dismissed the same, citing Sec. 211 (4)[19] of the Omnibus Election Code.
Petitioner Bautista elevated the case to the Supreme Court which ruled in his favor, thus:
"At the outset and initially setting aside all the ramifications
of the substantive issue of the instant petition, the primordial concern
of the Court is to verify whether or not on the day of the election, there
was only one 'Efren Bautista' as a validly registered candidate as far as
the electorate was concerned.
"x x x
"Edwin Bautista moved for reconsideration on May 8, 1998.
Unfortunately, said motion was not resolved as of election day.
Technically, the April 30, 1998 decision was not yet final as of May 11,
1998, and this technicality created serious problems on election day.
xxx
"An analysis of the foregoing incidents shows that the separate
tallies were made to remedy any prejudice that may be caused by the
inclusion of a potential nuisance candidate in the Navotas mayoralty
race. Such inclusion was brought about by technicality, specifically
Edwin Bautista's filing of a motion for reconsideration, which
prevented the April 30, 1998 resolution disqualifying him from
becoming final at that time.
"Ideally, the matter should have been finally resolved prior
to election day. Its pendency on election day exposed petitioner to
the evils brought about by the inclusion of a then potential, later
shown in reality to be nuisance candidate. We have ruled that a
nuisance candidate is one whose certificate of candidacy is presented
and filed to cause confusion among the electorate by the similarity of
the names of the registered candidate or by other names which
demonstrate that the candidate has no bona fide intention to run for
the office for which the certificate of candidacy has been filed and thus
prevent a faithful determination of the true will of the electorate
(Fernandez vs. Fernandez, 36 SCRA 1 [1970]).
"It must be emphasized that the instant case involves a ground
for disqualification which clearly affects the voters' will and causes
confusion that frustrates the same. This is precisely what election
laws are trying to protect. They give effect to, rather than frustrate,
the will of the voter. Thus, extreme caution should be observed before
any ballot is invalidated. Further, in the appreciation of ballots, doubts
are resolved in favor of their validity. (Silverio vs. Castro, 19 SCRA 521
[1967]).
xxxx
"As discussed in the COMELEC's April 30, 1998 decision, in
accordance with Section 69, Edwin Bautista was found to be a
nuisance candidate. First and foremost, he was running under the
name of Edwin 'Efren' Bautista, when it had been established that he
was really known as 'Boboy' or 'Boboy Tarugo.' Second, the following
circumstances saliently demonstrate that he had no bona
fide intention of running for the office for which he filed his certificate
of candidacy: He is said to be engaged in a 'buy and sell' business, but
he has no license therefor. He declared that he had a monthly income
of P10,000.00 but with expenses totalling P9,000.00. He does not own
any real property. He did not file his income tax return for the years
1995 and 1996 and when asked why, he said he did not have any net
income and that he was only earning enough to defray household
expenses. He even violated COMELEC rules since he failed to submit
the names of individuals who paid for his campaign materials as well
as the printing press he dealt with. He did not have a political line-up
and had no funds to support his campaign expenses. He merely
depended on friends whose names he did not submit to the
34
 COMELEC. And as straightforwardly found by the COMELEC, he 'has
not demonstrated any accomplishment/achievement in his twenty-six
(26) years of existence as a person that would surely attract the
electorate to choose him as their representative in government.'
"In contrast, it was shown that petitioner had previously held
under his name Cipriano and appellation, 'Efren' Bautista, various
elective positions, namely: Barangay Captain of Navotas in 1962,
Municipal Councilor of Navotas in 1970, and Vice-Mayor of Navotas in
1980. He is a duly registered Naval Architect and Marine Engineer,
and a member of various civic organizations such as the Rotary Club
of Navotas and the Philippine Jaycees.
"It seems obvious to us that the votes separately tallied are
not really stray votes. Then COMELEC Chairman Bernardo P. Pardo
himself, now a respected member of the Court, in his May 14, 1998
Memorandum, allowed the segregation of the votes for "Bautista,"
"Efren," and "Efren Bautista," and "E. Bautista" into a separate
improvised tally, for the purpose of later counting the votes. In
fine, the COMELEC itself validated the separate tallies since they
were meant to be used in the canvassing later on to the actual
number of votes cast. These separate tallies actually made the will
of the electorate determinable despite the apparent confusion
caused by a potential nuisance candidate. What remained unsaid
by the COMELEC Chairman was the fact that as early as May 13, 1998,
the COMELEC had already spoken and stated its final position on the
issue of whether or not Edwin Bautista is a nuisance candidate. It had
already denied Edwin's motion for reconsideration in its May 13,
1998 Order x x x
"x x x x
"This important detail only shows that as of May 14, 1998,
when Chairman Pardo issued the aforestated Memorandum,
Edwin Bautista had already been finally declared as
a nuisance candidate by the COMELEC. And when Edwin Bautista
elevated the matter to this Court, we upheld such declaration. How
then can we consider valid the votes for Edwin Bautista whom we
finally ruled as disqualified from the 1998 Navotas mayoralty
race? That is like saying one thing and doing another. These are two
incompatible acts the contrariety and inconsistency of which are all
too obvious."[20] [EMPHASIS SUPPLIED.]
Petitioner now invokes this Court's pronouncement in Bautista to the effect
that votes indicating only the surname of two (2) candidates should not be considered as
stray but counted in favor of the bona fide candidate after the other candidate with a
similar surname was declared a nuisance candidate. In refusing to apply the ruling
in Bautista, the HRET said that the factual circumstances in said case are different, thus:
"Protestant strongly asserts that the 'MARTINEZ' or 'C.
MARTINEZ' only votes be counted in his favor invoking the ruling in
the case of Bautista vs. Comelec, G.R. No. 133840, November 13, 1998
(298 SCRA 480) where the Supreme Court held that the final and
conclusive ruling on the declaration of a nuisance candidate retroacts
on the day of the election.
"We disagree.
"While the Bautista vs. Comelec case also involves a candidate
declared as nuisance by the Comelec, the case herein is not on all
fours with it. x x x
"x x x
"It is clear from the foregoing facts of the Bautista case that
the nuisance candidate, Edwin Bautista, was declared as such on
April 30, 1998, eleven (11) days before the May 11, 1998 elections.
Although the decision was not yet final on Election Day because of a
Motion for Reconsideration that Edwin Bautista had filed on May 8,
1998, nevertheless, his name was not included in the list of
candidates for the position of Mayor for Navotas. This is not the
situation in the present case for Edilito C. Martinez was not yet
declared disqualified during the May 14, 2007 elections. There
were, therefore, two (2) congressional candidates on the day of the
election with "MARTINEZ" as surname, Celestino A. Martinez and
Edilito C. Martinez.
"More importantly, in the Bautista case, while the Comelec's
decision declaring Edwin Bautista a nuisance candidate had not yet
attained finality on election day, May 11, 1998, the voters of Navotas
were informed of such disqualification by virtue of newspaper
releases and other forms of notification. The voters in said case had
constructive as well as actual knowledge of the action of the
Comelec delisting Edwin Bautista as a candidate for mayor. This
is not so in the present case for Edilito C. Martinez was not yet
disqualified as nuisance candidate during the May 14, 2007
elections. There were no newspaper releases and other forms of
notification to the voters of the Fourth District of Cebu on or
before May 14, 2007 elections that Edilito C. Martinez was
disqualified as a nuisance candidate."[21] [EMPHASIS SUPPLIED.]
It is clear that Bautista is anchored on the factual determination that the COMELEC
resolution declaring Edwin Bautista a nuisance candidate was already final since his
35
motion for reconsideration was already denied by the Commission when canvassing of
the votes started. Hence, the segregated and separately tallied votes containing only the
similar first names/nicknames and surnames of the two (2) candidates were considered
as not really stray votes. We held that the separate tallies validated by the COMELEC
actually made the will of the electorate determinable despite the apparent confusion
caused by a nuisance candidate.
In the case at bar, there was no segregation or separate tally of votes for petitioner.
Unlike in Bautista, there was simply no opportunity for petitioner to request the
segregation and separate tally of expected ballots containing only the surname
"MARTINEZ" as the resolution granting his petition was promulgated only a month later.
The HRET, while not closing its eyes to the prejudice caused to petitioner by COMELEC's
inaction and delay, as well as the disenfranchisement of the 5,401 voters, refused to
credit him with those votes on the ground that there was no way of determining the real
intention of the voter.
We disagree.
The purpose of an election protest is to ascertain whether the candidate
proclaimed by the board of canvassers is the lawful choice of the people. What is sought
is the correction of the canvass of votes, which was the basis of proclamation of the
winning candidate. Election contests, therefore, involve the adjudication not only of
private and pecuniary interests of rival candidates, but also of paramount public interest
considering the need to dispel uncertainty over the real choice of the electorate. [22]
In controversies pertaining to nuisance candidates as in the case at bar, the law
contemplates the likelihood of confusion which the similarity of surnames of two (2)
candidates may generate. A nuisance candidate is thus defined as one who, based on the
attendant circumstances, has no bona fide intention to run for the office for which the
certificate of candidacy has been filed, his sole purpose being the reduction of the votes
of a strong candidate, upon the expectation that ballots with only the surname of such
candidate will be considered stray and not counted for either of them.
In elections for national positions such as President, Vice-President and Senator,
the sheer logistical challenge posed by nuisance candidates gives compelling reason for
the Commission to exercise its authority to eliminate nuisance candidates who obviously
have no financial capacity or serious intention to mount a nationwide campaign. Thus
we explained in Pamatong v. Commission on Elections[23]:
"The rationale behind the prohibition against nuisance
candidates and the disqualification of candidates who have not
evinced a bona fide intention to run for office is easy to divine. The
State has a compelling interest to ensure that its electoral
exercises are rational, objective, and orderly. Towards this end, the
State takes into account the practical considerations in conducting
elections. Inevitably, the greater the number of candidates, the greater
the opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election. These
practical difficulties should, of course, never exempt the State from the
conduct of a mandated electoral exercise. At the same time, remedial
actions should be available to alleviate these logistical hardships,
whenever necessary and proper. Ultimately, a disorderly election is
not merely a textbook example of inefficiency, but a rot that erodes
faith in our democratic institutions. As the United States Supreme
Court held:
[T]here is surely an important state
interest in requiring some preliminary showing of a
significant modicum of support before printing the
name of a political organization and its candidates
on the ballot -- the interest, if no other, in avoiding
confusion, deception and even frustration of the
democratic [process].
"x x x x
"There is a need to limit the number of
candidates especially in the case of candidates for
national positions because the election process
becomes a mockery even if those who cannot clearly
wage a national campaign are allowed to run. Their
names would have to be printed in the Certified List
36
 of Candidates, Voters Information Sheet and the
Official Ballots. These would entail additional costs to
the government. x x x
"The preparation of ballots is but one aspect that would be
affected by allowance of "nuisance candidates" to run in the elections.
Our election laws provide various entitlements for candidates for
public office, such as watchers in every polling place, watchers in the
board of canvassers, or even the receipt of electoral contributions.
Moreover, there are election rules and regulations the formulations of
which are dependent on the number of candidates in a given election.
"Given these considerations, the ignominious nature of a
nuisance candidacy becomes even more galling. The organization of an
election with bona fide candidates standing is onerous enough. To add
into the mix candidates with no serious intentions or capabilities to
run a viable campaign would actually impair the electoral process. x x
x
"x x x" [24] [EMPHASIS SUPPLIED]
Given the realities of elections in our country and particularly contests involving
local positions, what emerges as the paramount concern in barring nuisance candidates
from participating in the electoral exercise is the avoidance of confusion and frustration
of the democratic process by preventing a faithful determination of the true will of the
electorate, more than the practical considerations mentioned in Pamatong. A report
published by the Philippine Center for Investigative Journalism in connection with the
May 11, 1998 elections indicated that the tactic of fielding nuisance candidates with the
same surnames as leading contenders had become one (1) "dirty trick" practiced in at
least 18 parts of the country. The success of this clever scheme by political rivals or
operators has been attributed to the last-minute disqualification of nuisance candidates
by the Commission, notably its "slow-moving" decision-making.[25]
As illustrated in Bautista, the pendency of proceedings against a nuisance candidate
on election day inevitably exposes the bona fide candidate to the confusion over the
similarity of names that affects the voter's will and frustrates the same. It may be that the
factual scenario in Bautista is not exactly the same as in this case, mainly because the
Comelec resolution declaring Edwin Bautista a nuisance candidate was issued before and
not after the elections, with the electorate having been informed thereof through
newspaper releases and other forms of notification on the day of election. Undeniably,
however, the adverse effect on the voter's will was similarly present in this case, if not
worse, considering the substantial number of ballots with only "MARTINEZ" or "C.
MARTINEZ" written on the line for Representative - over five thousand - which have
been declared as stray votes, the invalidated ballots being more than sufficient to
overcome private respondent's lead of only 453 votes after the recount.
Bautista upheld the basic rule that the primordial objective of election laws is to
give effect to, rather than frustrate, the will of the voter. The inclusion of nuisance
candidates turns the electoral exercise into an uneven playing field where the bona
fide candidate is faced with the prospect of having a significant number of votes cast for
him invalidated as stray votes by the mere presence of another candidate with a similar
surname. Any delay on the part of the COMELEC increases the probability of votes lost in
this manner. While political campaigners try to minimize stray votes by advising the
electorate to write the full name of their candidate on the ballot, still, election woes
brought by nuisance candidates persist.
The Court will not speculate on whether the new automated voting system to be
implemented in the May 2010 elections will lessen the possibility of confusion over the
names of candidates. What needs to be stressed at this point is the apparent failure of the
HRET to give weight to relevant circumstances that make the will of the
electorate determinable, following the precedent in Bautista. These can be gleaned from
the findings of the Commission on the personal circumstances of Edilito C. Martinez
clearly indicating lack of serious intent to run for the position for which he filed his
certificate of candidacy, foremost of which is his sudden absence after such filing. In
contrast to petitioner who is a well-known politician, a former municipal mayor for three
(3) terms and a strong contender for the position of Representative of the Fourth
37

Legislative District of Cebu (then occupied by his mother), it seems too obvious that
Edilito C. Martinez was far from the voters' consciousness as he did not even campaign
nor formally launch his candidacy. The HRET likewise failed to mention the total number
of votes actually cast for Edilito C. Martinez, which can support petitioner's contention
that the "MARTINEZ" and "C. MARTINEZ" votes could not have been intended as votes
for Edilito C. Martinez.
Petitioner should not be prejudiced by COMELEC's inefficiency and lethargy. Nor
should the absence of objection over straying of votes during the actual counting bar
petitioner from raising the issue in his election protest. The evidence clearly shows that
Edilito C. Martinez, who did not even bother to file an answer and simply disappeared
after filing his certificate of candidacy, was an unknown in politics within the district, a
"habal-habal" driver who had neither the financial resources nor political support to
sustain his candidacy. The similarity of his surname with that of petitioner was meant to
cause confusion among the voters and spoil petitioner's chances of winning the
congressional race for the Fourth Legislative District of Cebu. As it turned out, there were
thousands of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for
Representative, votes considered stray by the BEI and not counted in favor of petitioner,
and which the HRET affirmed to be invalid votes. Had the Commission timely resolved
the petition to declare Edilito C. Martinez a nuisance candidate, all such ballots with
"MARTINEZ" or "C. MARTINEZ" would have been counted in favor of petitioner and not
considered stray, pursuant to COMELEC Resolution No. 4116,[26] issued in relation to the
finality of resolutions or decisions in disqualification cases, which provides:
This pertains to the finality of decisions or resolutions of the
Commission en banc or division, particularly on Special
Actions (Disqualification Cases).
Special Action cases refer to the following:
(a) Petition to deny due course to a certificate of candidacy;
(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.
Considering the foregoing and in order to guide field officials
on the finality of decisions or resolutions on special action cases
(disqualification cases) the Commission, RESOLVES, as it is hereby
RESOLVED, as follows:
(1) the decision or resolution of the En Banc of the Commission
on disqualification cases shall become final and executory after five (5)
days from its promulgation unless restrained by the Supreme Court;
xxx
(4) the decision or resolution of the En Banc on nuisance
candidates, particularly whether the nuisance candidate has the same
name as the bona fide candidate shall be immediately executory;
(5) the decision or resolution of a DIVISION on nuisance
candidate, particularly where the nuisance candidate has the
same name as the bona fide candidate shall be immediately
executory after the lapse of five (5) days unless a motion for
reconsideration is seasonably filed. In which case, the votes cast shall
not be considered stray but shall be counted and tallied for the
bona fide candidate.
All resolutions, orders and rules inconsistent herewith are
hereby modified or repealed. [EMPHASIS SUPPLIED.]
We held in several cases that the judgments of the Electoral Tribunals are beyond
judicial interference, unless rendered without or in excess of their jurisdiction or with
grave abuse of discretion.[27] The power of judicial review may be invoked in exceptional
cases upon a clear showing of such arbitrary and improvident use by the Tribunal of its
power as constitutes a clear denial of due process of law, or upon a demonstration of a
very clear unmitigated error, manifestly constituting such grave abuse of direction that
there has to be a remedy for such abuse.[28] Grave abuse of discretion implies capricious
and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and
despotic exercise of power because of passion or personal hostility. The grave abuse of
discretion must be so patent and gross as to amount to an evasion or refusal to perform a
duty enjoined by law.[29] Respondent HRET gravely abused its discretion in affirming the
38
proclamation of respondent Salimbangon as the duly elected Representative of the

Fourth Legislative District of Cebu despite the final outcome of revision showing 5,401 WHEREFORE, the petition is GRANTED. The Decision dated May 28, 2009 and

ballots with only "MARTINEZ" or "C. "MARTINEZ" written on the line for Representative, Resolution dated July 30, 2009 of the House of Representatives Electoral Tribunal in

votes which should have been properly counted in favor of petitioner and not nullified as HRET Case No. 07-035 are ANNULLED and SET ASIDE. Petitioner Celestino A. Martinez

stray votes, after considering all relevant circumstances clearly establishing that such III is hereby declared the duly elected Representative of the Fourth Legislative District of

votes could not have been intended for "Edilito C. Martinez" who was declared a Cebu in the May 14, 2007 elections. This decision is immediately executory.

nuisance candidate in a final judgment.

Ensconced in our jurisprudence is the well-founded rule that laws and statutes Let a copy of the decision be served personally upon the parties and their counsels.

governing election contests especially appreciation of ballots must be liberally construed

to the end that the will of the electorate in the choice of public officials may not be No pronouncement as to costs.

defeated by technical infirmities. An election protest is imbued with public interest so

much so that the need to dispel uncertainties which becloud the real choice of the people SO ORDERED.

is imperative. [30] The prohibition against nuisance candidates is aimed precisely at

preventing uncertainty and confusion in ascertaining the true will of the electorate. Thus,

in certain situations as in the case at bar, final judgments declaring a nuisance candidate

should effectively cancel the certificate of candidacy filed by such candidate as of election

day. Otherwise, potential nuisance candidates will continue to put the electoral process
into mockery by filing certificates of candidacy at the last minute and delaying resolution

of any petition to declare them as nuisance candidates until elections are held and the

votes counted and canvassed.

We therefore hold that ballots indicating only the similar surname of two (2)

candidates for the same position may, in appropriate cases, be counted in favor of

the bona fide candidate and not considered stray, even if the other candidate was

declared a nuisance candidate by final judgment after the elections. Accordingly, the

5,401 votes for "MARTINEZ" or "C. MARTINEZ" should be credited to petitioner giving
him a total of 72,056 votes as against 67,108 total votes of private respondent.

Petitioner thus garnered more votes than private respondent with a winning margin

of 4,948 votes.
39

G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on
December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give
due course to petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated
January 17, 2004. The decision, however, was not unanimous since Commissioners
Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they
believed he had parties or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No.
6558. Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioner’s Motion for Reconsideration and on similar motions filed
by other aspirants for national elective positions, denied the same under the aegis
of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared
petitioner and thirty-five (35) others nuisance candidates who could not wage a
nationwide campaign and/or are not nominated by a political party or are not supported
by a registered political party with a national constituency. Commissioner Sadain
maintained his vote for petitioner. By then, Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which
were allegedly rendered in violation of his right to "equal access to opportunities for
public service" under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can
afford to wage a nationwide campaign and/or are nominated by political parties. In so
doing, petitioner argues that the COMELEC indirectly amended the constitutional
provisions on the electoral process and limited the power of the sovereign people to
choose their leaders. The COMELEC supposedly erred in disqualifying him since he is the
most qualified among all the presidential candidates, i.e., he possesses all the
constitutional and legal qualifications for the office of the president, he is capable of
waging a national campaign since he has numerous national organizations under his
leadership, he also has the capacity to wage an international campaign since he has
practiced law in other countries, and he has a platform of government. Petitioner
likewise attacks the validity of the form for the Certificate of Candidacy prepared by the
COMELEC. Petitioner claims that the form does not provide clear and reasonable
guidelines for determining the qualifications of candidates since it does not ask for the
candidate’s bio-data and his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal
access to opportunities for public office" is the claim that there is a constitutional right to
run for or hold public office and, particularly in his case, to seek the presidency. There is
none. What is recognized is merely a privilege subject to limitations imposed by law.
Section 26, Article II of the Constitution neither bestows such a right nor elevates the
privilege to the level of an enforceable right. There is nothing in the plain language of the
provision which suggests such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution, entitled
"Declaration of Principles and State Policies." The provisions under the Article are
generally considered not self-executing,2 and there is no plausible reason for according a
different treatment to the "equal access" provision. Like the rest of the policies
enumerated in Article II, the provision does not contain any judicially enforceable
constitutional right but merely specifies a guideline for legislative or executive
action.3 The disregard of the provision does not give rise to any cause of action before
the courts.4
An inquiry into the intent of the framers5 produces the same determination that the
provision is not self-executory. The original wording of the present Section 26, Article II
had read, "The State shall broaden opportunities to public office and prohibit public
dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought
forth an amendment that changed the word "broaden" to the phrase "ensure equal
access," and the substitution of the word "office" to "service." He explained his proposal
in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is
important would be equal access to the opportunity. If you broaden, it would
necessarily mean that the government would be mandated to create as
many offices as are possible to accommodate as many people as are also
possible. That is the meaning of broadening opportunities to public service. So,
in order that we should not mandate the State to make the government
the number one employer and to limit offices only to what may be
necessary and expedient yet offering equal opportunities to access to it, I
change the word "broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive measures
that would accommodate as many people as possible into public office. The approval of
the "Davide amendment" indicates the design of the framers to cast the provision as
40
simply enunciatory of a desired policy objective and not reflective of the imposition of a
clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded as the
source of positive rights. It is difficult to interpret the clause as operative in the absence
of legislation since its effective means and reach are not properly defined. Broadly
written, the myriad of claims that can be subsumed under this rubric appear to be
entirely open-ended.8 Words and phrases such as "equal access," "opportunities," and
"public service" are susceptible to countless interpretations owing to their inherent
impreciseness. Certainly, it was not the intention of the framers to inflict on the people
an operative but amorphous foundation from which innately unenforceable rights may
be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may be
subjected to limitations. Some valid limitations specifically on the privilege to seek
elective office are found in the provisions9 of the Omnibus Election Code on "Nuisance
Candidates" and COMELEC Resolution No. 645210 dated December 10, 2002 outlining the
instances wherein the COMELEC may motu proprio refuse to give due course to or cancel
a Certificate of Candidacy.
As long as the limitations apply to everybody equally without discrimination, however,
the equal access clause is not violated. Equality is not sacrificed as long as the burdens
engendered by the limitations are meant to be borne by any one who is minded to file a
certificate of candidacy. In the case at bar, there is no showing that any person is exempt
from the limitations or the burdens which they create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69
of the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December
2003. Thus, their presumed validity stands and has to be accorded due weight.
Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II
of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the disqualification
of candidates who have not evinced a bona fide intention to run for office is easy to
divine. The State has a compelling interest to ensure that its electoral exercises are
rational, objective, and orderly. Towards this end, the State takes into account the
practical considerations in conducting elections. Inevitably, the greater the number of
candidates, the greater the opportunities for logistical confusion, not to mention the
increased allocation of time and resources in preparation for the election. These practical
difficulties should, of course, never exempt the State from the conduct of a mandated
electoral exercise. At the same time, remedial actions should be available to alleviate
these logistical hardships, whenever necessary and proper. Ultimately, a disorderly
election is not merely a textbook example of inefficiency, but a rot that erodes faith in
our democratic institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary
showing of a significant modicum of support before printing the name of a
political organization and its candidates on the ballot – the interest, if no other,
in avoiding confusion, deception and even frustration of the democratic
[process].11
The COMELEC itself recognized these practical considerations when it
promulgated Resolution No. 6558 on 17 January 2004, adopting the study Memorandum
of its Law Department dated 11 January 2004. As observed in the COMELEC’s Comment:
There is a need to limit the number of candidates especially in the case of
candidates for national positions because the election process becomes a
mockery even if those who cannot clearly wage a national campaign are
allowed to run. Their names would have to be printed in the Certified List of
Candidates, Voters Information Sheet and the Official Ballots. These would
entail additional costs to the government. For the official ballots in automated
counting and canvassing of votes, an additional page would amount to more or
less FOUR HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they
cannot wage a decent campaign enough to project the prospect of winning, no
matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance of
"nuisance candidates" to run in the elections. Our election laws provide various
entitlements for candidates for public office, such as watchers in every polling
place,13 watchers in the board of canvassers,14 or even the receipt of electoral
contributions.15Moreover, there are election rules and regulations the formulations of
which are dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance candidacy becomes
even more galling. The organization of an election with bona fide candidates standing is
onerous enough. To add into the mix candidates with no serious intentions or
capabilities to run a viable campaign would actually impair the electoral process. This is
not to mention the candidacies which are palpably ridiculous so as to constitute a one-
note joke. The poll body would be bogged by irrelevant minutiae covering every step of
the electoral process, most probably posed at the instance of these nuisance candidates.
It would be a senseless sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the State could
exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the
moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the
compelling State interest to ensure orderly and credible elections by excising
impediments thereto, such as nuisance candidacies that distract and detract from the
larger purpose. The COMELEC is mandated by the Constitution with the administration
41
of elections16 and endowed with considerable latitude in adopting means and methods SO ORDERED.
that will ensure the promotion of free, orderly and honest elections.17 Moreover, the
Constitution guarantees that only bona fide candidates for public office shall be free from
any form of harassment and discrimination.18 The determination of bona fidecandidates
is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the
Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application
in the case of the petitioner cannot be tested and reviewed by this Court on the basis of
what is now before it. The assailed resolutions of the COMELEC do not direct the Court to
the evidence which it considered in determining that petitioner was a nuisance
candidate. This precludes the Court from reviewing at this instance whether the
COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a
review would necessarily take into account the matters which the COMELEC considered
in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents

purportedly evincing his credentials as an eligible candidate for the presidency. Yet this
Court, not being a trier of facts, can not properly pass upon the reproductions as
evidence at this level. Neither the COMELEC nor the Solicitor General appended any
document to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and
factual. The basis of the factual determination is not before this Court. Thus, the remand
of this case for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve
in the government. It deserves not a cursory treatment but a hearing which conforms to
the requirements of due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy,
suffice it to say that the form strictly complies with Section 74 of the Omnibus Election
Code. This provision specifically enumerates what a certificate of candidacy should
contain, with the required information tending to show that the candidate possesses the
minimum qualifications for the position aspired for as established by the Constitution
and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby
remanded to the COMELEC for the reception of further evidence, to determine the
question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as
contemplated in Section 69 of the Omnibus Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report its
findings to this Court with deliberate dispatch.

42

J
OSEPH B. TIMBOL, Petitioner, v. COMMISSION ON ELECTIONS, Respondent.
RESOLUTION
LEONEN, J.:
The power of the Commission on Elections (COMELEC) to restrict a citizen's right of
suffrage should not be arbitrarily exercised. The COMELEC cannot motu proprio deny
due course to or cancel an alleged nuisance candidate's certificate of candidacy without
providing the candidate his opportunity to be heard.
This is a Petition1 for Certiorari with prayer for issuance of preliminary mandatory
injunction against the following issuances of the COMELEC: first, Resolution No.
96102 dated January 11, 2013, declaring petitioner Joseph B. Timbol (Timbol) a nuisance
candidate and ordering the removal of his name from the certified list of
candidates;3 and second, Minute Resolution4 dated February 5, 2013, denying his
Petition to have his name listed in the certified list of candidates and printed on the
ballots for the May 13, 2013 elections.5cralawred
On October 5, 2012, Timbol filed a Certificate of Candidacy6 for the position of Member of
the Sangguniang Panlungsod of the Second District of Caloocan City. On January 15,
2013, he received a Subpoena7 from COMELEC Election Officer Dinah A. Valencia
(Election Officer Valencia), ordering him to appear before her office on January 17, 2013
for a clarificatory hearing in connection with his Certificate of Candidacy.8cralawred
Timbol, together with his counsel, appeared before Election Officer Valencia. During the
clarificatory hearing, Timbol argued that he was not a nuisance candidate. He contended
that in the 2010 elections, he ranked eighth among all the candidates who ran for
Member of the Sangguniang Panlungsod of the Second District of Caloocan City. He
allegedly had sufficient resources to sustain his campaign.9cralawred
He pointed out before the clarificatory hearing panel that his name already appeared in
the list of nuisance candidates posted in the COMELEC website pursuant to Resolution
No. 9610 dated January 11, 2013. The clarificatory hearing panel allegedly assured him
that his name would be deleted from the list and that his Certificate of Candidacy would
be given due course.10cralawred
In the Memorandum11 dated January 17, 2013, Election Officer Valencia recommended
that Timbol's Certificate of Candidacy be given due course.12cralawred
Despite Election Officer Valencia's favorable recommendation, Timbol's name was not
removed from the list of nuisance candidates posted in the COMELEC's website. With the
printing of ballots for the automated elections set on February 4, 2013, Timbol filed on
February 2, 2013 a Petition13 praying that his name be included in the certified list of
candidates for the May 13, 2013 elections.14cralawred
In the Minute Resolution dated February 5, 2013, the COMELEC denied the Petition for
being moot, considering that the printing of ballots had already begun.15cralawred
On March 15, 2013,16 Timbol filed his Petition for Certiorari with this court, arguing that
the COMELEC gravely abused its discretion in declaring him a nuisance
candidate.17 According to Timbol, the COMELEC deprived him of due process of law
when he was declared a nuisance candidate even before Election Officer Valencia
conducted the clarificatory hearing.18 He prayed for a preliminary mandatory injunction
ordering the COMELEC to include his name in the certified list of candidates for the
position of Member of Sangguniang Panlungsod of the Second District of Caloocan
City.19cralawred
In the Resolution20 dated April 16, 2013, this court ordered the Office of the Solicitor
General to comment on behalf of the COMELEC.
In its Comment,21 the COMELEC argued that the Petition was already moot and academic,
considering that the May 13, 2013 elections had already been conducted. 22cralawred
Even assuming that the Petition was not moot and academic, the COMELEC maintained
that it did not gravely abuse its discretion. Contrary to Timbol's argument, he was given
an opportunity to be heard when Election Officer Valencia heard him during the
clarificatory hearing. He even admitted that he attended the clarificatory hearing with his
counsel.23cralawred
Moreover, the COMELEC did not gravely abuse its discretion in denying Timbol's Petition
to be included in the certified list of candidates, considering that the printing of ballots
had already started.24cralawred
With these arguments, the COMELEC prayed that this court deny the Petition for lack of
merit.25cralawred
In the Resolution26 dated August 6, 2013, this court ordered Timbol to file a reply. When
Timbol failed to file his reply despite receipt of the order,27 we required Atty. Jose
Ventura Aspiras (Atty. Aspiras), counsel for Timbol, to show cause why he should not be
disciplinarily dealt with for failing to file a reply on behalf of his client in the
Resolution28 dated September 2, 2014. We likewise reiterated our order for Atty. Aspiras
43
to file a reply for Timbol.29 Still, Atty. Aspiras failed to comply with our show cause
resolution.
We dispense with the filing of the reply and resolve to decide this case based on the
Petition and the Comment.
The issues for this court's resolution are the following:
First, whether this case is moot and academic; and
Second, whether respondent COMELEC gravely abused its discretion in denying
petitioner Timbol's Petition for inclusion in the certified list of candidates.
We deny the Petition.chanroblesvirtuallawlibrary
I which clearly demonstrate that the candidate has no bona fide intention to run for the
This case is moot and academic.
A case is moot and academic if it "ceases to present a justiciable controversy because of
supervening events so that a declaration thereon would be of no practical use or
value."30 When a case is moot and academic, this court generally declines jurisdiction
over it.31cralawred
There are recognized exceptions to this rule. This court has taken cognizance of moot
and academic cases when:chanRoblesvirtualLawlibrary
(1) there was a grave violation of the Constitution; (2) the case involved a situation of
exceptional character and was of paramount public interest; (3) the issues raised
required the formulation of controlling principles to guide the Bench, the Bar and the
public; and (4) the case was capable of repetition yet evading review.32 (Citation
omitted)cralawlawlibrary
We may no longer act on petitioner's prayer that his name be included in the certified list
of candidates and be printed on the ballots as a candidate for Member of the
Sangguniang Panlungsod. Petitioner filed with this court his Petition for Certiorari on
March 15, 2013, 39 days after respondent began printing the ballots on February 4,
2013. Also, the May 13, 2013 elections had been concluded, with the winners already
proclaimed.
That this case is moot and academic, however, does not preclude us from setting forth
"controlling and authoritative doctrines"33 to be observed by respondent in motu
proprio denying due course to or cancelling certificates of candidacy of alleged nuisance
candidates. This motu proprio authority is always subject to the alleged nuisance
candidate's opportunity to be heard34 — an essential element of procedural due
process.35cralawred
II
Respondent's power to motu proprio deny
due course to a certificate of candidacy is
subject to the candidate's opportunity to
be heard.
Under Article II, Section 26 of the Constitution, "[t]he State shall guarantee equal access
to opportunities for public service[.]" This, however, does not guarantee "a constitutional
right to run for or hold public office[.]"36 To run for public office is a mere "privilege
subject to limitations imposed by law."37 Among these limitations is the prohibition on
nuisance candidates.
Nuisance candidates are persons who file their certificates of candidacy "to put the
election process in mockery or disrepute or to cause confusion among the voters by the
similarity of the names of the registered candidates or by other circumstances or acts
office for which the certificate of candidacy has been filed and thus prevent a faithful
determination of the true will of the electorate."38 In Pamatong v. Commission on
Elections,39 this court explained why nuisance candidates are prohibited from running
for public office:chanRoblesvirtualLawlibrary
. . . The State has a compelling interest to ensure that its electoral exercises are rational,
objective, and orderly. Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the number of candidates,
the greater the opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election. These practical
difficulties should, of course, never exempt the State from the conduct of a mandated
electoral exercise. At the same time, remedial actions should be available to alleviate
these logistical hardships, whenever necessary and proper. Ultimately, a disorderly
election is not merely a textbook example of inefficiency, but a rot that erodes faith in
our democratic institutions. . . .
. . . The organization of an election with bona fide candidates standing is onerous enough.
To add into the mix candidates with no serious intentions or capabilities to run a viable
campaign would actually impair the electoral process. This is not to mention the
candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll
body would be bogged by irrelevant minutiae covering every step of the electoral
process, most probably posed at the instance of these nuisance candidates. It would be a
senseless sacrifice on the part of the State.40cralawlawlibrary
To minimize the logistical confusion caused by nuisance candidates, their certificates of
candidacy may be denied due course or cancelled by respondent. This denial or
cancellation may be "motu proprio or upon a verified petition of an interested
party,"41 "subject to an opportunity to be heard."42cralawred
The opportunity to be heard is a chance "to explain one's side or an opportunity to seek a
reconsideration of the action or ruling complained of."43 In election cases, due process
requirements are satisfied "when the parties are afforded fair and reasonable
opportunity to explain their side of the controversy at hand."44cralawred
44

In Cipriano v. Commission on Elections,45 this court
explained:chanRoblesvirtualLawlibrary
[T]he determination whether a candidate is eligible for the position he is seeking
involves a determination of fact where both parties must be allowed to adduce evidence
in support of their contentions. Because the resolution of such fact may result to a
deprivation of one's right to run for public office, or, as in this case, one's right to hold
public office, it is only proper and fair that the candidate concerned be notified of the
proceedings against him and that he be given the opportunity to refute the allegations
against him. It should be stressed that it is not sufficient, as the COMELEC claims, that the
candidate be notified of the Commission's inquiry into the veracity of the contents of his
certificate of candidacy, but he must also be allowed to present his own evidence to
prove that he possesses the qualifications for the office he seeks.46cralawlawlibrary
Respondent commits grave abuse of discretion if it denies due course to or cancels a
certificate of candidacy without affording the candidate an opportunity to be
heard.47cralawred
Resolution dated September 2, 2014.
Atty. Aspiras, counsel for petitioner, failed to obtain the injunctive reliefs prayed for in
time for the May 13, 2013 elections. However, this was no reason for him to defy our
orders to file a reply on behalf of his client. for such contumacious acts, he should be
ordered to show cause why he should not be proceeded with administratively.
WHEREFORE, this Petition for Certiorari is DENIED for being moot and academic.
Moreover, Atty. Jose Ventura Aspiras is ORDERED to show cause within a non-
extendible period of ten (10) days from receipt of this Resolution why he should not be
the subject of administrative actions for his contumacious attitude towards repeated
orders of this court, specifically, for his failure to comply with the Resolutions dated
August 6, 2013 and September 2, 2013. The action against Atty. Jose Ventura Aspiras
will be docketed as a new and separate administrative case.
Let a copy of this decision be given to the Office of the Bar Confidant for the initiation of
the proper disciplinary action against Atty. Jose Ventura Aspiras.

Respondent declared petitioner a nuisance candidate without giving him a chance to SO ORDERED.cralawlawlibrary
explain his bona fideintention to run for office. Respondent had already issued
Resolution No. 9610 on January 11, 2013 when petitioner appeared before Election
Officer Valencia in a clarificatory hearing on January 17, 2013. This was an ineffective
opportunity to be heard.

That petitioner was able to file a Petition for inclusion in the certified list of candidates
did not cure the defect in the issuance of Resolution No. 9610. First, he would not have to
file the Petition had been given an opportunity to be heard in the first place. Second, in
the Minute Resolution dated February 5, 2013, respondent denied petitioner's Petition
on the sole ground that the printing of ballots had already begun on February 4, 2013.

We understand the "insurmountable and tremendous operational constraints and costs

implications"48 of reprinting ballots had respondent ordered the inclusion of petitioner's
name in the certified list if candidates. The ballots already printed would have to be
recalled, leading to the waste of the ballots previously printed. It should be noted that
these ballots are special as the have the capability of being optically scanned by Precinct
Count Optical Scan machines. Reprinting another batch of ballots would, indeed, be
costly.

Still, "automation is not the end-all and be-all of an electoral process."49 Respondent
should also balance its duty "to ensure that the electoral process is clean, honest, orderly,
and peaceful"50 with the right of a candidate to explain his or her bona fide intention to
run for public office before he or she is declared a nuisance
candidate.chanroblesvirtuallawlibrary

III

Counsel for petitioner must be fined for

failure to comply with the Show Cause

45

J
OSEPH B. TIMBOL, Petitioner, v. COMMISSION ON ELECTIONS, Respondent.
RESOLUTION
LEONEN, J.:
The power of the Commission on Elections (COMELEC) to restrict a citizen's right of
suffrage should not be arbitrarily exercised. The COMELEC cannot motu proprio deny
due course to or cancel an alleged nuisance candidate's certificate of candidacy without
providing the candidate his opportunity to be heard.
This is a Petition1 for Certiorari with prayer for issuance of preliminary mandatory
injunction against the following issuances of the COMELEC: first, Resolution No.
96102 dated January 11, 2013, declaring petitioner Joseph B. Timbol (Timbol) a nuisance
candidate and ordering the removal of his name from the certified list of
candidates;3 and second, Minute Resolution4 dated February 5, 2013, denying his
Petition to have his name listed in the certified list of candidates and printed on the
ballots for the May 13, 2013 elections.5cralawred
On October 5, 2012, Timbol filed a Certificate of Candidacy6 for the position of Member of
the Sangguniang Panlungsod of the Second District of Caloocan City. On January 15,
2013, he received a Subpoena7 from COMELEC Election Officer Dinah A. Valencia
(Election Officer Valencia), ordering him to appear before her office on January 17, 2013
for a clarificatory hearing in connection with his Certificate of Candidacy.8cralawred
Timbol, together with his counsel, appeared before Election Officer Valencia. During the
clarificatory hearing, Timbol argued that he was not a nuisance candidate. He contended
that in the 2010 elections, he ranked eighth among all the candidates who ran for
Member of the Sangguniang Panlungsod of the Second District of Caloocan City. He
allegedly had sufficient resources to sustain his campaign.9cralawred
He pointed out before the clarificatory hearing panel that his name already appeared in
the list of nuisance candidates posted in the COMELEC website pursuant to Resolution
No. 9610 dated January 11, 2013. The clarificatory hearing panel allegedly assured him
that his name would be deleted from the list and that his Certificate of Candidacy would
be given due course.10cralawred
In the Memorandum11 dated January 17, 2013, Election Officer Valencia recommended
that Timbol's Certificate of Candidacy be given due course.12cralawred
Despite Election Officer Valencia's favorable recommendation, Timbol's name was not
removed from the list of nuisance candidates posted in the COMELEC's website. With the
printing of ballots for the automated elections set on February 4, 2013, Timbol filed on
February 2, 2013 a Petition13 praying that his name be included in the certified list of
candidates for the May 13, 2013 elections.14cralawred
In the Minute Resolution dated February 5, 2013, the COMELEC denied the Petition for
being moot, considering that the printing of ballots had already begun.15cralawred
On March 15, 2013,16 Timbol filed his Petition for Certiorari with this court, arguing that
the COMELEC gravely abused its discretion in declaring him a nuisance
candidate.17 According to Timbol, the COMELEC deprived him of due process of law
when he was declared a nuisance candidate even before Election Officer Valencia
conducted the clarificatory hearing.18 He prayed for a preliminary mandatory injunction
ordering the COMELEC to include his name in the certified list of candidates for the
position of Member of Sangguniang Panlungsod of the Second District of Caloocan
City.19cralawred
In the Resolution20 dated April 16, 2013, this court ordered the Office of the Solicitor
General to comment on behalf of the COMELEC.
In its Comment,21 the COMELEC argued that the Petition was already moot and academic,
considering that the May 13, 2013 elections had already been conducted. 22cralawred
Even assuming that the Petition was not moot and academic, the COMELEC maintained
that it did not gravely abuse its discretion. Contrary to Timbol's argument, he was given
an opportunity to be heard when Election Officer Valencia heard him during the
clarificatory hearing. He even admitted that he attended the clarificatory hearing with his
counsel.23cralawred
Moreover, the COMELEC did not gravely abuse its discretion in denying Timbol's Petition
to be included in the certified list of candidates, considering that the printing of ballots
had already started.24cralawred
With these arguments, the COMELEC prayed that this court deny the Petition for lack of
46
merit.25cralawred
In the Resolution26 dated August 6, 2013, this court ordered Timbol to file a reply. When
Timbol failed to file his reply despite receipt of the order,27 we required Atty. Jose
Ventura Aspiras (Atty. Aspiras), counsel for Timbol, to show cause why he should not be
disciplinarily dealt with for failing to file a reply on behalf of his client in the
Resolution28 dated September 2, 2014. We likewise reiterated our order for Atty. Aspiras
to file a reply for Timbol.29 Still, Atty. Aspiras failed to comply with our show cause
resolution.
We dispense with the filing of the reply and resolve to decide this case based on the
Petition and the Comment.
The issues for this court's resolution are the following:
First, whether this case is moot and academic; and
Second, whether respondent COMELEC gravely abused its discretion in denying
petitioner Timbol's Petition for inclusion in the certified list of candidates.
We deny the Petition.chanroblesvirtuallawlibrary
I office for which the certificate of candidacy has been filed and thus prevent a faithful
This case is moot and academic.
A case is moot and academic if it "ceases to present a justiciable controversy because of
supervening events so that a declaration thereon would be of no practical use or
value."30 When a case is moot and academic, this court generally declines jurisdiction
over it.31cralawred
There are recognized exceptions to this rule. This court has taken cognizance of moot
and academic cases when:chanRoblesvirtualLawlibrary
(1) there was a grave violation of the Constitution; (2) the case involved a situation of
exceptional character and was of paramount public interest; (3) the issues raised
required the formulation of controlling principles to guide the Bench, the Bar and the
public; and (4) the case was capable of repetition yet evading review.32 (Citation
omitted)cralawlawlibrary
We may no longer act on petitioner's prayer that his name be included in the certified list
of candidates and be printed on the ballots as a candidate for Member of the
Sangguniang Panlungsod. Petitioner filed with this court his Petition for Certiorari on
March 15, 2013, 39 days after respondent began printing the ballots on February 4,
2013. Also, the May 13, 2013 elections had been concluded, with the winners already
proclaimed.
That this case is moot and academic, however, does not preclude us from setting forth
"controlling and authoritative doctrines"33 to be observed by respondent in motu
proprio denying due course to or cancelling certificates of candidacy of alleged nuisance
candidates. This motu proprio authority is always subject to the alleged nuisance
candidate's opportunity to be heard34 — an essential element of procedural due
process.35cralawred
II
Respondent's power to motu proprio deny
due course to a certificate of candidacy is
subject to the candidate's opportunity to
be heard.
Under Article II, Section 26 of the Constitution, "[t]he State shall guarantee equal access
to opportunities for public service[.]" This, however, does not guarantee "a constitutional
right to run for or hold public office[.]"36 To run for public office is a mere "privilege
subject to limitations imposed by law."37 Among these limitations is the prohibition on
nuisance candidates.
Nuisance candidates are persons who file their certificates of candidacy "to put the
election process in mockery or disrepute or to cause confusion among the voters by the
similarity of the names of the registered candidates or by other circumstances or acts
which clearly demonstrate that the candidate has no bona fide intention to run for the
determination of the true will of the electorate."38 In Pamatong v. Commission on
Elections,39 this court explained why nuisance candidates are prohibited from running
for public office:chanRoblesvirtualLawlibrary
. . . The State has a compelling interest to ensure that its electoral exercises are rational,
objective, and orderly. Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the number of candidates,
the greater the opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election. These practical
difficulties should, of course, never exempt the State from the conduct of a mandated
electoral exercise. At the same time, remedial actions should be available to alleviate
these logistical hardships, whenever necessary and proper. Ultimately, a disorderly
election is not merely a textbook example of inefficiency, but a rot that erodes faith in
our democratic institutions. . . .
. . . The organization of an election with bona fide candidates standing is onerous enough.
To add into the mix candidates with no serious intentions or capabilities to run a viable
campaign would actually impair the electoral process. This is not to mention the
candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll
body would be bogged by irrelevant minutiae covering every step of the electoral
process, most probably posed at the instance of these nuisance candidates. It would be a
senseless sacrifice on the part of the State.40cralawlawlibrary
To minimize the logistical confusion caused by nuisance candidates, their certificates of
candidacy may be denied due course or cancelled by respondent. This denial or
cancellation may be "motu proprio or upon a verified petition of an interested
47
party,"41 "subject to an opportunity to be heard."42cralawred
The opportunity to be heard is a chance "to explain one's side or an opportunity to seek a
reconsideration of the action or ruling complained of."43 In election cases, due process
requirements are satisfied "when the parties are afforded fair and reasonable
opportunity to explain their side of the controversy at hand."44cralawred
In Cipriano v. Commission on Elections,45 this court
explained:chanRoblesvirtualLawlibrary
[T]he determination whether a candidate is eligible for the position he is seeking
involves a determination of fact where both parties must be allowed to adduce evidence
in support of their contentions. Because the resolution of such fact may result to a
deprivation of one's right to run for public office, or, as in this case, one's right to hold
public office, it is only proper and fair that the candidate concerned be notified of the
proceedings against him and that he be given the opportunity to refute the allegations
against him. It should be stressed that it is not sufficient, as the COMELEC claims, that the
candidate be notified of the Commission's inquiry into the veracity of the contents of his
certificate of candidacy, but he must also be allowed to present his own evidence to
prove that he possesses the qualifications for the office he seeks.46cralawlawlibrary
Respondent commits grave abuse of discretion if it denies due course to or cancels a
certificate of candidacy without affording the candidate an opportunity to be
heard.47cralawred
Respondent declared petitioner a nuisance candidate without giving him a chance to
explain his bona fideintention to run for office. Respondent had already issued
Resolution No. 9610 on January 11, 2013 when petitioner appeared before Election
Officer Valencia in a clarificatory hearing on January 17, 2013. This was an ineffective
opportunity to be heard.
run for public office before he or she is declared a nuisance
candidate.chanroblesvirtuallawlibrary
III
Counsel for petitioner must be fined for
failure to comply with the Show Cause
Resolution dated September 2, 2014.
Atty. Aspiras, counsel for petitioner, failed to obtain the injunctive reliefs prayed for in
time for the May 13, 2013 elections. However, this was no reason for him to defy our
orders to file a reply on behalf of his client. for such contumacious acts, he should be
ordered to show cause why he should not be proceeded with administratively.
WHEREFORE, this Petition for Certiorari is DENIED for being moot and academic.
Moreover, Atty. Jose Ventura Aspiras is ORDERED to show cause within a non-
extendible period of ten (10) days from receipt of this Resolution why he should not be
the subject of administrative actions for his contumacious attitude towards repeated
orders of this court, specifically, for his failure to comply with the Resolutions dated
August 6, 2013 and September 2, 2013. The action against Atty. Jose Ventura Aspiras
will be docketed as a new and separate administrative case.
Let a copy of this decision be given to the Office of the Bar Confidant for the initiation of
the proper disciplinary action against Atty. Jose Ventura Aspiras.
SO ORDERED.cralawlawlibrary

That petitioner was able to file a Petition for inclusion in the certified list of candidates
did not cure the defect in the issuance of Resolution No. 9610. First, he would not have to
file the Petition had been given an opportunity to be heard in the first place. Second, in
the Minute Resolution dated February 5, 2013, respondent denied petitioner's Petition
on the sole ground that the printing of ballots had already begun on February 4, 2013.

We understand the "insurmountable and tremendous operational constraints and costs

implications"48 of reprinting ballots had respondent ordered the inclusion of petitioner's
name in the certified list if candidates. The ballots already printed would have to be
recalled, leading to the waste of the ballots previously printed. It should be noted that
these ballots are special as the have the capability of being optically scanned by Precinct
Count Optical Scan machines. Reprinting another batch of ballots would, indeed, be
costly.

Still, "automation is not the end-all and be-all of an electoral process."49 Respondent
should also balance its duty "to ensure that the electoral process is clean, honest, orderly,
and peaceful"50 with the right of a candidate to explain his or her bona fide intention to

48
 TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.
COMMISSION ON ELECTIONS and UMBRA RAMIL
BAYAM DILANGALEN, Promulgated:
Respondents.
December 18, 2008
x-----------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

These consolidated petitions provide a welcome avenue for the Court to dichotomize,

once and for all, two popular remedies to prevent a candidate from running for an

elective position which are indiscriminately interchanged by the Bench and the Bar,

adding confusion to the already difficult state of our jurisprudence on election laws.

MIKE A. FERMIN, G.R. No. 179695

Petitioner,
For the Courts resolution are two petitions for certiorari under Rule 64 in
- versus - relation to Rule 65 of the Rules of Court: (1) G.R. No. 179695, which assails the June 29,
COMMISSION ON ELECTIONS and UMBRA RAMIL 2007 Resolution[1] of the Commission on Elections (COMELEC) 2nd Division in SPA No.
BAYAM DILANGALEN,
Respondents. 07-372, and the September 20, 2007 Resolution[2] of the COMELEC En Bancaffirming the
X----------------------X
said division resolution; and (2) G.R. No. 182369, which challenges the February 14,
MIKE A. FERMIN,
Petitioner, G.R. No. 182369 2008 Resolution[3] of the COMELEC 1st Division in SPR No. 45-2007, the March 13, 2008

Present: Order[4] of the COMELEC En Banc denying petitioners motion for reconsideration, and
PUNO, C.J.,
QUISUMBING, the March 26, 2008 Entry of Judgment[5] issued by the Electoral Contests and
YNARES-SANTIAGO, Adjudication Department (ECAD) of the Commission in the said case.
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,*
- versus - CARPIO MORALES, The relevant facts and proceedings follow.
AZCUNA,*
49

After the creation of Shariff Kabunsuan,[6] the Regional Assembly of the Autonomous
Region in Muslim Mindanao (ARMM), on November 22, 2006, passed Autonomy Act No.
205[7] creating the Municipality of Northern Kabuntalan in Shariff Kabunsuan. This new
municipality was constituted by separating Barangays Balong, Damatog, Gayonga,
Guiawa, Indatuan, Kapinpilan, P. Labio, Libungan, Montay, Sabaken and Tumaguinting
from the Municipality of Kabuntalan.[8]
Mike A. Fermin, the petitioner in both cases, was a registered voter
of Barangay Payan, Kabuntalan. On December 13, 2006, claiming that he had been a
resident of Barangay Indatuan for 1 year and 6 months, petitioner applied with the
COMELEC for the transfer of his registration record to the said barangay.[9] In the
meantime, the creation of North Kabuntalan was ratified in a plebiscite on December 30,
2006,[10] formally making Barangay Indatuan a component of Northern Kabuntalan.
Thereafter, on January 8, 2007, the COMELEC approved petitioner's application
for the transfer of his voting record and registration as a voter to Precinct 21A
of Barangay Indatuan, Northern Kabuntalan.[11] On March 29, 2007, Fermin filed his
Certificate of Candidacy (CoC) for mayor of Northern Kabuntalan in the May 14,
2007National and Local Elections.[12]
On April 20, 2007, private respondent Umbra Ramil Bayam Dilangalen, another
mayoralty candidate, filed a Petition[13] for Disqualification [the Dilangalen petition]
against Fermin, docketed as SPA (PES) No. A07-003 [re-docketed as SPA No. 07-372
before the COMELEC] with the Office of the Provincial Election Supervisor of Shariff
Kabunsuan. The petition alleged that the petitioner did not possess the period of
residency required for candidacy and that he perjured himself in his CoC and in his
application for transfer of voting record. The pertinent portions of the petition follow:
1. THE PETITIONER is of legal age, a registered voter, resident and
incumbent Municipal Mayor of the Municipality of Northern
Kabuntalan, holding office at Barangay Paulino Labio in the
Municipality of Northern Kabuntalan where he may be
served summons and other legal processes.
2. THE PETITIONER is a candidate for election as Mayor in the
same Municipality of Northern Kabuntalan, being a resident
of and domiciled in the Municipality since birth. The
Respondent is also a candidate for the same office, Mayor in
the same Municipality of Northern Kabuntalan. He is,
however, not a resident of the Municipality.
3. THE RESPONDENT perjured himself when he swore to the truth of
his statement in his Certificate of Candidacy of being a
resident of the Municipality for the last 38 years, when in
truth and in fact he simply transferred his registration from
the Municipality of Kabuntalan on 13 December 2006,
wherein he stated that he has relocated to that municipality
a year and six months earlier, or no earlier than June 2005.
4. THE RESPONDENT perjured himself when he swore to the truth of
his statement in his Certificate of Candidacy of being a
resident of the Municipality for the last 38 years, when in
truth and in fact he has stayed for at least 33 years in
Barangay Payan, Municipality [of] Kabunt[a]lan.
5. THE RESPONDENT perjured himself when he swore to the truth of
his statement in his Application for Transfer that he is a
resident of Barangay Indatuan on 13 December 2006,
wherein he stated that he has relocated to that municipality
a year and six months earlier, or on or about June 2005,
when in truth and in fact he has never resided much less
domiciled himself in Indatuan or anywhere else in the
Municipality of Northern Kabuntalan earlier than 14 May
2006.
6. THE RESPONDENT perjured himself when he swore to the truth of
his statement in his Certificate of Candidacy of being a
resident of the Municipality for the last 38 years, when in
truth and in fact he has never resided in the Municipality,
but was simply visiting the area whenever election is [f]ast
approaching.
WHEREFORE, premises considered, it is most respectfully
prayed that, [in consideration] of the Respondent not possessing the
residence required for candidacy, and having perjured himself in a
number of times, the Commission disqualify the Respondent.[14]
50
 RECORD DUE TO CHANGE OF RESIDENCE FROM BARANGAY PAYAN
TO BARANGAY INDATUAN IN THE SAME MUNICIPALITY OF
Elections were held without any decision being rendered by the COMELEC in KABUNTALAN.[20]
the said case. After the counting and canvassing of votes, Dilangalen emerged as the

victor with 1,849 votes over Fermins 1,640.[15] The latter subsequently filed an election
Petitioner contends that the Dilangalen petition is a petition to deny due course to or
protest (Election Case No. 2007-022) with the Regional Trial Court (RTC), Branch 13 of
cancel a CoC under Section 78 of the Omnibus Election Code (OEC).[21] Following
Cotabato City.[16]
Republic Act (R.A.) No. 6646, the same must be filed within 5 days from the last day for

the filing of CoC, which, in this case, is March 30, 2007, and considering that the said
G.R. No. 179695
petition was filed by Dilangalen only on April 20, 2007, the same was filed out of time.

The COMELEC should have then dismissed SPA No. 07-372 outright.[22]
On June 29, 2007, the COMELEC 2nd Division, in SPA No. 07-372, disqualified

Fermin for not being a resident of Northern Kabuntalan.[17] It ruled that, based on his
Petitioner further argues that he has been a resident of Barangay Indatuan long before
declaration that he is a resident of Barangay Payan as of April 27, 2006 in his oath of
the creation of Northern Kabuntalan. This change of residence prompted him to apply for
office before Datu Andal Ampatuan, Fermin could not have been a resident
the transfer of his voters registration record from Barangay Payan to Barangay Indatuan.
of BarangayIndatuan for at least one year.[18]
Moreover, the one year residency requirement under the law is not applicable to

candidates for elective office in a newly created municipality, because the length of
The COMELEC En Banc, on September 20, 2007, affirmed the Division's
residency of all its inhabitants is reckoned from the effective date of its creation.[23]
ruling.[19]

In his comment, private respondent counters that the petition it filed is one for
Thus, petitioner instituted G.R. No. 179695 before this Court raising the
disqualification under Section 68 of the OEC which may be filed at any time after the last
following issues:
day for filing of the CoC but not later than the candidates proclamation should he win in

A. the elections. As he filed the petition on April 20, 2007, long before the proclamation of

the eventual winning candidate, the same was filed on time.[24]

WHETHER OR NOT THE PETITION TO DISQUALIFY PETITIONER
FROM SEEKING THE MAYORALTY POST OF
THE MUNICIPALITY OF NORTHERN KABUNTALANSHOULD BE
DISMISSED FOR HAVING BEEN FILED OUT OF TIME. Private respondent likewise posits that petitioner failed to comply with the one-year

residency requirement for him to be able to run for an elective office in Northern
B.
Kabuntalan. Petitioner applied for the transfer of his voting record on December 13,
WHETHER OR NOT THE ONE (1) YEAR RESIDENCY REQUIREMENT
AS PROVIDED BY ART. 56, PAR. NO. 3, RULE XIII, RULES AND 2006, and this was approved only on January 8, 2007.[25]
REGULATIONS IMPLEMENTING THE LOCAL GOVERNMENT CODE OF
THE AUTONOMOUS REGION IN MUSLIM MINDANAO IS APPLICABLE
TO PETITIONER, WHO TRANSFERRED HIS VOTER'S REGISTRATION G.R. No. 182369

51

During the pendency of G.R. No. 179695 with the Court, Dilangalen filed, on September
27, 2007, with the RTC of Cotabato a motion to dismiss Election Case No. 07-022 on the
ground that Fermin had no legal standing to file the said protest, the COMELEC En
Banc having already affirmed his disqualification as a candidate; and this Court, in the
abovementioned case, did not issue an order restraining the implementation of the
assailed COMELEC resolutions.
The RTC, however, denied this motion on September 28, 2007. On motion for
reconsideration, the trial court remained steadfast in its stand that the election protest
was separate and distinct from the COMELEC proceedings, and that, unless restrained by
the proper authority, it would continue hearing the protest.[26]
Assailing the RTCs denial of his motions, Dilangalen filed a Petition for Certiorari and
Prohibition[27] docketed as SPR No. 45-2007 with the COMELEC. On February 14, 2008,
the COMELEC 1st Division set aside the aforesaid orders of the trial court for having been
issued with grave abuse of discretion, prohibited the said court from acting on and
proceeding with the protest, and ordered it to dismiss the same. [28] The COMELEC En
Banc, on March 13, 2008, denied petitioners motion for the reconsideration of the
divisions ruling on account of Fermins failure to pay the required fees. It further directed
the issuance of an entry of judgment in the said case.[29] On March 26, 2008, the ECAD
recorded the finality of the ruling in SPR No. 45-2007 in the Book of Entries of
Judgments.[30]
These developments prompted Fermin to file another certiorari petition before this
Court, docketed as G.R. No. 182369. In this petition, Fermin raises the following issues
for our resolution:
A.
Whether or not public respondent has departed from the accepted
and usual course of its rules of procedure, as to call for an exercise of
the power of supervision by the Honorable Court.
B.
Whether or not public respondent in taking cognizance of
the certiorari and prohibition not in aid of its appellate jurisdiction,
acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or in (sic) excess [of jurisdiction].
C.
Whether or not public respondent, in ordering Judge Ibrahim to
dismiss the election protest case, acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or in
(sic) excess of jurisdiction.
D.
Whether or not public respondent, in not uniformly observing its
process in the service of its resolution and/or order, had denied to
petitioner the equal protection of the law.
E.
Whether or not the petition for certiorari and prohibition is
dismissible in view of the pendency of another action and whereby
the result of the first action is determinative of the second action in
any event and regardless of which party is successful.
F.
Whether or not there is forum shopping.
G.
Whether or not the public respondent, acting not in aid of its appellate
jurisdiction, has authority to issue TRO and/or Preliminary Injunction
as ancillary remedy of the original action for certiorari and
prohibition.
H.
Whether or not public respondent has jurisdiction to divest the Court
of Judge Ibrahim of its jurisdiction on the election protest case.[31]
52
The Court, on April 29, 2008, initially dismissed the said petition.[32] Fermin As aforesaid, petitioner, on the one hand, argues that the Dilangalen petition was filed

subsequently filed in succession his motions for reconsideration and for the pursuant to Section 78 of the OEC; while private respondent counters that the same is

consolidation of G.R. Nos. 179695 & 182369. Considering that the two petitions were based on Section 68 of the Code.

interrelated, the Court resolved to consolidate them.

After studying the said petition in detail, the Court finds that the same is in the nature of

The Issues a petition to deny due course to or cancel a CoC under Section 78[33] of the OEC. The

petition contains the essential allegations of a Section 78 petition, namely: (1) the

The primordial issues in these consolidated cases may be encapsulated, as follows: candidate made a representation in his certificate; (2) the representation pertains to a

material matter which would affect the substantive rights of the candidate (the right to

(1) Whether or not the Dilangalen petition is one under Section 68 or run for the election for which he filed his certificate); and (3) the candidate made the

Section 78 of the OEC; false representation with the intention to deceive the electorate as to his qualification for

public office or deliberately attempted to mislead, misinform, or hide a fact which would

(2) Whether or not it was filed on time; otherwise render him ineligible.[34] It likewise appropriately raises a question on a

candidates eligibility for public office, in this case, his possession of the one-year

(3) Whether or not the COMELEC gravely abuse its discretion when it residency requirement under the law.

declared petitioner as not a resident of the locality for at least one

year prior to the May 14, 2007 elections; and Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not
based on the lack of qualifications but on a finding that the candidate made a material

(4) Whether or not the COMELEC gravely abuse its discretion when it representation that is false, which may relate to the qualifications required of the public

ordered the dismissal of Election Case No. 07-022 on the ground that office he/she is running for. It is noted that the candidate states in his/her CoC that

Fermin had no legal standing to file the protest. he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be

read in relation to the constitutional[35] and statutory[36] provisions

Our Ruling on qualifications or eligibility for public office. If the candidate subsequently states

a material representation in the CoC that is false, the COMELEC, following the law,

I. is empowered to deny due course to or cancel such certificate.[37] Indeed, the Court

has already likened a proceeding under Section 78 to a quo warranto proceeding under
Pivotal in the ascertainment of the timeliness of the Dilangalen petition is its proper Section 253[38] of the OEC since they both deal with the eligibility or qualification of a

characterization. candidate,[39] with the distinction mainly in the fact that a Section 78 petition is filed

53
before proclamation, while a petition for quo warranto is filed after proclamation of the
wining candidate.
At this point, we must stress that a Section 78 petition ought not to be interchanged or
confused with a Section 68 petition. They are different remedies, based on different
grounds, and resulting in different eventualities. Private respondents insistence,
therefore, that the petition it filed before the COMELEC in SPA No. 07-372 is in the nature
of a disqualification case under Section 68, as it is in fact captioned a Petition for
Disqualification, does not persuade the Court.
The ground raised in the Dilangalen petition is that Fermin allegedly lacked one of the
qualifications to be elected as mayor of Northern Kabuntalan, i.e., he had not established
residence in the said locality for at least one year immediately preceding the election.
Failure to meet the one-year residency requirement for the public office is not a ground
for the disqualification of a candidate under Section 68. The provision only refers to the
commission of prohibited acts and the possession of a permanent resident status in a
foreign country as grounds for disqualification, thus:
SEC. 68. Disqualifications.Any candidate who, in an action or
protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in
his election campaign an amount in excess of that allowed by this
Code; (d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections
80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6,
shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified
to run for any elective office under this Code, unless said person has
waived his status as a permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in
the election laws.
Likewise, the other provisions of law referring to disqualification do not include
the lack of the one-year residency qualification as a ground therefor, thus:
Sections 12 of the OEC
SEC. 12. Disqualifications.Any person who has been declared
by competent authority insane or incompetent, or has been sentenced
by final judgment for subversion, insurrection, rebellion, or for any
offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be
deemed removed upon the declaration by competent authority that
said insanity or incompetence had been removed or after the
expiration of a period of five years from his service or sentence, unless
within the same period he again becomes disqualified.
Section 40 of the Local Government Code (LGC)[40]
SECTION 40. DisqualificationsThe following persons are
disqualified from running for any elective local position:
(a) Those sentence by final judgment for an offense
involving moral turpitude or for an offense
punishable by one (1) year or more of
imprisonment, within two (2) years after serving
sentence;
(b) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for violating
the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical
cases here or abroad;
(f) Permanent residents in a foreign country or
those who have acquired the right to reside abroad
and continue to avail of the same right after the
effectivity of this Code; and
54
 (g) The insane or feeble-minded.
Considering that the Dilangalen petition does not state any of these grounds for
disqualification, it cannot be categorized as a Section 68 petition.
To emphasize, a petition for disqualification, on the one hand, can be premised on
Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to
deny due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects.
While a person who is disqualified under Section 68 is merely prohibited to continue as a
candidate, the person whose certificate is cancelled or denied due course under Section
78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, in Miranda v.
Abaya,[41] this Court made the distinction that a candidate who is disqualified under
Section 68 can validly be substituted under Section 77 of the OEC because he/she
remains a candidate until disqualified; but a person whose CoC has been denied due
course or cancelled under Section 78 cannot be substituted because he/she is never
considered a candidate.[42]
In support of his claim that he actually filed a petition for disqualification and not a
petition to deny due course to or cancel a CoC, Dilangalen takes refuge in Rule 25 of the
COMELEC Rules of Procedure,[43] specifically Section 1[44] thereof, to the extent that it
states, [a]ny candidate who does not possess all the qualifications of a candidate as
provided for by the Constitution or by existing law x x x may be disqualified from
continuing as a candidate, and COMELEC Resolution No. 7800[45] (Rules Delegating to
COMELEC Field Officials the Authority to Hear and Receive Evidence in Disqualification
Cases Filed in Connection with the May 14, 2007 National and Local Elections), which
states in Section 5(C)(1) and (3)(a)(4) that:
Sec. 5. Procedure in filing petitions.For purposes of the
preceding section, the following procedure shall be observed:
xxxx
C. PETITION TO DISQUALIFY A CANDIDATE
PURSUANT TO SEC. 68 OF THE OMNIBUS
ELECTION CODE AND PETITION TO DISQUALIFY
FOR LACK OF QUALIFICATIONS OR POSSESSING
SOME GROUNDS FOR DISQUALIFICATION
1) A verified petition to disqualify a candidate pursuant to
Sec. 68 of the OEC and the verified petition to disqualify a candidate
for lack of qualifications or possessing some grounds for
disqualification may be filed on any day after the last day for filing of
certificates of candidacy but not later than the date of proclamation.
xxxx
3) The petition to disqualify a candidate for lack of
qualification or possessing some grounds for disqualification, shall be
filed in ten (10) legible copies with the concerned office mentioned in
Sec. 3 hereof, personally or through a duly authorized representative
by any person of voting age, or duly registered political party,
organization or coalition of political parties on the grounds that any
candidate does not possess all the qualifications of a candidate as
provided for by the constitution or by existing law, or who possesses
some grounds for disqualification,
3.a. Disqualification under existing election laws:
1. For not being a citizen of the Philippines;
2. For being a permanent resident of or an immigrant to a
foreign country;
3. For lack of the required age;
4. For lack of residence;
5. For not being a registered voter;
6. For not being able to read and write;
7. In case of a party-list nominee, for not being a bona fide
member of the party or organization which he seeks to
represent for at least ninety (90) days immediately
preceding the day of the election. [Emphasis supplied.]
We disagree. A COMELEC rule or resolution cannot supplant or vary the legislative
enactments that distinguish the grounds for disqualification from those of ineligibility,
and the appropriate proceedings to raise the said grounds. In other words, Rule 25 and
COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the law
55

for the filing of a petition for disqualification under Section 68, and a petition for the
denial of due course to or cancellation of CoC under Section 78 of the OEC. [46] As aptly
observed by the eminent constitutionalist, Supreme Court Justice Vicente V. Mendoza, in
his separate opinion in Romualdez-Marcos v. Commission on Elections:[47]
Consequently, that an individual possesses the
qualifications for a public office does not imply that he is not
disqualified from becoming a candidate or continuing as a
candidate for a public office and vice-versa. We have this sort of
dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has
the qualifications prescribed in 2 of the law does not imply that he
does not suffer from any of [the] disqualifications provided in 4.

Indeed, provisions for disqualifications on the ground that

Apparently realizing the lack of an authorized proceeding for
the candidate is guilty of prohibited election practices or offenses, like
declaring the ineligibility of candidates, the COMELEC amended its
other pre-proclamation remedies, are aimed at the detestable practice
rules on February 15, 1993 so as to provide in Rule 25, 1 the
of "grabbing the proclamation and prolonging the election protest,"
following:
through the use of "manufactured" election returns or resort to other
trickery for the purpose of altering the results of the election. This
Grounds for disqualification. Any
rationale does not apply to cases for determining a candidates
candidate who does not possess all the
qualifications for office before the election. To the contrary, it is the
qualifications of a candidate as provided for by the
candidate against whom a proceeding for disqualification is brought
Constitution or by existing law or who commits any
who could be prejudiced because he could be prevented from
act declared by law to be grounds for
assuming office even though in the end he prevails.[48]
disqualification may be disqualified from
continuing as a candidate.

The lack of provision for declaring the ineligibility of Furthermore, the procedure laid down in the said Rule 25 of the COMELEC Rules of
candidates, however, cannot be supplied by a mere rule. Such an
act is equivalent to the creation of a cause of action which is a Procedure cannot be used in Section 78 proceedings, precisely because a different rule,
substantive matter which the COMELEC, in the exercise of its
rule-making power under Art. IX, A, 6 of the Constitution, cannot Rule 23,[49] specifically governs petitions to deny due course to or cancel CoCs.
do. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to vote,
which essentially involves an inquiry into qualifications based on age, II.
residence and citizenship of voters. [Art. IX, C, 2(3)]

The assimilation in Rule 25 of the COMELEC rules of Having thus determined that the Dilangalen petition is one under Section 78 of the OEC,
grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only in their the Court now declares that the same has to comply with the 25-day statutory period for
grounds but also in their consequences are proceedings for
disqualification different from those for a declaration of its filing. Aznar v. Commission on Elections[50] and Loong v. Commission on
ineligibility. Disqualification proceedings, as already stated, are
Elections[51] give ascendancy to the express mandate of the law that the petition may be
based on grounds specified in 12 and 68 of the Omnibus Election
Code and in 40 of the Local Government Code and are for the filed at any time not later than twenty-five days from the time of the filing of the
purpose of barring an individual from becoming a candidate or
from continuing as a candidate for public office. In a word, their certificate of candidacy. Construed in relation to reglementary periods and the
purpose is to eliminate a candidate from the race either from the
start or during its progress. Ineligibility, on the other hand, principles of prescription, the dismissal of Section 78 petitions filed beyond the 25-day
refers to the lack of the qualifications prescribed in the period must come as a matter of course.
Constitution or the statutes for holding public office and the
purpose of the proceedings for declaration of ineligibility is to
remove the incumbent from office.

56
We find it necessary to point out that Sections 5 and 7[52] of Republic Act (R.A.) No.
6646,[53] contrary to the erroneous arguments of both parties, did not in any way amend
the period for filing Section 78 petitions. While Section 7 of the said law makes reference
to Section 5 on the procedure in the conduct of cases for the denial of due course to the
CoCs of nuisance candidates[54] (retired Chief Justice Hilario G. Davide, Jr., in his
dissenting opinion in Aquino v. Commission on Elections[55] explains that the procedure
hereinabove provided mentioned in Section 7 cannot be construed to refer to Section 6
which does not provide for a procedure but for the effects of disqualification cases, [but]
can only refer to the procedure provided in Section 5 of the said Act on nuisance
candidates x x x.), the same cannot be taken to mean that the 25-day period for filing
Section 78 petitions under the OEC is changed to 5 days counted from the last day for the
filing of CoCs. The clear language of Section 78 certainly cannot be amended or modified
by the mere reference in a subsequent statute to the use of a procedure specifically
intended for another type of action. Cardinal is the rule in statutory construction that
repeals by implication are disfavored and will not be so declared by the Court unless the
intent of the legislators is manifest.[56] In addition, it is noteworthy
that Loong,[57] which upheld the 25-day period for filing Section 78 petitions, was
decided long after the enactment of R.A. 6646. In this regard, we therefore find as
contrary to the unequivocal mandate of the law, Rule 23, Section 2 of the COMELEC Rules
of Procedure which states:
Sec. 2. Period to File Petition.The petition must be filed
within five (5) days following the last day for the filing of certificates
of candidacy.
As the law stands, the petition to deny due course to or cancel a CoC may be filed at any
time not later than twenty-five days from the time of the filing of the certificate of
candidacy.
Accordingly, it is necessary to determine when Fermin filed his CoC in order to ascertain
whether the Dilangalen petition filed on April 20, 2007 was well within the restrictive
25-day period. If it was not, then the COMELEC should have, as discussed above,
dismissed the petition outright.
The record in these cases reveals that Fermin filed his CoC for mayor of Northern
Kabuntalan for the May 14, 2007 National and Local Elections on March 29, 2007.[58] It
is clear therefore that the petition to deny due course to or cancel Fermins CoC was filed
by Dilangalen well within the 25-day reglementary period. The COMELEC therefore did
not abuse its discretion, much more gravely, when it did not dismiss the petition
outright.
III.
However, the Court finds the COMELEC to have gravely abused its discretion
when it precipitately declared that Fermin was not a resident of Northern Kabuntalan for
at least one year prior to the said elections.
In its assailed June 29, 2007 Resolution, [59] the COMELEC ruled as follows:
In the petitioners memorandum, an authenticated copy of the
respondents oath of office subscribed and sworn to before Datu Andal
Ampatuan, Governor Maguindanao Province, it was stated that
respondents residence is at Barangay Payan, Maguindanao (sic) as
of April 27, 2006. Clearly the respondent is not a resident of Northern
Kabuntalan earlier than 15 May 2006 as his very own oath of office
would reveal that he is really a resident of Barangay Payan,
Kabuntalan less than 365 days immediately preceding the May 14,
2007 elections. He is a resident of a barangay not a component of the
local government unit in which he seeks to be elected as of May 15,
2006 and is therefore not qualified or eligible to seek election as
mayor in the said municipality.[60]
57
Obviously, the COMELEC relied on a single piece of evidence to support its finding that by sufficient evidence and can be overthrown only by rebutting evidence adduced on the

petitioner was not a resident of Barangay Indatuan, Northern Kabuntalan, i.e., the oath of other side.[64]

office subscribed and sworn to before Governor Datu Andal Ampatuan, in which

petitioner indicated that he was a resident of Barangay Payan, Kabuntalan as of April IV.

27, 2006. However, this single piece of evidence does not necessarily support a finding

that petitioner was not a resident of Northern Kabuntalan as of May 14, 2006, or one In light of the foregoing disquisition, the COMELECs order for the dismissal of Fermins

year prior to the May 14, 2007 elections.[61] Petitioner merely admitted that he was a election protest is tainted with grave abuse of discretion, considering that the same is

resident of another locality as of April 27, 2006, which was more than a year before the premised on Fermins alleged lack of legal standing to file the protest, which, in turn, is

elections. It is not inconsistent with his subsequent claim that he complied with the based on Fermins alleged lack of residency qualification. With our disposition herein that

residency requirement for the elective office, as petitioner could have transferred the Dilangalen petition should be dismissed, a disquisition that Fermin has no standing

to Barangay Indatuan after April 27, 2006, on or before May 14, 2006. as a candidate would be reckless and improper.

Neither does this evidence support the allegation that petitioner failed to comply with WHEREFORE, premises considered, the petitions for certiorari are GRANTED.

the residency requirement for the transfer of his voting record from Barangay Payan The assailed issuances of the COMELEC are ANNULLED and SET ASIDE.

to Barangay Indatuan. Given that a voter is required to reside in the place wherein he

proposes to vote only for six months immediately preceding the election,[62] petitioners SO ORDERED.

application for transfer on December 13, 2006 does not contradict his earlier admission
that he was a resident of Barangay Payan as of April 27, 2006. Be that as it may, the issue

involved in the Dilangalen petition is whether or not petitioner made a material

representation that is false in his CoC, and not in his application for the transfer of his

registration and voting record.

The foregoing considered, the Court finds that the Dilangalen petition does not make out

a prima facie case. Its dismissal is therefore warranted. We emphasize that the mere

filing of a petition and the convenient allegation therein that a candidate does not reside

in the locality where he seeks to be elected is insufficient to effect the cancellation of his

CoC. Convincing evidence must substantiate every allegation.[63] A litigating party is said
to have a prima facie case when the evidence in his favor is sufficiently strong for his

opponent to be called on to answer it. A prima facie case, then, is one which is established

58
ELEAZAR P. QUINTO and G.R. No. 189698
In support of their respective motions for reconsideration, respondent
GERINO A. TOLENTINO, JR.,
Petitioners, Present: COMELEC and movants-intervenors submit the following arguments:

PUNO, C.J.,
CARPIO, (1) The assailed Decision is contrary to, and/or violative of, the constitutional
CORONA, proscription against the participation of public appointive officials and
CARPIO MORALES,
members of the military in partisan political activity;
VELASCO, JR.,
NACHURA, (2) The assailed provisions do not violate the equal protection clause when
- versus - LEONARDO-DE CASTRO, they accord differential treatment to elective and appointive officials,
BRION,
PERALTA, because such differential treatment rests on material and substantial
BERSAMIN, distinctions and is germane to the purposes of the law;
DEL CASTILLO,
ABAD, (3) The assailed provisions do not suffer from the infirmity of overbreadth; and
VILLARAMA, JR., (4) There is a compelling need to reverse the assailed Decision, as public safety
PEREZ, and
and interest demand such reversal.
MENDOZA, JJ.

COMMISSION ON Promulgated: We find the foregoing arguments meritorious.

ELECTIONS,
Respondent. February 22, 2010
x ----------------------------------------------------------------------------------------x
RESOLUTION
PUNO, C.J.:
Upon a careful review of the case at bar, this Court resolves to grant the respondent
Commission on Elections (COMELEC) motion for reconsideration, and the movants-
intervenors motions for reconsideration-in-intervention, of this Courts December 1,
2009 Decision (Decision).[1]
The assailed Decision granted the Petition for Certiorari and Prohibition filed
by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the
second proviso in the third paragraph of Section 13 of Republic Act No. 9369,[2] Section
66 of the Omnibus Election Code[3] and Section 4(a) of COMELEC Resolution No.
8678,[4] mainly on the ground that they violate the equal protection clause of the
Constitution and suffer from overbreadth. The assailed Decision thus paved the way for
public appointive officials to continue discharging the powers, prerogatives and
functions of their office notwithstanding their entry into the political arena.
I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the COMELECs
motion for reconsideration which was filed on December 15, 2009, as well as the
propriety of the motions for reconsideration-in-intervention which were filed after the
Court had rendered its December 1, 2009 Decision.
i. Timeliness of COMELECs Motion for Reconsideration
Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,[5] in relation to Section 1,
Rule 52 of the same rules,[6] COMELEC had a period of fifteen days from receipt of notice
of the assailed Decision within which to move for its reconsideration. COMELEC received
notice of the assailed Decision on December 2, 2009, hence, had until December 17, 2009
to file a Motion for Reconsideration.
The Motion for Reconsideration of COMELEC was timely filed. It was filed on
December 14, 2009. The corresponding Affidavit of Service (in substitution of the one
originally submitted on December 14, 2009) was subsequently filed on December 17,
2009 still within the reglementary period.
59

ii. Propriety of the Motions for Reconsideration-in-Intervention
Section 1, Rule 19 of the Rules of Court provides:
A person who has legal interest in the matter in litigation or in the
success of either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action.
The court shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties,
and whether or not the intervenors rights may be fully protected in a
separate proceeding.
Pursuant to the foregoing rule, this Court has held that a motion for
intervention shall be entertained when the following requisites are satisfied: (1) the
would-be intervenor shows that he has a substantial right or interest in the case; and (2)
such right or interest cannot be adequately pursued and protected in another
proceeding.[7]
Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time
within which a motion for intervention may be filed, viz.:
SECTION 2. Time to intervene. The motion for intervention may be
filed at any time before rendition of judgment by the trial court. A copy
of the pleading-in-intervention shall be attached to the motion and
served on the original parties. (italics supplied)
This rule, however, is not inflexible. Interventions have been allowed even
beyond the period prescribed in the Rule, when demanded by the higher interest of
justice. Interventions have also been granted to afford indispensable parties, who have
not been impleaded, the right to be heard even after a decision has been rendered by the
trial court,[8] when the petition for review of the judgment has already been submitted
for decision before the Supreme Court,[9] and even where the assailed order has already
become final and executory.[10] In Lim v. Pacquing,[11] the motion for intervention filed
by the Republic of the Philippines was allowed by this Court to avoid grave injustice and
injury and to settle once and for all the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion for intervention rests on the
sound discretion of the court[12] after consideration of the appropriate
circumstances.[13]We stress again that Rule 19 of the Rules of Court is a rule of procedure
whose object is to make the powers of the court fully and completely available for
justice.[14] Its purpose is not to hinder or delay, but to facilitate and promote the
administration of justice.[15]
We rule that, with the exception of the IBP Cebu City Chapter, all the movants-
intervenors may properly intervene in the case at bar.
First, the movants-intervenors have each sufficiently established a substantial
right or interest in the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge
the December 1, 2009 Decision, which nullifies a long established law; as a voter, he has
a right to intervene in a matter that involves the electoral process; and as a public officer,
he has a personal interest in maintaining the trust and confidence of the public in its
system of government.
On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are
candidates in the May 2010 elections running against appointive officials who, in view of
the December 1, 2009 Decision, have not yet resigned from their posts and are not likely
to resign from their posts. They stand to be directly injured by the assailed Decision,
unless it is reversed.
Moreover, the rights or interests of said movants-intervenors cannot be
adequately pursued and protected in another proceeding. Clearly, their rights will be
foreclosed if this Courts Decision attains finality and forms part of the laws of the land.
With regard to the IBP Cebu City Chapter, it anchors its standing on the
assertion that this case involves the constitutionality of elections laws for this coming
2010 National Elections, and that there is a need for it to be allowed to intervene xxx so
that the voice of its members in the legal profession would also be heard before this
Highest Tribunal as it resolves issues of transcendental importance.[16]
60
 Prescinding from our rule and ruling case law, we find that the IBP-Cebu City
Chapter has failed to present a specific and substantial interest sufficient to clothe it with
standing to intervene in the case at bar. Its invoked interest is, in character, too
indistinguishable to justify its intervention.
We now turn to the substantive issues.
II.
Substantive Issues
The assailed Decision struck down Section 4(a) of Resolution 8678, the second
proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of
the Omnibus Election Code, on the following grounds:
(1) They violate the equal protection clause of the Constitution because of the
differential treatment of persons holding appointive offices and those
holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil
servants holding appointive posts: (a) without distinction as to whether or
not they occupy high/influential positions in the government, and (b) they
limit these civil servants activity regardless of whether they be partisan or
nonpartisan in character, or whether they be in the national, municipal
or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the
fundamental right of these public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of
Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the
third paragraph of Section 13 of RA 9369 are not unconstitutional, and
accordingly reverse our December 1, 2009 Decision.
III.
Section 4(a) of COMELEC Resolution 8678 Compliant with Law
Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present
state of the law and jurisprudence on the matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA 9369, which
reiterates Section 66 of the Omnibus Election Code, any person holding a public
appointive office or position, including active members of the Armed Forces of
the Philippines, and officers and employees in government-owned or -
controlled corporations, shall be considered ipso facto resigned from his office
upon the filing of his certificate of candidacy.
Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA
9006 or the Fair Election Act,[17] which repealed Section 67 of the Omnibus
Election Code[18] and rendered ineffective Section 11 of R.A. 8436 insofar as it
considered an elected official as resigned only upon the start of the campaign
period corresponding to the positions for which they are running,[19] an elected
official is not deemed to have resigned from his office upon the filing of his
certificate of candidacy for the same or any other elected office or position. In
fine, an elected official may run for another position without forfeiting his seat.
These laws and regulations implement Section 2(4), Article IX-B of the 1987
Constitution, which prohibits civil service officers and employees from engaging in any
electioneering or partisan political campaign.
The intention to impose a strict limitation on the participation of civil service officers and
employees in partisan political campaigns is unmistakable. The exchange between
Commissioner Quesada and Commissioner Foz during the deliberations of the
Constitutional Commission is instructive:
MS. QUESADA.
xxxx
Secondly, I would like to address the issue here as provided in Section
1 (4), line 12, and I quote: "No officer or employee in the civil service
shall engage, directly or indirectly, in any partisan political activity."
This is almost the same provision as in the 1973 Constitution.
However, we in the government service have actually experienced
61
 how this provision has been violated by the direct or indirect partisan
political activities of many government officials.
So, is the Committee willing to include certain clauses that would make
this provision more strict, and which would deter its violation?
MR. FOZ. Madam President, the existing Civil Service Law and the
implementing rules on the matter are more than exhaustive enough to
really prevent officers and employees in the public service from
engaging in any form of partisan political activity. But the problem
really lies in implementation because, if the head of a ministry, and even
the superior officers of offices and agencies of government will
themselves violate the constitutional injunction against partisan
political activity, then no string of words that we may add to what is
now here in this draft will really implement the constitutional intent
against partisan political activity. x x x[20] (italics supplied)
To emphasize its importance, this constitutional ban on civil service officers
and employees is presently reflected and implemented by a number of statutes. Section
46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I, Book V of the
Administrative Code of 1987 respectively provide in relevant part:
Section 44. Discipline: General Provisions:
xxxx
(b) The following shall be grounds for disciplinary action:
xxxx
(26) Engaging directly or indirectly in partisan political
activities by one holding a non-political office.
xxxx
Section 55. Political Activity. No officer or employee in the Civil Service
including members of the Armed Forces, shall engage directly or
indirectly in any partisan political activity or take part in any election
except to vote nor shall he use his official authority or influence to
coerce the political activity of any other person or body. Nothing
herein provided shall be understood to prevent any officer or
employee from expressing his views on current political problems or
issues, or from mentioning the names of his candidates for public
office whom he supports: Provided, That public officers and
employees holding political offices may take part in political and
electoral activities but it shall be unlawful for them to solicit
contributions from their subordinates or subject them to any of the
acts involving subordinates prohibited in the Election Code.
Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes
intervention by civil service officers and employees in partisan political activities an
election offense, viz.:
SECTION 261. Prohibited Acts. The following shall be guilty of an
election offense:
xxxx
(i) Intervention of public officers and employees. Any officer or
employee in the civil service, except those holding political offices;
any officer, employee, or member of the Armed Forces of the
Philippines, or any police force, special forces, home defense forces,
barangay self-defense units and all other para-military units that now
exist or which may hereafter be organized who, directly or indirectly,
intervenes in any election campaign or engages in any partisan
political activity, except to vote or to preserve public order, if he is a
peace officer.
The intent of both Congress and the framers of our Constitution to limit the
participation of civil service officers and employees in partisan political activities is too
plain to be mistaken.
But Section 2(4), Article IX-B of the 1987 Constitution and the implementing
statutes apply only to civil servants holding apolitical offices. Stated differently, the
constitutional ban does not cover elected officials, notwithstanding the fact that [t]he
civil service embraces all branches, subdivisions, instrumentalities, and agencies
of theGovernment, including government-owned or controlled corporations with
original charters.[21] This is because elected public officials, by the very nature of their
office, engage in partisan political activities almost all year round, even outside of the
campaign period.[22] Political partisanship is the inevitable essence of a political office,
elective positions included.[23]
The prohibition notwithstanding, civil service officers and employees are
allowed to vote, as well as express their views on political issues, or mention the names
62
of certain candidates for public office whom they support. This is crystal clear from the
deliberations of the Constitutional Commission, viz.:
MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on
page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13,
between the words "any" and "partisan," add the phrase
ELECTIONEERING AND OTHER; and on line 14, delete the word
"activity" and in lieu thereof substitute the word CAMPAIGN.
May I be allowed to explain my proposed amendment?
THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may
proceed.
MS. AQUINO: The draft as presented by the Committee deleted the
phrase "except to vote" which was adopted in both the 1935 and 1973
Constitutions. The phrase "except to vote" was not intended as a
guarantee to the right to vote but as a qualification of the general
prohibition against taking part in elections.
Voting is a partisan political activity. Unless it is explicitly provided for
as an exception to this prohibition, it will amount to
disenfranchisement. We know that suffrage, although plenary, is not
an unconditional right. In other words, the Legislature can always
pass a statute which can withhold from any class the right to vote in
an election, if public interest so required. I would only like to reinstate
the qualification by specifying the prohibited acts so that those who
may want to vote but who are likewise prohibited from participating
in partisan political campaigns or electioneering may vote.
MR. FOZ: There is really no quarrel over this point, but please
understand that there was no intention on the part of the Committee to
disenfranchise any government official or employee. The elimination of
the last clause of this provision was precisely intended to protect the
members of the civil service in the sense that they are not being deprived
of the freedom of expression in a political contest. The last phrase or
clause might have given the impression that a government employee or
worker has no right whatsoever in an election campaign except to vote,
which is not the case. They are still free to express their views although
the intention is not really to allow them to take part actively in a
political campaign.[24]
IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and
Section 66 of the Omnibus Election Code Do Not Violate the
Equal Protection Clause
We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus
Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369
are not violative of the equal protection clause of the Constitution.
i. Farias, et al. v. Executive Secretary, et al. is Controlling
In truth, this Court has already ruled squarely on whether these deemed-
resigned provisions challenged in the case at bar violate the equal protection clause of
the Constitution in Farias, et al. v. Executive Secretary, et al.[25]
In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation
to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among
others, that it unduly discriminates against appointive officials. As Section 14 repealed
Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the
Omnibus Election Code, elected officials are no longer considered ipso facto resigned
from their respective offices upon their filing of certificates of candidacy. In contrast,
since Section 66 was not repealed, the limitation on appointive officials continues to be
operative they are deemed resigned when they file their certificates of candidacy.
The petitioners in Farias thus brought an equal protection challenge against
Section 14, with the end in view of having the deemed-resigned provisions apply equally
to both elected and appointive officials. We held, however, that the legal dichotomy
created by the Legislature is a reasonable classification, as there are material and
significant distinctions between the two classes of officials. Consequently, the contention
that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus
Election Code, infringed on the equal protection clause of the Constitution, failed
muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of
the Omnibus Election Code pertaining to elective officials gives undue
benefit to such officials as against the appointive ones and violates the
equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is
not absolute, but is subject to reasonable classification. If the
groupings are characterized by substantial distinctions that make real
63
differences, one class may be treated and regulated differently from
the other. The Court has explained the nature of the equal protection
guarantee in this manner:
The equal protection of the law clause is against
undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of
inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is
directed or by territory within which it is to
operate. It does not demand absolute equality
among residents; it merely requires that all
persons shall be treated alike, under like
circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal
protection clause is not infringed by legislation
which applies only to those persons falling within a
specified class, if it applies alike to all persons
within such class, and reasonable grounds exist for
making a distinction between those who fall within
such class and those who do not.
Substantial distinctions clearly exist between elective
officials and appointive officials. The former occupy their office by
virtue of the mandate of the electorate. They are elected to an office
for a definite term and may be removed therefrom only upon
stringent conditions. On the other hand, appointive officials hold their
office by virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a permanent
capacity and are entitled to security of tenure while others serve at
the pleasure of the appointing authority.
Another substantial distinction between the two sets of
officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil
Service Commission, Book V of the Administrative Code of 1987
(Executive Order No. 292), appointive officials, as officers and
employees in the civil service, are strictly prohibited from engaging in
any partisan political activity or take (sic) part in any election except
to vote. Under the same provision, elective officials, or officers or
employees holding political offices, are obviously expressly allowed to
take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the
Omnibus Election Code, the legislators deemed it proper to treat these
two classes of officials differently with respect to the effect on their
tenure in the office of the filing of the certificates of candidacy for any
position other than those occupied by them. Again, it is not within the
power of the Court to pass upon or look into the wisdom of this
classification.
Since the classification justifying Section 14 of Rep. Act No.
9006, i.e., elected officials vis--vis appointive officials, is anchored
upon material and significant distinctions and all the persons
belonging under the same classification are similarly treated, the
equal protection clause of the Constitution is, thus, not infringed.[26]
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that
our assailed Decision gave it new life. We ought to be guided by the doctrine of stare
decisis et non quieta movere. This doctrine, which is really adherence to precedents,
mandates that once a case has been decided one way, then another case involving exactly
the same point at issue should be decided in the same manner.[27] This doctrine is one of
policy grounded on the necessity for securing certainty and stability of judicial decisions.
As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the
Judicial Process:
It will not do to decide the same question one way between one set of
litigants and the opposite way between another. If a group of cases
involves the same point, the parties expect the same decision. It would
be a gross injustice to decide alternate cases on opposite principles. If
a case was decided against me yesterday when I was a defendant, I
shall look for the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and wrong in my breast;
it would be an infringement, material and moral, of my rights."
Adherence to precedent must then be the rule rather than the exception
if litigants are to have faith in the even-handed administration of justice
in the courts.[28]
Our Farias ruling on the equal protection implications of the deemed-resigned
provisions cannot be minimalized as mere obiter dictum. It is trite to state that an
adjudication on any point within the issues presented by the case cannot be considered
as obiter dictum.[29] This rule applies to all pertinent questions that are presented and
resolved in the regular course of the consideration of the case and lead up to the final
conclusion, and to any statement as to the matter on which the decision is
predicated.[30]For that reason, a point expressly decided does not lose its value as a
precedent because the disposition of the case is, or might have been, made on some other
ground; or even though, by reason of other points in the case, the result reached might
have been the same if the court had held, on the particular point, otherwise than it
did.[31] As we held in Villanueva, Jr. v. Court of Appeals, et al.:[32]
64

A decision which the case could have turned on is not regarded as obiter
dictum merely because, owing to the disposal of the contention, it was
necessary to consider another question, nor can an additional reason in
a decision, brought forward after the case has been disposed of on one
ground, be regarded as dicta. So, also, where a case presents two (2)
or more points, any one of which is sufficient to determine the
ultimate issue, but the court actually decides all such points, the case
as an authoritative precedent as to every point decided, and none of
such points can be regarded as having the status of a dictum, and one
point should not be denied authority merely because another point was
more dwelt on and more fully argued and considered, nor does a
decision on one proposition make statements of the court regarding
other propositions dicta.[33] (italics supplied)
ii. Classification Germane to the Purposes of the Law
The Farias ruling on the equal protection challenge stands on solid ground
even if reexamined.
To start with, the equal protection clause does not require the universal
application of the laws to all persons or things without distinction.[34] What it simply
requires is equality among equals as determined according to a valid
classification.[35] The test developed by jurisprudence here and yonder is that of
reasonableness,[36] which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[37]
Our assailed Decision readily acknowledged that these deemed-resigned
provisions satisfy the first, third and fourth requisites of reasonableness. It, however,
proffers the dubious conclusion that the differential treatment of appointive officials vis-
-vis elected officials is not germane to the purpose of the law, because whether one holds
an appointive office or an elective one, the evils sought to be prevented by the measure
remain, viz.:
For example, the Executive Secretary, or any Member of the Cabinet
for that matter, could wield the same influence as the Vice-President
who at the same time is appointed to a Cabinet post (in the recent
past, elected Vice-Presidents were appointed to take charge of
national housing, social welfare development, interior and local
government, and foreign affairs). With the fact that they both head
executive offices, there is no valid justification to treat them
differently when both file their [Certificates of Candidacy] for the
elections. Under the present state of our law, the Vice-President, in the
example, running this time, let us say, for President, retains his
position during the entire election period and can still use the
resources of his office to support his campaign.[38]
Sad to state, this conclusion conveniently ignores the long-standing rule that to
remedy an injustice, the Legislature need not address every manifestation of the evil at
once; it may proceed one step at a time.[39] In addressing a societal concern, it must
invariably draw lines and make choices, thereby creating some inequity as to those
included or excluded.[40] Nevertheless, as long as the bounds of reasonable choice are not
exceeded, the courts must defer to the legislative judgment.[41] We may not strike down a
law merely because the legislative aim would have been more fully achieved by
expanding the class.[42] Stated differently, the fact that a legislative classification, by itself,
is underinclusive will not render it unconstitutionally arbitrary or invidious.[43] There is
no constitutional requirement that regulation must reach each and every class to which
it might be applied;[44] that the Legislature must be held rigidly to the choice of
regulating all or none.
Thus, any person who poses an equal protection challenge must convincingly
show that the law creates a classification that is palpably arbitrary or capricious. [45] He
must refute all possible rational bases for the differing treatment, whether or not the
Legislature cited those bases as reasons for the enactment,[46] such that the
constitutionality of the law must be sustained even if the reasonableness of the
classification is fairly debatable.[47] In the case at bar, the petitioners failed and in fact did
not even attempt to discharge this heavy burden. Our assailed Decision was likewise
silent as a sphinx on this point even while we submitted the following thesis:
... [I]t is not sufficient grounds for invalidation that we may
find that the statutes distinction is unfair, underinclusive, unwise, or
not the best solution from a public-policy standpoint; rather, we must
find that there is no reasonably rational reason for the differing
treatment.[48]
65
 In the instant case, is there a rational justification for
excluding elected officials from the operation of the deemed resigned
provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps
the purest expression of the sovereign power of the people.[49] It
involves the choice or selection of candidates to public office by
popular vote.[50] Considering that elected officials are put in office by
their constituents for a definite term, it may justifiably be said that
they were excluded from the ambit of the deemed resigned provisions
in utmost respect for the mandate of the sovereign will. In other
words, complete deference is accorded to the will of the electorate
that they be served by such officials until the end of the term for
which they were elected. In contrast, there is no such expectation
insofar as appointed officials are concerned.
The dichotomized treatment of appointive and elective
officials is therefore germane to the purposes of the law. For the
law was made not merely to preserve the integrity, efficiency,
and discipline of the public service; the Legislature, whose
wisdom is outside the rubric of judicial scrutiny, also thought it
wise to balance this with the competing, yet equally compelling,
interest of deferring to the sovereign will.[51] (emphasis in the
original)
In fine, the assailed Decision would have us equalize the playing field by
invalidating provisions of law that seek to restrain the evils from running riot. Under the
pretext of equal protection, it would favor a situation in which the evils are unconfined
and vagrant, existing at the behest of both appointive and elected officials, over another
in which a significant portion thereof is contained. The absurdity of that position is self-
evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his
dissent, that elected officials (vis--vis appointive officials) have greater political clout
over the electorate, is indeed a matter worth exploring but not by this Court. Suffice it to
say that the remedy lies with the Legislature. It is the Legislature that is given the
authority, under our constitutional system, to balance competing interests and thereafter
make policy choices responsive to the exigencies of the times. It is certainly within the
Legislatures power to make the deemed-resigned provisions applicable to elected
officials, should it later decide that the evils sought to be prevented are of such frequency
and magnitude as to tilt the balance in favor of expanding the class. This Court cannot
and should not arrogate unto itself the power to ascertain and impose on the people the
best state of affairs from a public policy standpoint.
iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its equal protection ruling, our
assailed Decision adverted to, and extensively cited, Mancuso v. Taft.[52] This was a
decision of the First Circuit of the United States Court of Appeals promulgated in March
1973, which struck down as unconstitutional a similar statutory provision. Pathetically,
our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is inextricably linked with two
fundamental freedoms freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental
right must be subjected to strict equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and
impartiality of its public work force, the deemed-resigned provisions
pursue their objective in a far too heavy-handed manner as to render them
unconstitutional.
It then concluded with the exhortation that since the Americans, from whom we copied
the provision in question, had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow suit.
Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink
away the fact that the United States Supreme Court effectively overruled Mancusothree
months after its promulgation by the United States Court of Appeals. In United States
Civil Service Commission, et al. v. National Association of Letter Carriers AFL-
CIO, et al.[53] and Broadrick, et al. v. State of Oklahoma, et al.,[54] the United States
Supreme Court was faced with the issue of whether statutory provisionsprohibiting
federal[55] and state[56] employees from taking an active part in political management or
in political campaigns were unconstitutional as to warrant facial invalidation. Violation
of these provisions results in dismissal from employment and possible criminal
sanctions.
66

The Court declared these provisions compliant with the equal protection
clause. It held that (i) in regulating the speech of its employees, the state as employer has
interests that differ significantly from those it possesses in regulating the speech of the
citizenry in general; (ii) the courts must therefore balance the legitimate interest of
employee free expression against the interests of the employer in promoting efficiency of
public services; (iii) if the employees expression interferes with the maintenance of
efficient and regularly functioning services, the limitation on speech is not
unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in
ascertaining which positions are to be covered by any statutory
restrictions.[57] Therefore, insofar as government employees are concerned, the correct
standard of review is an interest-balancing approach, a means-end scrutiny that
examines the closeness of fit between the governmental interests and the prohibitions in
question.[58]
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the
country appears to have been that partisan political activities by
federal employees must be limited if the Government is to operate
effectively and fairly, elections are to play their proper part in
representative government, and employees themselves are to be
sufficiently free from improper influences. The restrictions so far
imposed on federal employees are not aimed at particular parties,
groups, or points of view, but apply equally to all partisan activities of
the type described. They discriminate against no racial, ethnic, or
religious minorities. Nor do they seek to control political opinions or
beliefs, or to interfere with or influence anyone's vote at the polls.
But, as the Court held in Pickering v. Board of
Education,[59] the government has an interest in regulating the conduct
and the speech of its employees that differ(s) significantly from those it
possesses in connection with regulation of the speech of the citizenry in
general. The problem in any case is to arrive at a balance between the
interests of the (employee), as a citizen, in commenting upon matters of
public concern and the interest of the (government), as an employer, in
promoting the efficiency of the public services it performs through its
employees. Although Congress is free to strike a different balance than it
has, if it so chooses, we think the balance it has so far struck is
sustainable by the obviously important interests sought to be served by
the limitations on partisan political activities now contained in the
Hatch Act.
It seems fundamental in the first place that employees in the
Executive Branch of the Government, or those working for any of its
agencies, should administer the law in accordance with the will of
Congress, rather than in accordance with their own or the will of a
political party. They are expected to enforce the law and execute the
programs of the Government without bias or favoritism for or against
any political party or group or the members thereof. A major thesis of
the Hatch Act is that to serve this great end of Government-the
impartial execution of the laws-it is essential that federal employees,
for example, not take formal positions in political parties, not
undertake to play substantial roles in partisan political campaigns,
and not run for office on partisan political tickets. Forbidding
activities like these will reduce the hazards to fair and effective
government.
There is another consideration in this judgment: it is not
only important that the Government and its employees in fact avoid
practicing political justice, but it is also critical that they appear to the
public to be avoiding it, if confidence in the system of representative
Government is not to be eroded to a disastrous extent.
Another major concern of the restriction against partisan
activities by federal employees was perhaps the immediate occasion
for enactment of the Hatch Act in 1939. That was the conviction that
the rapidly expanding Government work force should not be employed
to build a powerful, invincible, and perhaps corrupt political
machine. The experience of the 1936 and 1938 campaigns convinced
Congress that these dangers were sufficiently real that substantial
barriers should be raised against the party in power-or the party out
of power, for that matter-using the thousands or hundreds of
thousands of federal employees, paid for at public expense, to man its
political structure and political campaigns.
A related concern, and this remains as important as any
other, was to further serve the goal that employment and advancement
in the Government service not depend on political performance, and at
the same time to make sure that Government employees would be free
from pressure and from express or tacit invitation to vote in a certain
way or perform political chores in order to curry favor with their
superiors rather than to act out their own beliefs. It may be urged that
prohibitions against coercion are sufficient protection; but for many
years the joint judgment of the Executive and Congress has been that
to protect the rights of federal employees with respect to their jobs
and their political acts and beliefs it is not enough merely to forbid
one employee to attempt to influence or coerce another. For example,
at the hearings in 1972 on proposed legislation for liberalizing the
prohibition against political activity, the Chairman of the Civil Service
Commission stated that the prohibitions against active participation
in partisan political management and partisan political campaigns
67
 constitute the most significant safeguards against coercion . . ..
Perhaps Congress at some time will come to a different view of the
realities of political life and Government service; but that is its current
view of the matter, and we are not now in any position to dispute it.
Nor, in our view, does the Constitution forbid it.
Neither the right to associate nor the right to participate in
political activities is absolute in any event.[60] x x x
xxxx
As we see it, our task is not to destroy the Act if we can, but to
construe it, if consistent with the will of Congress, so as to comport with
constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is
constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed
restrictions on the partisan political conduct of state
employees. Appellants freely concede that such restrictions serve valid
and important state interests, particularly with respect to attracting
greater numbers of qualified people by insuring their job security, free
from the vicissitudes of the elective process, and by protecting them
from political extortion. Rather, appellants maintain that however
permissible, even commendable, the goals of s 818 may be, its
language is unconstitutionally vague and its prohibitions too broad in
their sweep, failing to distinguish between conduct that may be
proscribed and conduct that must be permitted. For these and other
reasons, appellants assert that the sixth and seventh paragraphs of s
818 are void in toto and cannot be enforced against them or anyone
else.
We have held today that the Hatch Act is not impermissibly
vague.[61] We have little doubt that s 818 is similarly not so vague that
men of common intelligence must necessarily guess at its
meaning.[62] Whatever other problems there are with s 818, it is all
but frivolous to suggest that the section fails to give adequate warning
of what activities it proscribes or fails to set out explicit standards' for
those who must apply it. In the plainest language, it prohibits any
state classified employee from being an officer or member of a
partisan political club or a candidate for any paid public office. It
forbids solicitation of contributions for any political organization,
candidacy or other political purpose and taking part in the
management or affairs of any political party or in any political
campaign. Words inevitably contain germs of uncertainty and, as with
the Hatch Act, there may be disputes over the meaning of such terms
in s 818 as partisan, or take part in, or affairs of political parties. But
what was said in Letter Carriers, is applicable here: there are
limitations in the English language with respect to being both specific
and manageably brief, and it seems to us that although the
prohibitions may not satisfy those intent on finding fault at any cost,
they are set out in terms that the ordinary person exercising ordinary
common sense can sufficiently understand and comply with, without
sacrifice to the public interest.' x x x
xxxx
[Appellants] nevertheless maintain that the statute is overbroad and
purports to reach protected, as well as unprotected conduct, and must
therefore be struck down on its face and held to be incapable of any
constitutional application. We do not believe that the overbreadth
doctrine may appropriately be invoked in this manner here.
xxxx
The consequence of our departure from traditional rules of
standing in the First Amendment area is that any enforcement of a
statute thus placed at issue is totally forbidden until and unless a
limiting construction or partial invalidation so narrows it as to
remove the seeming threat or deterrence to constitutionally protected
expression. Application of the overbreadth doctrine in this manner is,
manifestly, strong medicine. It has been employed by the Court
sparingly and only as a last resort. x x x
x x x But the plain import of our cases is, at the very least, that facial
over-breadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as
the otherwise unprotected behavior that it forbids the State to sanction
moves from pure speech toward conduct and that conduct-even if
expressive-falls within the scope of otherwise valid criminal laws that
reflect legitimate state interests in maintaining comprehensive
controls over harmful, constitutionally unprotected conduct. Although
such laws, if too broadly worded, may deter protected speech to some
unknown extent, there comes a point where that effect-at best a
prediction-cannot, with confidence, justify invalidating a statute on its
face and so prohibiting a State from enforcing the statute against
conduct that is admittedly within its power to proscribe. To put the
matter another way, particularly where conduct and not merely speech
is involved, we believe that the overbreadth of a statute must not only be
real, but substantial as well, judged in relation to the statute's plainly
legitimate sweep. It is our view that s 818 is not substantially
overbroad and that whatever overbreadth may exist should be cured
through case-by-case analysis of the fact situations to which its
sanctions, assertedly, may not be applied.
68
 Unlike ordinary breach-of-the peace statutes or other broad
regulatory acts, s 818 is directed, by its terms, at political expression
which if engaged in by private persons would plainly be protected by the
First and Fourteenth Amendments. But at the same time, s 818 is not a
censorial statute, directed at particular groups or viewpoints. The
statute, rather, seeks to regulate political activity in an even-handed
and neutral manner. As indicted, such statutes have in the past been
subject to a less exacting overbreadth scrutiny. Moreover, the fact
remains that s 818 regulates a substantial spectrum of conduct that is
as manifestly subject to state regulation as the public peace or criminal
trespass. This much was established in United Public Workers v.
Mitchell, and has been unhesitatingly reaffirmed today in Letter
Carriers. Under the decision in Letter Carriers, there is no question that
s 818 is valid at least insofar as it forbids classified employees from:
soliciting contributions for partisan candidates, political parties, or
other partisan political purposes; becoming members of national,
state, or local committees of political parties, or officers or committee
members in partisan political clubs, or candidates for any paid public
office; taking part in the management or affairs of any political party's
partisan political campaign; serving as delegates or alternates to
caucuses or conventions of political parties; addressing or taking an
active part in partisan political rallies or meetings; soliciting votes or
assisting voters at the polls or helping in a partisan effort to get voters
to the polls; participating in the distribution of partisan campaign
literature; initiating or circulating partisan nominating petitions; or
riding in caravans for any political party or partisan political
candidate.
x x x It may be that such restrictions are impermissible and
that s 818 may be susceptible of some other improper applications. But,
as presently construed, we do not believe that s 818 must be discarded
in toto because some persons arguably protected conduct may or may
not be caught or chilled by the statute. Section 818 is not substantially
overbroad and it not, therefore, unconstitutional on its face. (italics
supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the
principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless,
that these cases cannot be interpreted to mean a reversal of Mancuso, since they pertain
to different types of laws and were decided based on a different set of facts, viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service
Commission was enforcing, or threatening to enforce, the Hatch Acts
prohibition against active participation in political management or
political campaigns. The plaintiffs desired to campaign for candidates
for public office, to encourage and get federal employees to run for
state and local offices, to participate as delegates in party conventions,
and to hold office in a political club.
In Broadrick, the appellants sought the invalidation for being
vague and overbroad a provision in the (sic) Oklahomas Merit System
of Personnel Administration Act restricting the political activities of
the States classified civil servants, in much the same manner as the
Hatch Act proscribed partisan political activities of federal employees.
Prior to the commencement of the action, the appellants actively
participated in the 1970 reelection campaign of their superior, and
were administratively charged for asking other Corporation
Commission employees to do campaign work or to give referrals to
persons who might help in the campaign, for soliciting money for the
campaign, and for receiving and distributing campaign posters in
bulk.
Mancuso, on the other hand, involves, as aforesaid, an
automatic resignation provision. Kenneth Mancuso, a full time police
officer and classified civil service employee of the City of Cranston,
filed as a candidate for nomination as representative to the Rhode
Island General Assembly. The Mayor of Cranston then began the
process of enforcing the resign-to-run provision of the City Home Rule
Charter.
Clearly, as the above-cited US cases pertain to different types
of laws and were decided based on a different set of facts, Letter
Carriers and Broadrick cannot be interpreted to mean a reversal
of Mancuso. x x x (italics in the original)
We hold, however, that his position is belied by a plain reading of these cases.
Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the
constitutionality of resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate for
nomination as representative to the Rhode Island General Assembly. He
assailed the constitutionality of 14.09(c) of the City Home Rule Charter,
which prohibits continuing in the classified service of the city after becoming
a candidate for nomination or election to any public office.
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service
Commission was enforcing, or threatening to enforce, the Hatch Acts
prohibition against active participation in political management or
69
political campaigns[63] with respect to certain defined activities in which
they desired to engage. The plaintiffs relevant to this discussion are:
(a) The National Association of Letter Carriers, which
alleged that its members were desirous of, among
others, running in local elections for offices such as
school board member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not,
file as a candidate for the office of Borough Councilman
in his local community for fear that his participation in a
partisan election would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a
Republican candidate in the 1971 partisan election for
the mayor of West Lafayette, Indiana, and that he would
do so except for fear of losing his job by reason of
violation of the Hatch Act.
The Hatch Act defines active participation in political management or
political campaigns by cross-referring to the rules made by the Civil
Service Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a
nomination or for election to any National, State,
county, or municipal office is not permissible. The
prohibition against political activity extends not
merely to formal announcement of candidacy but
also to the preliminaries leading to such
announcement and to canvassing or soliciting
support or doing or permitting to be done any act
in furtherance of candidacy. The fact that
candidacy, is merely passive is immaterial; if an
employee acquiesces in the efforts of friends in
furtherance of such candidacy such acquiescence
constitutes an infraction of the prohibitions against
political activity. (italics supplied)
Section 9(b) requires the immediate removal of violators and forbids the
use of appropriated funds thereafter to pay compensation to these
persons.[64]
(3) Broadrick was a class action brought by certain Oklahoma state employees
seeking a declaration of unconstitutionality of two sub-paragraphs of
Section 818 of Oklahomas Merit System of Personnel Administration Act.
Section 818 (7), the paragraph relevant to this discussion, states that [n]o
employee in the classified service shall be a candidate for nomination or
election to any paid public office Violation of Section 818 results in
dismissal from employment, possible criminal sanctions and limited state
employment ineligibility.
Consequently, it cannot be denied that Letter
Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination
could Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned
virtually identical resign-to-run laws, and (ii) were decided by a superior court, the
United States Supreme Court. It was thus not surprising for the First Circuit Court of
Appeals the same court that decided Mancuso to hold categorically and
emphatically in Magill v. Lynch[65] that Mancuso is no longer good law. As we priorly
explained:
Magill involved Pawtucket, Rhode Island firemen who ran
for city office in 1975. Pawtuckets Little Hatch Act prohibits city
employees from engaging in a broad range of political activities.
Becoming a candidate for any city office is specifically
proscribed,[66] the violation being punished by removal from office or
immediate dismissal. The firemen brought an action against the city
officials on the ground that that the provision of the city charter was
unconstitutional. However, the court, fully cognizant of Letter
Carriers and Broadrick, took the position that Mancuso had since
lost considerable vitality. It observed that the view that political
candidacy was a fundamental interest which could be infringed
upon only if less restrictive alternatives were not available, was a
position which was no longer viable, since the Supreme Court
(finding that the governments interest in regulating both the
conduct and speech of its employees differed significantly from
its interest in regulating those of the citizenry in general) had
given little weight to the argument that prohibitions against the
coercion of government employees were a less drastic means to
the same end, deferring to the judgment of Congress, and
applying a balancing test to determine whether limits on political
activity by public employees substantially served government
70
interests which were important enough to outweigh the
employees First Amendment rights.[67]
It must be noted that the Court of Appeals ruled in this
manner even though the election in Magill was characterized
as nonpartisan, as it was reasonable for the city to fear, under the
circumstances of that case, that politically active bureaucrats might
use their official power to help political friends and hurt political foes.
Ruled the court:
The question before us is
whether Pawtucket's charter provision, which bars
a city employee's candidacy in even a nonpartisan
city election, is constitutional. The issue compels us
to extrapolate two recent Supreme Court
decisions, Civil Service Comm'n v. Nat'l Ass'n of
Letter Carriers and Broadrick v. Oklahoma. Both
dealt with laws barring civil servants from partisan
political activity. Letter Carriers reaffirmed United
Public Workers v. Mitchell, upholding the
constitutionality of the Hatch Act as to federal
employees. Broadrick sustained Oklahoma's Little
Hatch Act against constitutional attack, limiting its
holding to Oklahoma's construction that the Act
barred only activity in partisan politics. In Mancuso
v. Taft, we assumed that proscriptions of candidacy
in nonpartisan elections would not be constitutional.
Letter Carriers and Broadrick compel new analysis.
xxxx
What we are obligated to do in this case,
as the district court recognized, is to apply the
Courts interest balancing approach to the kind of
nonpartisan electionrevealed in this record. We
believe that the district court found more residual
vigor in our opinion in Mancuso v. Taft than remains
after Letter Carriers. We have particular reference
to our view that political candidacy was a
fundamental interest which could be trenched upon
only if less restrictive alternatives were not
available. While this approach may still be viable for
citizens who are not government employees, the
Court in Letter Carriers recognized that the
government's interest in regulating both the conduct
and speech of its employees differs significantly from
its interest in regulating those of the citizenry in
general. Not only was United Public Workers v.
Mitchell "unhesitatingly" reaffirmed, but the Court
gave little weight to the argument that prohibitions
against the coercion of government employees
were a less drastic means to the same end,
deferring to the judgment of the Congress. We
cannot be more precise than the Third Circuit in
characterizing the Court's approach as "some sort
of 'balancing' process".[68] It appears that the
government may place limits on campaigning by
public employees if the limits substantially serve
government interests that are "important" enough
to outweigh the employees' First Amendment
rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question,
the Magill court detailed the major governmental interests discussed
in Letter Carriers and applied them to the Pawtucket provision as
follows:
In Letter Carriers[,] the first interest
identified by the Court was that of an efficient
government, faithful to the Congress rather than to
party. The district court discounted this interest,
reasoning that candidates in a local election would
not likely be committed to a state or national
platform. This observation undoubtedly has
substance insofar as allegiance to broad policy
positions is concerned. But a different kind of
possible political intrusion into efficient
administration could be thought to threaten
municipal government: not into broad policy
decisions, but into the particulars of administration
favoritism in minute decisions affecting welfare,
tax assessments, municipal contracts and
purchasing, hiring, zoning, licensing, and
inspections. Just as the Court in Letter
Carriers identified a second governmental interest
in the avoidance of the appearance of "political
justice" as to policy, so there is an equivalent
interest in avoiding the appearance of political
preferment in privileges, concessions, and benefits.
The appearance (or reality) of favoritism that the
charter's authors evidently feared is not exorcised
by the nonpartisan character of the formal election
process. Where, as here, party support is a key to
successful campaigning, and party rivalry is the
norm, the city might reasonably fear that politically
active bureaucrats would use their official power to
help political friends and hurt political foes. This is
not to say that the city's interest in visibly fair and
effective administration necessarily justifies a
71
blanket prohibition of all employee campaigning; if
parties are not heavily involved in a campaign, the
danger of favoritism is less, for neither friend nor
foe is as easily identified.
A second major governmental interest
identified in Letter Carriers was avoiding the
danger of a powerful political machine. The Court
had in mind the large and growing federal
bureaucracy and its partisan potential. The district
court felt this was only a minor threat since parties
had no control over nominations. But in fact
candidates sought party endorsements, and party
endorsements proved to be highly effective both in
determining who would emerge from the primary
election and who would be elected in the final
election. Under the prevailing customs, known
party affiliation and support were highly significant
factors in Pawtucket elections. The charter's
authors might reasonably have feared that a
politically active public work force would give the
incumbent party, and the incumbent workers, an
unbreakable grasp on the reins of power. In
municipal elections especially, the small size of the
electorate and the limited powers of local
government may inhibit the growth of interest
groups powerful enough to outbalance the weight
of a partisan work force. Even when nonpartisan
issues and candidacies are at stake, isolated
government employees may seek to influence
voters or their co-workers improperly; but a more
real danger is that a central party structure will
mass the scattered powers of government workers
behind a single party platform or slate. Occasional
misuse of the public trust to pursue private
political ends is tolerable, especially because the
political views of individual employees may
balance each other out. But party discipline
eliminates this diversity and tends to make abuse
systematic. Instead of a handful of employees
pressured into advancing their immediate
superior's political ambitions, the entire
government work force may be expected to turn
out for many candidates in every election.
In Pawtucket, where parties are a continuing
presence in political campaigns, a carefully
orchestrated use of city employees in support of
the incumbent party's candidates is possible. The
danger is scarcely lessened by the openness
of Pawtucket's nominating procedure or the lack of
party labels on its ballots.
The third area of proper governmental
interest in Letter Carriers was ensuring that
employees achieve advancement on their merits
and that they be free from both coercion and the
prospect of favor from political activity. The district
court did not address this factor, but looked only to
the possibility of a civil servant using his position
to influence voters, and held this to be no more of a
threat than in the most nonpartisan of elections.
But we think that the possibility of coercion of
employees by superiors remains as strong a factor
in municipal elections as it was in Letter Carriers.
Once again, it is the systematic and coordinated
exploitation of public servants for political ends
that a legislature is most likely to see as the
primary threat of employees' rights. Political
oppression of public employees will be rare in an
entirely nonpartisan system. Some superiors may
be inclined to ride herd on the politics of their
employees even in a nonpartisan context, but
without party officials looking over their shoulders
most supervisors will prefer to let employees go
their own ways.
In short, the government may
constitutionally restrict its employees'
participation in nominally nonpartisan elections if
political parties play a large role in the campaigns.
In the absence of substantial party involvement, on
the other hand, the interests identified by
the Letter Carriers Court lose much of their force.
While the employees' First Amendment rights
would normally outbalance these diminished
interests, we do not suggest that they would always
do so. Even when parties are absent, many
employee campaigns might be thought to endanger
at least one strong public interest, an interest that
looms larger in the context of municipal elections
than it does in the national elections considered
in Letter Carriers. The city could reasonably fear
the prospect of a subordinate running directly
against his superior or running for a position that
confers great power over his superior. An
employee of a federal agency who seeks a
Congressional seat poses less of a direct challenge
to the command and discipline of his agency than a
72
 fireman or policeman who runs for mayor or city
council. The possibilities of internal discussion,
cliques, and political bargaining, should an
employee gather substantial political support, are
considerable. (citations omitted)
The court, however, remanded the case to the district court
for further proceedings in respect of the petitioners overbreadth
charge. Noting that invalidating a statute for being overbroad is not to
be taken lightly, much less to be taken in the dark, the court held:
The governing case is Broadrick, which
introduced the doctrine of "substantial"
overbreadth in a closely analogous case.
Under Broadrick, when one who challenges a law
has engaged in constitutionally unprotected
conduct (rather than unprotected speech) and
when the challenged law is aimed at unprotected
conduct, "the overbreadth of a statute must not
only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep."
Two major uncertainties attend the doctrine: how
to distinguish speech from conduct, and how to
define "substantial" overbreadth. We are spared
the first inquiry by Broadrick itself. The plaintiffs in
that case had solicited support for a candidate, and
they were subject to discipline under a law
proscribing a wide range of activities, including
soliciting contributions for political candidates and
becoming a candidate. The Court found that this
combination required a substantial overbreadth
approach. The facts of this case are so similar that
we may reach the same result without worrying
unduly about the sometimes opaque distinction
between speech and conduct.
The second difficulty is not so easily
disposed of. Broadrick found no substantial
overbreadth in a statute restricting partisan
campaigning. Pawtucket has gone further, banning
participation in nonpartisan campaigns as
well. Measuring the substantiality of a statute's
overbreadth apparently requires, inter alia, a rough
balancing of the number of valid applications
compared to the number of potentially invalid
applications. Some sensitivity to reality is needed; an
invalid application that is far-fetched does not
deserve as much weight as one that is probable. The
question is a matter of degree; it will never be
possible to say that a ratio of one invalid to nine
valid applications makes a law substantially
overbroad. Still, an overbreadth challenger has a
duty to provide the court with some idea of the
number of potentially invalid applications the
statute permits. Often, simply reading the statute in
the light of common experience or litigated cases
will suggest a number of probable invalid
applications. But this case is different. Whether the
statute is overbroad depends in large part on the
number of elections that are insulated from party
rivalry yet closed to Pawtucket employees. For all
the record shows, every one of the city, state, or
federal elections in Pawtucket is actively contested
by political parties. Certainly the record suggests
that parties play a major role even in campaigns
that often are entirely nonpartisan in other cities.
School committee candidates, for example, are
endorsed by the local Democratic committee.
The state of the record does not permit us
to find overbreadth; indeed such a step is not to be
taken lightly, much less to be taken in the dark. On
the other hand, the entire focus below, in the short
period before the election was held, was on the
constitutionality of the statute as applied. Plaintiffs
may very well feel that further efforts are not
justified, but they should be afforded the opportunity
to demonstrate that the charter forecloses access to
a significant number of offices, the candidacy for
which by municipal employees would not pose the
possible threats to government efficiency and
integrity which Letter Carriers, as we have
interpreted it, deems significant. Accordingly, we
remand for consideration of plaintiffs' overbreadth
claim. (italics supplied, citations omitted)
Clearly, Letter Carriers,
Broadrick, and Magill demonstrate beyond doubt that Mancuso v.
Taft, heavily relied upon by the ponencia, has effectively been
overruled.[69] As it is no longer good law, the ponencias exhortation
that [since] the Americans, from whom we copied the provision in
question, had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow suit is
misplaced and unwarranted.[70]
Accordingly, our assailed Decisions submission that the right to run for public office is
inextricably linked with two fundamental freedoms those of expression and association
73
lies on barren ground. American case law has in fact never recognized a fundamental
right to express ones political views through candidacy,[71] as to invoke a rigorous
standard of review.[72] Bart v. Telford[73] pointedly stated that [t]he First Amendment
does not in terms confer a right to run for public office, and this court has held that it
does not do so by implication either. Thus, ones interest in seeking office, by itself,
is not entitled to constitutional protection.[74] Moreover, one cannot bring ones action
under the rubric of freedom of association, absent any allegation that, by running for an
elective position, one is advancing the political ideas of a particular set of voters. [75]
Prescinding from these premises, it is crystal clear that the provisions challenged in the
case at bar, are not violative of the equal protection clause. The deemed-resigned
provisions substantially serve governmental interests (i.e., (i) efficient civil service
faithful to the government and the people rather than to party; (ii) avoidance of the
appearance of political justice as to policy; (iii) avoidance of the danger of a powerful
political machine; and (iv) ensuring that employees achieve advancement on their merits
and that they be free from both coercion and the prospect of favor from political
activity). These are interests that are important enough to outweigh the non-
fundamental right of appointive officials and employees to seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v.
Fashing[76] and Morial, et al. v. Judiciary Commission of the State of Louisiana, et
al.[77] to buttress his dissent. Maintaining that resign-to-run provisions are valid only
when made applicable to specified officials, he explains:
U.S. courts, in subsequent cases, sustained the constitutionality of
resign-to-run provisions when applied to specified or particular
officials, as distinguished from all others,[78] under a
classification that is germane to the purposes of the law. These
resign-to-run legislations were not expressed in a general and
sweeping provision, and thus did not violate the test of being
germane to the purpose of the law, the second requisite for a valid
classification. Directed, as they were, to particular officials, they were
not overly encompassing as to be overbroad. (emphasis in the
original)
This reading is a regrettable misrepresentation of Clements and Morial. The
resign-to-run provisions in these cases were upheld not because they referred to
specified or particular officials (vis--vis a general class); the questioned provisions were
found valid precisely because the Court deferred to legislative judgment and found
that a regulation is not devoid of a rational predicate simply because it happens to
be incomplete. In fact, the equal protection challenge in Clements revolved around the
claim that the State of Texas failed to explain why some public officials are subject to the
resign-to-run provisions, while others are not. Ruled the United States Supreme Court:
Article XVI, 65, of the Texas Constitution provides that the
holders of certain offices automatically resign their positions if they
become candidates for any other elected office, unless the unexpired
portion of the current term is one year or less. The burdens that 65
imposes on candidacy are even less substantial than those imposed by
19. The two provisions, of course, serve essentially the same state
interests. The District Court found 65 deficient, however, not because
of the nature or extent of the provision's restriction on candidacy, but
because of the manner in which the offices are classified. According to
the District Court, the classification system cannot survive equal
protection scrutiny, because Texas has failed to explain sufficiently why
some elected public officials are subject to 65 and why others are not. As
with the case of 19, we conclude that 65 survives a challenge under the
Equal Protection Clause unless appellees can show that there is no
rational predicate to the classification scheme.
The history behind 65 shows that it may be upheld consistent
with the "one step at a time" approach that this Court has undertaken
with regard to state regulation not subject to more vigorous scrutiny
than that sanctioned by the traditional principles. Section 65 was
enacted in 1954 as a transitional provision applying only to the 1954
election. Section 65 extended the terms of those offices enumerated in
the provision from two to four years. The provision also staggered the
terms of other offices so that at least some county and local offices
would be contested at each election. The automatic resignation
proviso to 65 was not added until 1958. In that year, a similar
automatic resignation provision was added in Art. XI, 11, which
applies to officeholders in home rule cities who serve terms longer
than two years. Section 11 allows home rule cities the option of
extending the terms of municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a
creature of the State's electoral reforms of 1958. That the State did not
go further in applying the automatic resignation provision to those
officeholders whose terms were not extended by 11 or 65, absent an
invidious purpose, is not the sort of malfunctioning of the State's
lawmaking process forbidden by the Equal Protection Clause. A
regulation is not devoid of a rational predicate simply because it
happens to be incomplete. The Equal Protection Clause does not
forbid Texas to restrict one elected officeholder's candidacy for
another elected office unless and until it places similar restrictions on
other officeholders. The provision's language and its history belie any
74
 notion that 65 serves the invidious purpose of denying access to the
political process to identifiable classes of potential
candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that
there is no blanket approval of restrictions on the right of public employees to become
candidates for public office out of context. A correct reading of that line readily shows
that the Court only meant to confine its ruling to the facts of that case, as each equal
protection challenge would necessarily have to involve weighing governmental interests
vis--vis the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political
association are unquestionably entitled to the protection of the first
and fourteenth amendments. Nothing in today's decision should be
taken to imply that public employees may be prohibited from
expressing their private views on controversial topics in a manner
that does not interfere with the proper performance of their public
duties. In today's decision, there is no blanket approval of restrictions
on the right of public employees to become candidates for public
office. Nor do we approve any general restrictions on the political and
civil rights of judges in particular. Our holding is necessarily narrowed
by the methodology employed to reach it. A requirement that a state
judge resign his office prior to becoming a candidate for non-judicial
office bears a reasonably necessary relation to the achievement of the
state's interest in preventing the actuality or appearance of judicial
impropriety. Such a requirement offends neither the first
amendment's guarantees of free expression and association nor the
fourteenth amendment's guarantee of equal protection of the laws.
(italics supplied)
Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining
which of its employment positions require restrictions on partisan
political activities and which may be left unregulated. And a State can
hardly be faulted for attempting to limit the positions upon which
such restrictions are placed. (citations omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code on equal protection ground, our assailed
Decision struck them down for being overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding
appointive posts without due regard for the type of position being held by
the employee seeking an elective post and the degree of influence that may
be attendant thereto;[79] and
(2) The assailed provisions limit the candidacy of any and all civil servants
holding appointive positions without due regard for the type of office
being sought, whether it be partisan or nonpartisan in character, or in the
national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i. Limitation on Candidacy Regardless of
Incumbent Appointive Officials Position, Valid
According to the assailed Decision, the challenged provisions of law are overly
broad because they apply indiscriminately to all civil servants holding appointive posts,
without due regard for the type of position being held by the employee running for
elective office and the degree of influence that may be attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented
are extant only when the incumbent appointive official running for elective office holds
an influential post.
Such a myopic view obviously fails to consider a different, yet equally plausible,
threat to the government posed by the partisan potential of a large and growing
bureaucracy: the danger of systematic abuse perpetuated by a powerful political
machine that has amassed the scattered powers of government workers so as to give
itself and its incumbent workers an unbreakable grasp on the reins of power. [80] As
elucidated in our prior exposition:[81]
75
 Attempts by government employees to wield influence over
others or to make use of their respective positions (apparently) to
promote their own candidacy may seem tolerable even innocuous
particularly when viewed in isolation from other similar attempts by
other government employees. Yet it would be decidedly foolhardy to
discount the equally (if not more) realistic and dangerous possibility
that such seemingly disjointed attempts, when taken together,
constitute a veiled effort on the part of an emerging central party
structure to advance its own agenda through a carefully orchestrated
use of [appointive and/or elective] officials coming from various
levels of the bureaucracy.
[T]he avoidance of such a politically active public work force
which could give an emerging political machine an unbreakable grasp
on the reins of power is reason enough to impose a restriction on the
candidacies of all appointive public officials without further
distinction as to the type of positions being held by such employees or
the degree of influence that may be attendant thereto. (citations
omitted)
ii. Limitation on Candidacy
Regardless of Type of Office Sought, Valid
The assailed Decision also held that the challenged provisions of law are overly
broad because they are made to apply indiscriminately to all civil servants holding
appointive offices, without due regard for the type of elective office being sought,
whether it be partisan or nonpartisan in character, or in the national, municipal
or barangaylevel.
This erroneous ruling is premised on the assumption that the concerns of a
truly partisan office and the temptations it fosters are sufficiently different from those
involved in an office removed from regular party politics [so as] to warrant distinctive
treatment,[82] so that restrictions on candidacy akin to those imposed by the challenged
provisions can validly apply only to situations in which the elective office sought is
partisan in character. To the extent, therefore, that such restrictions are said to preclude
even candidacies for nonpartisan elective offices, the challenged restrictions are to be
considered as overbroad.
Again, a careful study of the challenged provisions and related laws on the
matter will show that the alleged overbreadth is more apparent than real. Our exposition
on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that
the rules and guidelines set forth therein refer to the filing of
certificates of candidacy and nomination of official candidates of
registered political parties, in connection with the May 10, 2010
National and Local Elections.[83] Obviously, these rules and
guidelines, including the restriction in Section 4(a) of Resolution
8678, were issued specifically for purposes of the May 10, 2010
National and Local Elections, which, it must be noted, are
decidedly partisan in character. Thus, it is clear that the restriction in
Section 4(a) of RA 8678 applies only to the candidacies of appointive
officials vying for partisan elective posts in the May 10, 2010 National
and Local Elections. On this score, the overbreadth challenge leveled
against Section 4(a) is clearly unsustainable.
Similarly, a considered review of Section 13 of RA 9369 and
Section 66 of the Omnibus Election Code, in conjunction with other
related laws on the matter, will confirm that these provisions are
likewise not intended to apply to elections for nonpartisan public
offices.
The only elections which are relevant to the present inquiry are the
elections for barangay offices, since these are the only elections in this
country which involve nonpartisan public offices.[84]
In this regard, it is well to note that from as far back as the
enactment of the Omnibus Election Code in 1985, Congress has
intended that these nonpartisan barangay elections be governed by
special rules, including a separate rule on deemed resignations which
is found in Section 39 of the Omnibus Election Code. Said provision
states:
Section 39. Certificate of Candidacy. No person
shall be elected punong barangay or kagawad ng
sangguniang barangay unless he files a sworn
certificate of candidacy in triplicate on any day
from the commencement of the election period but
not later than the day before the beginning of the
campaign period in a form to be prescribed by the
Commission. The candidate shall state the
barangay office for which he is a candidate.
xxxx
76
 Any elective or appointive municipal, city, provincial closed to appointive employees) that may in all probability result
or national official or employee, or those in the civil from the enforcement of the statute.[91]
or military service, including those in government-
owned or-controlled corporations, shall be The state of the record, however, does not permit us to find
considered automatically resigned upon the filing of overbreadth. Borrowing from the words of Magill v. Lynch, indeed,
certificate of candidacy for a barangay office. such a step is not to be taken lightly, much less to be taken in the
Since barangay elections are governed by a separate deemed dark,[92] especially since an overbreadth finding in this case would
resignation rule, under the present state of law, there would be no effectively prohibit the State from enforcing an otherwise valid
occasion to apply the restriction on candidacy found in Section 66 of measure against conduct that is admittedly within its power to
the Omnibus Election Code, and later reiterated in the proviso of proscribe.[93]
Section 13 of RA 9369, to any election other than a partisan one. For
this reason, the overbreadth challenge raised against Section 66 of the
Omnibus Election Code and the pertinent proviso in Section 13 of RA
This Court would do well to proceed with tiptoe caution, particularly when it
9369 must also fail. [85]
comes to the application of the overbreadth doctrine in the analysis of statutes that
purportedly attempt to restrict or burden the exercise of the right to freedom of speech,
In any event, even if we were to assume, for the sake of argument, that Section
for such approach is manifestly strong medicine that must be used sparingly, and only as
66 of the Omnibus Election Code and the corresponding provision in Section 13 of RA
a last resort.[94]
9369 are general rules that apply also to elections for nonpartisan public offices, the
overbreadth challenge would still be futile. Again, we explained:
In the first place, the view that Congress is limited to In the United States, claims of facial overbreadth have been entertained only
controlling only partisan behavior has not received judicial where, in the judgment of the court, the possibility that protected speech of others may
imprimatur, because the general proposition of the relevant US cases
on the matter is simply that the government has an interest in be muted and perceived grievances left to fester (due to the possible inhibitory effects of
regulating the conduct and speech of its employees that differs overly broad statutes) outweighs the possible harm to society in allowing some
significantly from those it possesses in connection with regulation of
unprotected speech or conduct to go unpunished.[95] Facial overbreadth has likewise not
the speech of the citizenry in general.[86]
been invoked where a limiting construction could be placed on the challenged statute,
Moreover, in order to have a statute declared as and where there are readily apparent constructions that would cure, or at least
unconstitutional or void on its face for being overly broad, particularly
where, as in this case, conduct and not pure speech is involved, the substantially reduce, the alleged overbreadth of the statute.[96]
overbreadth must not only be real, but substantial as well, judged in
relation to the statutes plainly legitimate sweep.[87]
In the case at bar, the probable harm to society in permitting incumbent
In operational terms, measuring the substantiality of a appointive officials to remain in office, even as they actively pursue elective posts, far
statutes overbreadth would entail, among other things, a rough
outweighs the less likely evil of having arguably protected candidacies blocked by the
balancing of the number of valid applications compared to the
number of potentially invalid applications.[88] In this regard, some possible inhibitory effect of a potentially overly broad statute.
sensitivity to reality is needed; an invalid application that is far-
fetched does not deserve as much weight as one that is
probable.[89] The question is a matter of degree.[90] Thus, assuming for In this light, the conceivably impermissible applications of the challenged
the sake of argument that the partisan-nonpartisan distinction is valid statutes which are, at best, bold predictions cannot justify invalidating these statutes
and necessary such that a statute which fails to make this distinction
is susceptible to an overbreadth attack, the overbreadth challenge in totoand prohibiting the State from enforcing them against conduct that is, and has for
presently mounted must demonstrate or provide this Court with some more than 100 years been, unquestionably within its power and interest to
idea of the number of potentially invalid elections (i.e. the number of
proscribe.[97]Instead, the more prudent approach would be to deal with these
elections that were insulated from party rivalry but were nevertheless

77
conceivably impermissible applications through case-by-case adjudication rather than
through a total invalidation of the statute itself.[98]

Indeed, the anomalies spawned by our assailed Decision have taken place. In
his Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking
Cabinet members had already filed their Certificates of Candidacy without relinquishing
their posts.[99] Several COMELEC election officers had likewise filed their Certificates of
Candidacy in their respective provinces.[100] Even the Secretary of Justice had filed her
certificate of substitution for representative of the first district of Quezon province last
December 14, 2009[101] even as her position as Justice Secretary includes supervision
over the City and Provincial Prosecutors,[102] who, in turn, act as Vice-Chairmen of the
respective Boards of Canvassers.[103] The Judiciary has not been spared, for a Regional
Trial Court Judge in the South has thrown his hat into the political arena. We cannot
allow the tilting of our electoral playing field in their favor.

For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678
and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election
Code, are not unconstitutionally overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the
intervenors Motions for Reconsideration; REVERSE and SET ASIDE this Courts December
1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not
UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second
proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66
of the Omnibus Election Code.

SO ORDERED.

78
 [G.R. No. 136351. July 28, 1999]
JOEL G. MIRANDA, petitioner, vs. ANTONIO M. ABAYA and the COMMISSION ON
ELECTIONS, respondents.
DECISION
MELO, J.:
Before us is a petition for certiorari with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction questioning the resolution of the
Comelec En Banc dated December 8, 1998 in SPA Case No. 98-288 which disposed:
ACCORDINGLY, judgment is hereby rendered to:
1. AMEND and RECTIFY the dispositive portion of the Resolution of the Commission
(First Division) in SPA No. 98-019 promulgated on May 5, 1998, to read as follows:
WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the
Petition. Respondent JOSE PEMPE MIRANDAs certificate of candidacy for the position of
mayor of Santiago City in the May 11, 1998 national and local elections is hereby DENIED
DUE COURSE AND/OR CANCELLED.
SO ORDERED.
2. ANNUL the election and proclamation of respondent JOEL G. MIRANDA as mayor of
Santiago City in the May 11, 1998 election and CANCEL the Certificate of Canvass and
Proclamation (C.E. form 25) issued therefor;
3. DIRECT THE City board of Canvassers of Santiago City to RECONVENE, PREPARE a
new certificate of canvass & proclamation and PROCLAIM the winning candidate among
those voted upon as the duly elected mayor of Santiago City in the May 11, 1998 election;
and
4. DIRECT the Clerk of Court of the Commission to furnish copies of this Decision to the
Office of the President of the Philippines; the Department of Interior and Local
Government; the Department of Finance, and the Secretary of the Sangguniang
Panglunsod of Santiago City.
SO ORDERED.
(pp. 90-91, Rollo.)
The aforementioned resolution dated December 8, 1998 reversed and set aside the
earlier resolution of the First Division of the Comelec dated May 16, 1998, dismissing
private respondents petition to declare the substitution of Jose Pempe Miranda by
petitioner as candidate for the City of Santiagos mayoralty post void.
Briefly, the pertinent factual backdrop is summarized as follows:
On March 24, 1998, Jose Pempe Miranda, then incumbent mayor of Santiago City,
Isabela, filed his certificate of candidacy for the same mayoralty post for the
synchronized May 11, 1998 elections.
On March 27, 1998, private respondent Antonio M. Abaya filed a Petition to Deny
Due Course to and/or Cancel Certificate of Candidacy (pp. 26-33, Rollo), which was
docketed as SPA No. 98-019.The petition was GRANTED by the Comelec in its resolution
dated May 5, 1998 (pp. 36-43, Rollo). The Comelec further ruled to DISQUALIFY Jose
Pempe Miranda.
On May 6, 1998, way beyond the deadline for filing a certificate of candidacy,
petitioner Joel G. Miranda filed his certificate of candidacy for the mayoralty post,
supposedly as a substitute for his father, Jose Pempe Miranda.
During the May 11, 1998 elections, petitioner and private respondent vied for the
mayoralty seat, with petitioner garnering 22,002 votes, 1,666 more votes than private
respondent who got only 20, 336 votes.
On May 13, 1998, private respondent filed a Petition to Declare Null and Void
Substitution with Prayer for Issuance of Writ of Preliminary Injunction and/or
Temporary Restraining Order, which was docketed as SPA No. 98-288. He prayed for the
nullification of petitioners certificate of candidacy for being void ab initio because the
certificate of candidacy of Jose Pempe Miranda, whom petitioner was supposed to
substitute, had already been cancelled and denied due course.
On May 16, 1998, Comelecs First Division dismissed SPA No. 98-288 motu
proprio (pp. 57-61, Rollo). Private respondent moved for reconsideration (pp. 62-
72, Rollo). On December 8, 1998, the Comelec En Banc rendered the assailed decision
aforequoted, resolving to GRANT the motion for reconsideration, thus nullifying the
substitution by petitioner Joel G. Miranda of his father as candidate for the mayoralty
post of Santiago City.
On December 9, 1998, petitioner sought this Courts intercession via a petition
for certiorari, with prayer for the issuance of a temporary restraining order and/or writ
of preliminary injunction. On December 11, 1998, the Court resolved to issue a
temporary restraining order and to require respondents to comment on the petition. On
December 14, 1998, private respondent filed his Comment (pp. 140-187 and 188-
234, Rollo) and on February 16, 1999, the Comelec, through its counsel, the Solicitor
General, filed its Comment (pp. 254-265, Rollo). The Court required petitioner to file a
consolidated reply within 10 days from notice, but petitioner twice asked for an
extension of the period. Without granting the motions for extension of time to file
consolidated reply, the Court decided to resolve the controversy in favor of petitioner.
Tersely, the issues in the present case may be summarized as follows:
79
 1. Whether the annulment of petitioners substitution and proclamation was
issued without jurisdiction and/or with grave abuse of discretion
amounting to lack of jurisdiction; and
2. Whether the order of the Comelec directing the proclamation of the private
respondent was issued with grave abuse of discretion amounting to lack
of jurisdiction.
The Court finds neither lack of jurisdiction nor grave abuse of discretion attended
the annulment of the substitution and proclamation of petitioner.
On the matter of jurisdiction, there is no question that the case at hand is within the
exclusive original jurisdiction of the Comelec. As early as in Herrera vs. Baretto (25 Phil.
245 [1913]), this Court had occasion to apply the following principles:
Jurisdiction is the authority to hear and determine a causethe right to act in a case. Since
it is the power to hear and determine, it does not depend either upon the regularity of
the exercise of that power or upon the rightfulness of the decision made. Jurisdiction
should therefore be distinguished from the exercise of jurisdiction. The authority to
decide a cause at all, and not the decision rendered therein, is what makes up
jurisdiction. Where there is jurisdiction over the subject matter, as we have said before,
the decision of all other questions arising in the case is but an exercise of that
jurisdiction.
(p. 251)
On the issue of soundness of the disposition in SPA No. 98-288, the Court finds that
the Comelecs action nullifying the substitution by and proclamation of petitioner for the
mayoralty post of Santiago City, Isabela is proper and legally sound.
Petitioner insists that the substitution at bar is allowed under Section 77 of the
Omnibus Election Code which provides:
SEC. 77. Candidates in case of death, disqualification or withdrawal. If after the last day for
the filing of certificates of candidacy, an official candidate of a registered or accredited
political party dies, withdraws or is disqualified for any cause, only a person belonging
to, and certified by, the same political party may file a certificate of candidacy to replace
the candidate who died, withdrew or was disqualified. The substitute candidate
nominated by the political party concerned may file his certificate of candidacy for the
office affected in accordance with the preceding sections not later than mid-day of the
day of the election. If the death, withdrawal or disqualification should occur between the
day before the election and mid-day of election day, said certificate may be filed with any
board of election inspectors in the political subdivision where he is a candidate, or, in the
case of candidates to be voted for by the entire electorate of the country, with the
Commission.
Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose Pempe
Miranda in the May 5, 1998 resolution and he heavily relies upon the above-quoted
provision allowing substitution of a candidate who has been disqualified for any cause.
While there is no dispute as to whether or not a nominee of a registered or
accredited political party may substitute for a candidate of the same party who had been
disqualified for any cause, this does not include those cases where the certificate of
candidacy of the person to be substituted had been denied due course and cancelled
under Section 78 of the Code.
Expressio unius est exclusio alterius. While the law enumerated the occasions where
a candidate may be validly substituted, there is no mention of the case where a candidate
is excluded not only by disqualification but also by denial and cancellation of his
certificate of candidacy. Under the foregoing rule, there can be no valid substitution for
the latter case, much in the same way that a nuisance candidate whose certificate of
candidacy is denied due course and/or cancelled may not be substituted. If the intent of
the lawmakers were otherwise, they could have so easily and conveniently included
those persons whose certificates of candidacy have been denied due course and/or
cancelled under the provisions of Section 78 of the Code.
More importantly, under the express provisions of Section 77 of the Code, not just
any person, but only an official candidate of a registered or accredited political party
may be substituted. In Bautista vs. Comelec (G.R. No. 133840, November 13, 1998) this
Court explicitly ruled that a cancelled certificate does not give rise to a valid
candidacy (p.13).
A person without a valid certificate of candidacy cannot be considered a candidate
in much the same way as any person who has not filed any certificate of candidacy at all
can not, by any stretch of the imagination, be a candidate at all.
The law clearly provides:
SEC. 73. Certificate of candidacy No person shall be eligible for any elective public office
unless he files a sworn certificate of candidacy within the period fixed herein.
By its express language, the foregoing provision of law is absolutely mandatory. It is but
logical to say that any person who attempts to run for an elective office but does not file a
certificate of candidacy, is not a candidate at all. No amount of votes would catapult him
into office. In Gador vs. Comelec (95 SCRA 431 [1980]), the Court held that a certificate of
candidacy filed beyond the period fixed by law is void, and the person who filed it is not,
in law, a candidate. Much in the same manner as a person who filed no certificate of
candidacy at all and a person who filed it out of time, a person whose certificate of
candidacy is cancelled or denied due course is no candidate at all. No amount of votes
should entitle him to the elective office aspired for.
The evident purposes of the law in requiring the filing of certificates of candidacy
and in fixing the time limit therefor are: (a) to enable the voters to know, at least sixty
days before the regular election, the candidates among whom they are to make the
choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes
cast. For if the law did not confine the choice or election by the voters to the duly
registered candidates, there might be as many persons voted for as there are voters, and
votes might be cast even for unknown or fictitious persons as a mark to identify the
votes in favor of a candidate for another office in the same election. (Monsale vs. Nico, 83
Phil. 758 [1949])
80
 It is at once evident that the importance of a valid certificate of candidacy rests at
the very core of the electoral process. It cannot be taken lightly, lest there be anarchy and
chaos. Verily, this explains why the law provides for grounds for the cancellation and
denial of due course to certificates of candidacy.
After having considered the importance of a certificate of candidacy, it can be
readily understood why in Bautista we ruled that a person with a cancelled certificate is
no candidate at all. Applying this principle to the case at bar and considering that Section
77 of the Code is clear and unequivocal that only an official candidate of a registered or
accredited party may be substituted, there demonstrably cannot be any possible
substitution of a person whose certificate of candidacy has been cancelled and denied
due course.
Also, under ejusdem generis rule, where a general word or phrase (such as
disqualification for any cause in this case) follows an enumeration of particular and
specific words of the same class (such as the words dies and withdraws in the instant
case) or where the latter follow the former, the general word or phrase is to be
construed to include, or to be restricted to persons, things or cases akin to, resembling,
or of the same kind or class as those specifically mentioned (see: Vera vs. Cuevas, 90
SCRA 379 [1979]). A deceased candidate is required to have duly filed a valid certificate
of candidacy, otherwise his political party would not be allowed to field a substitute
candidate in his stead under Section 77 of the Code. In the case of withdrawal of
candidacy, the withdrawing candidate is required to have duly filed a valid certificate of
candidacy in order to allow his political party to field a substitute candidate in his
stead. Most reasonable it is then, under the foregoing rule, to hold that a validcertificate
of candidacy is likewise an indispensable requisite in the case of a substitution of a
disqualified candidate under the provisions of Section 77 of the Code, just as it is in the
two previous instances.
Furthermore, interpretatio talis in ambiguis semper freinda est, ut eviatur
inconveniens et absurdum, meaning, where there is ambiguity, such interpretation as will
avoid inconvenience and absurdity shall in all cases be adopted. To include those
disqualified candidates whose certificate of candidacy had likewise been denied due
course and/or cancelled among those who may be substituted under Section 77 of the
Omnibus Election Code, leads to the absurdity where a substitute is allowed to take the
place of somebody who had not been a candidate in the first placea person who did not
have a valid certificate of candidacy prior to substitution. Nemo dat quod non habet. What
right can a non-candidate pass on to his substitute? Clearly, there is none because no one
can give what he does not have.
Even on the most basic and fundamental principles, it is readily understood that
the concept of a substitute presupposes the existence of the person to be substituted, for
how can a person take the place of somebody who does not exist or who never was. The
Court has no other choice but to rule that in all the instances enumerated in Section 77 of
the Omnibus Election code, the existence of a validcertificate of candidacy seasonably
filed is a requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had
a valid certificate of candidacy in the first place because, if the disqualified candidate did
not have a valid and seasonably filed certificate of candidacy, he is and was not a
candidate at all. If a person was not a candidate, he cannot be substituted under Section
77 of the Code. Besides, if we were to allow the so-called substitute to file a new and
original certificate of candidacy beyond the period for the filing thereof, it would be a
crystalline case of unequal protection of the law, an act abhorred by our Constitution.
From the foregoing discussion it is evident that the controversy at hand is not a
simple case of hair-splitting. A candidate may not be qualified to run for election but may
have filed a valid certificate of candidacy. Another candidate may likewise be not
qualified and at the same time not have a valid certificate of candidacy, for which reason,
said certificate of candidacy is also cancelled and/or denied due course. Or, a third
candidate may be qualified but, his certificate of candidacy may be denied due course
and/or cancelled. This is possible because the grounds for disqualification (see: Omnibus
Election Code, Section 68 Disqualifications) are totally separate and distinct from the
grounds for cancellation and/or denying due course to a certificate of candidacy (Ibid.,
Section 69 nuisancecandidates; and Section 78 material misrepresentation). Only the
candidate who had a valid certificate of candidacy may be substituted.
The question to settle next is whether or not aside from Joel Pempe Miranda being
disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had
likewise been denied due course and cancelled.
The Court rules that it was.
Private respondents petition in SPA No. 98-019 specifically prayed for the
following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by
respondent for the position of Mayor for the City of Santiago be not given due course
and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
(Rollo, p. 31; Emphasis ours.)
In resolving the petition filed by private respondent specifying a very particular
relief, the Comelec ruled favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the
Petition. Respondent JOSE Pempe MIRANDA is hereby DISQUALIFIED from running for
the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local
elections.
SO ORDERED.
(p.43, Rollo; Emphasis ours.)
From a plain reading of the dispositive portion of the Comelec resolution of May 5,
1998 in SPA No. 98-019, it is sufficiently clear that the prayer specifically and
particularly sought in the petition was GRANTED, there being no qualification on the
81
matter whatsoever. The disqualification was simply ruled over and above the granting of
the specific prayer for denial of due course and cancellation of the certificate of
candidacy. It may be stressed at this instance that the legal consequences of this May 5,
1998 resolution are independent of the issue of whether or not the Comelec was correct
in reviving SPA No. 98-019 by consolidating it with SPA No. 98-288 in its December 8,
1998 resolution.
As regards the procedural matter in the present petition for certiorari, the
following considerations are also in point:
It may be relevantly stressed that the review powers of the Supreme Court over
decisions of the Constitutional Commissions, in general, and the Commission on
Elections, in particular, were rather particularly defined and limited by the 1987
Constitution, as they were also circumscribed in the 1973 Constitution, to a petition for
review on certiorari under Rule 65. In Dario vs. Mison (176 SCRA 84 [1989]), the Court
held:
. . . We affirm the teaching of Aratuc vs. Commission of Elections, 88 SCRA 251 [1979]) as
regards recourse to this Court with respect to rulings of the Civil Service
Commissionwhich is that judgments of the Commission may be brought to the Supreme
Court through certiorari alone, under Rule 65 of the Rules of Court.
In Aratuc, we declared:
It is at once evident from these constitutional and statutory modifications that there is a
definite tendency to enhance and invigorate the role of the Commission on Elections as
the independent constitutional body charged with the safeguarding of free, peaceful and
honest elections. The framers of the new Constitution must be presumed to have definite
knowledge of what it means to make the decisions, orders and rulings of the Commission
subject to review by the Supreme Court. And since instead of maintaining that provision
intact, it ordained that the Commissions actuations be instead brought to the Supreme
Court on certiorari, We cannot insist that there was no intent to change the nature of the
remedy, considering that the limited scope of certiorari, compared to a review, is well
known in remedial law.
xxx
It should also be noted that under the new Constitution, as under the 1973 Charter, any
decision, order, or ruling of each Commission may be brought to the Supreme Court
on certiorari, which, as Aratuctells us, technically connotes something less than saying
that the same shall be subject to review by the Supreme Court, which in turn suggests an
appeal by review by petition for review under Rule 45.Therefore, our jurisdiction over
cases emanating from the Civil Service Commission is limited to complaints of lack or
excess of jurisdiction or grave abuse of discretion tantamount to lack or excess of
jurisdiction, complaints that justify certiorari under Rule 65.
(pp. 111-112)
To emphasize this procedural point, then Commissioner, later to become a
distinguished Member of this Court, Mr. Justice Florenz Regalado responded to
Commissioner Bernas query during the deliberations of the 1987 Constitution thusly:
FR. BERNAS. So, for purposes of the record, now, what is the intention of the
Committee? What are the grounds for certiorari?
MR. REGALADO. The Committee refers specifically to a technical term of review
by certiorari would be relying on the provision of Rule XLV [Should be LXV] of
the Rules of Court that laid down the three grounds.
(I RECORD OF THE CONSTITUTIONAL COMMISSION, p. 539, as cited in Bernas, S.J, The
1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Edition, p. 903.)
Thus, we have to be guided by jurisprudence relating to review by certiorari under
Rule 65. Generally, certiorari lies where a court has acted without or in excess of
jurisdiction or with grave abuse of discretion.
Without jurisdiction refers to an absolute want of jurisdiction; excess of
jurisdiction refers to the case where the court has jurisdiction, but it transcended the
same or acted without any statutory authority; grave abuse of discretion implies such
capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.
Even assuming for the sake of argument that the Comelec committed an error in
the exercise of its jurisdiction in the present case, such is not within the province
of certiorari, as a remedial measure, to correct. The only issue that may be taken
cognizance of in the present case is whether or not the Comelec committed grave abuse
of discretion in rendering the assailed decision.
It is well-settled that an act of a court or tribunal may only be considered to have
been done in grave abuse of discretion when the same was performed in a capricious or
whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion
or personal hostility (Intestate Estate of Carmen de Luna vs. Intermediate Appellate Court,
170 SCRA 246 [1989]; Litton Mills vs. Galleon Traders, 163 SCRA 489 [1988]; Butuan Bay
Export Co. vs. Court of Appeals, 97 SCRA 297 [1980]). An error of judgment committed in
the exercise of its legitimate jurisdiction is not the same as grave abuse of discretion. An
abuse of discretion is not sufficient by itself to justify the issuance of a writ
of certiorari. The abuse must be grave and patent, and it must be shown that the
discretion was exercised arbitrarily and despotically (Soriano vs. Atienza, 171 SCRA 284
[1989]).
Petitioner posits that the Comelec committed grave abuse of discretion when it
annulled the substitution by and proclamation of petitioner, who under Section 77 of the
Omnibus Election Code, was allowed to substitute for disqualified the candidate Jose
Pempe Miranda. Petitioner also contends that it was an act of grave abuse of discretion
for the Comelec to direct the proclamation of private respondent as the winning
candidate in the May 11, 1998 election.
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 Petitioner further faults the Comelec for amending the dispositive portion of its
resolution in SPA No. 98-019, which was not elevated to it on review, the same having
already attained finality by then.
While it may be conceded that the Comelec stepped overboard and acted in excess
of its jurisdiction when it motu proprio took cognizance of SPA No. 98-019, the decision
in which was by then already final, it does not necessarily follow that the Comelec also
committed grave abuse of discretion in resolving to grant private respondents motion
for reconsideration by nullifying the substitution of petitioner Joel G. Miranda. Evidently,
what is under review before us in this certiorari proceedings is SPA No. 98-288, and not
SPA No. 98-019.
The question to answer is: will the Comelecs act which may constitute an excess of
jurisdiction in SPA No. 98-019 be tantamount to an act of grave abuse of discretion in its
judgment in the separate and distinct case of SPA No. 98-288 as well? Clearly, non
sequitur. SPA No. 98-288 should be judged on its own accord, and not under the shadow
of SPA No. 98-019.
Comelec committed no grave abuse of discretion in resolving SPA No. 98-288 in
favor of private respondent. As earlier pointed out, the result in the dispositive portion of
the December 8, 1998 resolution pertaining to the issues involved in SPA No. 98-288 is
correct insofar as it annulled the election and proclamation of Joel G. Miranda. But even
assuming for the sake of argument that it is not, still, this supposed error does not
constitute grave abuse of discretion which may be annulled and reversed in the present
petition for certiorari.
As earlier elucidated too, the crux of the Comelecs disposition in SPA No. 98-288 is
the fact that former candidate Jose Pempe Mirandas certificate of candidacy was denied
due course and cancelled.There is no dispute that the complaint or petition filed by
private respondent in SPA No. 98-019 is one to deny due course and to cancel the
certificate of candidacy of Jose Pempe Miranda (Rollo, pp. 26-31). There is likewise no
question that the said petition was GRANTED without any qualification whatsoever. It is
rather clear, therefore, that whether or not the Comelec granted any further relief in SPA
No. 98-019 by disqualifying the candidate, the fact remains that the said petition was
granted and that the certificate of candidacy of Jose Pempe Miranda was denied
due course and cancelled. In fact, it was not even necessary for the Comelec to reiterate
this in its December 8, 1998 resolution. At best, the Comelecs motu proprio act of
resurrecting SPA No. 98-019 should be treated as a mere surplusage. The fact that the
certificate of candidacy of Joel Pempe Miranda was denied due course and cancelled did
not depend on the en banc resolution dated December 8, 1998 of the Comelec. It stems
from the fact that the May 5, 1998 resolution GRANTED private respondents Petition to
Deny Due Course to and/or Cancel Certificate of Candidacy.
Verily, there is clear basis to find that there indeed was a blatant misrepresentation
in the instant case and that it was a valid ground for the granting of the petition in SPA
No. 98-019. Also, there appears to be sound basis to rule that a certificate of candidacy
which has been denied due course on account of misrepresentation is, in every legal
contemplation, no certificate at all. Ergo, there is nothing to substitute. If this judgment,
rendered in the Comelecs rightful exercise of its jurisdiction in SPA No. 98-288 may, at
all, be considered flawed, this blemish would only constitute an error of judgment and
definitely not grave abuse of discretion. And, of course, errors of judgment may not be
corrected by certiorari.
It may be noted that Commissioner Flores raised this supposed error in her
dissenting opinion (pp. 93-99, Rollo). However, her legal opinion failed to convince the
majority of the collegiate body and was not adopted by the Commission en banc. This
Court in the present certiorari proceedings cannot substitute its judgment for that of the
Comelec without violating the Constitution and the Rules of Court on the matter. The
Comelecs decision is not subject to appeal to this Court. We may only strike out a
Comelec decision if it was rendered without jurisdiction, in excess thereof, or with grave
abuse of discretion amounting to lack of jurisdiction.
The Court cannot accede to the reasoning that this Court should now acquiesce and
submit to the sovereign will of the electorate, as expressed by their votes. We should
always be reminded that ours is a government of laws not of men. If this Court should
fold its arms and refuse to apply the law at every clamor of the majority of the supposed
constituency, where shall order and justice lie? Without the least intention to degrade,
where shall people power end, and where shall law and justice begin? Would the
apparent results of the canvassing of votes justify this Court in refusing to apply the law
instead?The answers to the foregoing are obvious. The Court cannot choose otherwise
but to exercise its sacred duty to uphold the Constitution and the laws of the Republic for
and under which it exists. Besides, only history will discern whether Jose Pempe
Mirandas filing of a certificate of candidacy for a 4th term and the intended substitution
by his son was a ploy to perpetrate the Mirandas in power by way of a political dynasty
disdained and abhorred by our Constitution which declared:
SEC. 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law.
(Article II, 1987 Constitution)
The invalidation of petitioners supposed substitution of Jose Pempe Miranda brings
about the disqualification of petitioner in the mayoralty race. In this regard, what was
said in Nolasco vs. Commission on Elections (275 SCRA 763 [1997]) may be recalled:
Our case law is now settled that in a mayoralty election, the candidate who obtained the
second highest number of votes, in this case Alarilla, cannot be proclaimed winner in
case the winning candidate is disqualified. Thus, we reiterated the rule in the fairly
recent case of Reyes v. Comelec (254 SCRA 514 [1996]), viz.:
xxxxxxxxx
We likewise find no grave abuse of discretion on the part of the Comelec in denying
petitioner Julius O. Garcias petition to be proclaimed mayor in view of the
disqualification of Renato U. Reyes.
That the candidate who obtains the second highest number of votes may not be proclaimed
winner in case the winning candidate is disqualified is now settled. The doctrinal instability
83
caused by see-sawing rulings has since been removed. In the latest ruling on the
question, this Court said:
To simplistically assume that the second placer would have received the other votes
would be to substitute our judgment for the mind of the voter. The second placer is just
that, a second placer. He lost the elections. He was repudiated by either a majority or
plurality of voters. He could not be considered the first among qualified candidates
because in a field which excludes the disqualified candidate, the conditions would have
substantially changed. We are not prepared to extrapolate the results under the
circumstances.
Garcias plea that the votes case for Reyes be invalidated is without merit. The votes cast
for Reyes are presumed to have been cast in the belief that Reyes was qualified and for
that reason can be treated as stray, void and meaningless. The subsequent finding that he
is disqualified cannot retroact to the date of the elections as to invalidate the votes cast
for him.
Consequently, respondent Comelec committed grave abuse of discretion insofar as it
failed to follow the above doctrine, a descendant of our ruling in Labo v. Comelec (176
SCRA 1 [1989]).
(pp. 782-783)
x x x.
For purposes of this Chapter, a permanent vacancy arises when an elective local official
fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from
office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the
functions of his office.
For purposes of succession as provided in this Chapter, ranking in the sanggunian shall
be determined on the basis of the proportion of votes obtained by each winning
candidate to the total number of registered voters in each district in the immediately
preceding local election.
WHEREFORE, the petition is hereby partly DENIED, insofar as the Comelec ruling
to ANNUL the election and proclamation of petitioner is being AFFIRMED. The petition is,
however, hereby GRANTED so as to MODIFY the resolution of the Comelec in SPA No. 98-
288 by DELETING the portion directing the city board of canvassers to reconvene and
proclaim the winning candidate from among those voted upon during the May 11, 1998
elections. The law on succession should be enforced. Accordingly, the restraining order
issued in this case is forthwith LIFTED.
SO ORDERED.

Thus, the Comelec committed grave abuse of discretion insofar as it failed to follow
the above-cited settled ruling consistently applied by this Court since the case of Labo vs.
Comelec (176 SCRA 1 [1989]), Aquino vs. Comelec, 248 SCRA 400 [1995], Reyes vs.
Comelec (254 SCRA 514 [1996]); and Nolasco vs. Comelec (275 SCRA 763 [1997]).
Even as the Court cannot accede to the contention that, in view of the election
results pointing to petitioner as the electors choice for the mayoralty post, we should
now close our eyes to the pertinent provisions of the Omnibus Election Code on the
matter, nevertheless, the Court duly notes that the said election results point to the fact
that private respondent was not then the choice of the people of Santiago City,
Isabela. This Court has no authority under any law to impose upon and compel the
people of Santiago City to accept private respondent as their mayor. The law on
succession under section 44 of Republic Act 7160, otherwise known as the Local
Government Code, would then apply. Said provision relevantly states:

SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and
Vice Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the
vice-governor or vice-mayor concerned shall become the governor or mayor. If a
permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice
mayor, the highest ranking sanggunian member, or, in case of his permanent disability,
the second highest ranking sanggunian member, shall become governor, vice governor,
mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be
filled automatically by the other sanggunian members according to their ranking as
defined herein.

84
 5. In view of the permanent vacancy in the Office of the Mayor of Lucena City,
the proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under
Section 44 of the Local Government Code;
G.R. No. 196804 October 9, 2012

6. DIRECTING the Clerk of Court of the Commission to furnish copies of this

MAYOR BARBARA RUBY C. TALAGA, Petitioner,
Resolution to the Office of the President of the Philippines, the Department of
vs.
Interior and Local Government, the Department of Finance and the Secretary of
COMMISSION ON ELECTIONS and RODERICK A. ALCALA, Respondents.
the Sangguniang Panglunsod of Lucena City.

x-----------------------x
Let the Department of Interior and Local Government and the Regional Election Director
of Region IV of COMELEC implement this resolution.
G.R. No. 197015
SO ORDERED.1
PHILIP M. CASTILLO, Petitioner,
vs.
Antecedents
COMMISSION ON ELECTIONS, BARBARA RUBY TALAGA and RODERICK A.
ALCALA, Respondents.
On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M.
Castillo (Castillo) respectively filed their certificates of candidacy (CoCs) for the position
DECISION
of Mayor of Lucena City to be contested in the scheduled May 10, 2010 national and local
elections.2
BERSAMIN, J.:
Ramon, the official candidate of the Lakas-Kampi-CMD,3 declared in his CoC that he was
In focus in these consolidated special civil actions are the disqualification of a substitute eligible for the office he was seeking to be elected to.
who was proclaimed the winner of a mayoralty election; and the ascertainment of who
should assume the office following the substitute’s disqualification.
Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition
denominated as In the Matter of the Petition to Deny Due Course to or Cancel Certificate
The consolidated petitions for certiorari seek to annul and set aside the En Banc of Candidacy of Ramon Y. Talaga, Jr. as Mayor for Having Already Served Three (3)
Resolution issued on May 20, 2011 in SPC No. 10-024 by the Commission on Elections Consecutive Terms as a City Mayor of Lucena, which was docketed as SPA 09-029
(COMELEC), the dispositive portion of which states: (DC).4 He alleged

WHEREFORE, judgment is hereby rendered:
1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the
Second Division;
2. GRANTING the petition in intervention of Roderick A. Alcala;
3. ANNULLING the election and proclamation of respondent Barbara C. Talaga
as mayor of Lucena City and CANCELLING the Certificate of Canvass and
Proclamation issued therefor;
therein that Ramon, despite knowing that he had been elected and had served three
consecutive terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in
the May 10, 2010 national and local elections.
The pertinent portions of Castillo’s petition follow:
1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao
Crossing, Lucena City but may be served with summons and other processes of
this Commission at the address of his counsel at 624 Aurora Blvd., Lucena City
4301;

4. Ordering respondent Barbara Ruby Talaga to cease and desist from 2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a
discharging the functions of the Office of the Mayor; resident of Barangay Ibabang Iyam, Lucena City and with postal address at the
Office of the City Mayor, City Hall, Lucena City, where he may be served with
summons and other processes of this Commission;

85
 3. Petitioner, the incumbent city vice-mayor of Lucena having been elected
during the 2007 local elections, is running for city mayor of Lucena under the
Liberal party this coming 10 May 2010 local elections and has filed his
certificate of candidacy for city mayor of Lucena;
4. Respondent was successively elected mayor of Lucena City in 2001, 2004,
and 2007 local elections based on the records of the Commission on Elections
of Lucena City and had fully served the aforesaid three (3) terms without any
voluntary and involuntary interruption;
5. Except the preventive suspension imposed upon him from 13 October 2005
to 14 November 2005 and from 4 September 2009 to 30 October 2009
pursuant to Sandiganbayan 4th Division Resolution in Criminal Case No. 27738
dated 3 October 2005, the public service as city mayor of the respondent is
continuous and uninterrupted under the existing laws and jurisprudence;
6. There is no law nor jurisprudence to justify the filing of the certificate of
candidacy of the respondent, hence, such act is outrightly unconstitutional,
illegal, and highly immoral;
7. Respondent, knowing well that he was elected for and had fully served three
(3) consecutive terms as a city mayor of Lucena, he still filed his Certificate of
Candidacy for City Mayor of Lucena for this coming 10 May 2010 national and
local elections;
8. Under the Constitution and existing Election Laws, New Local Government
Code of the Philippines, and jurisprudence the respondent is no longer entitled
and is already disqualified to be a city mayor for the fourth consecutive term;
9. The filing of the respondent for the position of city mayor is highly improper,
unlawful and is potentially injurious and prejudicial to taxpayers of the City of
Lucena; and
10. It is most respectfully prayed by the petitioner that the respondent be
declared disqualified and no longer entitled to run in public office as city mayor
of Lucena City based on the existing law and jurisprudence.5
The petition prayed for the following reliefs, to wit:
WHEREFORE, premises considered, it is respectfully prayed that the Certificate of
Candidacy filed by the respondent be denied due course to or cancel the same and that
he be declared as a disqualified candidate under the existing Election Laws and by the
provisions of the New Local Government Code.6 (Emphasis supplied.)
Ramon countered that that the Sandiganbayan had preventively suspended him from
office during his second and third terms; and that the three-term limit rule did not then
apply to him pursuant to the prevailing jurisprudence7 to the effect that an involuntary
separation from office amounted to an interruption of continuity of service for purposes
of the application of the three-term limit rule.
In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino,
Jr. v. Commission on Elections,8 holding that preventive suspension, being a mere
temporary incapacity, was not a valid ground for avoiding the effect of the three-term
limit rule. Thus, on December 30, 2009, Ramon filed in the COMELEC a Manifestation
with Motion to Resolve, taking into account the intervening ruling in Aldovino. Relevant
portions of his Manifestation with Motion to Resolve are quoted herein, viz:
4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena
City, the rule that ‘where the separation from office is caused by reasons beyond the
control of the officer – i.e. involuntary – the service of term is deemed interrupted’ has
not yet been overturned by the new ruling of the Supreme Court. As a matter of fact, the
prevailing rule then of the Honorable Commission in [sic] respect of the three (3)-term
limitation was its decision in the case of Aldovino, et al. vs. Asilo where it stated:
"Thus, even if respondent was elected during the 2004 elections, which was supposedly
his third and final term as city councilor, the same cannot be treated as a complete
service or full term in office since the same was interrupted when he was suspended by
the Sandiganbayan Fourth Division. And the respondent actually heeded the suspension
order since he did not receive his salary during the period October 16-31 and November
1-15 by reason of his actual suspension from office. And this was further bolstered by the
fact that the DILG issued a
Memorandum directing him, among others, to reassume his position." (Emphasis
supplied.)
5. Clearly, there was no misrepresentation on the part of respondent as would constitute
a ground for the denial of due course to and/or the cancellation of respondent’s
certificate of candidacy at the time he filed the same. Petitioner’s ground for the denial of
due course to and/or the cancellation of respondent’s certificate of candidacy thus has
no basis, in fact and in law, as there is no ground to warrant such relief under the
Omnibus Election Code and/or its implementing laws.
6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on
the three (3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to
run for the position of Mayor of Lucena City having served three (3) (albeit interrupted)
terms as Mayor of Lucena City prior to the filing of his certificate of candidacy for the
2010 elections.
7. In view of the foregoing premises and new jurisprudence on the matter, respondent
respectfully submits the present case for decision declaring him as DISQUALIFIED to run
for the position of Mayor of Lucena City.9
86
Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena
City in the May 10, 2010 national and local elections, Ramon did not withdraw his CoC.
Acting on Ramon’s Manifestation with Motion to Resolve, the COMELEC First Division
issued a Resolution on April 19, 2010,10 disposing as follows:
WHEREFORE, premises considered, the instant Petition is hereby GRANTED.
Accordingly, Ramon Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of
Lucena City for the 10 May 2010 National and Local Elections.
SO ORDERED.
Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010
Resolution of the COMELEC First Division.11 Later on, however, he filed at 9:00 a.m. of
May 4, 2010 an Ex-parte Manifestation of Withdrawal of the Pending Motion for
Reconsideration.12 At 4:30 p.m. on the same date, Barbara Ruby filed her own CoC for
Mayor of Lucena City in substitution of Ramon, attaching thereto the Certificate of
Nomination and Acceptance (CONA) issued by Lakas-Kampi-CMD, the party that had
nominated Ramon.13
On May 5, 2010, the COMELEC En Banc, acting on Ramon’s Ex parte Manifestation of
Withdrawal, declared the COMELEC First Division’s Resolution dated April 19, 2010 final
and executory.14
On election day on May 10, 2010, the name of Ramon remained printed on the ballots but
the votes cast in his favor were counted in favor of Barbara Ruby as his substitute
candidate, resulting in Barbara Ruby being ultimately credited with 44,099 votes as
against Castillo’s 39,615 votes.15
Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the
suspension of Barbara Ruby’s proclamation.16
It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of
its Law Department,17gave due course to Barbara Ruby’s CoC and CONA through
Resolution No. 8917, thereby including her in the certified list of
candidates.18 Consequently, the CBOC proclaimed Barbara Ruby as the newly-elected
Mayor of Lucena City.19
On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the
COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could not substitute
Ramon because his CoC had been cancelled and denied due course; and Barbara Ruby
could not be considered a candidate because the COMELEC En Banc had approved her
substitution three days after the elections; hence, the votes cast for Ramon should be
considered stray.
In her Comment on the Petition for Annulment of Proclamation,21 Barbara Ruby
maintained the validity of her substitution. She countered that the COMELEC En Banc did
not deny due course to or cancel Ramon’s COC, despite a declaration of his
disqualification, because there was no finding that he had committed misrepresentation,
the ground for the denial of due course to or cancellation of his COC. She prayed that
with her valid substitution, Section 12 of Republic Act No. 900622 applied, based on
which the votes cast for Ramon were properly counted in her favor.
On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City,
sought to intervene,23positing that he should assume the post of Mayor because Barbara
Ruby’s substitution had been invalid and Castillo had clearly lost the elections.
On January 11, 2011, the COMELEC Second Division dismissed Castillo’s petition and
Alcala’s petition-in-intervention,24 holding:
In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was
the basis for the proclamation of Ruby on that date. He, however, failed to file any action
within the prescribed period either in the Commission or the Supreme Court assailing
the said resolution. Thus, the said resolution has become final and executory. It cannot
anymore be altered or reversed.
xxxx
x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was
actually for the disqualification of Ramon for having served three consecutive terms,
which is a ground for his disqualification under the Constitution in relation to Section
4(b)3 of Resolution 8696. There was no mention therein that Ramon has committed
material representation that would be a ground for the cancellation or denial of due
course to the CoC of Ramon under Section 78 of the Omnibus Election Code. The First
Division, in fact, treated the petition as one for disqualification as gleaned from the body
of the resolution and its dispositive portion quoted above. This treatment of the First
Division of the petition as one for disqualification only is affirmed by the fact that its
members signed Resolution No. 8917 where it was clearly stated that the First Division
only disqualified Ramon.
Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not
applicable. Ramon was rightly substituted by Ruby. As such, the votes for Ramon cannot
be considered as stray votes but should be counted in favor of Ruby since the substituted
and the substitute carry the same surname – Talaga, as provided in Section 12 of
Republic Act No. 9006.
xxxx
Moreover, there is no provision in the Omnibus Election Code or any election laws for
that matter which requires that the substitution and the Certificate of Candidacy of the
substitute should be approved and given due course first by the Commission or the Law
Department before it can be considered as effective. All that Section 77 of the Omnibus
87
Election Code as implemented by Section 13 of Resolution No. 8678 requires is that it
should be filed with the proper office. The respondent is correct when she argued that in
fact even the BEI can receive a CoC of a substitute candidate in case the cause for the
substitution happened between the day before the election and mid-day of election day.
Thus, even if the approval of the substitution was made after the election, the
substitution became effective on the date of the filing of the CoC with the Certificate of
Nomination and Acceptance.
There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor
of Lucena City, the counting of the votes of Ramon in favor of Ruby is proper. The
proclamation, thus, of Ruby as mayor elect of Lucena City is in order. Hence, we find no
cogent reason to annul the proclamation of respondent Barbara Ruby C. Talaga as the
duly elected Mayor of the City of Lucena after the elections conducted on May 10, 2010. 25
Acting on Castillo and Alcala’s respective motions for reconsideration, the COMELEC En
Banc issued the assailed Resolution dated May 20, 2011 reversing the COMELEC Second
Division’s ruling.26
Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without
a hearing as a mere incident of the COMELEC’s ministerial duty to receive the COCs of
substitute candidates; (b) Resolution No. 8917 was based on the wrong facts; and (c)
Ramon’s disqualification was resolved with finality only on May 5, 2010, the COMELEC
En Banc concluded that Barbara Ruby could not have properly substituted Ramon but
had simply become an additional candidate who had filed her COC out of time; and held
that Vice Mayor Alcala should succeed to the position pursuant to Section 44 of the Local
Government Code (LGC).27
Issues
The core issue involves the validity of the substitution by Barbara Ruby as candidate for
the position of Mayor of Lucena City in lieu of Ramon, her husband.
Ancillary to the core issue is the determination of who among the contending parties
should assume the contested elective position.
Ruling
The petitions lack merit.
1.
Existence of a valid CoC is a condition
sine qua non for a valid substitution
The filing of a CoC within the period provided by law is a mandatory requirement for any
person to be considered a candidate in a national or local election. This is clear from
Section 73 of the Omnibus Election Code, to wit:
Section 73. Certificate of candidacy — No person shall be eligible for any elective public
office unless he files a sworn certificate of candidacy within the period fixed herein.
Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:
Section 74. Contents of certificate of candidacy.—The certificate of candidacy shall state
that the person filing it is announcing his candidacy for the office stated therein and that
he is eligible for said office; if for Member of the Batasang Pambansa, the province,
including its component cities, highly urbanized city or district or sector which he seeks
to represent; the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and will maintain true
faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or
immigrant to a foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the facts stated
in the certificate of candidacy are true to the best of his knowledge. x x x
The evident purposes of the requirement for the filing of CoCs and in fixing the time limit
for filing them are, namely: (a) to enable the voters to know, at least 60 days prior to the
regular election, the candidates from among whom they are to make the choice; and (b)
to avoid confusion and inconvenience in the tabulation of the votes cast. If the law does
not confine to the duly-registered candidates the choice by the voters, there may be as
many persons voted for as there are voters, and votes may be cast even for unknown or
fictitious persons as a mark to identify the votes in favor of a candidate for another office
in the same election.28 Moreover, according to Sinaca v. Mula,29 the CoC is:
x x x in the nature of a formal manifestation to the whole world of the candidate’s
political creed or lack of political creed. It is a statement of a person seeking to run for a
public office certifying that he announces his candidacy for the office mentioned and that
he is eligible for the office, the name of the political party to which he belongs, if he
belongs to any, and his post-office address for all election purposes being as well stated.
Accordingly, a person’s declaration of his intention to run for public office and his
affirmation that he possesses the eligibility for the position he seeks to assume, followed
by the timely filing of such declaration, constitute a valid CoC that render the person
making the declaration a valid or official candidate.
There are two remedies available to prevent a candidate from running in an electoral
race. One is through a petition for disqualification and the other through a petition to
deny due course to or cancel a certificate of candidacy. The Court differentiated the two
remedies in Fermin v. Commission on Elections,30 thuswise:
88
x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68
of the Omnibus Election Code, or Section 40 of the Local Government Code. On the other
hand, a petition to deny due course to or cancel a CoC can only be grounded on a
statement of a material representation in the said certificate that is false. The petitions
also have different effects. While a person who is disqualified under Section 68 is merely
prohibited to continue as a candidate, the person whose certificate is cancelled or denied
due course under Section 78 is not treated as a candidate at all, as if he/she never filed a
CoC.31
Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election
Code (i.e., prohibited acts of candidates, and the fact of a candidate’s permanent
residency in another country when that fact affects the residency requirement of a
candidate) are separate and distinct from the grounds for the cancellation of or denying
due course to a COC (i.e., nuisance candidates under Section 69 of the Omnibus Election
Code; and material misrepresentation under Section 78 of the Omnibus Election Code),
the Court has recognized in Miranda v. Abaya32that the following circumstances may
result from the granting of the petitions, to wit:
(1) A candidate may not be qualified to run for election but may have filed a
valid CoC;
(2) A candidate may not be qualified and at the same time may not have filed a
valid CoC; and
(3) A candidate may be qualified but his CoC may be denied due course or
cancelled.
In the event that a candidate is disqualified to run for a public office, or dies, or
withdraws his CoC before the elections, Section 77 of the Omnibus Election Code
provides the option of substitution, to wit:
Section 77. Candidates in case of death, disqualification or withdrawal. — If after the last
day for the filing of certificates of candidacy, an official candidate of a registered or
accredited political party dies, withdraws or is disqualified for any cause, only a person
belonging to, and certified by, the same political party may file a certificate of candidacy
to replace the candidate who died, withdrew or was disqualified. The substitute
candidate nominated by the political party concerned may file his certificate of candidacy
for the office affected in accordance with the preceding sections not later than mid-day of
the day of the election. If the death, withdrawal or disqualification should occur between
the day before the election and mid-day of election day, said certificate may be filed with
any board of election inspectors in the political subdivision where he is a candidate, or,
in the case of candidates to be voted for by the entire electorate of the country, with the
Commission.
Nonetheless, whether the ground for substitution is death, withdrawal or disqualification
of a candidate, Section 77 of the Omnibus Election Code unequivocally states that only an
official candidate of a registered or accredited party may be substituted.
Considering that a cancelled CoC does not give rise to a valid candidacy, 33 there can be no
valid substitution of the candidate under Section 77 of the Omnibus Election Code. It
should be clear, too, that a candidate who does not file a valid CoC may not be validly
substituted, because a person without a valid CoC is not considered a candidate in much
the same way as any person who has not filed a CoC is not at all a candidate.34
Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of
the Omnibus Election Code may not be substituted. A withdrawal of candidacy can only
give effect to a substitution if the substitute candidate submits prior to the election a
sworn CoC as required by Section 73 of the Omnibus Election Code.35
2.
Declaration of Ramon’s disqualification
rendered his CoC invalid; hence, he was not
a valid candidate to be properly substituted
In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the
COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature of a
petition to deny due course to or cancel a CoC under Section 78 of the Omnibus Election
Code.
In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission
on Elections:36
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not
based on the lack of qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications required of the public
office he/she is running for. It is noted that the candidate states in his/her CoC that
he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be
read in relation to the constitutional and statutory provisions on qualifications or
eligibility for public office. If the candidate subsequently states a material representation
in the CoC that is false, the COMELEC, following the law, is empowered to deny due
course to or cancel such certificate. Indeed, the Court has already likened a proceeding
under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they
both deal with the eligibility or qualification of a candidate, with the distinction mainly in
the fact that a "Section 78" petition is filed before proclamation, while a petition for quo
warranto is filed after proclamation of the winning candidate.
Castillo’s petition contained essential allegations pertaining to a Section 78 petition,
namely: (a) Ramon made a false representation in his CoC; (b) the false representation
referred to a material matter that would affect the substantive right of Ramon as
candidate (that is, the right to run for the election for which he filed his certificate); and
(c) Ramon made the false representation with the intention to deceive the electorate as
to his qualification for public office or deliberately attempted to mislead, misinform, or
hide a fact that would otherwise render him ineligible.37 The petition expressly
challenged Ramon’s eligibility for public office based on the prohibition stated in the
89
Constitution and the Local Government Code against any person serving three
consecutive terms, and specifically prayed that "the Certificate of Candidacy filed by the
respondent Ramon be denied due course to or cancel the same and that he be declared
as a disqualified candidate."38
The denial of due course to or the cancellation of the CoC under Section 78 involves a
finding not only that a person lacks a qualification but also that he made a material
representation that is false.39 A petition for the denial of due course to or cancellation of
CoC that is short of the requirements will not be granted. In Mitra v. Commission on
Elections,40 the Court stressed that there must also be a deliberate attempt to mislead,
thus:
The false representation under Section 78 must likewise be a "deliberate attempt to
mislead, misinform, or hide a fact that would otherwise render a candidate ineligible."
Given the purpose of the requirement, it must be made with the intention to deceive the
electorate as to the would-be candidate’s qualifications for public office. Thus, the
misrepresentation that Section 78 addresses cannot be the result of a mere innocuous
mistake, and cannot exist in a situation where the intent to deceive is patently absent, or
where no deception on the electorate results. The deliberate character of the
misrepresentation necessarily follows from a consideration of the consequences of any
material falsity: a candidate who falsifies a material fact cannot run; if he runs and is
elected, he cannot serve; in both cases, he can be prosecuted for violation of the election
laws.
It is underscored, however, that a Section 78 petition should not be interchanged or
confused with a Section 68 petition. The remedies under the two sections are different,
for they are based on different grounds, and can result in different eventualities. 41 A
person who is disqualified under Section 68 is prohibited to continue as a candidate, but
a person whose CoC is cancelled or denied due course under Section 78 is not considered
as a candidate at all because his status is that of a person who has not filed a
CoC.42 Miranda v. Abaya43 has clarified that a candidate who is disqualified under Section
68 can be validly substituted pursuant to Section 77 because he remains a candidate
until disqualified; but a person whose CoC has been denied due course or cancelled
under Section 78 cannot be substituted because he is not considered a
candidate.1âwphi1
To be sure, the cause of Ramon’s ineligibility (i.e., the three-term limit) is enforced both
by the Constitution and statutory law. Article X, Section 8 of the 1987 Constitution
provides:
Section 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for the full term
for which he was elected.
Section 43 of the Local Government Code reiterates the constitutional three-term limit
for all elective local officials, to wit:
Section 43. Term of Office. – (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected. (Emphasis supplied.)
The objective of imposing the three-term limit rule was "to avoid the evil of a single
person accumulating excessive power over a particular territorial jurisdiction as a result
of a prolonged stay in the same office." The Court underscored this objective in Aldovino,
Jr. v. Commission on Elections,44 stating:
x x x The framers of the Constitution specifically included an exception to the people’s
freedom to choose those who will govern them in order to avoid the evil of a single
person accumulating excessive power over a particular territorial jurisdiction as a result
of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of
city mayor after having served for three consecutive terms as a municipal mayor would
obviously defeat the very intent of the framers when they wrote this exception. Should
he be allowed another three consecutive terms as mayor of the City of Digos, petitioner
would then be possibly holding office as chief executive over the same territorial
jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very
scenario sought to be avoided by the Constitution, if not abhorred by it.
To accord with the constitutional and statutory proscriptions, Ramon was absolutely
precluded from asserting an eligibility to run as Mayor of Lucena City for the fourth
consecutive term. Resultantly, his CoC was invalid and ineffectual ab initio for containing
the incurable defect consisting in his false declaration of his eligibility to run. The
invalidity and inefficacy of his CoC made his situation even worse than that of a nuisance
candidate because the nuisance candidate may remain eligible despite cancellation of his
CoC or despite the denial of due course to the CoC pursuant to Section 69 of the Omnibus
Election Code.45
Ramon himself specifically admitted his ineligibility when he filed his Manifestation with
Motion to Resolve on December 30, 2009 in the COMELEC.46 That sufficed to render his
CoC invalid, considering that for all intents and purposes the COMELEC’s declaration of
his disqualification had the effect of announcing that he was no candidate at all.
We stress that a non-candidate like Ramon had no right to pass on to his substitute. As
Miranda v. Abaya aptly put it:
Even on the most basic and fundamental principles, it is readily understood that the
concept of a substitute presupposes the existence of the person to be substituted, for
how can a person take the place of somebody who does not exist or who never was. The
Court has no other choice but to rule that in all the instances enumerated in Section 77 of
90
the Omnibus Election Code, the existence of a valid certificate of candidacy seasonably
filed is a requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of
candidacy in the first place because, if the disqualified candidate did not have a valid and
seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person
was not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if
we were to allow the so-called "substitute" to file a "new" and "original" certificate of
candidacy beyond the period for the filing thereof, it would be a crystalline case of
unequal protection of the law, an act abhorred by our Constitution.47 (Emphasis
supplied)
3.
Granting without any qualification of petition in
SPA No. 09-029(DC) manifested COMELEC’s intention to
declare Ramon disqualified and to cancel his CoC
That the COMELEC made no express finding that Ramon committed any deliberate
misrepresentation in his CoC was of little consequence in the determination of whether
his CoC should be deemed cancelled or not.
In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC "be
not given due course and/or cancelled." The COMELEC categorically granted "the
petition" and then pronounced — in apparent contradiction — that Joel Pempe Miranda
was "disqualified." The
Court held that the COMELEC, by granting the petition without any qualification,
disqualified Joel Pempe Miranda and at the same time cancelled Jose Pempe Miranda’s
CoC. The Court explained:
The question to settle next is whether or not aside from Joel "Pempe" Miranda being
disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had
likewise been denied due course and cancelled.
The Court rules that it was.
Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by
respondent for the position of Mayor for the City of Santiago be not given due course
and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
(Rollo, p. 31; Emphasis ours.)
In resolving the petition filed by private respondent specifying a very particular relief,
the Comelec ruled favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the
Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for
the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local
elections.
SO ORDERED.
(p.43, Rollo; Emphasis ours.)
From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998
in SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly
sought in the petition was GRANTED, there being no qualification on the matter
whatsoever. The disqualification was simply ruled over and above the granting of the
specific prayer for denial of due course and cancellation of the certificate of candidacy. x
x x.49
xxxx
x x x. There is no dispute that the complaint or petition filed by private respondent in
SPA No. 98-019 is one to deny due course and to cancel the certificate of candidacy of
Jose "Pempe" Miranda (Rollo, pp. 26-31). There is likewise no question that the said
petition was GRANTED without any qualification whatsoever. It is rather clear, therefore,
that whether or not the Comelec granted any further relief in SPA No. 98-019 by
disqualifying the candidate, the fact remains that the said petition was granted and that
the certificate of candidacy of Jose "Pempe" Miranda was denied due course and
cancelled. x x x.50
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the
particular relief of cancelling or denying due course to the CoC prayed for in the petition
by not subjecting that relief to any qualification.
Miranda v. Abaya applies herein. Although Castillo’s petition in SPA No. 09-029 (DC)
specifically sought both the disqualification of Ramon and the denial of due course to or
cancellation of his CoC, the COMELEC categorically stated in the Resolution dated April
19, 2010 that it was granting the petition. Despite the COMELEC making no finding of
material misrepresentation on the part of Ramon, its granting of Castillo’s petition
without express qualifications manifested that the COMELEC had cancelled Ramon’s CoC
based on his apparent ineligibility. The Resolution dated April 19, 2010 became final and
executory because Castillo did not move for its reconsideration, and because Ramon
later withdrew his motion for reconsideration filed in relation to it.
91
4.
Elected Vice Mayor must succeed
and assume the position of Mayor
due to a permanent vacancy in the office
On the issue of who should assume the office of Mayor of Lucena City, Castillo submits
that the doctrine on the rejection of the second-placer espoused in Labo, Jr. v.
Commission on Elections51 should not apply to him because Ramon’s disqualification
became final prior to the elections.52 Instead, he cites Cayat v. Commission on
Elections,53where the Court said:
x x x In Labo there was no final judgment of disqualification before the elections. The
doctrine on the rejection of the second placer was applied in Labo and a host of other
cases because the judgment declaring the candidate’s disqualification in Labo and the
other cases had not become final before the elections. To repeat, Labo and the other
cases applying the doctrine on the rejection of the second placer have one common
essential condition — the disqualification of the candidate had not become final before
the elections. This essential condition does not exist in the present case.
Thus, in Labo, Labo’s disqualification became final only on 14 May 1992, three days after
the 11 May 1992 elections. On election day itself, Labo was still legally a candidate. In the
present case, Cayat was disqualified by final judgment 23 days before the 10 May 2004
elections. On election day, Cayat was no longer legally a candidate for mayor. In short,
Cayat’s candidacy for Mayor of Buguias, Benguet was legally non-existent in the 10 May
2004 elections.
The law expressly declares that a candidate disqualified by final judgment before an
election cannot be voted for, and votes cast for him shall not be counted. This is a
mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms
Law of 1987, states:
Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes
in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry, or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong. (Emphasis added)
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when
the disqualification becomes final before the elections, which is the situation covered in
the first sentence of Section 6. The second is when the disqualification becomes final
after the elections, which is the situation covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law
governing the first situation is categorical: a candidate disqualified by final judgment
before an election cannot be voted for, and votes cast for him shall not be counted. The
Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May
2004 elections. Therefore, all the 8,164 votes cast in Cayat’s favor are stray. Cayat was
never a candidate in the 10 May 2004 elections. Palileng’s proclamation is proper
because he was the sole and only candidate, second to none.54
Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume
the position of Mayor of Lucena City for having obtained the highest number of votes
among the remaining qualified candidates.
It would seem, then, that the date of the finality of the COMELEC resolution declaring
Ramon disqualified is decisive. According to Section 10, Rule 19 of the COMELEC’s
Resolution No. 8804,55 a decision or resolution of a Division becomes final and executory
after the lapse of five days following its promulgation unless a motion for
reconsideration is seasonably filed. Under Section 8, Rule 20 of Resolution No. 8804, the
decision of the COMELEC En Banc becomes final and executory five days after its
promulgation and receipt of notice by the parties.
The COMELEC First Division declared Ramon disqualified through its Resolution dated
April 19, 2010, the copy of which Ramon received on the same date.56 Ramon filed a
motion for reconsideration on April 21, 201057 in accordance with Section 7 of COMELEC
Resolution No. 8696,58 but withdrew the motion on May 4, 2010,59ostensibly to allow his
substitution by Barbara Ruby. On his part, Castillo did not file any motion for
reconsideration. Such circumstances indicated that there was no more pending matter
that could have effectively suspended the finality of the ruling in due course. Hence, the
Resolution dated April 19, 2010 could be said to have attained finality upon the lapse of
five days from its promulgation and receipt of it by the parties. This happened probably
on April 24, 2010. Despite such finality, the COMELEC En Banc continued to act on the
withdrawal by Ramon of his motion for reconsideration through the May 5, 2010
Resolution declaring the April 19, 2010 Resolution of the COMELEC First Division final
and executory.
Yet, we cannot agree with Castillo’s assertion that with Ramon’s disqualification
becoming final prior to the May 10, 2010 elections, the ruling in Cayat was applicable in
his favor. Barbara Ruby’s filing of her CoC in substitution of Ramon significantly
differentiated this case from the factual circumstances obtaining in Cayat. Rev. Fr. Nardo
B. Cayat, the petitioner in Cayat, was disqualified on April 17, 2004, and his
disqualification became final before the May 10, 2004 elections. Considering that no
substitution of Cayat was made, Thomas R. Palileng, Sr., his rival, remained the only
candidate for the mayoralty post in Buguias, Benguet. In contrast, after Barbara Ruby
substituted Ramon, the May 10, 2010 elections proceeded with her being regarded by
the electorate of Lucena City as a bona fide candidate. To the electorate, she became a
contender for the same position vied for by Castillo, such that she stood on the same
footing as Castillo. Such standing as a candidate negated Castillo’s claim of being the
candidate who obtained the highest number of votes, and of being consequently entitled
to assume the office of Mayor.
92
Indeed, Castillo could not assume the office for he was only a second
placer.1âwphi1 Labo, Jr. should be applied. There, the Court emphasized that the
candidate obtaining the second highest number of votes for the contested office could
not assume the office despite the disqualification of the first placer because the second
placer was "not the choice of the sovereign will."60 Surely, the Court explained, a minority
or defeated candidate could not be deemed elected to the office.61 There was to be no
question that the second placer lost in the election, was repudiated by the electorate, and
could not assume the vacated position.62 No law imposed upon and compelled the people
of Lucena City to accept a loser to be their political leader or their representative.63

The only time that a second placer is allowed to take the place of a disqualified winning
candidate is when two requisites concur, namely: (a) the candidate who obtained the
highest number of votes is disqualified; and (b) the electorate was fully aware in fact and
in law of that candidate’s disqualification as to bring such awareness within the realm of
notoriety but the electorate still cast the plurality of the votes in favor of the ineligible
candidate.64 Under this sole exception, the electorate may be said to have waived the
validity and efficacy of their votes by notoriously misapplying their franchise or
throwing away their votes, in which case the eligible candidate with the second highest
number of votes may be deemed elected.65 But the exception did not apply in favor of
Castillo simply because the second element was absent. The electorate of Lucena City
were not the least aware of the fact of Barbara Ruby’s ineligibility as the substitute. In
fact, the COMELEC En Banc issued the Resolution finding her substitution invalid only on
May 20, 2011, or a full year after the decisions.

On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from
assuming the position of Mayor of Lucena City. To begin with, there was no valid
candidate for her to substitute due to Ramon’s ineligibility. Also, Ramon did not
voluntarily withdraw his CoC before the elections in accordance with Section 73 of the
Omnibus Election Code. Lastly, she was not an additional candidate for the position of
Mayor of Lucena City because her filing of her CoC on May 4, 2010 was beyond the
period fixed by law. Indeed, she was not, in law and in fact, a candidate. 66

A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such
vacancy should be filled pursuant to the law on succession defined in Section 44 of the
LGC, to wit:67

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor,
and Vice-Mayor. – If a permanent vacancy occurs in the office of the governor or mayor,
the vice-governor or vice-mayor concerned shall become the governor or mayor. x x x

WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS
the Resolution issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the
petitioners to pay the costs of suit.

SO ORDERED.

93
G.R. No. 170256 January 25, 2010
ALVIN B. GARCIA, Petitioner,
vs.
COMMISSION ON ELECTIONS and TOMAS R. OSMEÑA, Respondents.
DECISION
PERALTA, J.:
This is a petition for certiorari1 alleging that the Commission on Elections (COMELEC) en
banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the Resolutions dated April 28, 2005 and October 5, 2005 in Election Offense
Case No. 04-120. In the Resolution dated April 28, 2005, the COMELEC en banc found
probable cause that petitioner Alvin B. Garcia committed an election offense and directed
the Law Department of COMELEC to file the appropriate Information against him for
violation of Section 6 of Republic Act (R.A.) No. 9006, otherwise known as the "Fair
Elections Act,"2 and Section 13 of COMELEC Resolution No. 6520, the Implementing
Rules and Regulations (IRR) of R.A. No. 9006. The Resolution dated October 5, 2005
denied petitioner’s motion for reconsideration.
The facts are as follows:
On May 6, 2004, private respondent Tomas R. Osmeña, then mayoral candidate in the
2004 national and local elections in Cebu City, filed an election offense case against his
rival, petitioner Alvin B. Garcia, for the publication of political advertisements that
allegedly violated the thrice-a-week publication requirement and failed to indicate the
name and address of the party or candidate for whose benefit the advertisements were
published. He averred that the publication of the political advertisements was in
violation of Sections 4 and 6 of R.A. No. 90063 and Sections 11 and 13 of COMELEC
Resolution No. 6520.4
In his Complaint5 dated May 6, 2004, private respondent alleged, thus:
For the period April 26, 2004 up to May 2, 2004, or for a period of one week, respondent
through his family-owned publishing company put up political advertisements, which we
can group into four basic categories, namely, "MAYOR SA KATAWHAN," "IT'S A NO-
CONTEST," "NO TO TOM TAX OSMENA," and "Mayor Alvin Garcia" advertisements.6
Private respondent averred that "MAYOR SA KATAWHAN" was published four times,
that is, on April 27 and 29, 2004 and May 1 and 2, 2004, all one-half page in size, in the
Sun Star tabloid. Moreover, the "IT’S A NO-CONTEST" political advertisement was
printed daily, or seven times in Sun Star, all one-half page in size, from April 26 to May 2,
2004. The "NO TO TOM TAX OSMEÑA" advertisement appeared thrice, or on April 28
and 29, 2004 and May 1, 2004, also one-half page in size, in the same tabloid. The "Mayor
Alvin Garcia" advertisement was published once. Private respondent alleged that all the
political advertisements did not indicate the true and correct name and address of the
party or candidate for whose benefit the advertisements were published.
In his Answer,7 petitioner denied private respondent’s allegations. He contended that the
political advertisements had been made not for a single candidate, but for the entire slate
of his party, Kusug-KNP Party, consisting of 20 local candidates, plus presidential and
vice-presidential candidates Fernando Poe, Jr. and Loren Legarda, respectively.
Petitioner asserted that "22 candidates x 3 a week results to 66 times a week publication
for all the candidates" of the Kusug-KNP Party. Thus, the publication of the political
advertisements, may it be seven or 15 times, was way below the allowable limit of 66
times for the 22 political candidates of the Kusug-KNP Party. Consequently, the political
advertisements in question had not exceeded the legal limit provided by R.A. No. 9006,
as implemented by COMELEC Resolution No. 6520.
Further, petitioner stated that the political advertisements in question reflected that they
were really campaigns for the benefit of the candidates of the Kusug-KNP Party, as in
fact, they contained the pictures and names of the party’s political candidates. Hence, he
contended that the political advertisements substantially complied with the requirement
provided by the Fair Elections Act that the advertisement shall contain the true and
correct name and address of the party or candidate for whose benefit the election
propaganda was printed.
In a Resolution dated November 8, 2004, the Office of the Regional Investigation and
Prosecution Committee (Office of the Regional Director, Region VII, Cebu City)
recommended the dismissal of the Complaint based on this finding:
The respondent did not violate the thrice-a-week rule laid down by Sec. 6 of RA 9006 as
implemented by Sec. 13 of Comelec Resolution 6520. As correctly pointed out by
respondent, the said political advertisement is not for the benefit or published for the
respondent alone, but for the whole Kusug-KNP Party as can be gleaned from said
advertisements, thus, the whole party with twenty local candidates and the Kusog Party
and its alliance with Koalisyong Nagkakaisang Pilipino (KNP) is entitled to as much as 66
times a week for each publication. The very purpose of the law is to provide candidates
wide latitude in informing the electorate regarding their platforms and qualifications
during the campaign period.
The same can be said on the alleged violation of Sec. 4 of RA 9006 as implemented by Sec.
11 of Comelec Resolution 6520. Although respondent's political advertisement did not
literally contain the requirement of indicating the true and correct name and address for
whose benefit the election propaganda was published, this requirement is substantially
met by the respondent because it can be glean[ed] [from the] said ads for whose benefit
the same was made as shown by the pictures and names of the candidates and who paid
for it. A literal implementation of the law should not be required if the same can be met
substantially and the purpose of the law is achieve[d] and that is equal access to media is
given to candidates to make known their qualifications and stand on public issues.8
94
In a Resolution dated April 28, 2005, the COMELEC en banc disagreed with the
recommendation of the investigating officer, thus:
We disagree. RA 9006 provides to wit:
Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide
candidates shall have equal access to media time and space. The following guidelines
may be amplified on by the COMELEC:
6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet and one-
half (1/2) page in tabloids thrice a week per newspaper, magazine or other publications,
during the campaign period.
This is amplified by Comelec Resolution 6520, thus:
SECTION 13. Requirements and/or Limitations on the Use of Election Propaganda
through Mass Media. - All registered political parties, party-list groups, organizations,
and/or coalitions thereof, and bona fide candidates shall have equal access to media time
and space for their election propaganda during the campaign period subject to the
following requirements and/or limitations:
xxxx
2. Printed or Published Election Propaganda
The maximum size of print advertisements for each candidate, whether for a national or
local elective position, or registered political party, party-list group, organization, and/or
coalition thereof, shall be, as follows:
a. One fourth (1/4) page - in broadsheets; and
b. One half (1/2) page - in tabloids
Said print advertisements, whether procured by purchase, or given free of charge, shall
be published thrice a weekper newspaper, magazine or other publications during the
campaign period. (emphasis supplied)
Insofar as the political propaganda, "it’s a no-contest," is concerned, respondent does not
deny that the same was published in Sun Star for seven (7) consecutive times – from 26
April 2004 to 02 May 2004 – or for a period of one week, straight. An inspection of the
said advertisement reveals that it refers only to respondent; there is no mention of his
political party or party-mates, making it clear that it was his advertisement alone. The
computation thus made by respondent and so adopted by the investigating officer,
assuming this to be true and valid, would not and cannot apply in this instance. The
provisions of law violated need no further interpretation as they are very plain and
unambiguous.
That other candidates are claimed to have committed the same violation does not excuse
herein respondent nor does it remove from this Commission the authority and power to
prosecute the same. In fact, it compels Us to be even more vigorous and relentless in
pursuing Our duties. In this regard, there shall be no sacred cows.9
The dispositive portion of the Resolution reads:
CONSIDERING that there exists PROBABLE CAUSE, the Law Department is hereby
DIRECTED to file the appropriate information against respondent Alvin B. Garcia for
violation of Section 6 of RA 9006, and Section 13 of COMELEC Resolution No. 6520, in
relation to Section 264 of the Omnibus Election Code, as amended.10
Petitioner filed a Motion for Reconsideration11 and, thereafter, a Supplemental Motion
for Reconsideration12 of the Resolution, contending that there was lack of probable cause
to hold him liable for an election offense in violation of R.A. No. 9006 and its IRR, because
he was neither the author of the questioned advertisement nor the one who caused its
publication. He stated that Orlando P. Carvajal, the General Manager of Sun Star
Publishing, Inc., attested in an Affidavit dated May 23, 2005 that an organization named
Friends of Alvin Garcia caused the publication of the said advertisement.
Petitioner contended that since he did not cause the publication of the advertisement in
question, and absent any competent proof against him, there was no probable cause
warranting the filing of an Information against him for violation of R.A. No. 9006, as
implemented by COMELEC Resolution No. 6520.
In a Resolution13 dated October 5, 2005, the COMELEC en banc denied the motion for
reconsideration for lack of merit.
On October 13, 2006, the COMELEC Law Department directed Atty. Manuel T. Advincula,
Acting Regional Election Director of Region VII, to file the Information entitled People of
the Philippines v. Alvin B. Garcia with the proper Regional Trial Court (RTC) of Cebu.
Petitioner filed an Urgent Motion to Withhold Issuance of Warrant of Arrest and for
Judicial Determination of Probable Cause with the RTC of Cebu City, Branch 12, on the
following grounds:
1. The filing of the information by the COMELEC is premature considering that
there is a pending petition for certiorari before the Supreme Court questioning
the resolution of the COMELEC over the subject matter; and
2. There is lack of probable cause to subject the accused to a criminal
prosecution.14
95
On December 21, 2006, the RTC OF Cebu City, Branch 12, issued an Order the dispositive
portion of which reads:
IN VIEW OF ALL THE FOREGOING, the determination of probable cause is hereby
deferred until after resolution of the petition for certiorari pending with the Supreme
Court. Accordingly, the issuance of a warrant of arrest is held in abeyance.15
Meantime, on November 18, 2005, petitioner filed this petition, raising the following
issues:
I According to petitioner, private respondent did not offer any competent proof that he
THE RESPONDENT COMELEC COMMITTED ERROR AMOUNTING TO GRAVE ABUSE OF
DISCRETION IN RULING THAT THERE EXISTS A PROBABLE CAUSE TO SUBJECT THE
PETITIONER TO A CRIMINAL PROSECUTION AS THE POLITICAL ADVERTISEMENT IN
QUESTION DID NOT EXCEED THE ALLOWED FREQUENCY OF PUBLICATION.
II
THE RESPONDENT COMELEC COMMITTED ERROR AMOUNTING TO GRAVE ABUSE OF
DISCRETION IN RULING THAT THERE EXISTS A PROBABLE CAUSE TO SUBJECT THE
PETITIONER TO A CRIMINAL PROSECUTION DESPITE THE PRESENCE OF EVIDENCE
THAT THE PETITIONER DID NOT CAUSE THE PUBLICATION OF THE POLITICAL
ADVERTISEMENT IN QUESTION.16
Before this Court, petitioner reiterates that the "IT’S NO CONTEST" political
advertisement was attributable not only to him but to the complete line-up of candidates
of Kusug-KNP Party for local elective positions, numbering 20 candidates. The party’s
alliance with the KNP, a national party that carried the late Fernando Poe, Jr. for
President and former Senator Loren Legarda for Vice-president, brought the total
number of candidates advertised in the political advertisement to 22, excluding the
senatorial line-up.
Petitioner contends that 22 candidates multiplied by three publications per week equals
an allowable publication of 66 times a week for all candidates of the Kusug-KNP Party.
Petitioner asserts that the Special Regional Investigation and Prosecution Committee,
therefore, did not err in recommending the dismissal of the Complaint, as the pertinent
advertisement did not violate the thrice-a-week rule laid down by Section 6 of R.A. No.
9006, as implemented by Section 13 of COMELEC Resolution No. 6520.
Further, petitioner argues that there is no probable cause that he violated Section 11 of
COMELEC Resolution No. 6520, because he did not author or cause the publication of the
advertisement in question. The affidavit executed by the General Manager of Sun Star
Publishing, Inc. stated that the organization named Friends of Alvin Garcia paid for the
"IT’S A NO-CONTEST" political advertisement for the period April 26, 2004 to May 2,
2004.
Petitioner admits that he and his family own stocks in Sun Star Publishing, Inc. He claims,
however, that Sun Star is independently operated by its News, Editorial and Marketing
Departments, and Sun Star Daily prides itself with catering to no other interest but to
that of the general public, and is not beholden to the corporation’s stockholders and their
relatives.
Petitioner asserts that probable cause presupposes the introduction of competent proof
that the party against whom it is sought has performed particular acts or committed
specific omissions, violating a given provision of our criminal laws.
(petitioner) was the author of the said political advertisement or caused the publication
of the same, but offered merely the publication of the advertisement in question.
Petitioner submits that having established that he was neither the author of the political
advertisement in question nor the one who caused its publication, there is no probable
cause warranting the filing of the Information against him for violation of R.A. No. 2006,
as implemented by COMELEC Resolution No. 6520. Thus, the COMELEC en banc
committed grave abuse of discretion amounting to lack of jurisdiction in issuing the
Resolutions dated April 28, 2005 and October 5, 2005.
The Court is not persuaded.
Paragraph 6, Section 2, Article IX of the Constitution empowers the COMELEC to
"investigate and, where appropriate, prosecute cases for violation of election laws,
including acts or omissions constituting election frauds, offenses and malpractices." This
prosecutorial power of the COMELEC is reflected in Section 265 of Batas Pambansa
Bilang 881,17 otherwise known as the Omnibus Election Code.
It is well settled that the finding of probable cause in the prosecution of election offenses
rests in the COMELEC's sound discretion.18
Baytan v. Commission on Elections19 defines probable cause, thus:
x x x By definition, probable cause is –
x x x a reasonable ground of presumption that a matter is, or may be, well founded x x x
such a state of facts in the mind of the prosecutor as would lead a person of ordinary
caution and prudence to believe or entertain an honest or strong suspicion that a thing is
so. The term does not mean ‘actual or positive cause’ nor does it import absolute
certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable
cause does not require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of evidence of
the prosecution in support of the charge.
96
Generally, the Court will not interfere with the finding of probable cause by the
COMELEC absent a clear showing of grave abuse of discretion.20 This principle emanates
from the COMELEC's exclusive power to conduct preliminary investigation of all election
offenses punishable under the election laws and to prosecute the same, except as may
otherwise be provided by law. 21
Section 4 of R.A. No. 9006 provides for the requirements for published or printed
election propaganda, thus:
Sec. 4. Requirements for Published or Printed and Broadcast Election Propaganda − 4.1.
Any newspaper x x x or any published or printed political matter and any broadcast of
election propaganda by television or radio for or against a candidate or group of
candidates to any public office shall bear and be identified by the reasonably legible or
audible words "political advertisement paid for," followed by the true and correct name
and address of the candidate or party for whose benefit the election propaganda was
printed or aired.
xxxx
4.3. Print, broadcast or outdoor advertisements donated to the candidate or political
party shall not be printed, published, broadcast or exhibited without the written
acceptance by the said candidate or political party. Such written acceptance shall be
attached to the advertising contract and shall be submitted to the COMELEC as provided
in Subsection 6.3 hereof. (Emphasis supplied.)
advertisement may be considered as a donation to petitioner under Section 4 of R.A. No.
9006 and its IRR. Paragraph 4.3, Section 4 of R.A. No. 9006 explicitly requires that "print
x x x advertisements donated to the candidate or political party shall not be printed,
published x x x without the written acceptance by the said candidate."24 Since the
advertisement in question was published by the Sun Star, there arises a presumption
that there was written acceptance by petitioner of the advertisement paid for or donated
by his friends in the absence of evidence to the contrary. Under the Rules on Evidence, it
is presumed that the law has been obeyed, and that private transactions have been fair
and regular.25
Following the general rule, the Court will not interfere with the finding of probable cause
by the COMELEC, absent a clear showing of grave abuse of discretion that must be so
patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law
or to act in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.26
The records show that the COMELEC has filed an Information charging petitioner with
violation of Section 6 of R.A. No. 9006 and its IRR with the RTC of Cebu City, Branch 12,
which has thereby acquired jurisdiction over the case. Consequently, all the subsequent
dispositions of the said case must be subject to the approval of the court. Hence, the case
must be allowed to take its due course.27
WHEREFORE, the petition for certiorari is hereby DISMISSED. The Resolutions of the
COMELEC en banc dated April 28, 2005 and October 5, 2005 are AFFIRMED.

Paragraphs 4.1 and 4.3, Section 4 of R.A. No. 9006 are reflected in Section 13 (3) and No costs.
Section 14 of COMELEC Resolution No. 6520.22
SO ORDERED.
To emphasize, Section 4 of R.A. No. 9006 requires that print advertisements donated to a
candidate shall not be published without the written acceptance of the said candidate,
which written acceptance shall be attached to the advertising contract and submitted to
the COMELEC.

The requirement for a written acceptance by a candidate of donated advertisements is a

safeguard provided by law against the danger of publishing or broadcasting election
propaganda beyond the required frequency, size and other limitations imposed by law
without the candidate’s express agreement, since the violation of such requirements
results in the prosecution of the candidate for an election offense punishable under the
first and second paragraphs of Section 264 of the Omnibus Election Code.23 Under
Section 264 of the Omnibus Election Code, a person found guilty of an election offense
"shall be punished with imprisonment of not less than one year but not more than six
years and shall not be subject to probation." In addition, "the guilty party shall be
sentenced to suffer disqualification to hold public office and deprivation of the right of
suffrage."

In this case, the COMELEC did not question petitioner’s averment that the advertisement
in question was paid for by the organization named Friends of Alvin Garcia. The
97
G.R. No. 212398 November 25, 2014
EMILIO RAMON "E.R." P. EJERCITO, Petitioner,
vs.
HON. COMMISSION ON ELECTIONS and EDGAR "EGA Y" S. SAN LUIS, Respondents.
DECISION
PERALTA, J.:
Contested in this petition for certiorari under Rule 64, in relation to Rule 65 of the Rules
of Court (Rules), is the May 21, 2014 Resolutio1 of the Commission on Elections
(COMELEC) En Banc in SPA No. 13-306 (DC), which affirmed the September 26, 2013
Resolution2 of the COMELEC First Division granting the petition for disqualification filed
by private respondent Edgar "Egay" S. San Luis (San Luis) against petitioner Emilio
Ramon "E.R." P. Ejercito (Ejercito). Three days prior to the May 13, 2013 National and
Local Elections, a petition for disqualification was filed by San Luis before the Office of
the COMELEC Clerk in Manila against Ejercito, who was a fellow gubernatorial candidate
and, at the time, the incumbent Governor of the Province of Laguna.3 Alleged in his
Petition are as follows:
FIRST CAUSE OF ACTION
5. [Ejercito], during the campaign period for 2013 local election, distributed to
the electorates of the province of Laguna the so-called "Orange Card" with an
intent to influence, induce or corrupt the voters in voting for his favor. Copy
thereof is hereto attached and marked as Annex "C" and made as an integral
part hereof;
6. In furtherance of his candidacy for the position of Provincial Governor of
Laguna, [Ejercito] and his cohorts claimed that the said "Orange Card" could be
used in any public hospital within the Province of Laguna for their medical
needs as declared by the statements of witnesses which are hereto attached
and marked as Annex "D" as integral part hereof;
7. The so-called "Orange Card" is considered a material consideration in
convincing the voters to cast their votes for [Ejercito’s] favor in clear violation
of the provision of the Omnibus Election Code which provides and I quote:
"Sec. 68. Disqualifications. – Any candidate who, in an action or protest in which
he is a party is declared by final decision by a competent court guilty of, or
found by the Commission of having (a) given money or other
materialconsideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess
of that allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections
80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be
disqualified from continuing as a candidate, or if hehas been elected, from
holding the office. Any person who is a permanent resident of or an immigrant
to a foreign country shall not be qualified to run for any elective office under
this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws." (emphasis ours)
8. Thus, pursuant to the mandate of the aforesaid law, [Ejercito] should be
disqualified;
SECOND CAUSE OF ACTION
9. Based on the records of the Provincial COMELEC, the Province of Laguna has
a total of 1,525,522 registered electorate. A certification issued by the
Provincial Election Supervisor is hereto attached and marked as Annex "E" as
an integral part hereof;
10. In this regard, par. (a), Section 5 of COMELEC Resolution No. 9615,
otherwise known as the Rules and Regulations Implementing FAIR ELECTION
ACT provides and I quote:
"Authorized Expenses of Candidates and Parties. –The aggregate amount that a
candidate or party may spent for election campaign shall be as follows:
a. For candidates – Three pesos (₱3.00) for every voter currently
registered in the constituency where the candidate filed his certificate
of candidacy.
b. For other candidates without any political party and without any
support from any political party – Five pesos (₱5.00) for every voter
currently registered in the constituency where the candidate filed his
certificate of candidacy.
c. For Political Parties and party-list groups – Five pesos (₱5.00) for
every voter currently registered in the constituency or constituencies
where it has official candidates. (underscoring mine for emphasis)
11. Accordingly, a candidate for the position of Provincial Governor of Laguna is
only authorized to incur an election expense amounting to FOUR MILLION FIVE
HUNDRED SEVENTY-SIX THOUSAND FIVE HUNDRED SIXTY-SIX
(₱4,576,566.00) PESOS.
12. However, in total disregard and violation of the afore-quoted provision of
law, [Ejercito] exceeded his expenditures in relation to his campaign for the
98
 2013 election. For television campaign commercials alone, [Ejercito] already 15. Moreover, it is crystal clear that [Ejercito] violated Sec. 68 of the Omnibus
spent the sum of Ph₱23,730.784 based on our party’s official monitoring on the Election Code which provides and I quote:
following dates[:] April 28, May 4 & May 5, 2013.
"Sec. 68. Disqualifications. – Any candidate who, in an action or protest in which
he is a party is declared by final decision by a competent court guilty of, or
Date Program Time Duration Amount*
found by the Commission of having (a) given money or other material
4 minutes consideration to influence, induce or corrupt the voters or public officials
April 28, 2013 TV Patrol 5:58 p.m. ₱3,297,496
performing electoral functions; (b) committed acts of terrorism to enhance his
(approximately)
candidacy; (c) spent in his election campaign an amount in excess of that
Sundays Best 4 minutes allowed by this Code; (d) solicited, received or made any contribution
April 28, 2013 10:40 p.m. ₱3,297,496
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections
(local specials) (approximately)
80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be
Sunday Night 3 minutes disqualified from continuing asa candidate, or if he has been elected, from
April 28, 2013 10:46 p.m. ₱2,635,200
holding the office. Any person who is a permanent resident of or an immigrant
Box Office (approximately)
to a foreign country shall not be qualified to run for any elective office under
Sunday Night 4 minutes this Code, unless said person has waived his status as permanent resident or
April 28, 2013 11:06 p.m. ₱2,635,200
immigrant of a foreign country in accordance with the residence requirement
Box Office (approximately)
provided for in the election laws." (emphasis ours)
Sunday Night 4 minutes
April 28, 2013 11:18 p.m. ₱2,635,200
Box Office (approximately) 16. On the other hand, the effect of disqualification is provided under Sec. 6 of
Republic Act No. 6646, which states and I quote:
Sunday Night 4 minutes
April 28, 2013 11:47 p.m. ₱2,635,200
Box Office (approximately)
"Effect of Disqualification Case. – Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him
4 minutes
May 4, 2013 TODA MAX 11:26 p.m. ₱3,297,496
shall not be counted. If for any reason a candidate is not declared by final
(approximately)
judgment before an election to be disqualified and he is voted for and receives
4 minutes the winning number of votes in such election, the Court or Commission shall
May 5, 2013 Rated K 8:06 p.m. ₱3,297,496
continue with the trial and hearing of the action, inquiry or protest and, upon
(approximately)
motion of the complainant or any intervenor, may during the pendency thereof
Total order the suspension of the proclamation of such candidate whenever the
₱23,730.784
evidence of [his] guilt is strong." (emphasis mine)

* Total cost based on published rate card; PRAYER

13. Even assuming that [Ejercito] was given 30% discount as prescribed under
the Fair Election Act, he still exceeded in the total allowable expenditures for
which he paid the sum of ₱16,611,549;
14. In view of the foregoing disquisitions, it is evident that [Ejercito] committed
an election offense as provided for under Section 35 of COMELEC Resolution
No. 9615, which provides and I quote:
"Election Offense. – Any violation of R.A. No. 9006 and these Rules shall
constitute an election offense punishable under the first and second paragraph
of Section 264 of the Omnibus Election Code in addition to administrative
liability, whenever applicable. x x x"
WHEREFORE, premises considered, it is respectfully prayed that:
1. Upon filing of this petition, a declaration by the Honorable Commission of the
existence of probable cause be made against [Ejercito] for violating the afore-
quoted provisions of laws;
2. In the event that [Ejercito] will beable to get a majority vote of the electorate
of the Province of Laguna on May 13, 2013, his proclamation be suspended
until further order of the Honorable Commission pursuant to Sec. 6 of Republic
Act No. 6646;
3. Lastly, a criminal case for VIOLATION OF ELECTION LAWS be filed against
[Ejercito] before the proper court[;] [and]
99
 4. Other relief, just and equitable underthe premises, are also prayed for.4
Subsequently, on May 16, 2013, San Luis filed a Very Urgent ExParte Motion to Issue
Suspension of Possible Proclamation of Respondent and Supplemental to the Very
Urgent Ex-Parte Motion to Issue Suspension of Possible Proclamation of
Respondent.5 However, these were not acted upon by the COMELEC. The next day,
Ejercito and Ramil L. Hernandez were proclaimed by the Provincial Board of Canvassers
as the duly-elected Governor and Vice-Governor, respectively, of Laguna.6 Based on the
Provincial/District Certificate of Canvass, Ejercito obtained 549,310 votes compared
with San Luis’ 471,209 votes.7
The COMELEC First Division issued a Summons with Notice of Conference on June 4,
2013.8 Ejercito then filed his Verified Answeron June 13, 2013 that prayed for the
dismissal of the petition due to procedural and substantive irregularities and taking into
account his proclamation as Provincial Governor.9 He countered that the petition was
improperly filed because, based on the averments and relief prayed for, it is in reality a
complaint for election offenses; thus, the case should have been filed before the
COMELEC Law Department, or the election registrar, provincial election supervisor or
regional election director, or the state, provincial or city prosecutor in accordance with
Laurel v. Presiding Judge, RTC, Manila, Br. 10.10 Assuming that the petition could be given
due course, Ejercito argued that San Luis failed to show, conformably with Codilla, Sr. v.
Hon. De Venecia,11 that he (Ejercito) was previously convicted or declared by final
judgment of a competent court for being guilty of, or found by the COMELEC of having
committed, the punishable acts under Section 68 of Batas Pambansa (B.P.) Bilang 881, or
the Omnibus Election Code of the Philippines, as amended (OEC).12
As to the acts he allegedly committed, Ejercito claimed that the same are baseless,
unfounded, and totally speculative. He stated that the Health Access Program or the E.R.
"Orange Card" was a priority project of his administration as incumbent Governor of
Laguna and was never intended to influence the electorate during the May 2013
elections. He added that the "Orange Card," which addressed the increasing need for and
the high cost of quality health services, provides the Laguneños not only access to
medical services but also the privilege to avail free livelihood seminars to help them find
alternative sources of income. With respect to the charge of having exceeded the total
allowable election expenditures, Ejercito submitted that the accusation deserves no
consideration for being speculative, self-serving, and uncorroborated by any other
substantial evidence.
Citing Sinaca v. Mula,13 Ejercito asserted that the petition questioning his qualification
was rendered moot and academic by his proclamation as the duly-elected Provincial
Governor ofLaguna for the term 2013-2016. He perceived that his successful electoral
bid substantiates the fact that he was an eligible candidate and that his victory is a
testament that he is more than qualified and competent to hold public office.
Lastly, Ejercito considered San Luis’ petition for disqualification as purely frivolous and
with no plain and clear purpose but to harass and cause undue hardship. According to
him, the fact that it was filed only a few days before the May 13, 2013 elections evidently
shows that it was lodged as a last-ditch effort to baselessly derail and obstruct his
assumption of office and function as the duly-elected Laguna Governor.
The scheduled case conference between the parties on June 13, 2013 was reset to June
27, 2013.14 In the latter date, all the documentary exhibits were marked in evidence and
the parties agreed to file their respective memorandum within ten (10) days.15
San Luis substantially reiterated the content of the Petitionin his
Memorandum.16 Additionally, he alleged that:
15. After the election, [San Luis] was able to secure documents from the Information and
Education Department of the Commission on Elections showing that [Ejercito] have
incurred advertising expenses with ABS-CBN in the amount of [₱20,197,170.25] not to
mention his advertisement with GMA 7. Copies of the summary report, media purchase
order, advertising contract[,] and official receipt are marked as EXHS. "B-1", "B-2", "B-3",
and"B-4" (Annexes "A", "B", "C", and "D", supplemental to the very urgent ex-parte
motion)[.]17
It was stressed that the case is a "Special Action for Disqualification" seeking to
disqualify Ejercito as gubernatorial candidate for violation of Section 68 (a) (c) of the
OEC. He prayed that "[t]he Petition BE GRANTED [and] x x x [Ejercito] BE DISQUALIFIED,
and PREVENTED from further holding office as Governor of Laguna."18 In refutation of
Ejercito’s defenses, San Luis argued that it is precisely because of the commission of the
election offenses under Section 68 of the OEC that he (Ejercito) should be disqualified.
Also, citing Section 6 of Republic Act (R.A.) No. 6646,19 San Luis contended that Ejercito’s
proclamation and assumption of office do not affect the COMELEC’s jurisdiction to
continue with the trial and hearing of the action until it is finally resolved.
For his part, Ejercito filed a Manifestation (In Lieu of Memorandum)20 restating all the
arguments set forth in his Verified Answer.
On September 26, 2013, the COMELEC First Division promulgated a Resolution, the
dispositive portion of which reads:
WHEREFORE, premises considered, the Commission (First Division) RESOLVED, as it
hereby RESOLVES, to:
(1) GRANTthe Petition for Disqualification filed against respondent Emilio
Ramon "E.R." P. Ejercito;
(2) DISQUALIFY respondent Ejercito from holding the Office of the Provincial
Governor of Laguna, pursuant to Section 68 of the Omnibus Election Code;
(3) ORDER respondent Ejercito to CEASE and DESIST from performing the
functions of the Office of the Provincial Governor of Laguna;
100
 (4) DECLARE a permanent VACANCY in the Office of the Provincial Governor of
Laguna;
(5) DIRECT the duly elected Vice Governor of Laguna to assume the Office of
the Provincial Governor by virtue of succession as provided in Section 44 of the
Payor/Advertiser
Local Government Code; and
Beneficiary
(6) DIRECT the Campaign Finance Unit to coordinate with the Law Department
of this Commission for the conduct of a preliminary investigation into Broadcast
the Schedule
alleged violations of campaign finance laws, rules and regulations committed by
respondent Ejercito. Number of Spots
SO ORDERED.21 Unit Cost per Spot
Total Cost of Contract
On procedural matters, the COMELEC First Division held that the title of San Luis’
petition and its reliance on Section 68 (a) (c) of the OEC as grounds for his causes of
action clearly show that the case was brought under Rule 25 of the COMELEC Rules of
Procedure,22 as amended by COMELEC Resolution No. 9523,23 which allows petitions for
disqualification to be filed "any day after the last day for filing of certificates of
candidacy, but not later than the date of proclamation." No credence was given to
Ejercito’s contention that the petition was mooted by his proclamation as Governor of
Laguna. The COMELEC First Division opined that the case of Sinacais inapplicable,
because it was not about Sinaca’s eligibility or whether he committed any of the acts
enumerated in Section 68 of the OEC. Consistent with Maquiling v. Commission Date on of the Receipt
Elections,24 it was declared that Ejercito’s garnering of more votes than San Luis in the
May 2013 elections is not tantamount to condonation of any act or acts that he Received From
committed which may be found to bea ground for disqualification or election offense.
Amount Received
The COMELEC First Division settled the substantive issues put forth in the petition for Receipt No.
Official
disqualification in this wise:
Anent [San Luis’] first cause of action, [San Luis] presented the Sworn Statement dated
[May 7, 2013]of a certain Mrs. Daisy A. Cornelio, together with the "Orange Card" issued
to Mrs. Cornelio, marked respectively as Exhibits "A-4" and "A-3" as per [San Luis’]
Summary of Exhibits– to prove that [Ejercito] committed the act described in Section 68
(a) of the OEC. After reviewing Mrs. Cornelio’s Sworn Statement, we do not find any
averment to the effect that the Orange Card was given to the affiant to influence or
induce her to vote for [Ejercito]. Affiant only stated that she was given the Orange Card
"last April of this year" and that she was "not able to use it during those times when [she]
or one of [her] family members got sick and needed hospital assistance." Aside from Mrs.
Cornelio’s Sworn Statement, there is no other evidence to support [San Luis’] claim,
leading us to reject[San Luis’] first cause of action.
With respect to the second cause of action, [San Luis] presented Exhibits "B-1" to "B-4",
which are submissions made by the ABS-CBN Corporation as mandated by Section 6 of
Republic Act No. 9006 ("RA 9006" or the "Fair Election Act"), implemented through
Section 9 (a) of Resolution No. 9615. Exhibit "B-3" is an Advertising Contractbetween
ABS-CBN Corporation and Scenema Concept International, Inc. ("SCI"). The details of the
Contractare as follows:
Scenema Concept International, Inc.
Jeorge "ER" Ejercito Estregan
April 27, 28, May 3, 4, 10 & 11, 2013
6 spots of 3.5 minutes each
PhP 3,366,195.04
PhP 20,197,170.25 plus VAT
The Contract contains the signature of [Ejercito] signifying his acceptance of the
donation by SCI, the latter represented by its Executive Vice President, Ms. Maylyn
Enriquez. In addition to the advertising contract, Exhibit "B-4" was submitted, which is a
photocopy of an Official Receipt issued by ABS-CBN for the contract, with the following
details:
[April 26, 2013]
Scenema Concept International, Inc.
PhP 6,409,235.28
278499
Upon verification of the submitted Exhibits "B-1" to "B-4" with this Commission’s
Education and Information Department (EID), the latter having custody of all advertising
contracts submitted by broadcast stations and entities in relation tothe [May 13, 2013]
National and Local Elections, we find the said Exhibits tobe faithful reproductions of our
file copy of the same. A comparison of [Ejercito’s] signature on the Advertising
Contractand that on his Certificate of Candidacy show them to be identical to each other,
leading us to the conclusion that [Ejercito] had indeed accepted the PhP 20,197,170.25
donation in the form of television advertisements to be aired on ABS-CBN’s Channel 2.
Even if we were to assume that only PhP 6,409,235.28 was actually paid out of PhP
20,197,170.25 advertising contract, thisamount is still more than PhP 4,576,566.00,
which is [Ejercito’s] total authorized aggregate amount allowed for his election
campaign, computed as follows:
101
 Source: Pages 6, 8, 43, 47, 75, 84, and 93 of ABS-CBN Channel 2 Daily Operations Log for
Number of registered Authorized expense Total amount of [April 27, 2013] to [May 11, 2013].
voters for the whole x per voter registered = spending allowed
Province of Laguna in the constituency for election campaign
Assuming arguendo, that the actual cost of both contracts only amounted to PhP
1,525,522 registered 12,818,470.56 as substantiated by the two (2) Official Receipt sissued by the ABS-CBN on
x PhP 3.00 per voter = PhP 4,576,566.00 [April 26] and [May 7, 2013], or even if we were only to consider Exhibit ["B-4"] or the
voters in Laguna
Php 6,409,235.28 payment to ABS-CBN on [April 26, 2013], it nevertheless supports our
finding that [Ejercito] exceeded his authorized expenditure limit of PhP 4,576,566.00
While not presented as evidence in this case, we cannot deny the existence of another which is a ground for disqualification under Section 68 (c) and concurrently an election
Advertising Contract dated [May 8, 2013]for one (1) spot of a 3.5-minute advertisement offense pursuant to Section 100 in relation to Section 262 of the Omnibus Election
scheduled for broadcast on [May 9, 2013], amounting to PhP 3,366,195.05. This Contract Code.25
also contains the signature of [Ejercito] accepting the donation from SCI and is
accompanied by an ABS-CBN-issued Official Receipt No. 279513 dated [May 7, 2013] in Only Ejercito filed a Verified Motion for Reconsideration before the COMELEC En
SCI’s name for PhP 6,409,235.28. If we add the amounts from both contracts, we arrive at Banc.26 After the parties’ exchange of pleadings,27 the Resolution of the COMELEC First
a total cost of PhP 23,563,365.29, which, coincidentally, is the product of: Division was unanimously affirmed on May 21, 2014.

The COMELEC En Bancagreed with the findings of its First Division that San Luis’ petition
Number of spots x Unit cost per spot = Total contract cost is an action to disqualify Ejercito, reasoning that:

Seven (7) spots x PhP 3,366,195.04 = PhP 23,563,365.28

This matches the data gathered by the Commission’s EID from the reports and logs
submitted by broadcast stations as required by the Fair Election Act. According to the
99-page Daily Operations Log for Channel 2 submitted by ABS-CBN covering the period
of [April 27, 2013] to [May 11, 2013], [Ejercito’s] 3.5-minute or 210-second
advertisement was aired seven (7) times. The specific details on the dates of airing,
program or time slot when the advertisements were aired, and the time when the
advertisements as culled from the 99-page Daily Operations Logare summarized as thus:
Program/Time Slot
TV Patrol Linggo/5:20-5:30 pm
Harapan: Senatorial Debate/9:30-11:30 pm
TODA MAX/10:30-11:15 pm
Rated K-Handa Na Ba Kayo/7:15-8:15 pm
TV Patrol/6:30-7:45 pm
x x x First, the title of the petition indicating that it is a petition for disqualification clearly
expresses the objective of the action. Second, it is manifest from the language of the
petition that the causes of action have relied primarily on Section 68 (a) and (c) of the
OEC[,] which are grounds for disqualification x x x. Third, notwithstanding that the relief
portion of the petition sounded vague in its prayer for the disqualification of Ejercito, the
allegations and arguments set forth therein are obviously geared towards seeking his
disqualification for having committed acts listed as grounds for disqualification in
Section 68 of OEC. Lastly, as correctly observed by the COMELEC First Division, San Luis’
Memorandum addresses and clarifies the intention of the petition when it prayed for
Ejercito to "be disqualified and prevented from holding office as Governor of Laguna."
While there is a prayerseeking that Ejercito be held accountable for having committed
election offenses, there can be no doubt that the petition was primarily for his
Airtime
disqualification.
05:54:40 PM
Section 68 of the OEC expressly grants COMELEC the power to take cognizance of an
10:40:13
action PM seeking the disqualification of a candidate who has committed any of
or protest
the acts listed therein from continuing as one, or if he or she has been elected, from
11:26:43
holding PMOne ground for disqualification listed in Section 68 is spending in an
office.
election campaign an amount in excess of that allowed by law. It is exactly on said
08:06:42
ground thatPMSan Luis is seeking the disqualification of Ejercito. The jurisdiction of
COMELEC over the petition, therefore, is clear.28
07:35:56 PM

TV Patrol/6:30-7:45 pm The alleged PM

07:44:50 violation of Ejercito’s constitutional right to due process was also not
sustained: Ejercito insists that he was deprived of his right to notice and hearing and was
TV Patrol Sabado/5:30-6:00 pm not06:12:30
informed PM of the true nature of the case filed against him when San Luis was allegedly
allowed in his memorandum to make as substantial amendment in the reliefs prayed for
in his petition. San Luis was allegedly allowed to seek for Ejercito’s disqualification
instead of the filing of an election offense against him.

102
As discussed above, the allegations in the petition, particularly the causes of action,
clearly show that it is not merely a complaint for an election offense but a
disqualification case against Ejercito as well. San Luis’ memorandum merely amplified
and clarified the allegations and arguments in his petition. There was no change in the
cause or causes of action. Ejercito[,] therefore, cannot claim that he was not aware of the
true nature of the petition filed against him.
Likewise, Ejercito cannot complainthat he was deprived of his right to notice and
hearing. He cannot feign ignorance that the COMELEC First Division, throughout the trial,
was hearing the petition as a disqualification case and not as an election offense case. He
was served with Summons with Notice of Conference on [June 4, 2013] and was given a
copy of the petition. He likewise submitted to the jurisdiction of the Commission when
he filed his Verified Answer. He also participated in the Preliminary Conference on [June
27, 2013] wherein he examined evidence on record and presented his own documentary
exhibits. Lastly, he filed a Manifestation (in lieu of Memorandum) incorporating all his
allegations and defenses.
Ejercito contends that amending the reliefs prayed for is prohibited under Section 2, Rule
9 of the 1993 COMELEC Rules of Procedure. He asserts that the relief prayed for in the
memorandum is not the same as that in the petition. However, a scrutiny of said
amendment shows that no new issues were introduced. Moreover, there was no
departure from the causes of action and no material alterations on the grounds of relief.
The amendment[,] therefore[,] is not substantial as it merely rectifies or corrects the true
nature of reliefs being prayed for as set forth in the petition. The records of the case will
show that Ejercito has been afforded the opportunity to contest and rebut all the
allegations against him. He was never deprived of his right to have access to the evidence
against him. He was adequately aware of the nature and implication of the
disqualification case against him. Thus, Ejercito cannot say that he was denied of his
constitutional right to due process.
It is important to note at this point that Ejercito, in his motion for reconsideration,
deliberately did not tackle the merit and substance of the charges against him. He limited
himself to raising procedural issues. This is despite all the opportunity that he was given
to confront the evidence lodged against him. Therefore, there is no reason for the
COMELEC En Bancto disturb the findings of the COMELEC First Division on whether
Ejercito indeed over-spent in his campaign for governorship of Laguna in the [May 13,
2013] National and Local Elections.29
Anchoring on the case of Lanot v. Commission on Elections,30 the COMELEC En
Banclikewise debunked Ejercito’s assertion that the petition was prematurely and
improperly filed on the ground that the filing of an election offense and the factual
determination on the existence of probable cause are required before a disqualification
case based on Section 68 of the OEC may proceed. It held:
As discussed in the case of Lanot vs. Comelec, each of the acts listed as ground for
disqualification under Section 68 of the OEC has two aspects – electoral and criminal
which may proceed independently from each other, to wit:
x x x The electoral aspect of a disqualification case determines whether the offender
should be disqualified from being a candidate or from holding office. Proceedings are
summary in character and require only clear preponderance of evidence. An erring
candidate may be disqualified even without prior determination of probable cause in a
preliminary investigation. The electoral aspect may proceed independently of the
criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable
cause to charge a candidate for an election offense. The prosecutor is the COMELEC,
through its Law Department, which determines whether probable cause exists. If there is
probable cause, the COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before the proper court demand a full-
blown hearing and require proof beyond reasonable doubt to convict. A criminal
conviction shall result in the disqualification of the offender, which may even include
disqualification from holding a future public office." (Emphasis supplied) 31
The petition for disqualification against Ejercito for campaign over-spending before the
Commission isheard and resolved pursuant to the electoral aspect of Section 68 of the
OEC. It is an administrative proceeding separate and distinct from the criminal
proceeding through which Ejercito may be made to undergo in order to determine
whether he can be held criminally liable for the same act of over-spending. It is through
this administrative proceeding that this Commission, initially through its divisions,
makes a factual determination on the veracity of the parties’ respective allegations in a
disqualification case. There is no need for a preliminary investigation finding on the
criminal aspect of the offenses in Section 68 before the Commission can act on the
administrative or electoral aspect of the offense. All that is needed is a complaint or a
petition. As enunciated in Lanot, "(a)n erring candidate may be disqualified even without
prior determination of probable cause in a preliminary investigation. The electoral
aspect may proceed independently of the criminal aspect, and vice-versa."
Moreover, Ejercito’s reliance on Codilla is misplaced. The COMELEC En Banc opined that
the portion of the Codilla decision that referred to the necessity of the conduct of
preliminary investigation pertains to cases where the offenders are charged with acts
not covered by Section 68 of the OEC, and are, therefore, beyond the ambit of the
COMELEC’s jurisdiction. It said that the decision refers to this type of cases as criminal
(not administrative) in nature, and,thus, should be handled through the criminal process.
Further rejected was Ejercito’s argument that the COMELEC lost its jurisdiction over the
petition for disqualification the moment he was proclaimed as the duly-elected Governor
of Laguna. For the COMELEC En Banc, its First Division thoroughly and sufficiently
addressed the matter when it relied on Maquiling instead of Sinaca. It maintained that
Section 5 of COMELEC Resolution No. 9523, not COMELEC Resolution No. 2050,32 is
relevant to the instant case as it states that the COMELEC shall continue the trial and
hearing of a pending disqualification case despite the proclamation of a winner. It was
noted that the proper application of COMELEC Resolution No. 2050 was already clarified
in Sunga v. COMELEC.33
103
Finally, the COMELEC En Bancruled on one of San Luis’ contentions in his
Comment/Oppositionto Ejercito’s motion for reconsideration. He argued that he
becomes the winner in the gubernatorial election upon the disqualification of Ejercito.
Relying on Maquiling, San Luis declared that he was not the second placer as he obtained
the highest number of valid votes cast from among the qualified candidates. In denying
that Maquiling is on all fours with this case, the COMELEC En Bancsaid:
In the instant case, Ejercito cannot be considered as a noncandidate by reason of his
disqualification under Section 68 of the OEC. He was a candidate who filed a valid
certificate of candidacy which was never cancelled.
Ejercito was a bona fide candidate who was disqualified, not because of any ineligibility
existing at the time of the filing of the certificate of candidacy, but because he violated the
rules of candidacy. His disqualifying circumstance, thatis, his having over-spent in his
campaign, did not exist at the time of the filing of his certificate of candidacy. It did not
affect the validity of the votes cast in his favor. Notwithstanding his disqualification, he
remains the candidate who garnered the highest number of votes.
Ejercito cannot be on the same footing with Arnado in the Maquiling case. Arnado was
disqualified from running for Mayor of Kauswagan, Lanao Del Sur because he was a dual
citizen not qualified to run for election. His disqualification existed at the time of the
filing of the certificate of candidacy. The effect, pursuant to the Maquiling case, is that the
votes he garnered are void, which in turn resulted in having considered the "second
placer" – Maquiling – asthe candidate who obtained the highest number of valid votes
cast.
San Luis is in a different circumstance. The votes for the disqualified winning candidate
remained valid. Ergo, San Luis, being the second placer in the vote count, remains the
second placer. He cannot[,] thus[,] be named the winner.
Section 6, Rule 25 of the COMELEC Resolution No. 9523, which governs Section 68
petitions for disqualification, enunciates the rule succinctly, to wit:
Section 6. Effect of Granting of Petition.– In the event a Petition to disqualify a candidate
is granted by final judgment as defined under Section 8 of Rule 23 and the disqualified
candidate obtains the highest number of votes, the candidate with the second highest
number of votes cannot be proclaimed and the rule of succession, if allowed by law, shall
be observed. In the event the rule of succession is not allowed, a vacancy shall exist for
such position.34
On May 23, 2014, Ejercito filed before this Court a Petition for certiorari with application
for the issuance of a status quo ante order or temporary restraining order (TRO)/writ of
preliminary injunction (WPI).35 Without issuing a TRO/WPI, the Honorable Chief Justice,
Maria Lourdes P. A. Sereno, issued on May 28, 2014 an order to respondents to comment
on the petition within a non-extendible period of ten (10) days from notice.36 Such order
was confirmed nunc pro tunc by the Court En Bancon June 3, 2014.37
Meantime, on May 26, 2014, Ejercito filed before the COMELEC En Bancan Omnibus
Motion to suspend proceedings and to defer the implementation of the May 21, 2014
Resolution.38 On the same day, San Luis also filed an Extremely Urgent Motion to Declare
COMELEC En Banc Resolution of May 21, 2014 and First Division Resolution of
September 26, 2013 Final and Executory and to Issue Forthwith Writ of Execution or
Implementing Order39 invoking Paragraph 2, Section 8 of COMELEC Resolution No. 9523,
in relation to Section 13 (b), Rule 18 of the COMELEC Rules of Procedure.40 On May 27,
2014, the COMELEC En Bancissued an Order denying Ejercito’s omnibus motion, granted
San Luis’ extremely urgent motion, and directedthe Clerk of the Commission to issue the
corresponding writ of execution.41 On even date, Vice-Governor Hernandez was sworn in
as the Governor of Laguna at the COMELEC Main Office in Manila. The service of the writ
was deemed completed and validly served upon Ejercito on May 28, 2014.42
In his petition before Us, Ejercito raised the following issues for resolution:
THE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION IN THAT:
(I) IT VIOLATED THE RIGHT OF PETITIONER TO DUE PROCESS
WHEN IT RULED FOR THE DISQUALIFICATION OF PETITIONER EVEN
IF IT WAS NEVER PRAYED FOR IN THE PETITION. WORSE, THERE IS
YET NO FINDING OFGUILT BY A COMPETENT COURT OR A FINDING
OF FACT STATING THAT PETITIONER ACTUALLY COMMITTED THE
ALLEGED ELECTION OFFENSE OF OVERSPENDING;
(II) IT RELIED ON A DOCUMENTARY EXHIBIT (ADVERTISING
CONTRACT) WHICH WAS NOT EVEN FORMALLY OFFERED AS
EVIDENCE; [AND]
(III) IT DISQUALIFIED PETITIONER FOR AN ACT DONE BY A THIRD
PARTY WHO SIMPLY EXERCISED ITS RIGHT TO FREE EXPRESSION
WITHOUT THE KNOWLEDGE AND CONSENT OF PETITIONER[.]43
The petition is unmeritorious.
A special civil action for certiorari under Rule 64, in relation to Rule 65, is an
independent action that is available only if there is no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law.44 It is a legal remedy that is limited
to the resolution of jurisdictional issues and is not meant to correct simple errors of
judgment.45 More importantly, it will only prosper if grave abuse of discretion is alleged
and isactually proved to exist.46
Grave abuse of discretion arises when a lower court or tribunal violates the Constitution,
the law or existing jurisprudence. It means such capricious and whimsical exercise of
judgment as would amount to lack of jurisdiction; it contemplates a situation where the
power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, so patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform the duty enjoined by law. x x x.47
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Ejercito failed to prove that the COMELEC rendered its assailed Resolution with grave
abuse of discretion.
We now explain.
The petition filed by San Luis
against Ejercito is for the
latter’s disqualification and
prosecution for election offense
Ejercito insists that his alleged acts of giving material consideration in the form of
"Orange Cards" and election overspending are considered as election offenses under
Section 35 of COMELEC Resolution No. 9615,48 in relation to Section 1349 of R.A. No.
9006, and punishable under Section 26450 of the OEC. Considering that San Luis’ petition
partakes of the nature of a complaint for election offenses, the COMELEC First Division
has no jurisdiction over the same based on COMELEC Resolution No. 9386 51 and Section
26552 of the OEC.
Still, Ejercito contends that the COMELEC erroneously sanctioned a change in San Luis’
cause of action by the mere expedient of changing the prayer in the latter’s
Memorandum. According to him, San Luis’ additional prayer for disqualification in the
Memorandum is a substantial amendment to the Petitionas it constitutes a material
deviation from the original cause of action – from a complaint for election offenses to a
petition for disqualification. Since such substantial amendment was effected after the
case was set for hearing, Ejercito maintains that the same should have been allowed only
with prior leave of the COMELEC First Division pursuant to Section 2, Rule 953 of the
COMELEC Rules of Procedure, which San Luis never did.
The arguments are untenable.
The purpose of a disqualification proceeding is to prevent the candidate from running or,
if elected, from serving, or to prosecute him for violation of the election laws. 54 A petition
to disqualifya candidate may be filed pursuant to Section 68 of the OEC, which states:
SEC. 68. Disqualifications.-- Any candidate who, in an action or protest in which he is a
party is declared by final decision of a competent court guilty of, or found by the
Commission of having: (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign
an amount in excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the
office. Any person who is a permanent resident of or animmigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws.
The prohibited acts covered by Section 68 (e) refer to election campaign or partisan
political activityoutside the campaign period (Section 80); removal, destruction or
defacement of lawful election propaganda (Section 83); certain forms of election
propaganda (Section 85); violation of rules and regulations on election propaganda
through mass media; coercion of subordinates (Section 261 [d]); threats, intimidation,
terrorism, use of fraudulent device or other forms of coercion (Section 261 [e]); unlawful
electioneering (Section 261 [k]); release, disbursement or expenditure of public funds
(Section 261 [v]); solicitation of votes or undertaking any propaganda on the day of the
election within the restricted areas (Section 261 [cc], sub-par.6). All the offenses
mentioned in Section 68 refer to election offenses under the OEC, not toviolations of
other penal laws. In other words, offenses that are punished in laws other than in the
OEC cannot be a ground for a Section 68 petition. Thus, We have held:
x x x [T]he jurisdiction of the COMELEC to disqualify candidates is limited to those
enumerated in Section 68 of the [OEC]. All other election offenses are beyond the ambit
of COMELEC jurisdiction. They are criminal and not administrative in nature. Pursuant to
Sections 265 and 268 of the [OEC], the power of the COMELEC is confined to the conduct
of preliminary investigation on the alleged election offenses for the purpose of
prosecuting the alleged offenders before the regular courts of justice, viz:
"Section 265. Prosecution. – The Commission shall, through its duly authorized legal
officers, have the exclusive power to conduct preliminary investigation of all election
offenses punishable under this Code, and to prosecute the same. The Commission may
avail of the assistance of other prosecuting arms of the government: Provided, however,
That in the event that the Commission fails to act on any complaint within four months
from its filing, the complainant may file the complaint with the office of the fiscal or with
the Ministry of Justice for proper investigation and prosecution, if warranted.
xxx xxx xxx
Section 268. Jurisdiction. – The regional trial court shall have the exclusive original
jurisdiction to try and decide any criminal action orproceeding for violation of this Code,
except those relating to the offense of failure to register or failure to vote which shall be
under the jurisdictions of metropolitan or municipal trial courts. From the decision of the
courts, appeal will lie as in other criminal cases."55
In the case at bar, the COMELEC First Division and COMELEC En Banc correctly ruled
that the petition filed by San Luis against Ejercito is not just for prosecution of election
offense but for disqualification as well. Indeed, the following are clear indications:
1. The title of San Luis’ petition shows that the case was brought under Rule 25
of the COMELEC Rules of Procedure, as amended by COMELEC Resolution No.
9523.56 This expresses the objective of the action since Rule 25 is the specific
rule governing the disqualification of candidates.
2. The averments of San Luis’ petition rely on Section 68 (a) and (c) of the OEC
as grounds for its causes of action. Section 68 of the OEC precisely enumerates
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 the grounds for the disqualification of a candidate for elective position and
provides, as penalty, that the candidate shall be disqualified from continuing as
such, or if he or she has been elected, from holding the office.
3. Paragraph 2 of San Luis’ prayer in the petition states that "[in the event that
[Ejercito] will be ableto get a majority vote of the electorate of the Province of
Laguna on May 13, 2013, his proclamation be suspended until further order of
the Honorable Commission." San Luis reiterated this plea when he later filed a
Very Urgent Ex-Parte Motion toIssue Suspension of Possible Proclamation of
Respondent and Supplemental to the Very Urgent Ex-Parte Motion to Issue
Suspension of Possible Proclamation of Respondent. The relief sought is
actually pursuant to Section 657 of R.A. No. 6646 and Section 5 Rule 2558 of
COMELEC Resolution No. 9523, both of which pertain to the effect of a
disqualification case when the petition is unresolved by final judgment come
election day.
4. San Luis’ Memorandum emphasized that the case is a "Special Action for
Disqualification," praying that "[t]he Petition BE GRANTED [and] x x x [Ejercito]
BE DISQUALIFIED, and PREVENTED from further holding office as Governor of
Laguna."
With the foregoing, Ejercito cannot feign ignorance of the true nature and intent of San
Luis’ petition. This considering, it is unnecessary for Us to discuss the applicability of
Section 2,Rule 9 of the COMELEC Rules of Procedure, there being no substantial
amendment to San Luis’ petition that constitutes a material deviation from his original
causes of action. Likewise, COMELEC Resolution No. 9386 and Section 265 of the OEC do
not apply since both refer solely to the prosecution of election offenses. Specifically,
COMELEC Resolution No. 9386 is an amendment to Rule 34 of the COMELEC Rules of
Procedure on the prosecution of election offenses, while Section 265 of the OEC is found
under Article XXII of said law pertaining also to election offenses.
The conduct of preliminary
investigation is not required in
the resolution of the electoral
aspect of a disqualification case
Assuming, arguendo, that San Luis’ petition was properly instituted as an action for
disqualification, Ejercito asserts that the conduct of preliminary investigation to
determine whether the acts enumerated under Section 68 of the OEC were indeed
committed is a requirement prior to actual disqualification. He posits that Section 5, Rule
25 of COMELEC Resolution No. 9523 is silent on the matter of preliminary investigation;
hence, the clear import of this is that the necessity of preliminary investigation provided
for in COMELEC Resolution No. 2050 remains undisturbed and continues to bein full
force and effect.
We are not persuaded.
Section 5, Rule 25 of COMELEC Resolution No. 9523 states:
Section 5. Effect of Petition if Unresolved Before Completion of Canvass.– If a Petition for
Disqualification is unresolved by final judgment on the day of elections, the petitioner
may file a motion with the Division or Commission En Banc where the case is pending, to
suspend the proclamation of the candidate concerned, provided that the evidence for the
grounds to disqualify is strong. For this purpose, atleast three (3) days prior to any
election, the Clerk of the Commission shall prepare a list of pending cases and furnish all
Commissioners copies of said the list.
In the event that a candidate with an existing and pending Petition to disqualify is
proclaimed winner, the Commission shall continue to resolve the said Petition.
It is expected that COMELEC Resolution No. 9523 is silent on the conduct of preliminary
investigation because it merely amended, among others, Rule 25 of the COMELEC Rules
of Procedure, which deals with disqualification of candidates. In disqualification cases,
the COMELEC may designate any of its officials, who are members of the Philippine Bar,
to hear the case and to receive evidence only in cases involving barangay officials.59 As
aforementioned, the present rules of procedure in the investigation and prosecution of
election offenses in the COMELEC, which requires preliminary investigation, is governed
by COMELEC Resolution No. 9386. Under said Resolution, all lawyers in the COMELEC
who are Election Officers in the National Capital Region ("NCR"), Provincial Election
Supervisors, Regional Election Attorneys, Assistant Regional Election Directors, Regional
Election Directors and lawyers of the Law Department are authorized to conduct
preliminary investigation of complaints involving election offenses under the election
lawswhich may be filed directly with them, or which may be indorsed to them by the
COMELEC.60
Similarly, Ejercito’s reliance on COMELEC Resolution No. 2050 is misplaced. COMELEC
Resolution No. 2050, which was adopted on November 3, 1988, reads:
WHEREAS, there remain pending before the Commission, a number of cases of
disqualification filed by virtue of the provisions of Section 68 of the Omnibus Election
Codein relation to Section 6 of R.A. 6646, otherwise known as the Electoral Reforms Law
of 1987;
WHEREAS, opinions of the members of the Commission on matters of procedure in
dealing with cases of this nature and the manner of disposing of the same have not been
uniform;
WHEREAS, in order to avoid conflicts of opinion in the disposition [of] disqualification
cases contemplated under Section 68 of the Omnibus Election Code in relation to Section
6 of Rep. Act 6646, there is a strongly felt need to lay down a definite policy in the
disposition of this specific class of disqualification cases;
NOW, THEREFORE, on motion duly seconded, the Commission en banc:
106
RESOLVED, as it hereby resolves, to formulate the following rules governing the
disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus
Election Code in relation to Section 6 of R.A. No. 6646, otherwise known as the Electoral
Reforms Law of 1987:
1. Any complaint for the disqualification of a duly registered candidate based upon any of
the grounds specifically enumerated under Section 68 of the Omnibus Election Code,
filed directly with the Commission before an election in which the respondent is a
candidate, shall be inquired into by the Commission for the purpose of determining
whether the acts complained of have in fact been committed. Where the inquiry by the
Commission results in a finding before election, that the respondent candidate did in
factcommit the acts complained, the Commission shall order the disqualification of the
respondent candidate from continuing as such candidate.
In case such complaint was not resolved before the election, the Commission may motu
proprio, or [on] motion of any of the parties, refer the complaint to the [Law]
Department of the Commission as the instrument of the latter in the exercise of its
exclusive power to conduct a preliminary investigation of all cases involving criminal
infractions of the election laws. Such recourse may be availed of irrespective of whether
the respondent has been elected orhas lost in the election.
2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code
in relation to Section 6 of Rep. Act No. 6646 filed after the election against a candidate
who has already been proclaimed as winner shall be dismissed as a disqualification case.
However, the complaint shall be referred for preliminary investigation to the Law
Department of the Commission.
Where a similar complaint is filed after election but before proclamation of the
respondent candidate, the complaint shall, nevertheless, be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary
investigation to the Law Department. If, before proclamation, the Law Department
makes a prima faciefinding of guilt and the corresponding information has been filed
with the appropriate trial court, the complainant may file a petition for suspension of the
proclamation of the respondent with the court before which the criminal case is pending
and the said court may order the suspension of the proclamation ifthe evidence of guilt is
strong.
3. The Law Department shall terminate the preliminary investigation within thirty(30)
days from receipt of the referral and shall submit its study, report and recommendation
to the Commission en banc within five (5) days from the conclusion of the preliminary
investigation. If it makes a prima faciefinding of guilt, it shall submit with such study the
Information for filing with the appropriate court.61
In Bagatsing v. COMELEC,62 the Court stated that the above-quoted resolution covers two
(2) different scenarios:
First, as contemplated in paragraph 1, a complaint for disqualification filed before the
election which must be inquired into by the COMELEC for the purpose of determining
whether the acts complained of have in fact been committed. Where the inquiry results
in a finding before the election, the COMELEC shall order the candidate's disqualification.
In case the complaint was not resolved before the election, the COMELEC may motu
propioor on motion of any of the parties, refer the said complaint to the Law Department
of the COMELEC for preliminary investigation.
Second, as laid down in paragraph 2, a complaint for disqualification filed after the
election against a candidate (a) who has not yet been proclaimed as winner, or (b) who
has already been proclaimed as winner. In both cases, the complaint shall be dismissed
as a disqualification case but shall be referred to the Law Department of the COMELEC
for preliminary investigation. However, if before proclamation, the Law Department
makes a prima facie finding of guilt and the corresponding information has been filed
with the appropriate trial court, the complainant may file a petition for suspension of the
proclamation of the respondent with the court before which the criminal case is pending
and the said court may order the suspension of the proclamation if the evidence of guilt
is strong.63
However, with respect to Paragraph 1 of COMELEC Resolution No. 2050, which is the
situation in this case, We held in Sunga:
x x x Resolution No. 2050 as interpreted in Silvestre v. Duavitinfringes on Sec. 6 of RA No.
6646, which provides:
SEC. 6. Effects of Disqualification Case. - Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes
in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protestand, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong (italics supplied).
Clearly, the legislative intentis that the COMELEC should continue the trial and hearing of
the disqualification case to its conclusion, i.e.,until judgment is rendered thereon. The
word "shall" signifies that this requirement of the law is mandatory, operating to impose
a positive duty which must be enforced. The implication is that the COMELEC is left with
no discretion but to proceed with the disqualification case even after the election. Thus,
in providing for the outright dismissal of the disqualification case which remains
unresolved after the election, Silvestre v. Duavitin effect disallows what RA No. 6646
imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC
which cannot be countenanced and is invalid for having been issued beyond the scope of
its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies
must always be in perfect harmony with statutes and should be for the sole purpose of
carrying their general provisions into effect. By such interpretative or administrative
rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial
body or an administrative agency for that matter cannot amend an act of Congress.
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Hence, in case of a discrepancy between the basic law and an interpretative or
administrative ruling, the basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A
candidate guilty of election offenses would be undeservedly rewarded, instead of
punished, by the dismissal of the disqualification case against him simply because the
investigating body was unable, for any reason caused upon it, to determine before the
election if the offenses were indeed committed by the candidate sought to be
disqualified. All that the erring aspirant would need to do is toemploy delaying tactics so
that the disqualification case based on the commission of election offenses would not be
decided before the election. This scenario is productive of more fraud which certainly is
not the main intent and purpose of the law.64
The "exclusive power [of the COMELEC] to conduct a preliminary investigation of all
cases involving criminal infractions of the election laws" stated in Par. 1 of COMELEC
Resolution No. 2050 pertains to the criminal aspect of a disqualification case. It has been
repeatedly underscored that an election offense has its criminal and electoral aspects.
While its criminal aspect to determine the guilt or innocence of the accused cannot be the
subject of summary hearing, its electoral aspect to ascertain whether the offender should
be disqualified from office can be determined in an administrative proceeding that is
summaryin character. This Court said in Sunga:
It is worth to note that an election offense has criminal as well as electoral aspects. Its
criminal aspect involves the ascertainment of the guilt or innocence of the accused
candidate. Like in any other criminal case, it usually entails a full-blown hearing and the
quantum of proof required to secure a conviction is beyond reasonable doubt. Its
electoral aspect, on the other hand, is a determination of whether the offender should be
disqualified from office. This is done through an administrative proceeding which is
summary in character and requires only a clear preponderance of evidence. Thus, under
Sec. 4 of the COMELEC Rules of Procedure, petitions for disqualification "shall be heard
summarily after due notice." It is the electoral aspect that we are more concerned with,
under which an erring candidate may be disqualified even without prior criminal
conviction.65
and equally in Lanot:
x x x The electoral aspect of a disqualification case determines whether the offender
should be disqualified from being a candidate or from holding office. Proceedings are
summary in character and require only clear preponderance of evidence. An erring
candidate may be disqualified even without prior determination of probable cause in a
preliminary investigation. The electoral aspect may proceed independently of the
criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable
cause to charge a candidate for an election offense. The prosecutor is the COMELEC,
through its Law Department, which determines whether probable cause exists. If there is
probable cause, the COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before the proper court demand a full-
blown hearing and require proof beyond reasonable doubt to convict. A criminal
conviction shall result in the disqualification of the offender, which may even include
disqualification from holding a future public office.
The two aspects account for the variance of the rules on disposition and resolution of
disqualification cases filed before or after an election. When the disqualification case is
filed before the elections, the question of disqualification is raised before the voting
public. If the candidate is disqualified after the election, those who voted for him assume
the risk that their votes may be declared stray or invalid. There isno such risk if the
petition is filed after the elections. x x x.66
We cannot accept Ejercito’s argument that Lanot did not categorically pronounce that
the conduct of a preliminary investigation exclusively pertains to the criminal aspect of
anaction for disqualification or that a factual finding by the authorized legal officers of
the COMELEC may be dispensed with in the proceedings for the administrative aspect of
a disqualification case. According to him,a close reading of said case would reveal that
upon filing of the petition for disqualification with the COMELEC Division, the latter
referred the matter to the Regional Election Director for the purpose of preliminary
investigation; therefore, Lanot contemplates two referrals for the conduct of
investigation – first, to the Regional Election Director, prior to the issuance of the
COMELEC First Division’s resolution, and second, to the Law Department, following the
reversal by the COMELEC En Banc.
For easy reference, the factual antecedents of Lanot are as follows:
On March 19, 2004, a little less than two months before the May 10, 2004 elections,
Henry P. Lanot, et al. filed a Petition for Disqualification under Sections 68 and 80 of the
OEC against then incumbent Pasig City Mayor Vicente P. Eusebio. National Capital Region
Director Esmeralda Amora-Ladra conducted hearings on the petition. On May 4, 2004,
she recommended Eusebio’s disqualification and the referral of the case to the COMELEC
Law Department for the conduct of a preliminary investigation on the possible violation
of Section 261 (a) of the OEC. When the COMELEC First Division issued a resolution
adopting Director Ladra’s recommendations on May 5, 2004, then COMELEC Chairman
Benjamin S. Abalos informed the pertinent election officers through an Advisory dated
May 8, 2004. Eusebio filed a Motion for Reconsideration on May 9, 2004. On election day,
Chairman Abalos issued a memorandum to Director Ladra enjoining her from
implementing the May 5, 2004 COMELEC First Division resolution. The petition for
disqualification was not yet finally resolved at the time of the elections. Eusebio's votes
were counted and canvassed. After which, Eusebio was proclaimed as the winning
candidate for city mayor. On August 20, 2004, the COMELEC En Banc annulled the
COMELEC First Division's order to disqualify Eusebio and referred the case to the
COMELEC Law Department for preliminary investigation.
When the issue was elevated to Us, the Court agreed with Lanot that the COMELEC En
Banc committed grave abuse of discretion when it ordered the dismissal of the
disqualification case pending preliminary investigation of the COMELEC Law
Department. Error was made when it ignored the electoral aspect of the disqualification
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case by setting aside the COMELEC First Division's resolution and referring the entire
case to the COMELEC Law Department for the criminal aspect. We noted that COMELEC
Resolution No. 2050, upon which the COMELEC En Banc based its ruling, is procedurally
inconsistent with COMELEC Resolution No. 6452, which was the governing rule at the
time. The latter resolution delegated to the COMELEC Field Officials the hearing and
reception of evidence of the administrative aspect of disqualification cases in the May 10,
2004 National and Local Elections. In marked contrast, in the May 2013 elections, it was
only in cases involving barangay officials that the COMELEC may designate any of its
officials, who are members of the Philippine Bar, to hear the case and to receive
evidence.67
The COMELEC En Banc
properly considered as
evidence the Advertising
Contract dated May 8, 2013
Ejercito likewise asserts that the Advertising Contract dated May 8, 2013 should not
have been relied upon by the COMELEC. First, it was not formally offered in evidence
pursuant to Section 34, Rule 13268 of the Rules and he was not even furnished with a
copy thereof, depriving him of the opportunity to examine its authenticity and due
execution and object to its admissibility. Second, even if Section 34, Rule 132 does not
apply, administrative bodies exercising quasi-judicial functions are nonetheless
proscribed from rendering judgment based on evidence that was never presented and
could not be controverted. There is a need to balance the relaxation of the rules of
procedure with the demands of administrative due process, the tenets of which are laid
down in the seminal case of Ang Tibay v. Court of Industrial Relations.69 And third,the
presentation of the advertising contracts, which are highly disputable and on which no
hearing was held for the purpose of taking judicial notice in accordance with Section 3,
Rule 12970of the Rules, cannot be dispensed with by COMELEC’s claim that it could take
judicial notice. Contrary to Ejercito’s claim, Section 34, Rule 132 of the Rules is
inapplicable. Section 4, Rule 171 of the Rules of Court is clear enough in stating that it
shall not apply to election cases except by analogy or in a suppletory character and
whenever practicable and convenient. In fact, nowhere from COMELEC Resolution No.
9523 requires that documentary evidence should be formally offered in evidence.72 We
remind again that the electoral aspect of a disqualification case is done through an
administrative proceeding which is summary in character.
Granting, for argument’s sake, that Section 4, Rule 1 of the Rules of Court applies, there
have been instances when We suspended the strict application of the rule in the interest
of substantial justice, fairness, and equity.73 Since rules of procedure are mere tools
designed to facilitate the attainment of justice, it is well recognized that the Court is
empowered to suspend its rules or to exempt a particular case from the application of a
general rule, when the rigid application thereof tends to frustrate rather than promote
the ends of justice.74 The fact is, even Sections 3 and 4, Rule 1 of the COMELEC Rules of
Procedure fittingly declare that "[the] rules shall be liberally construed in order to
promote the effective and efficient implementation of the objectives of ensuring the
holding of free, orderly, honest, peaceful and credible elections and to achieve just,
expeditious and inexpensive determination and disposition of every action and
proceeding brought before the Commission" and that "[in] the interest of justice and in
order to obtain speedy disposition ofall matters pending before the Commission, these
rules or any portion thereof may be suspended by the Commission." This Court said in
Hayudini v. Commission on Elections:75
Settled is the rule that the COMELEC Rules of Procedure are subject to liberal
construction. The COMELEC has the power to liberally interpret or even suspend its
rules of procedure in the interest of justice, including obtaining a speedy disposition of
all matters pending before it. This liberality is for the purpose of promoting the effective
and efficient implementation of its objectives – ensuring the holding of free, orderly,
honest, peaceful, and credible elections, as well as achieving just, expeditious, and
inexpensive determination and disposition of every action and proceeding brought
before the COMELEC. Unlike an ordinary civil action, an election contest is imbued with
public interest. It involves not only the adjudication of private and pecuniary interests of
rival candidates, but also the paramount need of dispelling the uncertainty which
beclouds the real choice of the electorate. And the tribunal has the corresponding duty to
ascertain, by all means withinits command, whom the people truly chose as their rightful
leader.76
Further, Ejercito’s dependence on Ang Tibay is weak. The essence of due process is
simply an opportunity to be heard, or, as applied to administrative proceedings, an
opportunity to explain one's side or an opportunity to seek for a reconsideration of the
action or ruling complained of.77 Any seeming defect in its observance is cured by the
filing of a motion for reconsideration and denial of due process cannot be successfully
invoked by a party who had the opportunity to be heard thereon.78 In this case, it is
undisputed that Ejercito filed a motion for reconsideration before the COMELEC En Banc.
Despite this, he did not rebut the authenticity and due execution of the advertising
contracts when he decided not to discuss the factual findings of the COMELEC First
Division on the alleged ground that it may be construed as a waiver of the jurisdictional
issues that he raised.79
We agree with San Luis and the Office of the Solicitor General that, pursuant to Section 2,
Rule 129,80 the COMELEC has the discretion to properly take judicial notice of the
Advertising Contract dated May 8, 2013. In accordance with R.A. No. 9006, the COMELEC,
through its Campaign Finance Unit, is empowered to:
a. Monitor fund raising and spending activities;
b. Receive and keep reports and statements of candidates, parties, contributors
and election contractors, and advertising contracts of mass media entities;
c. Compile and analyze the reports and statements as soon as they are received
and make an initial determination of compliance;
d. Develop and manage a recording system for all reports, statements, and
contracts received by it and todigitize information contained therein;
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 e. Publish the digitized information gathered from the reports, statements and
contracts and make themavailable to the public;
f. Develop a reportorial and monitoring system;
g. Audit all reports, statements and contracts and determine compliance by the
candidates, parties, contributors, and election contractors, including the
inspection of Books and records of candidates, parties and mass media entities
and issue subpoenas in relation thereto and submit its findings to the
Commission En Banc;
h. Coordinate with and/or assist other departments/offices of the Commission
receiving related reports on Campaign Finance including prosecution of
violators and collection of fines and/or imposition of perpetual disqualification;
and
i. Perform other functions as ordered by the Commission.81
The COMELEC may properly takeand act on the advertising contracts without further
proof from the parties herein. Aside from being considered as an admission82 and
presumed to be proper submissions from them, the COMELEC already has knowledge of
the contracts for being ascertainable from its very own records. Said contracts are ought
to be known by the COMELEC because of its statutory function as the legal custodian of
all advertising contracts promoting or opposing any candidate during the campaign
period. As what transpired in this case, the COMELEC has the authority and discretion to
compare the submitted advertising contracts with the certified true copies of the
broadcast logs, certificates of performance or other analogous records which a broadcast
station or entity is required to submit for the review and verification of the frequency,
date, time and duration of advertisements aired.
To be precise, R.A. No. 9006 provides:
Sec. 4. Requirements for Published or Printed and Broadcast Election Propaganda. –
xxxx
4.3 Print, broadcast or outdoor advertisements donated to the candidate or political
party shall not be printed, published, broadcast or exhibited without the written
acceptance by the said candidate or political party. Such written acceptance shall be
attached to the advertising contract and shall be submitted to the COMELEC as provided
in Subsection 6.3 hereof.
Sec. 6. Equal Access to Media Time and Space. – All registered parties and bona
fidecandidates shall have equal access to media time and space. The following guidelines
may be amplified on by the COMELEC:
xxxx
6.2
xxxx
(b.) Each bona fide candidate or registered political party for a locally elective office shall
be entitled to not more than sixty (60) minutes of television advertisement and ninety
(90) minutes of radio advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to
the COMELEC a copy of its broadcast logs and certificates of performance for the review
and verification of the frequency, date, time and duration of advertisements broadcast
for any candidate or political party.
6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for
advertising, promoting or opposing any political party or the candidacy of any person for
public office within five (5) days after its signing. x x x.
The implementing guidelines of the above-quoted provisions are found in Rule 5 of
COMELEC Resolution No. 9476 –
Section 2. Submission of Copies of Advertising Contracts. – All media entities shall submit
a copy of its advertising and or broadcast contracts, media purchase orders, booking
orders, or other similar documents to the Commission through its Campaign Finance
Unit, accompanied by a summary report in the prescribed form (Annex "E") together
with official receipts issued for advertising, promoting or opposing a party, or the
candidacy of any person for public office, within five (5) days after its signing, through:
a. For Media Entities in the NCR The Education and Information
Department (EID), which shall furnish copies thereof to the Campaign
Finance Unit of the Commission.
b. For Media Entities outside of the NCR The City/Municipal Election
Officer (EO) concerned who shall furnish copies thereof to the
Education and Information Department of the Commission within five
(5) days after the campaign periods. The EID shall furnish copies
thereof to the Campaign Finance Unit of the Commission.
xxxx
It shall be the duty of the EID to formally inform media entities that the latter’s failure to
comply with the mandatory provisions of this Section shall be considered an election
offense punishable pursuant to Section 13 of Republic Act No. 9006. [RA 9006, Secs. 6.3
and 13] and in COMELEC Resolution No. 9615 –
110
SECTION 9. Requirements and/or Limitations on the Use of Election Propaganda through Certified true copies of broadcast logs, certificates of performance, and certificates of
Mass Media. – All parties and bona fide candidates shall have equal access to media time acceptance, or other analogous record shall be submitted, as follows:
and space for their election propaganda during the campaign period subject to the
following requirements and/or limitations:
Candidates for National 1st Report 3 weeks after start of campaign March 4 - 11
a. Broadcast Election Propaganda Positions period
2nd
xxx 3 weeks after 1st filing week April 3 - 10
Report

Provided, further, that a copy of the broadcast advertisement contract be furnished to 3rd 1 week before election day May 2 - 9
the Commission, thru the Education and Information Department, within five (5) days Report
from contract signing. Last Election week May 14 - 17
Report
xxx
Candidates for Local 1st Report 1 week after start of campaign April 15 - 22
Positions period
d. Common requirements/limitations:
2nd 1 week after 1st filing week April 30 -
Report May 8
xxx
3rd Election week May 9 - 15
(3) For the above purpose, each broadcast entity and website owner or administrator Report
shall submit to the Commission a certified true copy of its broadcast logs, certificates of Last 1 week after election day May 16 - 22
performance, or other analogous record, including certificates of acceptance as required Report
in Section 7(b) of these Guidelines,for the review and verification of the frequency, date,
time and duration of advertisements aired for any candidate or party through:
For subsequent elections, the schedule for the submission of reports shall be prescribed
For Broadcast Entities in the NCR – The Education and Information Department (EID) by the Commission.
which in turn shall furnish copies thereof to the Campaign Finance Unit (CFU) of the
Commission within five days from receipt thereof. Ejercito should be disqualified
for spending in his election
For Broadcast Entities outside of the NCR – The City/Municipal Election Officer (EO) campaign an amount in excess
concerned, who in turn, shall furnish copies thereof to the Education and Information of what is allowed by the OEC
Department (EID) of the Commission which in turn shall furnish copies thereof to the
Campaign Finance Unit (CFU) of the Commission within five (5) days from the receipt Ejercito claims that the advertising contracts between ABS-CBN Corporation and
thereof. Scenema Concept International, Inc. were executed by an identified supporter without
his knowledge and consent as, in fact, his signature thereon was obviously forged. Even
For website owners or administrators – The City/Municipal Election Officer (EO) assuming that such contract benefited him, Ejercito alleges that he should not be
concerned, who in turn, shall furnish copies thereof to the Education and Information penalized for the conduct of third parties who acted on their own without his consent.
Department (EID) of the Commission which in turn shall furnish copies thereof to the Citing Citizens United v. Federal Election Commission83 decided by the US Supreme
Campaign Finance Unit (CFU) of the Commission within five (5) days from the receipt Court, he argues that every voter has the right to support a particular candidate in
thereof. accordance with the free exercise of his or her rights of speech and of expression, which
is guaranteed in Section 4, Article III of the 1987 Constitution.84 He believes that an
advertising contract paid for by a third party without the candidate’s knowledge and
All broadcast entities shall preserve their broadcast logs for a period of five (5) years consent must be considered a form of political speech that must prevail against the laws
from the date of broadcast for submission to the Commission whenever required. suppressing it, whether by design or inadvertence. Further, Ejercito advances the view
that COMELEC Resolution No. 947685 distinguishes between "contribution" and
"expenditure" and makes no proscription on the medium or amount of contribution.86 He

111
also stresses that it is clear from COMELEC Resolution No. 9615 that the limit set by law
applies only to election expenditures of candidates and not to contributions made by
third parties. For Ejercito, the fact that the legislature imposes no legal limitation on
campaign donations is presumably because discussion of public issues and debate on the
qualifications of candidates are integral to the operation of the government.
We refuse to believe that the advertising contracts between ABS-CBN Corporation and
Scenema Concept International, Inc. were executed without Ejercito’s knowledge and
consent. As found by the COMELEC First Division, the advertising contracts submitted in
evidence by San Luis as well as those in legal custody of the COMELEC belie his hollow
assertion. His express conformity to the advertising contracts is actually a must because
non-compliance is consideredas an election offense.87
Notably, R.A. No. 9006 explicitly directs that broadcast advertisements donated to the
candidate shall not be broadcasted without the written acceptance of the candidate,
which shall be attached to the advertising contract and shall be submitted to the
COMELEC, and that, in every case, advertising contracts shall be signed by the donor, the
candidate concerned or by the duly-authorized representative of the political
party.88 Conformably with the mandate of the law, COMELEC Resolution No. 9476
requires that election propaganda materials donated toa candidate shall not be
broadcasted unless it is accompanied by the written acceptance of said candidate, which
shall be in the form of an official receipt in the name of the candidate and must specify
the description of the items donated, their quantity and value, and that, in every case, the
advertising contracts, media purchase orders or booking orders shall be signed by the
candidate concerned or by the duly authorized representative of the party and, in case of
a donation, should be accompanied by a written acceptance of the candidate, party or
their authorized representatives.89 COMELEC Resolution No. 9615 also unambiguously
states thatit shall be unlawful to broadcast any election propaganda donated or given
free of charge by any person or broadcast entity to a candidate withoutthe written
acceptance of the said candidate and unless they bear and be identified by the words
"airtime for this broadcast was provided free of charge by" followed by the true and
correct name and address of the donor.90
This Court cannot give weight to Ejercito’s representation that his signature on the
advertising contracts was a forgery. The issue is a belated claim, raised only for the first
time in this petition for certiorari. It is a rudimentary principle of law that matters
neither alleged in the pleadings nor raised during the proceedings below cannot be
ventilated for the first time on appeal before the Supreme Court.91 It would be offensive
to the basic rules of fair play and justice to allow Ejercito to raise an issue that was not
brought up before the COMELEC.92 While it is true that litigation is not a game of
technicalities, it is equally truethat elementary considerations of due process require
that a party be duly apprised of a claim against him before judgment may be rendered. 93
Likewise, whether the advertising contracts were executed without Ejercito’s knowledge
and consent, and whether his signatures thereto were fraudulent, are issues of fact. Any
factual challenge has no place in a Rule 65 petition. This Court is nota trier of facts and is
not equipped to receive evidence and determine the truth of factual allegations. 94
Instead, the findings of fact made by the COMELEC, or by any other administrative
agency exercising expertise in its particular field of competence, are binding on the
Court. As enunciated in Juan v. Commission on Election:95
Findings of facts of administrative bodies charged with their specific field of expertise,
are afforded great weight by the courts, and in the absence of substantial showing that
such findings are made from an erroneous estimation of the evidence presented, they are
conclusive, and in the interest of stability of the governmental structure, should not be
disturbed. The COMELEC, as an administrative agency and a specialized constitutional
body charged with the enforcement and administration of all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum, and recall, has
more than enough expertise in its field that its findings orconclusions are generally
respected and even given finality. x x x.96
Having determined that the subject TV advertisements were done and broadcasted with
Ejercito’s consent, it follows that Citizens United does not apply. In said US case, a non-
profit corporation sued the Federal Election Commission, assailing, among others, the
constitutionality of a ban on corporate independ entexpenditures for electioneering
communications under 2 U.S.C.S. § 441b. The corporation released a documentary film
unfavorable of then-Senator Hillary Clinton, who was a candidate for the Democratic
Party's Presidential nomination. It wanted to make the film available through video-on-
demand withinthirty (30) days of the primary elections, and it produced advertisements
to promote the film. However, federal law prohibits all corporations – including non-
profit advocacy corporations – from using their general treasury funds to make
independent expenditures for speech that is an "electioneering communication"97 or for
speech that expressly advocates the election or defeat of a candidate within thirty (30)
days of a primary election and sixty (60) days of a general election. The US Supreme
Court held that the ban imposed under § 441b on corporate independent expenditures
violated the First Amendment98 because the Government could not suppress political
speech on the basis of the speaker's identity as a non-profit or for-profit corporation. It
was opined: Section 441b's prohibition on corporate independent expenditures is thus a
ban on speech. As a "restriction on the amount of money a person or group can spend on
political communication during a campaign," that statute "necessarily reduces the
quantity of expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached." Buckley v. Valeo, 424 U.S. 1, 19, 96 S.
Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam).Were the Court to uphold these
restrictions, the Government could repress speech by silencing certain voices at any of
the various points in the speech process. See McConnell, supra, at 251, 124 S. Ct. 619, 517
L. Ed. 2d 491 (opinion of Scalia, J.) (Government could repress speech by "attacking all
levels of the production and dissemination of ideas," for "effective public communication
requires the speaker to make use of the services of others"). If §441 be applied to
individuals, no one would believe that it is merely a time, place, or manner restriction on
speech. Its purpose and effect are to silence entities whose voices the Government deems
to be suspect.
Speech is an essential mechanism of democracy, for it is the means to hold officials
accountable to the people. See Buckley, supra, at 14-15, 96 S. Ct. 612, 46 L. Ed. 2d 659
("In a republic where the people are sovereign, the ability of the citizenry to make
112
informed choices among candidates for office is essential"). The right of citizens to
inquire, to hear, to speak, and to use information to reach consensus is a precondition to
enlightened self-government and a necessary means to protect it. The First Amendment
"'has its fullest and most urgent application' to speech uttered during a campaign for
political office." Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223,
109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989)(quoting Monitor Patriot Co. v. Roy, 401 U.S.
265, 272, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)); see Buckley, supra, at 14, 96 S. Ct. 612, 46
L. Ed. 2d 659 ("Discussion of public issues and debate on the qualifications of candidates
are integral to the operation of the system of government established by our
Constitution").
For these reasons, political speech must prevail against laws that would suppress it,
whether by design orinadvertence. Laws that burden political speech are "subject to
strict scrutiny," which requires the Government to prove that the restriction "furthers a
compelling interest and is narrowly tailored to achieve that interest." WRTL, 551 U.S., at
464, 127 S. Ct. 2652, 168 L. Ed. 2d 329(opinion of Roberts, C. J.). While it might be
maintained that political speech simply cannot be banned or restricted as a categorical
matter, see Simon & Schuster, 502 U.S., at 124, 112 S. Ct. 501, 116 L. Ed. 2d 476(Kennedy,
J., concurring in judgment), the quoted language from WRTL provides a sufficient
framework for protecting the relevant First Amendment interests in this case. We shall
employ it here.
Premised on mistrust of governmental power, the First Amendment stands against
attempts to disfavor certain subjects or viewpoints. See, e.g., United States v. Playboy
Entertainment Group, Inc., 529 U.S. 803, 813, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000)
(striking down content based restriction). Prohibited, too, are restrictions distinguishing
among different speakers, allowing speech by some but not others. See First Nat. Bank of
Boston v. Bellotti, 435 U.S. 765, 784, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). As
instruments to censor, these categories are interrelated: Speech restrictions based on the
identity of the speaker are all too often simply a means to control content.
Quite apart from the purpose or effect of regulating content, moreover, the Government
may commit a constitutional wrong when by law it identifies certain preferred speakers.
By taking the right to speak from some and giving it to others, the Government deprives
the disadvantaged person or class of the right to use speech to strive to establish worth,
standing, and respect for the speaker's voice. The Government may not by these means
deprive the public of the right and privilege to determine for itself what speech and
speakers are worthy of consideration. The First Amendment protects speech and
speaker, and the ideas that flow from each.
The Court has upheld a narrow class of speech restrictions that operate to the
disadvantage of certain persons, but these rulings were based on an interest in allowing
governmental entities to perform their functions. See, e.g., Bethel School Dist. No. 403 v.
Fraser, 478 U.S. 675, 683, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986) (protecting the
"function of public school education"); Jones v. North Carolina Prisoners' Labor Union,
Inc., 433 U.S. 119, 129, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977) (furthering "the legitimate
penological objectives of the corrections system" (internal quotation marks omitted));
Parker v. Levy, 417 U.S. 733, 759, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974)(ensuring "the
capacity of the Government to discharge its [military] responsibilities" (internal
quotation marks omitted)); Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 557, 93
S. Ct. 2880, 37 L. Ed. 2d 796 (1973)("[F]ederal service should depend upon meritorious
performance rather than political service"). The corporate independent expenditures at
issue in this case, however, would not interfere with governmental functions, so these
cases are inapposite. These precedents stand only for the proposition that there are
certain governmental functions that cannot operate without some restrictions on
particular kinds of speech. By contrast, it is inherent in the nature of the political process
that voters must be free to obtain information from diverse sources in order to
determine how to cast their votes. At least before Austin, the Court had not allowed the
exclusion of a class of speakers from the general public dialogue.
We find no basis for the proposition that, in the context of political speech, the
Government may impose restrictions on certain disfavored speakers. Both history and
logic lead us to this conclusion.
The previous decisions of the US Supreme Court in Austin v. Michigan Chamber of
Commerce99 (which ruled that political speech may be banned based on the speaker's
corporate identity) and the relevant portion of McConnell v. Federal Election
Commission100 (which upheld the limits on electioneering communications in a facial
challenge) were, in effect, overruled by Citizens United.
Like Citizens Unitedis the 1976 case of Buckley v. Valeo.101 In this much earlier case, the
US Supreme Court ruled, among other issues elevated to it for resolution, on a provision
of the Federal Election Campaign Act of 1971, as amended, (FECA) 102 which limits
independent political expenditures by an individual or group advocating the election or
defeat of a clearly identified candidate for federal office to $1,000 per year. Majority of
the US Supreme Court expressed the view that the challenged provision is
unconstitutional as it impermissibly burdens the right of free expression under the First
Amendment, and could not be sustained on the basis of governmental interests in
preventing the actuality or appearance of corruption or in equalizing the resources of
candidates.103
Even so, the rulings in Citizens United and Buckley find bearing only on matters related
to "independent expenditures," an election law concept which has no application in this
jurisdiction. In the US context, independent expenditures for or against a particular
candidate enjoy constitutional protection. They refer to those expenses made by an
individual, a group or a legal entity which are not authorized or requested by the
candidate, an authorized committee of the candidate, oran agent of the candidate; they
are expenditures that are not placed in cooperation with or with the consent of a
candidate, his agents, or an authorized committee of the candidate.104 In contrast, there
is no similar provision here in the Philippines. In fact, R.A. No. 9006105 and its
implementing rules and regulations106 specifically make it unlawful to print, publish,
broadcast or exhibit any print, broadcast or outdoor advertisements donated to the
candidate without the written acceptance of said candidate.
If at all, another portion of the Buckley decision is significant to this case. One of the
issues resolved therein is the validity of a provision of the FECA which imposes $1,000
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limitation on political contributions by individuals and groups to candidates and
authorized campaign committees.107 Five justices of the nine-member US Supreme Court
sustained the challenged provision on the grounds that it does not violate First
Amendment speech and association rights or invidiously discriminate against non-
incumbent candidates and minority party candidates but is supported by substantial
governmental interests in limiting corruption and the appearance of corruption. It was
held:
As the general discussion in Part I-A, supra, indicated, the primary First Amendment
problem raised by the Act's contribution limitations is their restriction of one aspect of
the contributor's freedom of political association. The Court's decisions involving
associational freedoms establish that the right of association is a "basic constitutional
freedom," Kusper v. Pontikes, 414 U.S. at 57, that is "closely allied to freedom of speech
and a right which, like free speech, lies at the foundation of a free society." Shelton v.
Tucker, 364 U.S. 479, 486 (1960). See, e.g., Bates v. Little Rock, 361 U.S. 516, 522-523
(1960); NAACP v. Alabama, supra at 460-461; NAACP v. Button, supra, at 452(Harlan, J.,
dissenting). In view of the fundamental nature of the rightto associate, governmental
"action which may have the effect of curtailing the freedom to associate is subject to the
closest scrutiny." NAACP v. Alabama, supra, at 460-461. Yet, it is clear that "[n]either the
right to associate nor the right to participate in political activities is absolute." CSC v.
Letter Carriers, 413 U.S. 548, 567 (1973). Even a "significant interference' with protected
rights of political association" may be sustained if the State demonstrates a sufficiently
important interest and employs means closely drawn to avoid unnecessary abridgment
of associational freedoms. Cousins v. Wigoda, supra, at 488; NAACP v. Button, supra, at
438; Shelton v. Tucker, supra, at 488.
Appellees argue that the Act's restrictions on large campaign contributions are justified
by three governmental interests. According to the parties and amici, the primary interest
served by the limitations and, indeed, by the Act as a whole, is the prevention of
corruption and the appearance of corruption spawned by the real or imagined coercive
influence of large financial contributions on candidates' positions and on their actions if
elected to office. Two "ancillary" interests underlying the Act are also allegedly furthered
by the $ 1,000 limits on contributions. First, the limits serve to mute the voices of affluent
persons and groups in the election process and thereby to equalize the relative ability of
all citizens to affect the outcome of elections. Second, it is argued, the ceilings may to
some extent act as a brake on the skyrocketing cost of political campaigns and thereby
serve to open the political systemmore widely to candidates without access to sources of
large amounts of money.
It is unnecessary to look beyond the Act's primary purpose -- to limit the actuality and
appearance of corruption resulting from large individual financial contributions -- in
order to find a constitutionally sufficient justification for the $ 1,000 contribution
limitation. Under a system of private financing of elections, a candidate lacking immense
personal or family wealth must depend on financial contributions from others to provide
the resources necessary to conduct a successful campaign. The increasing importance of
the communications media and sophisticated mass-mailing and polling operations to
effective campaigning make the raising of large sums of money an ever more essential
ingredient of an effective candidacy. To the extent that large contributions are given to
secure political quid pro quo's from current and potential office holders, the integrity of
our system of representative democracy is undermined. Although the scope of such
pernicious practices can never be reliably ascertained, the deeply disturbing examples
surfacing after the 1972 election demonstrate that the problem is not an illusory one. Of
almost equal concern as the danger of actual quid pro quo arrangements is the impact of
the appearance of corruption stemming from public awareness of the opportunities for
abuse inherent in a regime of large individual financial contributions. In CSC v. Letter
Carriers, supra, the Court found that the danger to "fair and effective government" posed
by partisan political conduct on the part of federal employees charged with
administering the law was a sufficiently important concern to justify broad restrictions
on the employees' right of partisan political association. Here, as there, Congress could
legitimately conclude that the avoidance of the appearance of improper influence "is also
critical... if confidence in the system of representative Government is not to be eroded to
a disastrous extent." 413 U.S. at 565.
Appellants contend that the contribution limitations must be invalidated because bribery
laws and narrowly drawn disclosure requirements constitute a less restrictive means of
dealing with "proven and suspected quid pro quo arrangements." But laws making
criminal the giving and taking of bribes deal withonly the most blatant and specific
attempts of those with money to influence governmental action. And while disclosure
requirements serve the many salutary purposes discussed elsewhere in this opinion,
Congress was surely entitled to conclude that disclosure was only a partial measure,and
that contribution ceilings were a necessary legislative concomitant to deal with the
reality or appearance of corruption inherent in a system permitting unlimited financial
contributions, even when the identities of the contributors and the amounts of their
contributions are fully disclosed.
The Act's $ 1,000 contribution limitation focuses precisely on the problem of large
campaign contributions-- the narrow aspect of political association where the actuality
and potential for corruption have been identified -- while leaving persons free to engage
in independent political expression, to associate actively through volunteering their
services, and to assist to a limited but nonetheless substantial extent in supporting
candidates and committees with financial resources. Significantly, the Act's contribution
limitations in themselves do not undermine to any material degree the potential for
robust and effective discussion of candidates and campaign issues by individual citizens,
associations, the institutional press, candidates, and political parties.
We find that, under the rigorous standard of review established by our prior decisions,
the weighty interests served by restricting the size of financial contributions to political
candidates are sufficient to justify the limited effect upon First Amendment freedoms
caused by the $ 1,000 contribution ceiling. (Emphasis supplied)
Until now, the US Supreme Court has not overturned the ruling that, with respect to
limiting political contributions by individuals and groups, the Government’s interest in
preventing quid pro quo corruption or its appearance was "sufficiently important" or
"compelling" so that the interest would satisfy even strict scrutiny.108
114
In any event, this Court should accentuate that resort to foreign jurisprudence would be
proper only if no law or jurisprudence is available locally to settle a controversy and that
even in the absence of local statute and case law, foreign jurisprudence are merely
persuasive authority at best since they furnish an uncertain guide.109 We prompted in
Republic of the Philippines v. Manila Electric Company:110
x x x American decisions and authorities are not per se controlling in this jurisdiction. At
best, they are persuasive for no court holds a patent on correct decisions.Our laws must
be construed in accordance with the intention of our own lawmakers and such intent
may be deduced from the language of each law and the context of other local legislation
related thereto. More importantly, they must be construed to serve our own public
interest which is the be-all and the end-all of all our laws. And it need not be stressed
that our public interest is distinct and different from others.111
and once more in Central Bank Employees Assoc., Inc. v. Bangko Sentral Ng Pilipinas:112
x x x [A]merican jurisprudence and authorities, much less the American Constitution, are
of dubious application for these are no longer controlling within our jurisdiction and
have only limited persuasive merit insofar as Philippine constitutional law is
concerned.... [I]n resolving constitutional disputes, [this Court] should not be beguiled by
foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs." Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development
have long since diverged.113
Indeed, in Osmeña v. COMELEC,114 this Court, in reaffirming its ruling in National Press
Club v. Commission on Elections115 that Section 11 (b) of R.A. No. 6646116 does not
invade and violate the constitutional guarantees comprising freedom of expression,
remarked in response to the dissent of Justice Flerida Ruth P. Romero:
On the other hand, the dissent of Justice Romero in the present case, in batting for an
"uninhibited market place of ideas," quotes the following from Buckley v. Valeo:
[T]he concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the First
Amendment which was designed to "secure the widest possible dissemination
ofinformation from diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by the
people."
But do we really believe in that? That statement was made to justify striking down a limit
on campaign expenditure on the theory that money is speech. Do those who endorse the
view that government may not restrict the speech of some in order to enhance the
relative voice of others also think that the campaign expenditure limitation found in our
election laws is unconstitutional? How about the principle of one person, one vote, is this
not based on the political equality of voters? Voting after all is speech. We speak of it as
the voiceof the people – even of God. The notion that the government may restrictthe
speech of some in order to enhance the relative voice of othersmay be foreign to the
American Constitution. It is not to the Philippine Constitution, being in fact an animating
principle of that document.
Indeed, Art. IX-C, §4 is not the only provision in the Constitution mandating political
equality. Art. XIII, §1 requires Congress to give the "highest priority" to the enactment of
measures designed to reduce political inequalities, while Art. II, §26 declaresas a
fundamental principle of our government "equal access to opportunities for public
service." Access to public office will be deniedto poor candidates if they cannot even have
access to mass media in order to reach the electorate. What fortress principle trumps or
overrides these provisions for political equality? Unless the idealism and hopes which
fired the imagination of those who framed the Constitution now appeardim to us, how
can the electoral reforms adopted by them to implement the Constitution, of which
§11(b) of R.A. No. 6646, in relation to §§90 and 92 are part, be considered infringements
on freedom of speech? That the framers contemplated regulation of political propaganda
similar to §11(b) is clear from the following portion of the sponsorship speech of
Commissioner Vicente B. Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or utilization
of franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges or concessions
granted by the Government, there is a provision that during the election period, the
Commission may regulate, among other things, the rates, reasonable free space, and time
allotments for public information campaigns and forums among candidates for the
purpose of ensuring free, orderly, honest and peaceful elections. This has to do with the
media of communication or information.117 Proceeding from the above, the Court shall
now rule on Ejercito’s proposition that the legislature imposes no legal limitation on
campaign donations. He vigorously asserts that COMELEC Resolution No. 9476
distinguishes between "contribution" and "expenditure" and makes no proscription on
the medium or amount of contribution madeby third parties in favor of the candidates,
while the limit set by law, as appearing in COMELEC Resolution No. 9615, applies only to
election expenditures of candidates.
We deny.
Section 13 of R.A. No. 7166118 sets the current allowable limit on expenses of candidates
and political parties for election campaign, thus:
SEC. 13. Authorized Expenses of Candidates and Political Parties. – The aggregate
amount that a candidate or registered politicalparty may spend for election campaign
shall be as follows:
(a) For candidates – Ten pesos (₱10.00) for President and Vice President; and
for other candidates, Three pesos (₱3.00) for every voter currently registered
in the constituency where he filed his certificate of candidacy: Provided, That, a
candidate without any political party and without support from any political
party may be allowed to spend Five pesos (₱5.00) for every such voter; and
115
 (b) For political parties - Five pesos (₱5.00) for every voter currently registered
in the constituency or constituencies where it has official candidates.
Any provision of law to the contrary notwithstanding, any contribution in cash or in kind
to any candidate or political party or coalition of parties for campaign purposes, duly
reported to the Commission, shall not be subject to the payment of any gift tax.119
Sections 100, 101, and 103 of the OEC are not repealed by R.A. No. 7166.120 These
provisions, which are merely amended insofar as the allowable amount is concerned,
read:
SECTION 100. Limitations upon expenses of candidates.– No candidate shall spend for
his election campaign an aggregate amount exceeding one peso and fifty centavos for
every voter currently registered in the constituency where he filed his candidacy:
Provided, That the expenses herein referred to shall include those incurred or caused to
be incurred by the candidate, whether in cash or in kind, including the use, rental or hire
of land, water or aircraft, equipment, facilities, apparatus and paraphernalia used in the
campaign: Provided, further, That where the land, water or aircraft, equipment, facilities,
apparatus and paraphernalia used is owned by the candidate, his contributor or
supporter, the Commission is hereby empowered toassess the amount commensurate
with the expenses for the use thereof, based on the prevailing rates in the locality and
shall be included in the total expenses incurred by the candidate.
SECTION 101. Limitations upon expenses of political parties.– A duly accredited political
party may spend for the election of its candidates in the constituency or constituencies
where it has official candidates an aggregate amount not exceeding the equivalent of one
peso and fifty centavos for every voter currently registered therein. Expenses incurred
by branches, chapters, or committees of such political party shall be included in the
computation of the total expenditures of the political party.
Expenses incurred by other political parties shall be considered as expenses of their
respective individual candidates and subject to limitation under Section 100 of this Code.
SECTION 103. Persons authorized to incur election expenditures.– No person, except the
candidate, the treasurer of a political party or any person authorized by such candidate
or treasurer, shall make any expenditure in support of or in opposition to any candidate
or political party. Expenditures duly authorized by the candidate or the treasurer of the
party shall be considered as expenditures of such candidate or political party.
The authority to incur expenditures shall be in writing, copy of which shall be furnished
the Commission signed by the candidate or the treasurer of the party and showing the
expenditures so authorized, and shall state the full name and exact address of the person
so designated. (Emphasis supplied)121
The focal query is: How shall We interpret "the expenses herein referred to shall include
those incurred or caused to be incurred by the candidate"and "except the candidate, the
treasurer of a political party or any person authorized by such candidate or
treasurer"found in Sections 100 and 103, respectively, of the OEC? Do these provisions
exclude from the allowable election expenditures the contributions of third parties made
with the consent of the candidate? The Court holds not.
When the intent of the law is not apparent as worded, or when the application of the law
would lead to absurdity, impossibility or injustice, extrinsic aids of statutory
construction may be resorted to such as the legislative history of the law for the purpose
of solving doubt, and that courts may take judicial notice of the origin and history of the
law, the deliberations during the enactment, as well as prior laws on the same subject
matter in order to ascertain the true intent or spirit of the law.122
Looking back, it could be found that Sections 100, 101, and 103 of the OEC are
substantially lifted from P.D. No. 1296,123 as amended. Sections 51, 52 and 54 of which
specifically provide:
Section 51. Limitations upon expenses of candidates. No candidate shall spend for his
election campaign an amount more than the salary or the equivalent of the total
emoluments for one year attached to the office for which he is a candidate: Provided,
That the expenses herein referred to shall include those incurred by the candidate, his
contributors and supporters,whether in cash or in kind, including the use, rental or hire
of land, water or air craft, equipment, facilities, apparatus and paraphernalia used in the
campaign: Provided, further,That, where the land, water or air craft, equipment, facilities,
apparatus and paraphernalia used is owned by the candidate, his contributor or
supporter, the Commission is hereby empowered to assess the amount commensurate
with the expenses for the use thereof, based on the prevailing rates in the locality and
shall be included in the total expenses incurred by the candidate.
In the case of candidates for the interim Batasang Pambansa, they shall not spend more
than sixty thousand pesos for their election campaign.
Section 52. Limitation upon expenses of political parties, groups or aggrupations.A
political party, group or aggrupation may not spend for the election of its candidates in
the constituency or constituencies where it has official candidates anaggregate amount
more than the equivalent of fifty centavos for every voter currently registered therein:
Provided, That expenses incurred by such political party, group or aggrupation not duly
registered with the Commission and/or not presenting or supporting a complete list of
candidates shall be considered as expenses of its candidates and subject to the limitation
under Section 51 of this Code. Expenses incurred by branches, chapters or committees of
a political party, group or aggrupation shall be included in the computation of the total
expenditures of the political party, group or aggrupation. (Emphasis supplied)
Section 54. Persons authorized to incur election expenditures.No person, except the
candidate or any person authorized by him or the treasurer of a political party, group or
aggrupation, shall make any expenditure in support of, or in opposition to any candidate
or political party, group or aggrupation. Expenditures duly authorized by the candidate
of the treasurer of the party, group or aggrupation shall be considered as expenditure of
such candidate or political party, group or aggrupation.
116
The authority to incur expenditures shall be in writing, copy of which shall be furnished
the Commission, signed by the candidate or the treasurer of the party, group or
aggrupation and showing the expenditure so authorized, and shall state the full nameand
exact address of the person so designated. (Emphasis supplied)
Prior to P.D. No. 1296, R.A. No. 6388 (otherwise known as the "Election Code of 1971")
was enacted.124 Sections 41 and 42 of which are relevant, to quote:
Section 41. Limitation Upon Expenses of Candidates.– No candidate shall spend for his
election campaign more than the total amount of salary for the full term attached to the
office for which he is a candidate.
Section 42. Limitation Upon Expenses of Political Parties and Other Nonpolitical
Organizations.– No political party as defined in this Code shall spend for the election of
its candidates an aggregate amount more than the equivalent of one peso for every voter
currently registered throughout the country in case of a regular election, orin the
constituency in which the election shall be held in case of a special election which is not
held in conjunction with a regular election. Any other organization not connected with
any political party, campaigning for or against a candidate, or for or against a political
party shall not spend more than a total amount of five thousand pesos. (Emphasis
supplied)
Much earlier, Section 12 (G) of R.A. No. 6132,125 which implemented the resolution of
both Houses ofCongress calling for a constitutional convention, explicitly stated:
Section 12. Regulations of Election Spending and Propaganda. The following provisions
shall govern election spending and propaganda in the election provided for in this Act:
authorized by such candidate or treasurer." Ubi lex non distinguit, nec nos distinguere
debemus.126 (Where the law does not distinguish, neither should We.) There should be
no distinction in the application of a law where none is indicated.
The inclusion of the amount contributed by a donor to the candidate’s allowable limit of
election expenses does not trample upon the free exercise of the voters’ rights of speech
and of expression under Section 4, Artticle III of the Constitution. As a content-neutral
regulation,127 the law’s concern is not to curtail the message or content of the
advertisement promoting a particular candidate but to ensure equality between and
among aspirants with "deep pockets" and those with less financial resources. Any
restriction on speech or expression is only incidentaland is no more than necessary to
achieve the substantial governmental interest of promoting equality of opportunity in
political advertising. It bears a clear and reasonable connection with the constitutional
objectives set out in Section 26, Article II, Section 4, Article IX-C, and Section 1, Art. XIII of
the Constitution.128
Indeed, to rule otherwise would practically result in an unlimited expenditure for
political advertising, which skews the political process and subverts the essence of a
truly democratic form of government.
WHEREFORE, the Petition is DENIED. The May 21, 2014 Resolution of the COMELEC En
Banc in SPA No. 13-306 (DC), which upheld the September 26, 2013 Resolution of the
COMELEC First Division, granting the petition for disqualification filed by private
respondent Edgar "Egay" S. San Luis against petitioner Emilio Ramon "E.R." P. Ejercito, is
hereby AFFIRMED.
SO ORDERED.

xxx

(G) All candidates and all other persons making or receiving expenditures, contributions
or donations which in their totality exceed fifty pesos, in order to further or oppose the
candidacy of any candidate, shall file a statement of all such expenditures and
contributions made or received on such dates and withsuch details as the Commission on
Elections shall prescribe by rules. The total expenditures made by a candidate, or by any
other person with the knowledge and consent of the candidate, shall not exceed thirty-
two thousand pesos. (Emphasis supplied)

In tracing the legislative history of Sections 100, 101, and 103 of the OEC, it can be said,
therefore, that the intent of our lawmakers has been consistent through the years: to
regulate not just the election expenses of the candidate but also of his or her
contributor/supporter/donor as well as by including in the aggregate limit of the
former’s election expenses those incurred by the latter.1awp++i1 The phrase "those
incurred or caused to be incurred by the candidate"is sufficiently adequate to cover
those expenses which are contributed or donated in the candidate’s behalf. By virtue of
the legal requirement that a contribution or donation should bear the written conformity
of the candidate, a contributor/supporter/donor certainly qualifies as "any person
117
G.R. No. 115245 July 11, 1995
JUANITO C. PILAR, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing the
Resolution dated April 28, 1994 of the Commission on Elections (COMELEC) in UND No.
94-040.
I expenditures as required herein shall constitute an administrative
On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of candidacy for the
position of member of the Sangguniang Panlalawigan of the Province of Isabela.
On March 25, 1992, petitioner withdrew his certificate of candidacy.
In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and February 13, 1994
respectively, the COMELEC imposed upon petitioner the fine of Ten Thousand Pesos
(P10,000.00) for failure to file his statement of contributions and expenditures.
In M.R. No. 94-0594 dated February 24, 1994, the COMELEC denied the motion for
reconsideration of petitioner and deemed final M.R. Nos. 93-2654 and 94-0065 (Rollo, p.
14).
Petitioner went to the COMELEC En Banc (UND No. 94-040), which denied the petition in
a Resolution dated April 28, 1994 (Rollo, pp. 10-13).
Hence, this petition for certiorari.
We dismiss the petition.
II
Section 14 of R.A. No. 7166 entitled "An Act Providing for Synchronized National and
Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for
Other Purposes" provides as follows:
Statement of Contributions and Expenditures: Effect of Failure to File
Statement. Every candidate and treasurer of the political party shall,
within thirty (30) days after the day of the election, file in duplicate
with the offices of the Commission the full, true and itemized
statement of all contributions and expenditures in connection with
the election.
No person elected to any public office shall enter upon the duties of
his office until he has filed the statement of contributions and
expenditures herein required.
The same prohibition shall apply if the political party which
nominated the winning candidate fails to file the statement required
herein within the period prescribed by this Act.
Except candidates for elective barangay office, failure to file the
statements or reports in connection with electoral contributions and
offense for which the offenders shall be liable to pay an administrative
fine ranging from One Thousand Pesos ( P1,000.00) to Thirty
Thousand Pesos (P30,000.00), in the discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of notice of
such failure; otherwise, it shall be enforceable by a writ of execution
issued by the Commission against the properties of the offender.
It shall be the duty of every city or municipal election registrar to
advise in writing, by personal delivery or registered mail, within five
(5) days from the date of election all candidates residing in his
jurisdiction to comply with their obligation to file their statements of
contributions and expenditures.
For the commission of a second or subsequent offense under this
Section, the administrative fine shall be from Two Thousand Pesos
(P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of
the Commission. In addition, the offender shall be subject to perpetual
disqualification to hold public office (Emphasis supplied).
To implement the provisions of law relative to election contributions and expenditures,
the COMELEC promulgated on January 13, 1992 Resolution No. 2348 (Re: Rules and
Regulations Governing Electoral Contributions and Expenditures in Connection with the
National and Local Elections on
May 11, 1992). The pertinent provisions of said Resolution are:
Sec. 13. Statement of contributions and expenditures: Reminders to
candidates to file statements. Within five (5) days from the day of the
election, the Law Department of the Commission, the regional election
director of the National Capital Region, the provincial election
supervisors and the election registrars shall advise in writing by
118
 personal delivery or registered mail all candidates who filed their
certificates of candidacy with them to comply with their obligation to
file their statements of contributions and expenditures in connection
with the elections. Every election registrar shall also advise all
candidates residing in his jurisdiction to comply with said obligation
(Emphasis supplied).
Sec. 17. Effect of failure to file statement. (a) No person elected to any
public office shall enter upon the duties of his office until he has filed
the statement of contributions and expenditures herein required.
The same prohibition shall apply if the political party which
nominated the winning candidates fails to file the statement required
within the period prescribed by law.
(b) Except candidates for elective barangay office, failure to file
statements or reports in connection with the electoral contributions
and expenditures as required herein shall constitute an
administrative offense for which the offenders shall be liable to pay an
administrative fine ranging from One Thousand Pesos (P1,000) to
Thirty Thousand Pesos (P30,000), in the discretion of the
Commission.
The fine shall be paid within thirty (30) days from receipt of notice of
such failure; otherwise, it shall be enforceable by a writ of execution
issued by the Commission against the properties of the offender.
For the commission of a second or subsequent offense under this
section, the administrative fine shall be from Two Thousand Pesos
(P2,000) to Sixty Thousand Pesos (P60,000), in the discretion of the
Commission. In addition, the offender shall be subject to perpetual
disqualification to hold public office.
Petitioner argues that he cannot be held liable for failure to file a statement of
contributions and expenditures because he was a "non-candidate," having withdrawn his
certificates of candidacy three days after its filing. Petitioner posits that "it is . . . clear
from the law that candidate must have entered the political contest, and should have
either won or lost" (Rollo, p. 39).
Petitioner's argument is without merit.
Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file his
statement of contributions and expenditures.
Well-recognized is the rule that where the law does not distinguish, courts should not
distinguish, Ubi lex non distinguit nec nos distinguere debemos (Philippine British
Assurance Co. Inc. v. Intermediate Appellate Court, 150 SCRA 520 [1987]; cf Olfato v.
Commission on Elections, 103 SCRA 741 [1981]). No distinction is to be made in the
application of a law where none is indicated (Lo Cham v. Ocampo, 77 Phil. 636 [1946]).
In the case at bench, as the law makes no distinction or qualification as to whether the
candidate pursued his candidacy or withdrew the same, the term "every candidate" must
be deemed to refer not only to a candidate who pursued his campaign, but also to one
who withdrew his candidacy.
The COMELEC, the body tasked with the enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall (The Constitution of the Republic of the Philippines, Art. IX(C), Sec. 2[1]), issued
Resolution No. 2348 in implementation or interpretation of the provisions of Republic
Act No. 7166 on election contributions and expenditures. Section 13 of Resolution No.
2348 categorically refers to "all candidates who filed their certificates of candidacy."
Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use of the
word "shall" in a statute implies that the statute is mandatory, and imposes a duty which
may be enforced , particularly if public policy is in favor of this meaning or where public
interest is involved. We apply the general rule (Baranda v. Gustilo, 165 SCRA 757 [1988];
Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608 [1952]).
The state has an interest in seeing that the electoral process is clean, and ultimately
expressive of the true will of the electorate. One way of attaining such objective is to pass
legislation regulating contributions and expenditures of candidates, and compelling the
publication of the same. Admittedly, contributions and expenditures are made for the
purpose of influencing the results of the elections (B.P. Blg. 881, Sec. 94; Resolution No.
2348, Sec. 1). Thus, laws and regulations prescribe what contributions are prohibited
(B.P. Blg. 881, Sec. 95, Resolution No. 2348, Sec. 4), or unlawful (B.P. Blg. 881, Sec. 96),
and what expenditures are authorized (B.P. Blg. 881, Sec. 102; R.A. No. 7166, Sec. 13;
Resolution No. 2348, Sec. 7) or lawful (Resolution No. 2348, Sec. 8).
Such statutes are not peculiar to the Philippines. In "corrupt and illegal practices acts" of
several states in the United States, as well as in federal statutes, expenditures of
candidates are regulated by requiring the filing of statements of expenses and by limiting
the amount of money that may be spent by a candidate. Some statutes also regulate the
solicitation of campaign contributions (26 Am Jur 2d, Elections § 287). These laws are
designed to compel publicity with respect to matters contained in the statements and to
prevent, by such publicity, the improper use of moneys devoted by candidates to the
furtherance of their ambitions (26 Am Jur 2d, Elections § 289). These statutes also
enable voters to evaluate the influences exerted on behalf of candidates by the
contributors, and to furnish evidence of corrupt practices for annulment of elections
(Sparkman v. Saylor [Court of Appeals of Kentucky], 180 Ky. 263, 202 S.W. 649 [1918]).
State courts have also ruled that such provisions are mandatory as to the requirement of
filing (State ex rel. Butchofsky v. Crawford [Court of Civil Appeals of Texas], 269 S.W. 2d
119
536 [1954]; Best v. Sidebottom, 270 Ky. 423,109 S.W. 2d 826 [1937]; Sparkman v.
Saylor, supra.)

It is not improbable that a candidate who withdrew his candidacy has accepted
contributions and incurred expenditures, even in the short span of his campaign. The evil
sought to be prevented by the law is not all too remote.

It is notesworthy that Resolution No. 2348 even contemplates the situation where a
candidate may not have received any contribution or made any expenditure. Such a
candidate is not excused from filing a statement, and is in fact required to file a statement
to that effect. Under Section 15 of Resolution No. 2348, it is provided that "[i]f a
candidate or treasurer of the party has received no contribution, made no expenditure,
or has no pending obligation, the statement shall reflect such fact."

Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the
Omnibus Election Code of the Philippines, it is provided that "[t]he filing or withdrawal
of certificate of candidacy shall not affect whatever civil, criminal or administrative
liabilities which a candidate may have incurred." Petitioner's withdrawal of his
candidacy did not extinguish his liability for the administrative fine.

WHEREFORE, the petition is DISMISSED.

Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Bellosillo, Puno, Vitug, Mendoza and
Francisco, JJ., concur.

Kapunan, J., is on leave.

120
 source code of the in-house COMELEC programs called the Data Capturing System (DCS)
CENTER FOR PEOPLE G.R. No. 189546 utilities.
EMPOWERMENT IN
GOVERNANCE,
Petitioner, Present:
CORONA, C.J., CenPEG invoked the following pertinent portion of Section 12 of Republic Act
CARPIO,
(R.A.) 9369, which provides:
CARPIO MORALES,
VELASCO, JR.,*
xxxx
NACHURA,*
LEONARDO-DE CASTRO,*
Once an AES technology is selected for implementation,
- versus - BRION,*
the Commission shall promptly make the source code of that
PERALTA,
technology available and open to any interested political party or
BERSAMIN,
groups which may conduct their own review thereof.
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, Section 2(12) of R.A. 9369 describes the source code as the human readable
MENDOZA,* and instructions that define what the computer equipment will do. This has been explained
SERENO,** JJ.
COMMISSION ON ELECTIONS, in an article:
Respondent. Promulgated:

September 21, 2010
x --------------------------------------------------------------------------------------- x
DECISION
ABAD, J.:
This case concerns the duty of the Commission on Elections (COMELEC) to
disclose the source code for the Automated Election System (AES) technologies it used in
the 2010 national and local elections.
On May 26, 2009 petitioner Center for People Empowerment in Governance
(CenPEG), a non-government organization,[1] wrote respondent COMELEC, requesting a
copy of the source code of the Precinct Count Optical Scan (PCOS) programs, the Board of
Canvassers Consolidation/Canvassing System (BOC CCS) programs for the municipal,
provincial, national, and congressional canvass, the COMELEC server programs, and the
Source code is the human readable representation of the
instructions that control the operation of a computer. Computers
are composed of hardware (the physical devices themselves) and
software (which controls the operation of the hardware). The
software instructs the computer how to operate; without
software, the computer is useless. Source code is the human
readable form in which software is written by computer
programmers. Source code is usually written in a programming
language that is arcane and incomprehensible to non-specialists
but, to a computer programmer, the source code is the master
blueprint that reveals and determines how the machine will
behave.
Source code could be compared to a recipe: just as a
cook follows the instructions in a recipe step-by-step, so a
computer executes the sequence of instructions found in the
software source code. This is a reasonable analogy, but it is also
imperfect. While a good cook will use her discretion and common
sense in following a recipe, a computer follows the instructions
in the source code in a mechanical and unfailingly literal way;
thus, while errors in a recipe might be noticed and corrected by
the cook, errors in source code can be disastrous, because the
code is executed by the computer exactly as written, whether
that was what the programmer intended or not x x x.

121
 The source code in voting machines is in some ways
analogous to the procedures provided to election workers.
Procedures are instructions that are provided to people; for
instance, the procedures provided to poll workers list a sequence
of steps that poll workers should follow to open the polls on
election morning. Source code contains instructions, not for
people, but for the computers running the election; for instance,
the source code for a voting machine determines the steps the
machine will take when the polls are opened on election
morning.[2] (Underscoring supplied)
On June 24, 2009 the COMELEC granted the request[3] for the source code of the
PCOS and the CCS, but denied that for the DCS, since the DCS was a system used in
processing the Lists of Voters which is not part of the voting, counting and canvassing
systems contemplated by R.A. 9369. According to COMELEC, if the source code for the
DCS were to be divulged, unscrupulous individuals might change the program and pass
off an illicit one that could benefit certain candidates or parties.
Still, the COMELEC apparently did not release even the kinds of source code
that it said it was approving for release. Consequently, on July 13, 2009, CenPEG once
more asked COMELEC for the source code of the PCOS, together with other documents,
programs, and diagrams related to the AES. CenPEG sent follow-up letters on July 17 and
20 and on August 24, 2009.
On August 26, 2009 COMELEC replied that the source code CenPEG wanted did
not yet exist for the reasons: 1) that it had not yet received the baseline source code of
the provider, Smartmatic, since payment to it had been withheld as a result of a pending
suit; 2) its customization of the baseline source code was targeted for completion in
November 2009 yet; 3) under Section 11 of R.A. 9369, the customized source code still
had to be reviewed by an established international certification entity, which review was
expected to be completed by the end of February 2010; and 4) only then would the AES
be made available for review under a controlled environment.
Rejecting COMELECs excuse, on October 5, 2009 CenPEG filed the present
petition for mandamus, seeking to compel COMELEC to immediately make its source
codes available to CenPEG and other interested parties.
COMELEC claimed in its comment that CenPEG did not have a clear, certain, and
well-defined right that was enforceable by mandamus because COMELECs duty to make
the source code available presupposed that it already had the same. COMELEC restated
the explanation it gave in its August 26, 2009 letter to CenPEG.
In its manifestation and omnibus motion, CenPEG did not believe that the
source code was still unavailable considering that COMELEC had already awarded to an
international certification entity the review of the same and that COMELEC had already
been field testing its PCOS and CCS machines.
On February 10, 2010 COMELEC filed a manifestation, stating that it had
already deposited on February 9, 2010 the source code to be used in the May 10, 2010
elections with the Bangko Sentral ng Pilipinas. Required to comment on this, CenPEG
said on February 22, 2010 that the manifestation did not constitute compliance with
Section 12 of R.A. 9369 but only with Section 11 of R.A. 8436.
In its earlier comment, COMELEC claimed, reiterating what it said in its August
26, 2009 letter to CenPEG, that it would make the source code available for review by the
end of February 2010 under a controlled environment. Apparently, this review had not
taken place and was overtaken by the May 10, 2010 elections.
On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating
its prayer for the issuance of a writ of mandamus in this case notwithstanding the fact
that the elections for which the subject source code was to be used had already been
held. It claimed that the source code remained important and relevant not only for
122
compliance with the law, and the purpose thereof, but especially in the backdrop of

numerous admissions of errors and claims of fraud.

The Court finds the petition and this last manifestation meritorious.

The pertinent portion of Section 12 of R.A. 9369 is clear in that once an AES

technology is selected for implementation, the Commission shall promptly make the

source code of that technology available and open to any interested political party or

groups which may conduct their own review thereof. The COMELEC has offered no

reason not to comply with this requirement of the law. Indeed, its only excuse for not

disclosing the source code was that it was not yet available when CenPEG asked for it

and, subsequently, that the review had to be done, apparently for security reason, under

a controlled environment. The elections had passed and that reason is already stale.

WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the

COMELEC to make the source codes for the AES technologies it selected for

implementation pursuant to R.A. 9369 immediately available to CenPEG and all other

interested political parties or groups for independent review.

SO ORDERED.

123
 [G.R. No. 139028. April 12, 2000]
HADJI RASUL BATADOR BASHER, petitioner, vs. COMMISSION ON ELECTIONS and
ABULKAIR AMPATUA, respondents.
DECISION
PANGANIBAN, J.:
An election must be held at the place, date and time prescribed by law. Likewise, its
suspension or postponement must comply with legal requirements. Otherwise, it is
irregular and void.h Y
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: Jksm
"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.Chief
According to the Comelec, the voting started only around 9:00 p.m. on August 30, 1997
because of the prevailing tension in the said locality. Election Officer Diana DatuImam
reported that she was allegedly advised by some religious leaders not to proceed with
the election because "it might trigger bloodshed." She also claimed that 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 and
her military escorts, who responded in 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 the 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 mayors house that
night was ever made.[6]
As earlier stated, the Comelec dismissed the Petition. Hence, this recourse to this Court. [7]
Ruling of the Comelec
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 oclock, 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. x x x"
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 oclock 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,
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 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 Kagawads 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. Esm
The Courts Ruling
The Petition is meritorious.
Main Issue: Validity of the Special Election
Citing Mitmug v. Comelec,[12] the Comelec points out 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. Esmsc
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. Esmmis
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 building within the barangay to be used
as polling place in case the barangay has one election precinct x x x." 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. Esmso
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.Msesm
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." Exsm
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 conducive
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-flung barangays constantly
threatened with rebel and military gunfires. Kyle
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,
125
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." Kycalr
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. Calrky
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. Mesm
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 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). x x x"
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. Slx
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. x x x 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." Scslx
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
126
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. Slxsc

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. Slxmis

SO ORDERED.

127
 [G.R. No. 150469. July 3, 2002]
MAYOR JUN RASCAL CAWASA, COUNCILORS MAASIRAL DAMPA, H. ACKIL
MAMANTUC, MOMOLAWAN MACALI, ANDAR TALI, ALLAN SANAYON, and
AMIN SANGARAN, petitioners, vs. THE COMMISSION ON ELECTIONS and
ABDULMALIK M. MANAMPARAN, respondents.
DECISION
CARPIO, J.:
The Case
Before us is a Petition for Certiorari with prayer for the issuance of a writ of
preliminary injunction and a temporary restraining order under Rule 64 of the 1997
Rules of Civil Procedure[1] assailing the Resolution of the Commission on Elections
(Comelec for brevity) en banc[2] in SPC No. 01-276 dated October 24, 2001, the
dispositive portion of which reads:
WHEREFORE, premises considered, the instant petition is hereby GRANTED. The results
of special elections held on 30 May 2001 covering Precincts Nos. 2A, 2A1/2A2 in
Barangay Bangko, Precinct No. 3A in Barangay Cabasaran and clustered Precinct No.
10A/10A1 in Barangay Liangan are hereby ANNULLED.
Accordingly, the proclamation of all winning candidates insofar as the results in the four
(4) contested precincts affect the standing of candidates is hereby SET ASIDE until the
choice of the people is finally determined through another special election to be
authorized, conducted and supervised by this Commission as soon as possible unless
restrained.
Finally, the Law Department is hereby directed to investigate the election irregularities
that transpired in the Municipality of Nunungan, Lanao del Norte involving the Office of
the Election Officer and thereafter, file election offense case/s should there be finding of
probable cause and other appropriate cases if warranted under the circumstances.
SO ORDERED.[3]
The Facts
During the May 14, 2001 elections, petitioner Jun Rascal Cawasa (petitioner
Cawasa for brevity) and private respondent Adbulmalik M. Manamparan (private
respondent Manamparan for brevity) were among the candidates for mayor
in the Municipality of Nunungan, Lanao del Norte (Nunungan for brevity). Out of the
forty (40) precincts in Nunungan, only thirty-six (36) functioned, as there was a failure of
election in the remaining four (4) precincts. The following were the precincts, barangays,
polling places and number of registered voters where there was a failure of election:
PRECINCT NO. BARANGAY POLLING PLACE REG. VOTERS
2A Bangko Bangko Prim School 200
2A1/2A2 Bangko -do- 254
3A Cabasaran Cabasaran Prim. Sch. 155
10A/10A1 Liangan Liangan Prim. Sch. 236
Total 845
After canvassing the election returns from the 36 precincts, the Municipal Board of
Canvassers of Nunungan deferred the proclamation of all winning candidates due to the
failure of the said 4 precincts to function. Special elections were set on May 30, 2001
considering that the number of registered voters in the remaining four precincts would
affect the election results. The Comelec promulgated Resolution No. 4360 on May 21,
2001 authorizing the conduct of special elections in the affected areas, including
barangays Bangko, Cabasaran and Lianganin Nunungan, the pertinent portion of which
states:
VII. Memorandum of Commissioner Mehol K. Sadain dated 19 May 2001.
REGION MUNICIPALITY/PROVINCE
Region XII Nunu(n)gan, Lanao del Norte
Barangays:
1. Bangco
2. Cabasaran
3. Liangan
REASONS : disagreement of venue of election, tension of BEIs, forcible taking
of the ballot boxes and other election paraphernalia.
Scheduled date: May 30, 2001
xxx
In view of the foregoing the Commission RESOLVED, as it hereby RESOLVED, as follows:
128
 1. To schedule the special elections in the foregoing areas on May 26
and 30, 2001 as herein specified;
xxx
Let the Executive Director, Deputy Executive Directors for Operations and all the
working Committees implement this resolution.
SO ORDERED.[4]
As scheduled, the special elections covering the 4 precincts were conducted on May
30, 2001. The special elections for Precincts Nos. 2A, 2A1/2A2 of Barangay Bangko were
conducted in the Municipality of Sultan Naga Dimaporo, Lanao del Norte. The special
elections for Precinct No. 3A of Barangay Cabasara and Precinct Nos. 10A/10A1 of
Barangay Liangan were conducted in the Municipality of Sapad, Lanao del Norte.
The Municipal Board of Canvassers of Nunungan canvassed the election returns of
the 4 precincts on May 31, 2001. After the canvassing of the election returns,
the Municipal Board of Canvassers proclaimed the winning candidates on the basis of the
earlier 36 election returns of the May 14, 2001 regular elections and the 4 election
returns of the 4 precincts subject of the special elections.
The May 14, 2001 regular elections and the May 30, 2001 special elections show
the following results with respect to the position of mayor:
Sub-Total of Votes Sub-Total of votes Grand
Obtained May 14, 2001 Obtained May 30, Total
Regular Elections 2001 Special Elections
Private Respondent Manamparan 1,197 570 1,767
Petitioner Cawasa 1,283 187 1,470
Margin .
. . . . 297
As shown above, during the May 14, 2001 regular elections, the lead of petitioner
Cawasa was eighty six (86). After the May 30, 2001 special elections, private respondent
Manamparan overcame the margin with a lead of 297 votes.
Petitioner Cawasa was proclaimed mayor of Nunungan and his co-petitioners
Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon and
Amin Sangaran were also proclaimed as councilors of Nunungan.
On June 4, 2001, private respondent Manamparan filed an appeal and petition to
annul the proclamation of petitioner Cawasa docketed as SPC No. 01-252. The
appeal/petition was dismissed by the Comelec Second Division on September 26, 2001.
In the meantime, on June 8, 2001, private respondent Manamparan filed a petition
for Annulment of Election Results during the May 30, 2001 Special Elections in Precincts
No. 2A, 2A1/2A2, 3A, and 10A/10A1 of Nunungan, Lanao Del Norte, and Annulment of
Canvass and Proclamation with Prayer for Issuance of Temporary Restraining Order
and/or Writ of Preliminary Injunction docketed as SPC Case No. 01-276. Impleaded as
respondents were petitioner Cawasa and the Municipal Board of Canvassers composed
of Mario Allan Ballesta,[5] Nedalyn S. Sebial[6] and Iluminada O. Pegalan.[7]
As mentioned at the outset, on October 24, 2001, the Comelec en banc promulgated
a resolution annulling the results of the special elections of the 4 precincts (Precinct Nos.
2A, 2A1/2A2, 3A, 10A/10A1) held on May 30, 2001
conducted in the municipalities of Sultan Naga Dimaporo and Sapad. The Comelec en
banc also annulled the proclamation of all winning candidates insofar as the results in
the 4 contested precincts affect the standing of candidates.
The Comelec Ruling
In granting the petition, the Comelec held that the special elections in the 4
contested precincts were not genuinely held and resulted in failure to elect on account of
fraud. The Comelecs ruling is summarized as follows:
First. The Comelec clarified that the Comelec en banc can take cognizance of the
petition for annulment of election results in accordance with Section 4 of RA 7166 [8],
otherwise known as the Synchronized Elections Law of 1991. It explained that while the
proclamation of a candidate has the effect of terminating pre-proclamation issues, a
proclamation that is a result of an illegal act is void and cannot be ratified by such
proclamation and subsequent assumption of office. The Comelec declared that there is
no forum-shopping considering that SPC 01-252 pending before the Second Division of
the Comelec is a pre-proclamation controversy,[9] while SPC 01-276 pending before the
Comelec en banc is a case for annulment of election results.
Second. The Comelec found that the special elections were not held in the
designated polling places in Nunungan but were transferred to the municipalities of
Sapad and Sultan Naga Dimaporo without any authority from the Comelec. According to
the Comelec, the Election Officer, who happened to be the chairman of the Municipal
Board of Canvassers, caused the transfer of the polling places without asking permission
from the Comelec. The transfer was likewise in violation of the due process requirements
found in Section 153 of the Omnibus Election Code. Moreover, it ruled that the
unauthorized transfer of a polling place is also punishable as an election offense under
Section 261(z) (17) of the Same Code. We quote the pertinent portion of the Comelec
ruling thus:
The transfer of polling places cannot be done without due process. This is the explicit
rule of Section 153 of the Omnibus Election Code, x x x:
xxxxxxxxx
In the instant case, the Election Officer, who happened to be the Chairman of the
respondent Board, also caused the transfer of the polling places without asking the
129
permission of this Commission and in violation of the due process rule, thereby, making
the afore-quoted Section 153 inutile.
Considering these unwarranted acts of the official of this Commission, the sanctity of the
special elections therefore is suspect. Nothing in the records could show that notice
was given to the political candidates and to the registered voters affected by the
special elections of the said transfer of polling places. Who therefore voted on the
assailed special elections given these circumstances? This issue has never
been squarely addressed by the respondents.
We take judicial notice of the distance of the venues of voting which are more or
less 25 kilometers away from Nunungan, far from being accessible to the voters
given the time and material constraints. The panorama of what is supposed to be a
free and honest exercise of democracy is indeed rendered myopic by fraud
perpetrated by no other than the COMELEC officials concerned.[10]
Third. The Comelec found that the Municipal Board of Canvassers, headed by Mario
Allan Ballesta, preposterously feigned ignorance of the fact that during the said special
elections, members of the Philippine Army 26th Infantry Battalion served as election
inspectors without authority from the Comelec.
Hence, the instant petition.
The Issues
Petitioners argue that the COMELEC en banc Resolution was issued without
jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction for
the following reasons:
"1. The proclamation of the six (6) petitioners Maasiral Dampa, H. Ackil
Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon, and Amin
Sangaran were annulled and set aside in violation of due process of
law. They were not impleaded as respondents in the petition to annul the
election. They were not notified of the proceedings. x x x.
2. The transfer of the venue of the special elections at Sultan Naga Dimaporo
and Sapad and the appointment of military personnel as members of the
Board of election Inspectors of the four (4) precincts were agreed upon by
the private respondent and the municipal candidates and their respective
political parties.
3. The election officer in the exercise of his discretion has authority to
transfer the venue of the special elections in view of the agreement of the
political parties and municipal candidates on the transfer of the venue of
the special elections. x x x.
4. There is substantial compliance with the provisions of Sec. 153 of the
Omnibus Election Code. The political parties and municipal candidates of
the municipality Nunungan were notified and in fact agreed to the
transfer of venue of the special elections.
5. The COMELEC en banc promulgated the October 24, 2001 resolution
without requiring its election officer of Nunungan, the provincial election
supervisor of Lanao del Norte, and Regional Election Director of Region
XII to explain why the special elections of the four (4) precincts were
transferred to the municipalities of Sultan Naga Dimaporo and Sapad. The
petitioner Mayor Jun Rascal Cawasa prayed that the case be set for trial
and hearing in order that the election officer of Nunungan be required to
testify and explain the circumstances of the special elections.The
COMELEC en banc did not act on the motion. It promulgated the
resolution of October 24, 2001 without investigating the circumstances
why the election officer transferred the venue of the special elections to
the municipalities of Sultan Naga Dimaporo and Sapad. No hearing was
conducted by the COMELEC en banc.[11]
Simply put, the issues raised boil down to whether or not : (1) the transfer of the
polling places to the adjacent municipalities is legal; (2) the appointment of military
personnel as members of the board of election inspectors is legal; and (3) the petitioners
were accorded due process prior to the promulgation of the assailed resolution in SPC
No. 01-276.
The Courts Ruling
The petition is bereft of merit.
First Issue: Legality of the Transfer of Polling Places and Appointment of
Military Personnel as Members of the Board of Election Inspectors
There is no dispute that the venue of the special elections was transferred to the
adjacent municipalities of Sultan Naga Dimaporo and Sapad in lieu of the regular polling
places located in barangays Bangko, Cabasaran and Liangan. There is likewise no dispute
that military personnel were appointed as members of the Board of Election Inspectors
(BEI for brevity) in the 4 precincts. Petitioners and private respondent
Manamparan agree that the 4 precincts covered by the special elections with a total of
845 registered voters will affect the result of the elections.
Petitioners insist on the validity of the conduct of the special elections claiming that
the political parties and the municipal candidates were notified and in fact agreed on the
transfer of venue and the appointment of military personnel as members of the BEI. They
contend that there is substantial compliance with the provisions of Section 153 of the
Omnibus Election Code considering that the election officer as the representative of the
Comelec reported the matter to the Provincial Election Supervisor of Lanao del Norte
and the transfer was not disapproved by the Comelec. Petitioners claim that an election
130
officer has authority to transfer the polling places even four days before the scheduled
election citing Balindong vs.Comelec[12] and Alonto vs. Comelec.[13]
Petitioners fail to persuade. Sections 152, 153 and 154 of the Omnibus Election
Code shed light on this matter, to wit:
SEC. 152. Polling Place. A polling place is the building or place where the board of
election inspectors conducts its proceedings and where the voters shall cast their votes.
SEC. 153. Designation of polling places. The location of polling places designated in the
preceding regular election shall continue with such changes as the Commission may find
necessary, after notice to registered political parties and candidates in the political unit
affected, if any, and hearing: provided, That no location shall be changed within forty-five
days before a regular election and thirty days before a special election or a referendum
or plebiscite, except in case it is destroyed or it cannot be used.
SEC. 154. Requirements for polling places. Each polling place shall be, as far as
practicable, a ground floor and shall be of sufficient size to admit and comfortably
accommodate forty voters at one time outside the guard rail for the board of election
inspectors. The polling place shall be located within the territory of the precinct as
centrally as possible with respect to the residence of the voters therein and whenever
possible, such location shall be along a public road. No designation of polling places
shall be changed except upon written petition of the majority of the voters of the
precinct or agreement of all the political parties or by resolution of the
Commission upon prior notice and hearing.
A public having the requirements prescribed in the preceding paragraph shall be
preferred as polling place.[14]
The transfer was made not only in blatant disregard of Comelec Resolution No.
4360 issued on May 21, 2001 specifying the polling places but also Sections 153 and 154
of the Election Code. As clearly provided by the law, the location of polling places shall be
the same as that of the preceding regular election. However, changes may be initiated by
written petition of the majority of the voters of the precinct or agreement of all the
political parties or by resolution of the Comelec after notice and hearing. But ultimately,
it is the Comelec which determines whether a change is necessary after notice and
hearing.
The Comelec has unequivocally stated that nothing in the records showed that
notice was given to the political candidates and registered voters affected by the
transfer. Private respondent Manamparan has categorically denied petitioners claim that
all the political parties and municipal candidates agreed to the transfer of venue. The
Court discerns no substantiation of petitioners claim regarding the agreement to
transfer. There is then no cogent reason for us to disturb the findings of the Comelec on
this matter. Indeed, the factual findings of the Comelec supported by substantial
evidence shall be final and non-reviewable.[15] Thus, it has been held that findings of fact
of the Comelec based on its own assessments and duly supported by evidence, are
conclusive upon this Court, more so, in the absence of a substantiated attack on the
validity of the same.[16] Moreover, there is no question that the transfer of venue was
made within the prohibited period of thirty days before the special election.
Reliance on Balindong vs. Comelec[17] and Alonto vs. Comelec[18] is
misplaced. Alonto involved an entirely different factual scenario from the instant case. In
said case, the Court upheld the validity of the transfer of the counting and tallying of the
votes after the closing of the polls from the precincts to the PC camps. The Court held that
the transfer was dictated by necessity and authorized by the Comelec directly or by its
provincial representative. The Court explained that while it is highly desirable that the
authority for the transfer of the counting should be directly authorized by the Comelec
itself, the latters denial of the petitioners motion for reconsideration where this legal
point was advanced was tantamount to a validation of the authority issued by its
provincial representatives.
On the other hand, the Court in Balindong[19] held that the mere fact that the
transfer of polling place was not made in accordance with law, particularly Secs. 152-154
of the Omnibus Election Code, does not warrant a declaration of failure of election and
the annulment of the proclamation of the winning candidate, because the number of
uncast votes will not affect the result of the election. In the case at bar, there is no dispute
that the election returns from the 45 precincts will affect the results of the elections.
Next, the appointment of military personnel as members of the BEI is another
grave electoral irregularity that attended the special elections held on May 30, 2001.
There was absolutely no legal basis for the appointment of military personnel as
members of the BEI. Verily, the appointments were devoid of any justification other than
the bare assertion, again,that the political parties and municipal candidates agreed on
the said arrangement. The pertinent provisions of the Omnibus Election Code regarding
the composition, appointments and substitution of the members of the BEI are quoted as
follows:
SEC. 164. Composition and appointments of board of election inspectors. - At least
thirty days before the date when the voters list is to be prepared in accordance with this
Code, in the case of a regular election or fifteen days before a special election, the
Commission shall, directly or through its duly authorized representatives,
constitute a board of election inspectors for each precinct to be composed of a
chairman and a poll clerk who must be public school teachers, priority to be given
to civil service eligibles, and two members, each representing the two accredited
political parties. The appointment shall state the precinct to which they are assigned
and the date of the appointment.
SEC. 165. Oath of the members of the board of election inspectors. - The members of
the board of election inspectors, whether permanent, substitute or temporary, shall
before assuming their office, take and sign an oath upon forms prepared by the
Commission, before an officer authorized to administer oaths or, in his absence, before
any other member of the board of election inspectors present, or in case no one is
present, they shall take it before any voter. The oaths shall be sent immediately to the
city or municipal treasurer. (Sec. 157, 1971 EC)
131
SEC. 166. Qualification of members of the board of election inspectors. - No person
shall be appointed chairman, member or substitute member of the board of election
inspectors unless he is of good moral character and irreproachable reputation, a
registered voter of the city or municipality, has never been convicted of any election
offense or of any other crime punishable by more than six months of imprisonment, or if
he has pending against him an information for any election offense. He must be able to
speak and write English or the local dialect. (Sec. 114, 1978 EC)
xxx
SEC. 170. Relief and substitution of members of the board of election inspectors. -
Public school teachers who are members of the board of election inspectors shall not be
relieved nor disqualified from acting as such members, except for cause and after due
hearing.
xxx
Section 13 of Republic Act No. 6646[20] modified Section 164 of the Omnibus
Election Code. Said section reads:
SEC. 13. Board of Election Inspectors. The board of election inspectors to be constituted
by the Commission under Section 164 of Batas Pambansa Blg. 881 shall be composed of a
chairman and two (2) members, one of whom shall be designated as poll clerk, all of
whom shall be public school teachers, giving preference to those with permanent
appointments. In case there are not enough public school teachers, teachers in private
schools, employees in the civil service, or other citizens of known probity and
competence who are registered voters of the city or municipality may be appointed for
election duty.
Clearly, the BEI shall be composed of a chairman and two members, all of whom
are public school teachers. If there are not enough public school teachers, teachers in
private schools, employees in the civil service or other citizens of known probity and
competence may be appointed. It was highly irregular to replace the duly constituted
members of the BEI, who were public school teachers. Nothing in petitioners pleadings
would even suggest that the substitution was made for cause and after hearing. The
importance of the constitution of the BEI to the conduct of free, honest and orderly
elections cannot be overemphasized. The Court has held that, the members of the board
of election inspectors are the front line election officers. They perform such duties and
discharge such responsibilities that make them, in a real sense, foot soldiers who see to it
that elections are free, honest and orderly.They are essential to the holding of
elections.[21]
Second Issue: Denial of Due Process
Petitioners claim that there was a clear violation of due process of law because a
hearing was not conducted on the circumstances of the special election. Petitioners
further claim that the Comelec rendered the assailed resolution without requiring its
field officers, specifically, the election officer, provincial election supervisor and the
regional election director to explain the transfer of the polling places. Lastly, petitioners
point out that none of the eight (8) proclaimed members of the Sangguniang Bayan [22] of
Nunungan, Lanao del Norte and the proclaimed Vice Mayor were notified and impleaded
as respondents in the petition to annul the election results citing Velayo vs. Commission
on Elections.[23]
Section 4 of Republic Act No. 7166 or The Synchronized Elections Law of 1991
provides that the Comelec sitting en banc by a majority vote of its members may decide,
among others, the declaration of failure of election and the calling of special elections as
provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides as
follows:
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or
other analogous causes the election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for the closing of the voting, or
after the voting and during the preparation and the transmission of the election returns
or in the custody 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.
A prayer to annul election results, as in the instant case, and a prayer to declare
failure of elections based on allegations of fraud, terrorism, violence or analogous causes,
are actually of the same nature and the Election Code denominates them
similarly.[24] The Comelec may exercise the power to annul election results or declare a
failure of election motu proprio[25] or upon a verified petition.[26] The hearing of the case
shall be summary in nature.[27] A formal trial-type hearing is not at all times and in all
instances essential to due process it is enough that the parties are given a fair and
reasonable opportunity to explain their respective sides of the controversy and to
present evidence on which a fair decision can be based.[28] In fine, a trial is not at all
indispensable to satisfy the demands of due process.
The petition was heard by the Comelec en banc on June 27, 2001. During the said
hearing, the Comelec directed the parties, as agreed upon, to submit their respective
memoranda within five (5) days from date and after which, the case shall be submitted
for resolution. Petitioners were duly heard through their pleadings, thus, there is no
denial of procedural due process to speak of. Moreover, contrary to the claim of
petitioners, the Municipal Board of Canvassers of Nunungan, including Election Officer
Ballesta, were summoned to the hearing held on June 27, 2001 and furnished a copy of
the petition.
132
 The pre-conditions for declaring a failure of election are: (1) that no voting has
been held in any precinct or precincts because of force majeure, violence, terrorism,
fraud or other analogous causes and (2) that the votes not cast therein are sufficient to
affect the results of the elections. The concurrence of these two circumstances justifies
the calling of special elections.[29] Here, the Comelec found that the special elections were
vitiated by fraud due to the illegal transfer of the polling places and the appointment of
military personnel as members of the BEI. Inevitably, the Comelec could not ascertain
who voted during the special elections. The circumstances were such that the entire
electoral process was not worthy of faith and credit, hence, in practical effect no election
was held.[30]
In Velayo vs. Commission of Elections,[31] the Court held that the non-inclusion of a
proclaimed winner as respondent in a pre-proclamation controversy and his lack of
notice of the proceedings in the Comelec which resulted in the cancellation of his
proclamation constitute clear denial of due process. In the Velayo case, the proclaimed
mayor and the members of the Municipal Board of Canvassers were not impleaded in the
pre-proclamation cases brought before the Comelec. However, in this case, petitioner
Cawasa and the members of the Municipal Board of Canvassers were in fact impleaded,
notified and even heard by the Comelec in SPC No. 01-276. At this late stage, public
interest in the speedy disposition of this case will only be further derailed by the re-
opening of the case for the benefit of petitioners-councilors who did not advance any
new and substantial matters in this petition warranting the declaration that the special
elections were valid and untainted by fraud.
WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of public respondent Commission on Elections, the instant
petition is hereby DISMISSED. The resolution of the Commission on Elections en banc in
SPC No. 01-276 dated October 24, 20001 is hereby AFFIRMED.

133
 [G.R. No. 142907. November 29, 2000] Trial Court, Caloocan City, Branch 125, presided over by respondent Judge Adoracion G.
Angeles.
On June 26, 1998, petitioner filed with the trial court an answer with affirmative
defenses and motion to dismiss. The court denied the motion to dismiss by order dated
JOSE EMMANUEL L. CARLOS, petitioner, vs. HON. ADORACION G. ANGELES, IN HER January 14, 1999. Petitioner elevated the order to the Commission on Elections
CAPACITY AS THE ACTING PRESIDING JUDGE OF THE REGIONAL TRIAL (Comelec) on petition for certiorari and prohibition,[2] which, however, has remained
COURT IN CALOOCAN CITY (BRANCH 125) and ANTONIO M. unresolved up to this moment.
SERAPIO, respondents.
In the course of the protest, the municipal treasurer of Valenzuela, who by law has
DECISION custody of the ballot boxes, collected the ballot boxes and delivered them to the Regional
Trial Court, Caloocan City. The trial court conducted a pre-trial conference of the parties
PARDO, J.: but it did not produce a substantial result as the parties merely paid superficial service
and only agreed on the following:
1. Both parties admit their capacity to sue and be sued;
The Case
2. Both parties admit that the protestant was a candidate during the May 11,
1998 election;
The case before the Court is an original special civil action for certiorari and 3. Both parties admit that the protestee has been proclaimed as the elected
prohibition with preliminary injunction or temporary restraining order seeking to annul mayor of Valenzuela, Metro Manila, on May 21, 1998;
the decision of the Regional Trial Court, Caloocan City, Branch 125, the dispositive
portion of which reads as follows: 4. Both parties admit that the protestee allegedly obtained 102,688 votes
while the protestant obtained 77,270 votes per canvass of election
returns of the Board of Canvassers.
WHEREFORE, premises considered, the proclamation of the Protestee, Jose Emmanuel
Carlos, by the Board of Canvassers is accordingly SET ASIDE. The pre-trial was then concluded and the parties agreed to the creation of seven
(7) revision committees consisting of a chairman designated by the court and two
The Court hereby FINDS the Protestant, ANTONIO SERAPIO, as the DULY ELECTED members representing the protestant and the protestee.
MAYOR OF VALENZUELA CITY.
Meantime, on May 12, 1999, petitioner filed a consolidated motion that included a
prayer for authority to photocopy all the official copies of the revision reports in the
SO ORDERED.[1] custody of the trial court. However, the trial court denied the issuance of such
authorization.[3] The court likewise denied a motion for reconsideration of the
denial.[4] Then petitioner raised the denial to the COMELEC on petition for certiorari and
The Facts
mandamus,[5] which also remains unresolved until this date.

Petitioner Jose Emmanuel L. Carlos and respondent Antonio M. Serapio were The Revision Results
candidates for the position of mayor of the municipality of Valenzuela, Metro Manila
(later converted into a City) during the May 11, 1998 elections.
The revision of the ballots showed the following results:
On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro Manila
proclaimed petitioner as the duly elected mayor of Valenzuela having obtained 102,688
votes, the highest number of votes in the election returns. (1) Per physical count of the ballots:

On June 1, 1998, respondent Antonio M. Serapio who obtained 77,270 votes, the
(a) protestant Serapio - 76,246 votes.
second highest number of votes, filed with the Regional Trial Court, Valenzuela, Metro
Manila, an election protest challenging the results. Due to the inhibition of all judges of (b) protestee Carlos - 103,551 votes.
the Regional Trial Court in Valenzuela, the case was ultimately assigned to the Regional

134
(2) Per revision, the court invalidated 9,697 votes of the protestant but validated 53
stray votes in his favor.
The court invalidated 19,975 votes of the protestee and validated 33 stray votes in his
favor.
The final tally showed:
(a) protestant Serapio - 66,602 votes.
(b) protestee Carlos - 83,609 votes, giving the latter a winning margin
of 17,007 votes.
The Trial Courts Ruling
Nevertheless, in its decision, the trial court set aside the final tally of valid votes
because of its finding of significant badges of fraud, namely:
1. The keys turned over by the City Treasurer to the court did not fit into the
padlocks of the ballot boxes that had to be forcibly opened;
2. Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes
out of the seven (7) ballot boxes did not contain any election returns;
3. Some schools where various precincts were located experienced
brownouts during the counting of votes causing delay in the counting
although there was no undue commotion or violence that occurred;
4. Some of the assigned watchers of protestant were not in their posts during
the counting of votes.
On the basis of the foregoing badges of fraud, the trial court declared that there was
enough pattern of fraud in the conduct of the election for mayor in Valenzuela. The court
held that the fraud was attributable to the protestee who had control over the election
paraphernalia and the basic services in the community such as the supply of electricity.
On April 24, 2000, the trial court rendered a judgment ruling that the perpetuation
of fraud had undoubtedly suppressed the true will of the electorate of Valenzuela and
substituted it with the will of the protestee. Notwithstanding the plurality of valid votes
in favor of the protestee, the trial court set aside the proclamation of protestee Jose
Emmanuel Carlos by the Municipal Board of Canvassers and declared protestant Antonio
M. Serapio as the duly elected mayor of Valenzuela City.[6]
Hearing news that the protestant had won the election protest, the protestee
secured a copy of the decision from the trial court on May 4, 2000. On the other hand,
notice of the decision was received by the protestant on May 03, 2000.
On May 4, 2000, protestant filed with the trial court a motion for execution pending
appeal.[7] On May 4, 2000, the trial court gave protestee five (5) days within which to
submit his comment or opposition to the motion.[8]
Petitioners Appeal to Comelec
Meantime, on May 04, 2000, petitioner filed a notice of appeal from the decision of
the trial court to the Commission on Elections.[9]
The Petition at bar
On May 8, 2000, petitioner filed the present recourse.[10]
Petitioner raised the following legal basis:
(1) The Supreme Court has original jurisdiction to entertain special civil
actions of certiorari and prohibition;
(2) There are important reasons and compelling circumstances which justify
petitioners direct recourse to the Supreme Court;
(3) Respondent judge committed grave abuse of discretion when she
declared respondent Serapio as the duly elected mayor of Valenzuela
despite the fact that she found that petitioner obtained 17,007 valid votes
higher than the valid votes of respondent Serapio;
(4) The assailed decision is contrary to law, based on speculations and not
supported by the evidence as shown in the decision itself.[11]
The Issues
The issues raised are the following:
1. Whether the Supreme Court has jurisdiction to review, by petition for
certiorari as a special civil action, the decision of the regional trial court in
an election protest case involving an elective municipal official
considering that it has no appellate jurisdiction over such decision.
2. Whether the trial court acted without jurisdiction or with grave abuse of
discretion when the court set aside the proclamation of petitioner and
declared respondent Serapio as the duly elected mayor of Valenzuela City
despite its finding that petitioner garnered 83,609 valid votes while
135
 respondent obtained 66,602 valid votes, or a winning margin of 17,007
votes.
TRO Issued
On May 8, 2000, we issued a temporary restraining order ordering respondent
court to cease and desist from further taking cognizance of Election Protest No. 14-V-98
more specifically from taking cognizance of and acting on the Motion for Execution
Pending Appeal filed by respondent Serapio on May 4, 2000.[12]
Respondents Position
On May 15, 2000, respondent Serapio filed his comment with omnibus motion to
lift the temporary restraining order and to declare petitioner in contempt of court for
violating the rule against forum shopping.[13] He submitted that Comelec and not the
Supreme Court has jurisdiction over the present petition for certiorari assailing the
decision dated April 24, 2000 of the regional trial court. Assuming that this Court and
Comelec have concurrent jurisdiction and applying the doctrine of primary jurisdiction,
the Comelec has jurisdiction since petitioner has perfected his appeal therewith before
the filing of the instant petition. Certiorari cannot be a substitute for an appeal; the
present petition is violative of Revised Circular No. 28-91 on forum-shopping; issues
raised are factual, not correctible by certiorari; and that the temporary restraining order
should be lifted, the petition dismissed, and petitioner and counsel should be made to
explain why they should not be punished for contempt of court.
The Courts Ruling
We find the petition impressed with merit.[14]
I. The Supreme Court is vested with original jurisdiction to issue writs of
certiorari, prohibition and mandamus against the decision of the regional
trial court in the election protest case before it, regardless of whether it
has appellate jurisdiction over such decision.
Article VIII, Section 5 (1) of the 1987 Constitution provides that:
Sec. 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other
public ministers and consuls, and over petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus.
xxx
Rule 65, Section 1 of the 1997 Rules of Civil Procedure, as amended, provides that:
SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising judicial
or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the proceedings
of such tribunal, board or officer, and granting such incidental reliefs as law and justice
may require.
The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as provided in the third
paragraph of section 3, Rule 46.
By Constitutional fiat, the Commission on Election (Comelec) has appellate
jurisdiction over election protest cases involving elective municipal officials decided by
courts of general jurisdiction, as provided for in Article IX (C), Section 2 of the 1987
Constitution:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(1) x x x.
(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay officials decided by
trial courts of limited jurisdiction.
In like manner, the Comelec has original jurisdiction to issue writs of certiorari,
prohibition and mandamus involving election cases in aid of its appellate
jurisdiction.[15] This point has been settled in the case of Relampagos vs.
Cumba,[16] where we held:
In the face of the foregoing disquisitions, the court must, as it now does, abandon the
ruling in the Garcia and Uy and Veloria cases. We now hold that the last paragraph
of Section 50 of B. P. Blg. 697 providing as follows:
The Commission is vested with exclusive authority to hear and decide petitions for
certiorari, prohibition and mandamus involving election cases.
136
remains in full force and effect but only in such cases where, under paragraph (2),
Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction. Simply
put, the COMELEC has the authority to issue the extraordinary writs of certiorari,
prohibition, and mandamus only in aid of its appellate jurisdiction. (Emphasis
ours).
Consequently, both the Supreme Court and Comelec have concurrent jurisdiction to
issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of
general jurisdiction (regional trial courts) in election cases involving elective municipal
officials. The Court that takes jurisdiction first shall exercise exclusive jurisdiction over
the case.[17]
Ergo, this Court has jurisdiction over the present petition of certiorari as a special
civil action expressly conferred on it and provided for in the Constitution.
Relative to the appeal that petitioner filed with the COMELEC, the same would not
bar the present action as an exception to the rule because under the circumstances,
appeal would not be a speedy and adequate remedy in the ordinary course of
law.[18] The exception is sparingly allowed in situations where the abuse of
discretion is not only grave and whimsical but also palpable and patent, and
the invalidity of the assailed act is shown on its face.
II. Certiorari lies. The trial court acted with grave abuse of discretion
amounting to lack or excess of jurisdiction. Its decision is void.
The next question that arises is whether certiorari lies because the trial court
committed a grave abuse of discretion amounting to lack or excess of jurisdiction in
deciding the way it did Election Protest Case No. 14-V-98, declaring respondent Serapio
as the duly elected mayor of Valenzuela, Metro Manila.
In this jurisdiction, an election means the choice or selection of candidates to public
office by popular vote[19] through the use of the ballot, and the elected officials of which
are determined through the will of the electorate.[20] An election is the embodiment of
the popular will, the expression of the sovereign power of the people. [21] Specifically, the
term election, in the context of the Constitution, may refer to the conduct of the polls,
including the listing of voters, the holding of the electoral campaign, and the casting and
counting of votes.[22] The winner is the candidate who has obtained a majority or
plurality of valid votes cast in the election.[23] Sound policy dictates that public elective
offices are filled by those who receive the highest number of votes cast in the election for
that office. For, in all republican forms of government the basic idea is that no one can be
declared elected and no measure can be declared carried unless he or it receives a
majority or plurality of the legal votes cast in the election.[24] In case of protest, a revision
or recount of the ballots cast for the candidates decides the election protest case. The
candidate receiving the highest number or plurality of votes shall be proclaimed the
winner. Even if the candidate receiving the majority votes is ineligible or disqualified, the
candidate receiving the next highest number of votes or the second placer, can not be
declared elected.[25] The wreath of victory cannot be transferred from the disqualified
winner to the repudiated loser because the law then as now only authorizes a
declaration of election in favor of the person who has obtained a plurality of votes and
does not entitle a candidate receiving the next highest number of votes to be declared
elected.[26] In other words, a defeated candidate cannot be deemed elected to the
office.[27]
Election contests involve public interest, and technicalities and procedural barriers
should not be allowed to stand if they constitute an obstacle to the determination of the
true will of the electorate in the choice of their elective officials. Laws governing election
contests must be liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections. In an election case, the
court has an imperative duty to ascertain by all means within its command who is the
real candidate elected by the electorate. The Supreme Court frowns upon any
interpretation of the law or the rules that would hinder in any way not only the free and
intelligent casting of the votes in an election but also the correct ascertainment of the
results.[28]
In this case, based on the revision of ballots, the trial court found that:
First, by canvass of the Municipal Board of Canvassers the results were:
Carlos - 102,668 votes
Serapio - 77,270 votes, or a winning margin of 25,418 votes
Ramon Ignacio - 20 votes.
and consequently, the Board of Canvassers proclaimed petitioner Carlos the duly elected
mayor of Valenzuela, Metro Manila.
Second, by physical count of the ballots, the results were:
Carlos - 103,551 votes
Serapio - 76,246 votes, or a winning margin of 27,305 votes.
Third, by revision of the ballots, the trial court found in a final tally that the valid
votes obtained by the candidates were as follows:
Carlos - 83,609 votes
Serapio - 66,602 votes, or a winning margin of 17,007 votes.
Consequently, the final tally clearly showed petitioner Carlos as the overwhelming
winner in the May 11, 1998 elections.
However, the trial court set aside the final tally of votes because of what the trial
court perceived to be significant badges of fraud attributable to the protestee. [29] These
are:
137
 First: The failure of the keys turned over by the City Treasurer to the trial court to
fit the padlocks on the ballot boxes that compelled the court to forcibly open the
padlocks. The trial court concluded that the real keys were lost or the padlocks
substituted pointing to possible tampering of the contents of the ballot boxes.
Procedurally, the keys to the ballot boxes were turned over by the Board of
Election Inspectors from the precinct level to the Municipal Board of Canvassers and
finally to the municipal treasurer for safekeeping. The three-level turn-over of the keys
will not prevent the possibility of these keys being mixed up. This is an ordinary
occurrence during elections. The mere inability of the keys to fit into the padlocks
attached to the ballot boxes does not affect the integrity of the ballots. At any rate, the
trial court easily forced open the padlocks and found valid votes cast therein;
Second: Seven (7) ballot boxes were found empty. Thus, the trial court concluded
that there were missing ballots and missing election returns. This is pure speculation
without factual basis. The sea of suspicion has no shore, and the court that embarks upon
it is without rudder or compass.[30] On the other hand, the Summary of Votes as revised
does not show any unaccounted precinct or whether there was any precinct without
any ballot or election returns. It is a standard procedure of the Commission on Elections
(Comelec) to provide extra empty ballot boxes for the use of the Board of Election
Inspectors or the Board of Canvassers, in case of necessity.
The empty ballot boxes found could be the empty reserve ballot boxes that were
not used by the Board of Election Inspectors or the Board of Canvassers since there was
neither proof nor even a claim of missing ballots or missing election returns.
Third: Some schoolhouses experienced brownout during the counting of votes.
There was nothing extraordinary that would invite serious doubts or suspicion that
fraud was committed during the brownout that occurred. Indeed, one witness stated that
it was the first time that he observed brownout in Dalandanan Elementary School and
another stated that the brownout was localized in Coloong Elementary School. Since
counting of votes lasted until midnight, the brownouts had caused only slight delay in the
canvassing of votes because the election officials availed themselves of candles,
flashlights and emergency lights. There were no reports of cheating or tampering of the
election returns. In fact, witnesses testified that the counting of votes proceeded
smoothly and no commotion or violence occurred. So, the brownouts had no effect on the
integrity of the canvass.
Fourth: The absence of watchers for candidate Serapio from their posts during the
counting of votes. This cannot be taken against candidate Carlos since it is the candidates
own look-out to protect his interest during the counting of votes and canvassing of
election returns. As long as notices were duly served to the parties, the counting and
canvassing of votes may validly proceed in the absence of watchers. Otherwise,
candidates may easily delay the counting of votes or canvassing of returns by simply not
sending their watchers. There was no incomplete canvass of returns, contrary to what
the trial court declared. The evidence showed complete canvass in Valenzuela, Metro
Manila.[31]
We cannot allow an election protest on such flimsy averments to prosper,
otherwise, the whole election process will deteriorate into an endless stream of crabs
pulling at each other, racing to disembank from the water.[32]
Assuming for the nonce that the trial court was correct in holding that the final tally
of valid votes as per revision report may be set aside because of the significant badges of
fraud, the same would be tantamount to a ruling that there were no valid votes cast at all
for the candidates, and, thus, no winner could be declared in the election protest
case. In short, there was failure of election.
In such case, the proper remedy is an action before the Commission on Elections en
banc to declare a failure of election or to annul the election.[33] However, the case below
was an election protest case involving an elective municipal position which, under
Section 251 of the Election Code, falls within the exclusive original jurisdiction of the
appropriate regional trial court.[34]
Nonetheless, the annulment of an election on the ground of fraud, irregularities and
violations of election laws may be raised as an incident to an election contest. Such
grounds for annulment of an election may be invoked in an election protest case.
However, an election must not be nullified and the voters disenfranchised whenever it is
possible to determine a winner on the basis of valid votes cast, and discard the illegally
cast ballots. In this case, the petitioner admittedly received 17,007 valid votes more than
the protestee, and therefore the nullification of the election would not lie. The power to
nullify an election must be exercised with the greatest care with a view not to
disenfranchise the voters, and only under circumstances that clearly call for such drastic
remedial measure.[35]
As heretofore stated, in this jurisdiction, elections are won on the basis of a
majority or plurality of votes cast and received by the candidates. The right to hold an
elective office is rooted on electoral mandate, not perceived entitlement to the office.[36]
More importantly, the trial court has no jurisdiction to declare a failure of
election.[37]
Section 6 of the Omnibus Election Code provides that:
Sec. 6. Failure of Election.If, on account of force majeure, violence, terrorism, fraud or
other analogous causes the election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for the closing of the voting, or
after the voting and during the preparation and the transmission of the election returns
or in the custody of canvass thereof, such election results in a failure to elect, and in any
of such cases the failure or suspension of election would affect the result of the election,
the Commission shall, on the basis of a verified petition by any interested party and
after due notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date of
the election not held, suspended or which resulted in a failure to elect but not later than
thirty (30) days after the cessation of the cause of such postponement or suspension of
the election or failure to elect. (Emphasis supplied)
Likewise, RA 7166 provides that:
Sec. 4. Postponement, Failure of Election and Special Elections.-- The postponement,
declaration of failure of election and the calling of special elections as provided in
Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission
138
sitting en banc by a majority vote of its members. The causes for the declaration of a
failure of election may occur before or after the casting of votes or on the day of the
election. (Emphasis supplied)
It is the Commission (Comelec) sitting en banc that is vested with exclusive
jurisdiction to declare a failure of election.[38]
In a petition to annul an election under Section 6, Batas Pambansa Blg. 881, two
conditions must be averred in order to support a sufficient cause of action. These are: (1)
the illegality must affect more than 50% of the votes cast and (2) the good votes can
be distinguished from the bad ones. It is only when these two conditions are
established that the annulment of the election can be justified because the remaining
votes do not constitute a valid constituency.[39]
We have held that: To declare a failure of election, two (2) conditions must occur:
first, no voting has taken place in the precincts concerned on the date fixed by law or,
even if there were voting, the election nevertheless resulted in a failure to elect; and,
second, the votes not cast would affect the result of the election.[40] Neither of these
conditions was present in the case at bar.
More recently, we clarified that, Under the pertinent codal provision of the
Omnibus Election Code, there are only three (3) instances where a failure of elections
may be declared, namely: (a) the election in any polling place has not been held on the
date fixed on account of force majeure, violence, terrorism, fraud, or other analogous
causes; (b) the election in any polling place had been suspended before the hour fixed by
law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or
other analogous causes; or (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect on account of force majeure, violence, terrorism, fraud,
or other analogous causes.[41]
Thus, the trial court in its decision actually pronounced a failure of election by
disregarding and setting aside the results of the election. Nonetheless, as herein-above
stated, the trial court erred to the extent of ousting itself of jurisdiction because the
grounds for failure of election were not significant and even non-existent. More
importantly, the commission of fraud can not be attributed to the protestee. There was
no evidence on record that protestee had a hand in any of the irregularities that
protestant averred. It is wrong for the trial court to state that the protestee had control
over the election paraphernalia or over electric services. The Commission on Elections
has control over election paraphernalia, through its officials and deputies.[42] The
Comelec can deputize with the concurrence of the President, law enforcement agencies
and instrumentalities of the government, including the Armed Forces of the Philippines,
for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible
elections.[43] On the other hand, electric utility services in Metro Manila, including
Valenzuela are under the control of its franchise holder, particularly the Manila Electric
Company, a public service company, certainly not owned or controlled by the
protestee. In fact, during election period, Comelec has control over such utilities as
electric and even telephone service.[44] What is important, however, is that the voters of
Valenzuela were able to cast their votes freely and fairly. And in the election protest case,
the trial court was able to recount and determine the valid votes cast.
Assuming that the trial court has jurisdiction to declare a failure of election, the
extent of that power is limited to the annulment of the election and the calling of special
elections.[45]The result is a failure of election for that particular office. In such case, the
court can not declare a winner.[46] A permanent vacancy is thus created. In such
eventuality, the duly elected vice-mayor shall succeed as provided by law.[47]
We find that the trial court committed a grave abuse of discretion amounting to
lack or excess of jurisdiction in rendering its decision proclaiming respondent Serapio
the duly elected mayor of Valenzuela, Metro Manila, on the basis of its perception of the
voice of the people of Valenzuela, even without a majority or plurality votes cast in his
favor. In fact, without a single vote in his favor as the trial court discarded all the
votes. Thus, the decision is not supported by the highest number of valid votes cast in his
favor. This violated the right to due process of law of petitioner who was not heard on
the issue of failure of election, an issue that was not raised by the protestant. A decision
is void for lack of due process if, as a result, a party is deprived of the opportunity of
being heard.[48] The trial court can not decide the election protest case outside the issues
raised. If it does, as in this case, the trial court is ousted of its jurisdiction. Likewise, it is a
basic principle that a decision with absolutely nothing to support it is void.[49] A void
decision may be assailed or impugned at any time either directly or collaterally, by
means of a petition filed in the same case or by means of a separate action, or by resisting
such decision in any action or proceeding where it is invoked.[50] Here, the trial court
indulged in speculations on its view of the voice of the people, and decided the case
disregarding the evidence, but on its own intuition, ipse dixit.[51] How was this voice
communicated to the trial court? Certainly not by competent evidence adduced before
the court as it should be, but by extra-sensory perception. This is invalid in law. Contrary
to its own finding that petitioner obtained 83,600 valid votes against 66,602 valid votes
for the respondent as second placer, or a plurality of 17,007 votes, the trial court
declared the second placer as the winner. This is a blatant abuse of judicial discretion by
any account. It is a raw exercise of judicial function in an arbitrary or despotic manner,
amounting to evasion of the positive duty to act in accord with law.[52]
In a special civil action for certiorari, the burden is on petitioner to prove not
merely reversible error, but grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the public respondent Judge. By grave abuse of discretion is
meant capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion
as when the power is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility, and must be so patent and so gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[53] We must emphasize that election to office is determined by the
highest number of votes obtained by a candidate in the election.
The Judgment
WHEREFORE, the Court GRANTS the petition. The Court ANNULS and DECLARES
VOID the decision dated April 24, 2000 of the trial court in Election Protest Case No. V-
14-98.
139
 The temporary restraining order we issued on May 8, 2000, is made permanent.
Let Election Protest Case No. V-14-98 be remanded to the trial court for decision
within a non-extendible period of fifteen (15) days from notice of this decision. The judge
shall report to this Court on the decision rendered within five (5) days from rendition
submitting a copy thereof to the Office of the Clerk of Court en banc.
This decision is immediately executory.
No costs.
SO ORDERED.

140
 [G.R. No. 160428. July 21, 2004]
HADJI RASUL BATABOR, petitioner, vs. COMISSION ON ELECTIONS, BARANGAY
BOARD OF CANVASSERS, BOARD OF ELECTION INSPECTORS OF
PRECINCTS NOS. 3A, 4A and 5A, BARANGAY MAIDAN, TUGAYA, LANAO DEL
SUR, and MOCASIM ABANGON BATONDIANG, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
The power to declare a failure of elections should be exercised with utmost care
and only under circumstances which demonstrate beyond doubt that the disregard of the
law has been so fundamental or so persistent and continuous that it is impossible to
distinguish what votes are lawful and what are unlawful, or to arrive at any certain result
whatsoever; or that the great body of voters have been prevented by violence,
intimidation and threats from exercising their franchise. There is failure of elections only
when the will of the electorate has been muted and cannot be ascertained. If the will of
the people is determinable, the same must as far as possible be respected.[1]
Before us is a petition for certiorari[2] with application for a temporary restraining
order and writ of preliminary injunction, assailing the Commission on Elections
(COMELEC) En Bancs Resolution dated October 9, 2003 in SPA No. 02-295 (Brgy.). In this
Resolution, the COMELEC denied Hadji Rasul Batabors petition seeking: (a) the
declaration of failure of election in Precincts 3A, 4A and 5A of Barangay Maidan, Tugaya,
Lanao del Sur; (b) the annulment of the proclamation that Mocasin Abangon Batondiang
is the duly elected Punong Barangay of Barangay Maidan; and (c) the holding of a special
election in the questioned precincts.
In the synchronized July 15, 2002 Barangay and Sangguniang Kabataan Elections,
Hadji Rasul Batabor, petitioner, and Mocasim Abangon Batondiang, private respondent,
ran as opposing candidates for the position of Punong Barangay in Barangay Maidan,
Tugaya, Lanao del Sur. It was petitioners re-election bid being then the incumbent
Punong Barangay.
The result of the election shows that private respondent won as Punong Barangay,
garnering 123 votes, as against petitioners 94 votes, or a difference of 29 votes.
In due time, private respondent was proclaimed the duly elected Punong Barangay
of Barangay Maidan.
Bewailing the outcome of the election, petitioner filed with the COMELEC a petition
to declare a failure of election in Precincts 3A, 4A and 5A of Barangay Maidan, docketed
as SPA No. 02-295 (Brgy.). The petition alleges that during the election, the voting
started at around 8:30 oclock in the morning. It was temporarily suspended during the
lunch break and was to resume at 1:00 oclock in the afternoon of that day. But after
lunch, the Chairwoman of the Board of Election Inspectors (BEI) of Precincts 3A, 4A and
5A suddenly tore all the unused official ballots. Thus, the voting was not continued. The
BEI then padlocked the ballot boxes. At that time, petitioner was not present. Despite the
note of Election Officer Taha Casidar directing the BEI to resume the voting, the latter did
not allow the remaining voters to vote. Thus, petitioners relatives and followers,
numbering more than 100, were not able to cast their votes.
In his comment, private respondent averred that petitioners allegations are not
supported by substantial evidence. It was petitioner who padlocked the ballot boxes as
shown by the affidavit of Comini Manalastas. During the counting of votes, petitioners
wife, daughter and son actually witnessed the same. Besides, petitioners allegations can
be properly ventilated in an election protest because the issues raised are not grounds
for declaration of a failure of election.
On October 9, 2003, the COMELEC En Banc issued the assailed
Resolution[3] denying the petition.
Petitioner now contends in his petition for certiorari before us that the COMELEC
committed grave abuse of discretion amounting to lack or excess of jurisdiction in
denying his petition in SPA No. 02-295 (BRGY.). He reiterates his allegations in his
petition filed with the COMELEC showing there was failure of election.
The Solicitor General, in his comment on the instant petition, vehemently disputes
petitioners allegations and prays that the petition be dismissed for lack of merit.
We dismiss the petition.
The power to declare a failure of election is vested exclusively upon the
COMELEC.[4] Section 6 of the Omnibus Election Code[5] provides:
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 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
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.
Explaining the above provisions, we held in Benito vs. Commission on
Elections[6] that these two (2) conditions must exist before a failure of election may be
declared: (1) no voting has been held in any precinct or precincts due to fraud, force
majeure, violence or terrorism; and (2) the votes not cast therein are sufficient to affect
the results of the election. The cause of such failure may arise before or after the casting
of votes or on the day of the election.
The familiar rule, as applied to this case, is that grave abuse of discretion exists
when the questioned act of the COMELEC was exercised capriciously and whimsically as
is equivalent to lack or in excess of jurisdiction. Such exercise of judgment must be done
141
in an arbitrary or despotic manner by reason of passion or personal hostility, and it must
be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law. [7] It is not sufficient
that the COMELEC, in the exercise of its power, abused its discretion; such abuse must be
grave.[8]
We find that the COMELEC did not commit any grave abuse of discretion in
dismissing petitioners petition alleging a failure of election. While the alleged 100 votes
of petitioners relatives and supporters, if cast during the election, are sufficient to affect
its result, however, he failed to prove that the voting did not take place in precincts 3A,
4A and 5A. As found by the COMELEC, the Statement of Votes and the Certificate of
Canvass of Votes show that out of the 316 registered voters in the questioned precincts,
at least 220 actually voted. This simply shows that there was no failure of election in the
subject precincts. Moreover, petitioners allegation that the voting was not resumed after
lunch break, preventing 100 of his relatives and followers to vote, is better ventilated in
an election contest. The COMELEC, in its assailed Resolution, held:
candidate must be elected by a plurality of valid votes, regardless of the actual number of
ballots cast. 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.[9]
We reiterate our ruling in Benito vs. COMELEC[10] that there is failure of elections
only when the will of the electorate has been muted and cannot be ascertained. In the
case at bar, this incident is not present.
In sum, we find no reason to disturb the assailed Resolution of the COMELEC.
WHEREFORE, the instant petition is DISMISSED for lack of merit.
SO ORDERED.

In the first place, the petitioner failed to show with certainty that the voting did not push
through in the questioned precincts. In fact, the Statement of Votes by Precincts show
that out of the three hundred sixteen (316) registered voters in the questioned precincts,
two hundred twenty (220) or 69.62% of the registered voters actually voted. This high
turnout in the number of registered voters who actually voted is clearly not an indication
of a failure of elections.

We cannot also help but notice that the instant petition seeks to declare a failure of
elections and to annul solely the proclamation of respondent Batondiang, the elected
punong barangay. The prayer for annulment of proclamation does not extend to all the
elected and proclaimed candidates in Barangay Maidan, Tugaya, Lanao del Sur. The
Commission may not, on the ground of failure of elections, annul the proclamation of one
candidate only, and thereafter call a special election therefor, because failure of elections
necessarily affects all the elective positions in the place where there has been a failure of
elections. To hold otherwise will be discriminatory and violative of the equal protection
of the laws (See Loong vs. COMELEC, 305 SCRA 832 [1999]).

As pronounced by the Supreme Court in Mitmug vs. Commission on Elections (230 SCRA
54 [1994]), allegations of fraud and other election irregularities are better ventilated in
an election contest:

x x x, 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. 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

142
G.R. No. 78461 August 12, 1987
AUGUSTO S. SANCHEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
No. 79146 August 12,1987
JUAN PONCE ENRILE, petitioner,
vs.
COMMISSION ON ELECTIONS AND SANTANINA RASUL, respondents.
No. 79212 August 12,1987
JUAN PONCE ENRILE, petitioner,
vs.
COMMISSION ON ELECTIONS AND AUGUSTO S. SANCHEZ, respondents.
PER CURIAM:
In G.R. No. 78461, candidate Augusto S. Sanchez (Sanchez) filed his petition on May 28,
1987 praying that respondent Commission on Elections (Comelec) after due hearing, be
directed to conduct a recount of the votes cast three months ago in the May 11, 1987
senatorial elections to determine the true number of votes to be credited to him and
prayed further for a restraining order directing the Comelec to withhold the
proclamation of the last four (4) winning candidates on the ground that votes intended
for him were declared as astray votes because of the sameness of his surname with that
of disqualified candidate Gil Sanchez, whose name had not been crossed out from the
Comelec election returns and other election forms.
Sanchez further alleged that on May 12, 1987, he filed an "Urgent Petition to Recount
and/or Re-appreciate Ballots" with the Comelec; acting on the petition, the Comelec
ordered Sanchez to submit a Bill of Particulars where votes for "Sanchez" were not
counted in his favor. Sanchez' compliance asserted that the invalidation of "Sanchez"
votes occurred in all regions where the assailed Comelec forms were distributed and
cited specific precincts in Quezon City, Batangas, Pampanga, Cebu, Caloocan, Manila and
Iloilo as examples, without any particulars as to the number of votes.
The Court in its Resolutions of June 25, 1987 and July 10, 1987 sustained Comelec's
position that it be allowed to complete the canvass of the returns of the senatorial
elections, (estimated at about 240,000 votes as of June 25, 1987) which would be subject
thereafter to its resolution of Sanchez' therein pending petition for recount on the basis
of the merits and relevant facts thereof, and therefore found no basis to issue the
restraining order prayed for by Sanchez.
In the interval, it appears that on June 26, 1987, candidate Santanina T. Rasul (Rasul)
filed her motion for intervention and opposition to Sanchez' petition for recount pending
before respondent Comelec. On July 2, 1987, Rasul also filed her Supplemental
Opposition raising additional grounds against the recount. On July 2 and 3, 1987, Rasul
and candidate Juan Ponce Enrile (Enrile), then ranked 24th and 23rd, respectively
immediate filed a petition with respondent Comelec praying for their immediate
proclamation as duly-elected senators. The Comelec deferred action on these two
petitions per its resolution dated July 4, 1987, until after the remaining uncanvassed
returns shall have been completely canvassed. On July 11, 1987, Enrile also filed his
motion for intervention and a motion to dismiss the Sanchez petition for recount. On July
13, 1987, the Comelec granted the motions for intervention filed by candidates Rasul and
Enrile.
On July 16, 1987, the Comelec, by a vote of four to three, promulgated its decision
dismissing petitioner Sanchez' petition for recount. On July 20, 1987, petitioner Sanchez
filed a motion for reconsideration of the decision of July 16, 1987, which was opposed by
intervenors Rasul and Enrile.
On July 25, 1987, the Comelec proclaimed Rasul as the 23rd senator-elect. At that time,
the lead of Rasul over Enrile was 1,910 votes only while the lead of Enrile over Sanchez
was 73,034 votes with 31,000 votes still to be canvassed in three (3) municipalities of
Sulu, namely, Parang, Maimbung and Patikul, and in 15 precincts in Lanao del Sur. In
proclaiming Rasul as the 23rd senator-elect, the Comelec, while admitting that it was
mathematically possible for Enrile to overtake Rasul, justified its action by rationalizing
that "this is improbable, if not highly improbable" considering that the untabulated
returns come from Muslim areas or towns "which are all bailiwicks of candidate Rasul, "
and "between a Muslim candidate and a non-Muslim one, in all probability the Muslim
candidate will obtain a higher percentage of the votes cast."
On July 28, 1987, Enrile filed with this Court his petition [G.R. No. 79146 — Juan Ponce
Enrile v. Comelec and Santanina Rasul] (1) to compel the Comelec to complete the
canvass of votes cast for senators in the May 11, 1987 elections to determine the 23rd
and 24th placers in the senatorial race and (2) to annul the proclamation of respondent
Rasul or to suspend the effects of such proclamation pending the determination of the
23rd and 24th placers, on the ground of mathematical possibility that the uncanvassed
votes would materially affect the 23rd and 24th rankings in the senatorial race, while the
Comelec's proclamation of the first 20 elected senators was predicated upon a finding
that the first 20 placers would no longer be affected by the certificates of canvass still to
be submitted to the Comelec; and that Comelec gave the same reason when it proclaimed
subsequently the 21st placer (Ernesto Herrera) and 22nd placer (Mamintal Tamano).
On July 24, 1987, however, respondent Comelec, by a vote of five to two, announced its
second decision reversing its earlier decision of July 16, 1987 of dismissal of Sanchez'
petition and that it was instead granting Sanchez' petition for recount and/or re-
appreciation of ballots. Comelec actually released this second decision on July 30, 1987.
On August 3, 1987, Enrile filed with this Court his second petition [G.R. No. 79212 — Juan
Ponce Enrile v. Comelec and Augusto S. Sanchez] to (1) annul the Comelec decision
143
granting Sanchez' petition for recount; and (2) to compel it to proclaim Enrile as duly-
elected senator, with prayer for issuance of a temporary restraining order. Enrile alleged
that the Comelec exceeded its jurisdiction in granting Sanchez' petition for recount and
abused its discretion in refusing to proclaim him (Enrile on the ground that Sanchez'
petition for recount is not a pre-proclamation controversy which involves issues
affecting extrinsic validity, and not intrinsic validity, of the said election returns and that
as of July 25, 1987 up to now, Rasul's lead over him was only 1,916 votes while his lead
over Sanchez was 73,034 votes, with only 31,000 votes remaining to be canvassed in the
three (3) towns of Sulu and fifteen (15) precincts in Lanao del Sur could not offset his
lead over Sanchez.
In its resolution of August 4, 1987, the Court, inter alia, required respondents to
comment on Enrile's petition against the Comelec's recount decision, and directed the
maintenance of the status quo. The parties were heard in oral argument at the joint
hearing held on August 6, 1987, and the cases were thereafter submitted for resolution.
The basic issue at bar — which Sanchez himself avers in his petition is "a case of first
impression" — is whether his petition for recount and/or re-appreciation of ballots filed
with the Comelec may be considered a summary pre-proclamation controversy falling
within the Comelec's exclusive jurisdiction (Sec. 242, Omnibus Election Code) or
properly pertains to the realm of election protest falling within the exclusive jurisdiction
of the Senate Electoral Tribunal as "the sole judge of all contests relating to the election,
returns and qualification of the [Senate's] members." (Art. VI, Sec. 17, Constitution)
Without prejudice to the issuance of an extended opinion and after taking into
consideration the applicable legal provisions and the contentions of the contending
candidates as well as the two conflicting decisions of the Comelec, the Court rules that
Sanchez' petition for recount and/or re-appreciation of the ballots cast in the senatorial
elections does not present a proper issue for a summary pre-proclamation controversy.
Considerations of definition, usage, doctrinal jurisprudence and public policy demand
such a ruling.
1. Sanchez anchors his petition for recount and/or reappreciation on Section 243,
paragraph (b) of the Omnibus Election Code 1 in relation to Section 234 thereof 2 with
regard to material defects in canvassed election returns. He contends that the canvassed
returns discarding "Sanchez" votes as stray were "incomplete" and therefore warrant a
recount or reappreciation of the ballots under Section 234. A simple reading of the basic
provisions of the cited Section shows readily its inapplicability. By legal definition and by
the very instructions of the Comelec (Res. No. 1865, Sec. 6, promulgated on March 11,
1987), an election return is incomplete if there is "omission in the election returns of the
name of any candidate and/or his corresponding votes" (Sec. 234) or "in case the
number of votes for a candidate has been omitted." (Sec. 6, Res. No. 1865)
Here, the election returns are complete and indicate the name of Sanchez as well as
the total number of votes that were counted and appreciated as votes in his favor by the
boards of inspectors. The fact that some votes written solely as "Sanchez" were declared
stray votes because of the inspectors' erroneous belief that Gil Sanchez had not been
disqualified as a candidate, involves an erroneous appreciation of the ballots. It is
established by the law as well as jurisprudence (the cited section being a substantial
reproduction of Section 172 of the 1978 Election Code and previous election laws) that
errors in the appreciation of ballots by the board of inspectors are proper subject for
election protest and not for recount or reappreciation of the ballots.
2. The appreciation of the ballots cast in the precincts is not a "proceeding of the board of
canvassers" for purposes of pre-proclamation proceedings under section 241, Omnibus
Election Code, but of the boards of election inspectors who are called upon to count and
appreciate the votes in accordance with the rules of appreciation provided in section
211, Omnibus Election Code. Otherwise stated, the appreciation of ballots is not part of
the proceedings of the board of canvassers. The function of ballots appreciation is
performed by the boards of election inspectors at the precinct level.
3. The scope of pre-proclamation controversy is limited to the issues enumerated under
sec. 243 of the Omnibus Election Code. The enumeration therein of the issues that may
be raised in pre-proclamation controversy, is restrictive and exclusive. In the absence of
any clear showing or proof that the election returns canvassed are incomplete or contain
material defects (sec. 234), appear to have been tampered with, falsified or prepared
under duress (sec. 235) and/or contain discrepancies in the votes credited to any
candidate, the difference of which affects the result of the election (sec. 236), which are
the only instances where a pre-proclamation recount maybe resorted to, granted the
preservation of the integrity of the ballot box and its contents, Sanchez' petition must
fail. The complete election returns whose authenticity is not in question, must be prima
facie considered valid for the purpose of canvassing the same and proclamation of the
winning candidates.
4. To expand the issues beyond those enumerated under sec. 243 and allow a
recount/re-appreciation of votes in every instance where a claim of misdeclaration of
stray votes is made would open the floodgates to such claims and paralyze canvass and
proclamation proceedings, given the propensity of the loser to demand a recount. The
law and public policy mandate that all pre-proclamation controversies shall be heard
summarily by the Commission after due notice and hearing and just as summarily
decided. (Sec. 246, Omnibus Election Code)
5. The Court has always stressed as in Alonto vs. Comelec 3 that "the policy of the election
law is that pre-proclamation controversies should be summarily decided, consistent with
the law's desire that the canvass and proclamation be delayed as little as possible. As
declared in Abes et al. vs. Commission on Elections, L-28348, December 15, 1967, the
powers of the Comelec are essentially executive and administrative in nature, and the
question of whether or not there had been terrorism, vote buying and other
irregularities in the election should be ventilated in a regular election protest, and the
Commission on Elections is not the proper forum for deciding such matters," and that the
Comelec and the courts should guard "both against proclamation grabbing through
tampered returns" and "the equally pernicious effects of excessive delay of
proclamations" and "attempts to paralyze canvassing and proclamation." To allow the
recount here notwithstanding the multifarious administrative and financial problems of
conducting such a recount, as enumerated by the Comelec in its two decisions — when
now three months after the elections the question of who is entitled to the 24th seat of
144
the Senate would remain unresolved for how long no one can tell — is unthinkable and
certainly contrary to public policy and the mandate of the law that the results of the
election be canvassed and reported immediately on the basis of the authentic returns
which must be accorded prima facie status as bona fide reports of the votes cast for and
obtained by the candidates. 4
6. Election cases involved not only the adjudication of the private interest of rival
candidates but also the paramount need of dispelling the uncertainty which beclouds the
real choice of the electorate with respect to who shall discharge the prerogatives of the
offices within their gift. They are imbued with public interest (Vda. de Mesa v. Mencias,
18 SCRA 533, 538).
7. The ground for recount relied upon by Sanchez is clearly not among the issues that
may be raised in a pre- proclamation controversy. His allegation of invalidation of
"Sanchez" votes intended for him bear no relation to the correctness and authenticity of
the election returns canvassed. Neither the Constitution nor statute has granted the
Comelec or the board of canvassers the power in the canvass of election returns to look
beyond the face thereof, once satisfied of their authenticity (Abes v. Comelec, 21 SCRA
1252,1256).
8. In Grand Alliance for Democracy v. Comelec, et al., G.R. No. 78302, promulgated May 27,
1987, the Court restated certain principles governing canvass proceedings, which are
fully applicable here, mutatis mutandis, to wit:
The Court has restated the settled doctrine in senatorial elections in
Ilarde v. Commission on Elections, 31 SCRA 72, thus: "Canvass
proceedings are administrative and summary in nature, and a
strong prima facie case backed up by a specific offer of evidence and
indication of its nature and importance has to be made out to warrant
the reception of evidence aliunde and the presentation of witnesses
and the delays necessarily entailed thereby. Otherwise, the
paralyzation of canvassing and proclamation proceedings leading to a
vacuum in so important and sensitive an office as that of Senator of
the Republic could easily be brought about this time involving the
eight place and next time involving perhaps all the eight places, when
it is considered that the position of senator is voted for, nationwide by
all the voters of the 66 provinces and 57 cities comprising the
Philippines."
And in Anni v. Izquierdo 57 SCRA 692, the Court declared that. "The
decisive factor is that where it has been duly determined by Comelec
after investigation and examination of the voting and registration
records that actual voting and election by the registered voters had
taken place in the questioned precincts, the election returns cannot be
disregarded and excluded with the resulting disenfranchisement of
the voters but must be accorded prima facie status as bona
fide reports of the result of the voting for canvassing and proclamation
purposes."
As the Court stated in Anni v. Rasul, 46 SCRA 758, "The rule has been
time-tested. To allow a respondent in the Comelec to raise belated
questions concerning returns at any time during the pendency of the
case on review before the Comelec notwithstanding that he has not
originally raised such questions before the canvassing board and only
when he finds his position endangered would mean undue delays in
pre-proclamation proceedings before the Comelec, ... The Court has
stressed that Comelec and the courts should guard both against the
proclamation grabbing through tampered and spurious returns as
well as attempts and machinations to paralyze canvassing and
proclamation ...
It should be added that the other alleged irregularities, such as the
omissions of the Commission on Elections in the distribution and
protection of the election forms and paraphernalia, involve the
discharge of its administrative duties and so do not come under the
jurisdiction of this Court, which can review the decisions, orders and
rulings of the body only in cases of grave abuse of discretion
committed by it in the discharge of its quasi-judicial powers (Aratuc v.
Commission on Elections, 88 SCRA 251; Guevara v. Commission on
Elections, G.R. No. L-12596, July 31, 1958; Filipinas Engineering Co. v.
Ferrer, 135 SCRA 25).
9. As of July 25, 1987, and as the canvassing results stand, Rasul as of her proclamation
as the 23rd Senator-elect, had a lead over Enrile of 1,910 votes, while Enrile had a lead
over Sanchez of 73,034 with only 31,000 votes still to be canvassed (in three
municipalities of Sulu and in 15 precincts of Lanao del Sur.). Said uncanvassed votes
(31,000) are clearly not sufficient in number to offset the 73,034 votes lead of Enrile over
Sanchez, even if awarded to the latter. There is no need to wait for the canvass of the
votes from the 3 municipalities of Sulu and the 15 precincts in Lanao del Sur, which still
remains up to this late day a big question mark of when and how they will finally get
canvassed, assuming their integrity has been preserved. Candidate Juan Ponce Enrile is
therefore entitled to proclamation as the 24th senator-elect in the May 11, 1987
elections. Enrile's petition against Rasul has been rendered moot.
ACCORDINGLY, the Petition in G.R. No. 79212 (Juan Ponce Enrile v. Commission on
Election and Augusto Sanchez) is hereby GRANTED and the decision of respondent
Commission on Elections promulgated on July 30, 1987 granting Sanchez' petition for
recount is hereby SET ASIDE. The respondent Comelec is hereby ordered to proclaim
petitioner Juan Ponce Enrile as a duly elected senator in the May 11, 1987 elections. The
petitions in G.R. No. 78461 (Augusto S. Sanchez v. Commission on Election) and G.R. No.
79146 (Juan Ponce Enrile v. Commission on Elections and Santanina T. Rasul) are both
DISMISSED. This decision shall be IMMEDIATELY EXECUTORY upon its promulgation.
145
G.R. No. 106164 August 17, 1993
EDWIN V. SARDEA, EDELYN C. DE LA PEÑA, ROBERTO P. ALQUIROS, FRANCISCO C.
ENEJOSA, PERFECTO GEQUINTO, TERESITA L. MANIPOL, ROMMEL V. PANSACOLA,
BLANQUITA M. RIVERA, JUAN M. CALDERERO, ALEX MORALES, JOCELYN
VILLAMARZO, NORMA CUARESNA, EDWIN PERALTA, DELFIN DIAMANTE, RODOLFO
C. DEVERA and such other bona fide residents and voters of the Municipality of
Mauban, Province of Quezon, who are so numerous it is impracticable to bring
them all before the Honorable Court, petitioners,
vs.
THE HONORABLE COMMISSION ON ELECTIONS, BELLA E. PUTONG, DIOSCORO I.
ALMOZARA and LEONCITA A. PASTRANA, in their capacity as Members of the
Municipal Board of Canvassers of Mauban, Quezon, FERDINAND V. LLAMAS,
ROLANDO Q. ELLA, JOSHUE B. MALUBAY, CASPAR L. URSOLINO, REXITO P.
BANTAYAN, CESAR P. PASAMBA, ROCKY A. FERRO, LEONCHITO A. CAPASANGRA
and SERGIO M. VILLABROZA, respondents.
Almeda, Javier, Galandines & Associate Law Offices for petitioners.
The Solicitor General for public respondents.
GRIÑO-AQUINO, J.:
The petitioners who are allegedly bona-fide residents and voters of Mauban, Quezon, and
who are "so numerous it is impractical to bring them all before the Honorable Court" (p.
2, Rollo), assail the Resolution promulgated on June 19, 1992, by the respondent
Commission on Elections (COMELEC), in Special Action Case No. SPA 92-331, entitled:
"In the Matter of the Petition to Declare a Failure of Election in Mauban, Quezon,"
denying their petition against the COMELEC, the Municipal Board of Canvassers of
Mauban, Quezon, and the private respondents who were proclaimed the duly elected
Mayor, Vice Mayor and Members of the Sangguniang Bayan of Mauban, Quezon.
The pertinent portion of the Resolution reads as follows:
Irregularities such as fraud, vote-buying and terrorism are proper
grounds in an election contest but may not as a rule be invoked to
declare a failure of election and to disenfranchise the greater number
of the electorate through the misdeeds, precisely, of only a relatively
few. . . . . (Grand Alliance for Democracy, GAD, et al. vs. Comelec, et al.,
G.R. 78302, 27 May 87, En Banc, Resolution.)
xxx xxx xxx
. . . it is very clear that as early as May 14, 1992 petitioners were
already not in consonance with the proceedings of the Board of
Canvassers. Yet, from petitioner EDWIN SARDEA'S own admission, he
only formally filed on May 18, 1992, his petition assailing the legality
of the canvassing being held, contrary to the provisions of Sec. 17 and
19 of R.A. 7166.
xxx xxx xxx
WHEREFORE, premises considered, the Commission hereby
RESOLVES to DENY as it hereby DENIES this petition. (pp. 36-
37, Rollo.)
Petitioner allege that respondent COMELEC "acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the assailed Resolution, considering
that it blatantly disregarded its own Rules of Procedure and, more importantly, it
perpetuated (sic) a clear violation of election laws"
(p. 85, Rollo).
The facts of the case are as follows:
On May 12, 1992, the respondent Municipal Board of Canvassers of Mauban, Quezon,
convened at the Municipal Hall and canvassed the first batch of election returns for the
just concluded May 11, 1992 elections in that municipality.
At about 5:00 o'clock in the afternoon of May 13, 1992, while the canvassing of the
election returns was going on, some sympathizers of petitioner Edwin Sardea, a defeated
mayoralty candidate of LAKAS-NUCD, "stormed the municipal building" and "destroyed .
. . all election materials and paraphernalia including, among others, the copies of election
returns furnished to respondent Board . . ." (p. 86, Rollo).
On May 14, 1992, the respondent Municipal Board of Canvassers convened and assessed
the extent of the damage wrought by the demonstrators. It discovered that the election
returns in the possession of the MTC Judge of Mauban were intact, so it ordered the
retrieval of said election returns for use in the canvass. However, due to the absence of
certain forms needed for the canvass, the same was suspended and moved to May 17,
1992. Still, on said date, the canvassing was not resumed because the Board had to
determine first the number of returns to be used in the canvass.
The Municipal Board of Canvassers reconvened on May 18, 1992, informed the parties
that it would continue the canvassing of the election returns based on the copies from
the MTC of Mauban. Atty. Romeo Devera, counsel of LAKAS-NUCD, objected. Later, he
filed a petition in behalf of petitioner Edwin Sardea to stop the proceedings of the Board
of Canvassers on the ground that it had no authority from the COMELEC to use the copies
of the election returns obtained from the MTC of Mauban. The Municipal Board of
Canvassers overruled Attorney Devera's objection and denied Sardea's petition to stop
the proceedings, citing the directive dated May 15, 1992 of the Provincial Election
146
Supervisor, Atty. Adolfo Ilagan. The directive was based on the authority given by Acting
Executive Director Resurreccion Bora of the COMELEC, "to order the Municipal Trial
Court Judge of Mauban, Quezon to make available the copy of election returns, etc., in his
possession for the use of the Municipal Board of Canvassers" (p. 86, Rollo). As Sardea
manifested that he would appeal the ruling, the Board of Canvassers suspended the
proceedings in order that he may formalize his appeal. On May 19, 1992, he filed a notice
of appeal.
On May 22, 1992, the COMELEC held a special meeting and resolved "to authorize the
Municipal Board of Canvassers of Mauban, Quezon to reconvene and use the copies of the
election returns of the Municipal Trial Court Judge" (p. 87, Rollo).
On May 24, 1992, the Municipal Board of Canvassers reconvened and dismissed Sardea's
appeal. The letter of Atty. Adolfo Ilagan dated May 15, 1992 and the minutes of the
special meeting of the COMELEC on May 22, 1992, were deemed sufficient authority for
it to use the MTC Judge's copies of the election returns. A copy of the excerpts of the
minutes contained a written notation of a certain Cesario Perez addressed to the
chairman of the respondent Board commanding him to "implement this resolution" and
that "this is tantamount to denying the appeal to (sic) your ruling, which appeal was not
received by this Commission" (p. 62, Rollo). The canvassing continued thereafter.
On May 26, 1992, Sardea filed a petition in the Office of the Election Registrar in Mauban,
Quezon, assailing the composition of the Board of Canvassers and its proceedings. He
also filed an Amended Notice of Appeal.
On May 27, 1992, the Municipal Board of Canvassers proclaimed the private respondents
as the duly elected Mayor, Vice-Mayor and Members of the Sangguniang Bayan of
Mauban, Quezon.
On June 10, 1992, petitioners filed Special Action Case No. SPA 92-331, seeking to declare
a failure of election in Mauban, Quezon, based on the grounds that:
I. The attendant facts and circumstance constitute substantial grounds
to declare a failure of election in Mauban, Quezon.
II. Respondent Board gravely abused its discretion amounting to lack
or excess of jurisdiction in canvassing the impugned election returns
without prior authority from the Honorable Commission. (p.
14, Rollo.)
On June 19, 1992, the COMELEC promulgated the challenged resolution, whereupon
Sardea filed this petition for certiorari alleging that the COMELEC gravely abused its
discretion:
1. in not annulling the proceedings of the Municipal Board of
Canvassers of Mauban, Quezon, despite the failure of election in that
municipality;
2. in considering the grounds raised by petitioners as proper for an
election contest despite the nullity of the proceedings of the Municipal
Board of Canvassers of Mauban, Quezon; and
3. in ruling that petitioner did not appeal on time the resolution of the
Municipal Board of canvassers of Mauban, Quezon.
The respondents asked for the outright dismissal of the petition based on Section 3, Rule
39 of the COMELEC Rules of Procedure which provides that decisions in special action
cases "shall become final and executory after the lapse of five (5) days from their
promulgation, unless retrained by the Supreme Court" (p. 90, Rollo).
Petitioners, on the other hand, contend that the finality of COMELEC decisions or
resolutions is indicated in Sec. 257 of B.P. 881, as amended (Omnibus Election Code)
which provides that the decision, order or ruling of the Commission shall become final
thirty (30) days after its promulgation.
Section 257 of the Omnibus Election Code provides:
Sec. 257. Decision in the Commission. — The Commission shall decide
all election cases brought before it within ninety days from the date of
their submission for decision. The decision of the Commission shall
become final thirty days after receipt of judgment. (Art. XII, C, Sec. 3,
Const.; Art. XVIII, Sec. 193, 1978 EC). (Underlining supplied.)
A perusal of our election laws shows that they do not explicitly provide for an appeal
from the COMELEC to the Supreme Court. Section 7, Art. IX-A of the 1987 Constitution
provides that: "unless otherwise provided by this Constitution or by law, any decision,
order or ruling of each [Constitutional] Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty [30] days from receipt of a copy
thereof." The petition for certiorari shall be filed under Rule 65 of the Rules of Court
(Rivera vs. COMELEC, 199 SCRA 178; Galido vs. COMELEC, 193 SCRA 79; Dario vs. Mison,
176 SCRA 84; Pedalizo vs. Mariano, UDK-9819, March 15, 1990).
Since no constitutional provision or law fixes a shorter period, the reglementary period
within which a petition forcertiorari may be filed in the Supreme Court against the
COMELEC is thirty (30) days from receipt of a copy of the COMELEC's order, decision, or
ruling.
Respondents did not correctly invoke Sec. 3, Rule 39 of the COMELEC Rules of Procedure
because this is a petition for certiorari under Rule 65 of the Rules of Court, hence, it falls
under Sec. 1, Rule 39 of the COMELEC Rules of Procedure and Sec. 257 of the Omnibus
147
Election Code. This petition was therefore seasonably filed on July 23, 1992, within thirty
(30) days after the petitioner received the COMELEC resolution on June 23, 1992.
Nevertheless, it must fail because we find the grounds of the petition to be without merit.
The facts show that Sardea's two (2) complaints/petitions involved pre-proclamation
controversies which are defined as:
Sec. 241. Definition. — A pre-proclamation controversy refers to any
question pertaining to or affecting the proceedings of the board of
canvassers which may be raised by any candidate or by any registered
political party or coalition of political parties before the board or
directly with the Commission, or any matter raised under Sections 233,
234, 235 and 236 in relation to the preparation, transmission, receipt,
custody and appreciation of the election returns. (Art. XX Omnibus
Election Code: emphasis supplied.)
Sardea's first May 18, 1992 complain questioned the use of the Municipal Trial Court
Judge's copies of the election returns as basis for the canvass.
His second complaint on May 27, 1992, filed with the Election Registrar, assailed the
composition and proceedings of the Municipal Board of Canvassers. Both complaints
definitely raised pre-proclamation controversies.
We have already ruled in Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC,
170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468, that pre-proclamation
controversies my no longer be entertained by the COMELEC after the winning candidates
have been proclaimed and assumed office. The proper remedy of the aggrieved party is
an election contest in the Regional Trial Court as provided in Sec. 250 of B.P. 881 and Sec.
2(2),
Art. IX-C of the Constitution.
In this case, since the authenticity and completeness of the returns were never
questioned and the winning candidates had been proclaimed on May 27, 1992, Sardea's
pre-proclamation complaint in the COMELEC ceased to be viable.
The COMELEC correctly dismissed Sardea's petition on the ground that it was proper for
an election contest.
But its holding that petitioners' appeal from the resolution of the Municipal Board of
Canvassers was late, is erroneous.
Section 17, R.A. 7166 deals with the commencement of pre-proclamation controversies
while Sec. 19 provides that "parties adversely affected by a ruling of the Board of
Canvassers on questions affecting the composition or proceedings of the board may
appeal the matter to the Commission within three (3) days from a ruling thereon."
The petitioners properly filed their objection to the use of the election returns from the
MTC during the canvassing on May 18, 1992, based on Sec. 20 of R.A. 7166. Said section
provides that persons objecting to the inclusion in the canvass of any election returns
"shall submit their oral objection to the chairman of the Board of Canvassers at the time
questioned return is presented for inclusion in the canvass." (Emphasis ours.)
By presenting his verbal objection, and subsequently filing a formal objection, on May 18,
1992, Sardea acted in accordance with Sec. 20 of R.A. 7166. His notice of appeal was
verbally denied on May 24, 1992 by the Board of Canvassers. He filed a notice of appeal
to the Commission on May 26, 1992, or within three (3) days after the denial of his notice
of appeal by the Board of Canvassers.
This issue on the timeliness of the petitioners' appeal to the Commission is actually moot
and academic because said appeal could not survive after the winning candidates were
proclaimed.
The lone remaining issue is whether the COMELEC gravely abused its discretion in
denying the petition to declare a failure of election in Mauban, Quezon province.
Section 6 of the Omnibus Election Code, which is identical to Section 2, Rule 26 of the
COMELEC Rules of Procedure, reads as follows:
Sec. 6. Failure of election. — If, on account of force majeure, violence,
terrorism, fruad, 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 on a date
reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after
the cessation of the cause of such postponement or suspension of the
election or failure to elect. (Sec. 7, 1978 EC).
In Usman vs. COMELEC (42 SCRA 667, 690), we held that the pre-conditions for declaring
a failure of election are: "(1) that no voting has been held in any precinct or precincts
because of force mejeure, violence or terrorism, and (2) that the votes not cast therein
suffice to affect the results of the elections. The language of the law clearly requires the
concurrence of the[se] two circumstances to justify the calling of a special election."
The destruction and loss of the copies of the election returns intended for the Municipal
Board of Canvassers on account of violence committed on May 13, 1992 is not one of the
causes that would warrant the declaration of a failure of election because voting actually
148
took place as scheduled on May 11, 1992 and other valid election returns still existed.
Moreover, the incident did not affect the result of the election.
The power to throw out or annul an election should be exercised with the utmost care
and only under circumstances which demonstrate beyond doubt either that the
disregard of the law had been so fundamental or so persistent and continuous that it is
impossible to distinguish and what votes are lawful and what are unlawful, or to arrive at
any certain result whatsoever, or that the great body of the voters have been prevented
by violence, intimidation and threats from exercising their franchise (20 C.J., pars. 179-
181; Capalla vs. Tabiana, 63 Phil. 95).
The election is to be set aside when it is impossible from any evidence within reach, to
ascertain the true result - when neither from the returns nor from other proof, nor from
all together can the truth be determined (Law on Public Officers and Election Law by
Hector S. De Leon, p. 381, 1990 Ed., citing A Treatise on the Law of Public Offices and
Officers, by F. MECHEM, note 1 at p. 143).
There is a 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.
Since in this case copies of the election returns submitted to the MTC of Mauban, Quezon
were extant, and their authenticity was not questioned, they were properly used as basis
for the canvass. This is expressly authorized by Section 233 of the Omnibus Election
Code (B.P. 881) which provides that "if said returns have been lost or destroyed, the
board of canvassers, upon prior authority of the Commission, may use any of the
authentic copies of said election returns or a certified copy of said election returns issued by
the Commission . . . ." (Emphasis ours.)
Thus did we rule in an earlier case:
"While it is true that in local elections, the original copy of the election returns is to be
delivered to the city or municipal board of canvassers as a body for its use in the city or
municipal canvass, there is no provision in the Omnibus Election Code stating that the
canvass should be based only on the original copy of the election returns. Besides, the
duplicate copy of election returns that were used in the canvass of votes were not only
authentic copies or certified copies but duplicate originals. Moreover, petitioner failed to
show or even make an allegation that the use of the duplicate originals of the returns had
in some definite manner caused him prejudice, like uncounted votes in his favor or
alteration of an election result otherwise in his favor." (G.R. No. 82674, In Re: Protest of
Atty. Alberto de la Rosa, etc. vs. Comelec and City Board of Canvassers of Zamboanga
City, Resolution en banc dated November 3, 1988.)
There is no merit in the argument of the petitioners that inasmuch as B.P. 881 has been
amended/modified by R.A. 7166, 1 the copies of the election returns in the possession of
the MTC may not be used for the canvass but merely for comparison purposes to
determine the authenticity of other copies of said election returns as provided in Section
27, par. b(5) of R.A. 7166. 2 The repealing clause of R.A. 7166 enumerates the sections of
the Omnibus Election Code which it specifically repeals. Sec. 233 is not among them.
Since B.P. 881 and R.A. 7166 are statutes in pari materia, they should be so construed as
to harmonize with each other and with other laws on the same subject matter, as to form
a complete, coherent and intelligible system (Valera vs. Tuason, 80 Phil. 823). Prior
statutes relating to the same subject matter are to be compared with the new provisions,
and if possible by reasonable construction, both to be construed that effect may be given
to every provision of each (C&C Commercial Corp. vs. NWSA, 21 SCRA 984, citing
Sutherland, Statutory Construction, Vol. 2 pp. 530-532).
Section 233 of B.P. 881 ought to be harmonized with Section 27, par. b(5) of R.A. 7166.
Section 27, par. b(5) of R.A. 7166 presupposes that other copies of the election returns
are existent and may be compared with the copies of the MTC. It does not preclude the
use of such authentic copies in the canvass when the copies submitted to the Board of
Canvassers have been lost or destroyed. The letter of Provincial Election Supervisor Atty.
Adolfo Ilagan dated May 15, 1992 and the minutes of the special meeting of respondent
COMELEC held on May 22, 1992 constitute sufficient authority for the use of such
returns in the canvass.
In light of all the foregoing, the use by the Municipal Board of Canvassers of Mauban,
Quezon of the election returns in the possession of the MTC Judge of Mauban, was not
contrary to law, and was in fact the best possible recourse under the circumstances in
order to give life to the will of the electorate. The COMELEC did not abuse its discretion
when it issued the assailed resolution denying the petition to declare a failure of election
in Mauban, Quezon.
WHEREFORE, the petition for certiorari is DENIED, with costs against the petitioners.
SO ORDERED.
149
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 ballots5 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.8Again, 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
150
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
151
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.

152
DR. MAHID M. MUTILAN, G.R. No. 171248
Petitioner, the Autonomous Region of Muslim Mindanao (ARMM). On 11 August 2005, private
Present: respondent was proclaimed as the duly elected Governor of the ARMM.
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO, On 19 August 2005, petitioner filed an Electoral Protest and/or Petition to Annul the
SANDOVAL-GUTIERREZ,
Elections. The case was docketed as EPC No. 2005-3. Petitioner contested the results of
CARPIO,
AUSTRIA-MARTINEZ, the elections in Maguindanao, Basilan, Tawi-Tawi, and Sulu on the ground that no actual
- versus - CORONA,
CARPIO MORALES, election was conducted in the precincts in these four provinces. Petitioner alleged that
CALLEJO, SR.,
AZCUNA, the voters did not actually vote and that the ballots were filled up by non-registered
TINGA, voters in the four provinces. Petitioner also contested the results in the municipalities
CHICO-NAZARIO,
GARCIA, of Butig, Sultan Gumander, Calanogas, Tagoloan, Kapai, Masiu,
VELASCO, JR., and
NACHURA, JJ. and Maguing in Lanao del Sur where massive substitute voting allegedly took place.

COMMISSION ON ELECTIONS Promulgated:

and ZALDY UY AMPATUAN,
Respondents. April 2, 2007
The Ruling of the COMELEC Second Division
x--------------------------------------------------x

In its 21 November 2005 Order,[3]the COMELEC Second Division dismissed the petition.
DECISION

The COMELEC Second Division stated that during the initial hearing of the case,
CARPIO, J.:
petitioners counsel admitted that the petition was not an election protest but one for
The Case
annulment of elections. Petitioners counsel prayed that the case be elevated to the

COMELEC En Banc. Petitioner argued that jurisdiction over the x x x petition is vested by
Before the Court is a petition for certiorari[1]assailing the 28 December 2005 Order[2]of
law in the entire Honorable Commission both in banc and in division, such that this
the Commission on Elections (COMELEC) En Banc.
Honorable Commission (Second Division) can legally elevate the case to the Honorable

Commission En Banc pursuant to its rules of procedure to expedite disposition of

The Antecedent Facts
election case.[4]

Dr. Mahid M. Mutilan (petitioner) and Zaldy Uy Ampatuan (private respondent) were
The COMELEC Second Division ruled that jurisdiction over petitions for annulment of
candidates for Governor during the election of regional officials held on 8 August 2005in
elections is vested in the COMELEC En Banc. However, the elevation of the case to the

COMELEC En Banc is not sanctioned by the rules or by jurisprudence. Thus, the

153
COMELEC Second Division dismissed the petition for lack of 2005 Order of the COMELEC Second Division had become final and executoryon 8

jurisdiction. The dispositive portion of the 21 November 2005 Order reads: December 2005. Thus:

IN VIEW OF THE FOREGOING, and considering the categorical ACCORDINGLY, the Clerk of the Commission, Electoral Contests
admission of the [petitioner] that the instant petition is not an election Adjudication Department (ECAD)[,] this Commission, is hereby
protest but one for annulment of elections, the Commission (Second directed to immediately issue an Entry of Judgment.
Division) hereby DISMISSES the same for lack of jurisdiction. Sec. 4 of
Republic Act 7166 confers upon the Commission sitting en banc the Let copies of this Order, the Entry of Judgment and Order of 21
exclusive jurisdiction over petition for annulment of election. November 2005 be furnished Her Excellency, Hon. Gloria Macapagal-
Arroyo, President of the Republic of the Philippines, the Hon.
Anent the prayer to elevate the petition to annul the elections to the Secretary. Department of Interior and Local Government, the Hon.
Commission en banc, the Commission (Second Division) Chairman, Commission on Audit and the Secretary, Regional
hereby DENIES the same for want of requisite Assembly, Autonomous Region in Muslim Mindanao (ARMM).
authority therefor under the Rules.
SO ORDERED.[6] (Emphasis in the original)
SO ORDERED.[5](Emphasis in the original)

Hence, the petition before this Court.

On 29 November 2005, petitioner filed a Motion for Reconsideration of the 21 November

2005 Order of the COMELEC Second Division. On 29 December 2005, petitioner filed a

Motion to Admit Verified Copies of Motion for Reconsideration. Petitioners counsel

The Issues
alleged that at the time of the filing of the motion for reconsideration, petitioner was

in Marawi City and his verification arrived in Manila only after the filing of the motion for
Petitioner raises the following issues before this Court:
reconsideration. Petitioners counsel alleged that he had to file the unverified motion for

reconsideration because he had only five days from receipt of the 21 November 1. Whether the COMELEC Second Division acted in excess of its
jurisdiction and with grave abuse of discretion amounting to
2005 Order to file the motion. lack or excess of jurisdiction in dismissing the petition to
annul elections and in not elevating the petition to the
COMELEC En Banc.

2. Whether the COMELEC En Banc acted in excess of its

The Ruling of the COMELEC En Banc
In its Order dated 28 December 2005, the COMELEC En Banc denied the motion for
reconsideration for petitioners failure to verify it in accordance with Section 3, Rule 19 of
jurisdiction and with grave abuse of discretion amounting to
lack or excess of jurisdiction in denying petitioners motion
for reconsideration for lack of verification.[7]

the COMELEC Rules of Procedure. The COMELEC En Banc ruled that the 21 November
The Ruling of this Court

154
The petition is partly meritorious Under Section 4 of Republic Act No. 7166 (RA 7166),[10]jurisdiction over postponements,

failure of elections and special elections vests in the COMELEC En Banc.[11] The
The COMELEC Second Division is Not Prohibited from
Elevating the Petition to the COMELEC En Banc jurisdiction of the COMELEC En Banc over a petition to declare a failure of elections has

been affirmed by this Court which ruled that a petition to declare a failure of elections is

Petitioner alleges that the COMELEC Second Division gravely abused its discretion in neither a pre-proclamation controversy nor an election case.[12] A prayer to annul

dismissing the petition for annulment of elections. Citing Section 3, Article IX-C of the election results and a prayer to declare failure of elections based on allegations of fraud,

1987 Constitution, petitioner alleges that [p]ublic respondent en banc or in division terrorism, violence or analogous causes are actually of the same nature and are

possesses the jurisdiction conferred by the Constitution in the entire public respondent denominated similarly in the Omnibus Election Code.[13] Thus, the COMELEC Second

as one whole collegial body or unit and such jurisdiction continues to exist when the Division has no jurisdiction over the petition to annul the elections.

public respondent sits either en banc or in a division.[8] As such, the COMELEC Second

Division has the jurisdiction and authority to take action on the petition x x x [and] to

legally elevate the petition to public respondent sitting en banc.[9] Petitioner alleges that the docketing of the case as an election protest case was based on

the determination of the administrative docket staff. Petitioner argues that the internal

Section 3, Article IX-C of the 1987 Constitution provides: docketing should not prejudice his rights and should not divest the COMELEC, sitting

either En Banc or in Division, of its jurisdiction over the petition.

The Commission on Elections may sit en banc or in two divisions, and
shall promulgate its rules of procedure in order to expedite
disposition of election cases, including pre-proclamation The argument has no merit. Petitioner filed an Electoral Protest and/or Petition to Annul
controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall the Elections. Petitioner cannot put the blame on the docketing clerk because he clearly
be decided by the Commission en banc.
tried to avail of two different remedies, each one falling under separate jurisdictions.

The COMELEC Second Division ruled that automatic elevation of the case to the En
Under Section 3, Article IX-C of the 1987 Constitution, all election cases, including pre-
Banc is not sanctioned by the rules or by jurisprudence. Petitioner argues that the
proclamation controversies, must be heard and decided by a division of the COMELEC.
COMELEC Second Division should have elevated the petition to the COMELEC En

Banc instead of dismissing the petition for lack of jurisdiction.

In his Electoral Protest and/or Petition to Annul the Elections, petitioner seeks for a

declaration of failure of elections in the contested areas. Petitioners counsel readily

We agree with petitioner. While automatic elevation of a case erroneously filed with the
admitted during the initial hearing that the petition was for annulment of elections.
Division to En Banc is not provided in the COMELEC Rules of Procedure, such action is

not prohibited. Section 4, Rule 2 of the COMELEC Rules of Procedure provides:

155
 Means to Effect Jurisdiction. - All auxiliary writs, processes and other
means necessary to carry into effect its powers or jurisdiction may be In all three instances, there is a resulting failure to elect.[15] In the first instance, the
employed by the Commission; and if the procedure to be followed election has not been held. In the second instance, the election has been suspended. In
in the exercise of such power or jurisdiction is not specifically
provided for by law or these rules, any suitable process or the third instance, the preparation and the transmission of the election returns give rise
proceeding may be adopted. (Emphasis supplied)
to the consequent failure to elect; the third instance is interpreted to mean that nobody

emerged as a winner.[16]

Hence, there is nothing in the COMELEC Rules of Procedure to prevent the COMELEC
None of the three instances is present in this case. In this case, the elections took place. In
Second Division from referring the petition to annul the elections to the COMELEC En
fact, private respondent was proclaimed the winner. Petitioner contests the results of the
Banc.
elections on the grounds of massive disenfranchisement, substitute voting, and farcical
Nevertheless, the petition must still fail.
and statistically improbable results. Petitioner alleges that no actual election was

conducted because the voters did not actually vote and the ballots were filled up by non-
In his Electoral Protest and/or Petition to Annul the Elections, petitioner alleged that no
registered voters.
actual election was conducted in the contested areas. Petitioner further alleged that the

voters did not actually vote and the ballots were filled up by non-registered
Petitioner alleges that [i]n some instances, the ballots were forcibly grabbed by armed
voters. Petitioner also alleged massive disenfranchisement and substitute
persons and the same were filled-up even before election day.[17] However, petitioner did
voting. Petitioner argued that the irregularities warrant the annulment and setting aside
not cite the particulars of his allegations. Petitioner further alleges that election returns
of the elections in the contested areas.
were already filled up even before the counting started;[18]votes credited to candidates
even exceeded the number of registered voters of the precincts;[19]and in one of the
There are three instances where a failure of elections may be declared, thus:
counting areas, the tally boards were filled up in the presence of some Comelecofficials

(a) the election in any polling place has not been held on the date fixed even before the ballots were counted.[20] Again, petitioner failed to state the particulars
on account of force majeure, violence, terrorism, fraud or other
of these incidents except that [s]ome of these anomalies were committed in the
analogous causes;
municipalities of Butig,
(b) the election in any polling place has been suspended before the
hour fixed by law for the closing of the voting on account Sultan Gumander, Calanogas, Tagoloan, Kapai and Maguing of Lanao del Sur.[21]
of force majeure, violence, terrorism, fraud or other analogous causes;
or
The other allegations of petitioner, particularly the transfer of venue of the canvass
(c) after the voting and during the preparation and transmission of
the election returns or in the custody or canvass thereof, such election without previous notice to the candidates, the proclamation of private respondent
results in a failure to elect on account of force majeure, violence,
terrorism, fraud or other analogous causes.[14] without canvassing the results of the farcical election in Tawi-Tawi, the erasures in the

certificate of canvass, the lack of initials by the Provincial Board of Canvassers, the use of

different inks and handwritings, and the act of the Provincial Board of Canvassers in
156
simply noting his objections to the canvass of the returns, are not grounds that would Petitioner alleges that the absence of verification in his motion for reconsideration

warrant the annulment of the elections. constitutes a slight or minor lapse and defect. Petitioner further alleges that the absence

In Pasandalan v. Commission on Elections, the Court explained: of verification is merely a formal defect and does not affect the validity and efficacy of the
To warrant a declaration of failure of election on the ground of fraud,
the fraud must prevent or suspend the holding of an election, or mar pleading.
fatally the preparation, transmission, custody and canvass of the
election returns. The conditions for the declaration of failure of
election are stringent. Otherwise, elections will never end for losers Petitioner alleges that the motion for reconsideration was filed within five days from
will always cry fraud and terrorism.
receipt of the COMELEC Second Divisions Decision in accordance with Section 2, Rule 19

of the COMELEC Rules of Procedure. Petitioner alleges that the motion for
The allegations of massive substitution of voters, multiple voting, and
other electoral anomalies should be resolved in a proper election reconsideration was not verified because he was then in Marawi City. Petitioners
protest in the absence of any of three instances justifying a declaration
of failure of election. In an election protest, the election is not set verification did not arrive in Manila until after the filing of the motion for
aside, and there is only a revision or recount of the ballots cast to
determine the real winner. reconsideration. Petitioner alleges that upon the arrival of the verification in Manila, his

counsel filed a Motion to Admit Verified Copies of Motion for Reconsideration and
The nullification of elections or declaration of failure of elections is an
extraordinary remedy. The party who seeks the nullification of an explained the reason for the delayed submission of petitioners verification.
election has the burden of proving entitlement to this remedy. It is not
enough that a verified petition is filed. The allegations in the petition
must make out a prima facie case for declaration of failure of election,
Petitioners motion for reconsideration was filed on 29 November
and convincing evidence must substantiate the allegations.[22]
2005. The COMELEC En Banc denied the motion for reconsideration in its Order dated 28

December 2005. Petitioner filed the Motion to Admit Verified Copies of Motion for
Reconsideration only on 29 December 2005, one day after the COMELEC En Bancs denial
Here, the allegations of petitioner in his petition to annul the elections fail to make out
of his motion for reconsideration and one month after the filing of the original motion
a prima facie case to warrant the declaration of failure of elections.
for reconsideration.

Motion for Reconsideration Must Be Verified

Grave abuse of discretion implies capricious and whimsical exercise of judgment

amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of

Section 3, Rule 19 of the COMELEC Rules of Procedure requires that the motion for
passion or personal hostility.[24] It is not sufficient that a tribunal, in the exercise of its
reconsideration be verified.[23] The COMELEC En Banc ruled that there was no valid
power, abused its discretion; such abuse must be grave.[25] The grave abuse of discretion
motion for reconsideration because petitioner failed to comply with Section 3, Rule 19 of
must be so patent and gross as to amount to an evasion or refusal to perform a duty
the COMELEC Rules of Procedure. The COMELEC En Banc ruled that the Order of the
enjoined by law.[26] In this case, we see no grave abuse of discretion on the part of the
COMELEC Second Division had become final and executory.
COMELEC En Banc in denying petitioners motion for reconsideration. The Motion to

157
Admit Verified Copies of Motion for Reconsideration was filed only after the denial by

the COMELEC En Banc of the original and unverified motion for reconsideration.

WHEREFORE, we DISMISS the petition. We AFFIRM the 28 December 2005 Order of the

COMELEC En Banc.

SO ORDERED.

158