FAILURE OF ELECTIONS SPECIAL ELECTIONS

EN BANC [G.R. No. 134096. March 3, 1999]

JOSEPH PETER S. SISON, petitioner, vs. COMMISSION ON ELECTIONS, respondents. DECISION ROMERO, J.: Before this Court is a petition for certiorari under Rule 65 of the Revised Rules of Court which impugns the Resolution[1] of public respondent Commission on Elections (COMELEC) dated June 22, 1998 that dismissed petitioner Joseph Peter S. Sison's earlier petition[2] in SPC No. 98-134, entitled In the Matter of the Petition to Suspend the Canvassing of Votes and/or Proclamation in Quezon City and to Declare a Failure of Elections. It appears that while the election returns were being canvassed by the Quezon City Board of Canvassers but before the winning candidates were proclaimed, petitioner commenced suit before the COMELEC by filing a petition seeking to suspend the canvassing of votes and/or proclamation in Quezon City and to declare a failure of elections. The said petition was supposedly filed pursuant to Section 6[3] of the Omnibus Election Code (Batas Pambansa Blg. 881, as amended) on the ground of massive and orchestrated fraud and acts analogous thereto which occurred after the voting and during the preparation of election returns and in the custody or canvass thereof, which resulted in a failure to elect.*4+ In support of his allegation of massive and orchestrated fraud, petitioner cited specific instances which are summarized and set forth below: 1. The Board of Canvassers announced that election returns with no inner seal would be included in the canvass; 2. Board of Election Inspectors brought home copies of election returns meant for the City Board of Canvassers; 3. Petitioner, through counsel, raised written objections to the inclusion in the canvass of election returns which were either tampered with, altered or falsified, or otherwise not authentic; 4. According to the minutes of the City Board of Canvassers, there were precincts with missing election returns; 5. Several election returns with no data on the number of votes cast for vice mayoralty position; 6. Highly suspicious persons sneaking in some election returns and documents into the canvassing area; 7. Concerned citizen found minutes of the counting, keys, locks and

metal seal in the COMELEC area for disposal as trash; 8. Board of Election Inspectors have volunteered information that they placed the copy of the election returns meant for the City Board of Canvassers in the ballot boxes deposited with the City Treasurer allegedly due to fatigue and lack of sleep; 9. Ballot boxes were never in the custody of the COMELEC and neither the parties nor their watchers were allowed to enter the restricted area where these boxes passed through on the way to the basement of the City Hall where they were supposedly kept; and 10. In the elections in Barangay New Era, there was a clear pattern of voting which would show that the election returns were manufactured and that no actual voting by duly qualified voters took place therein. While the petition was pending before the COMELEC, the City Board of Canvassers proclaimed the winners of the elections in Quezon City, including the winning candidate for the post of vice mayor. On June 22, 1998, the COMELEC promulgated its challenged resolution dismissing the petition before it on the ground (1) that the allegations therein were not supported by sufficient evidence, and (2) that the grounds recited were not among the pre-proclamation issues set fourth in Section 17 of Republic Act No. 7166.[5] Hence, this petition. Alleging that COMELEC overstepped the limits of reasonable exercise of discretion in dismissing SPC No. 98-134, petitioner argues in the main that the electoral body failed to afford him basic due process, that is, the right to a hearing and presentation of evidence before ruling on his petition. He then proceeded to argue that the election returns themselves, as well as the minutes of the canvassing committee of the City Board of Canvassers were, by themselves, sufficient evidence to support the petition. Upon a meticulous study of the parties arguments together with the pertinent statutory provisions and jurisprudence, this Court is of the opinion that there is no compelling reason why we should withhold our imprimatur from the questioned resolution. At the outset, we notice that petitioner exhibits an ambivalent stand as to what exactly is the nature of the remedy he availed of at the time he initiated proceedings before the COMELEC in SPC No. 98-134. At the start, he anchors his initiatory petition under Section 6[6] of the Omnibus Election Code regarding failure of elections but he later builds his case as a pre-proclamation controversy which is covered by Sections 241-248 of the Omnibus Election Code, as amended by R.A. No. 7166.[7] In this respect, the rule is, what conjointly determine the nature of a pleading are the allegations therein made in good faith, the stage of the proceeding at which it is filed, and the primary objective of the party filing the same. In any case, petitioner nonetheless cannot succeed in either of the remedies he opted to pursue. Recently, in Matalam v. Commission on Elections,[8] we have

already declared that a pre-proclamation controversy is not the same as an action for annulment of election results or declaration of failure of elections, founded as they are on different grounds. 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.[9] (Underscoring supplied) We have painstakingly examined petitioners petition before the COMELEC but found nothing therein that could support an action for declaration of failure of elections. He never alleged at all that elections were either not held or suspended. Furthermore, petitioners claim of failure to elect stood as a bare conclusion bereft of any substantive support to describe just exactly how the failure to elect came about. With respect to pre-proclamation controversy, it is well to note that the scope of pre-proclamation controversy is only limited to the issues enumerated under Section 243[10] of the Omnibus Election Code, and the enumeration therein is restrictive and exclusive.[11] The reason underlying the delimitation both of substantive ground and procedure is the policy of the election law that preproclamation controversies should be summarily decided, consistent with the law's desire that the canvass and proclamation be delayed as little as possible.[12] That is why such questions which require more deliberate and necessarily longer consideration, are left for examination in the corresponding election protest.[13] However, with the proclamation of the winning candidate for the position contested, the question of whether the petition raised issues proper for a preproclamation controversy is already of no consequence since the well-entrench rule in such situation is that a pre-proclamation case before the COMELEC is no longer viable, the more appropriate remedies being a regular election protest or a petition for quo warranto.[14] We have carefully reviewed all recognized exceptions[15] to the foregoing rule but found nothing that could possibly apply to the instant case based on the recitations of the petition. What is more, in paragraph 3 of the COMELECs Omnibus Resolution No. 3049 (Omnibus Resolution on Pending Cases) dated June 29, 1998, it is clearly stated therein that All other pre-proclamation cases x x x shall be deemed terminated pursuant to Section 16, R. A. 7166.[16] (Underscoring supplied). Section 16 which is referred to in the aforecited omnibus resolution refers to the termination of pre-proclamation cases when the term of the office involved has already begun, which is precisely what obtains here. We are, of course, aware that petitioner cites the said omnibus resolution in maintaining that his petition is one of those cases which should have remained active pursuant to paragraph 4 thereof. That exception, however, operates only when what is involved is not a pre-proclamation controversy such as petitions for disqualification, failure of

elections or analogous cases. But as we have earlier declared, his petition, though assuming to seek a declaration of failure of elections, is actually a case of preproclamation controversy and, hence, not falling within the ambit of the exception. In any case, that omnibus resolution would not have been applied in the first place because that was issued posterior to the date when the herein challenge resolution was promulgated which is June 22, 1998. There was no provision that such omnibus resolution should have retroactive effect. Finally, as to petitioners claim that he was deprived of his right to due process in that he was not allowed to present his evidence before the COMELEC to support his petition, the same must likewise fail. First, we note that his citation of Section 242 of the Omnibus Election Code as basis for his right to present evidence is misplaced. The phrase after due notice refers only to a situation where the COMELEC decides and, in fact, takes steps to either partially or totally suspend or annul the proclamation of any candidateelect. Verba legis non est recedendum. From the words of the statute there should be no departure. The statutory provision cannot be expanded to embrace any other situation not contemplated therein such as the one at bar where the COMELEC is not taking any step to suspend or annul a proclamation. Second, presentation of evidence before the COMELEC is not at all indispensable in order to satisfy the demands of due process. Under the amendment introduced by R.A. No. 7166, particularly Section 18 thereof, all that is required now is that the COMELEC shall dispose of pre-proclamation controversies on the basis of the records and evidence elevated to it by the board of canvassers. This is but in keeping with the policy of the law that cases of this nature should be summarily decided and the will of the electorate as reflected on the election returns be determined as speedily as possible. What exactly those records and evidence are upon which the COMELEC based its resolution and how they have been appreciated in respect of their sufficiency, are beyond this Courts scrutiny. But we have reason to believe, owing to the presumption of regularity of performance of official duty and the precept that factual findings of the COMELEC based on its assessments and duly supported by gathered evidence, are conclusive upon the court, that the COMELEC did arrive at its conclusion with due regard to the available evidence before it. That this is so can, in fact, be gleaned from petitioners own allegation and admission in his petition that the election returns themselves as well as the minutes of the Canvassing Committees and the City Board of Canvassers x x x are in the possession of the COMELEC.*17+ He even cites paragraph (g), Section 20 of the Omnibus Election Code to validate such allegation. Hence, it is not really correct to say that the COMELEC acted without evidentiary basis at all or that petitioner was deprived of his right to due process. WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent Commission on Elections (COMELEC), the instant petition is hereby DISMISSED. Consequently, the resolution of COMELEC in SPC No. 98-134 dated June 22, 1998 is AFFIRMED. No costs.

SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Quisumbing, Purisima, Buena, and Gonzaga-Reyes, JJ., concur. Vitug, J., on official business abroad. Panganiban, J., on leave. Pardo, J., no part.

EN BANC [G. R. No. 149803. January 31, 2002]

DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B. BIRUAR, ALONTO B. DAUDIE, MICHAEKL B. DIRANGAREN, ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M. ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATU-MANONG, FREDDIE G. MANGUDADATU and ABBAS A. PENDATUN, JR., petitioners, vs. COMMISSION ON ELECTIONS, DATU ZACARIA A. CANDAO, DATU NORODIN M. MATALAM, KHARIS M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY, PATULA O. TIOLO, MARHOMSAL K. LAUBAN, MENTANG T. KABAGANI, ELIZABETH C. MASUKAT, GAPOR A. RAJAMUDA, SAID S. SALIK and LINTATO G. SANDIGAN, respondents. DECISION PARDO, J.: The case is a petition for certiorari and prohibition under Rule 64 in relation to Rule 65 of the Revised Rules of Court with preliminary injunction or temporary restraining order[1] to nullify and set aside two (2) orders dated July 26, 2001[2] and August 28, 2001[3] of the Commission on Elections (COMELEC), ordering a random technical examination of pertinent election paraphernalia and other documents in several municipalities in the province of Maguindanao to determine a failure of elections. Petitioners[4] and respondents[5] were candidates for the provincial elective positions in the province of Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and respondent Candao contended for the position of governor. The slate of Ampatuan emerged as winners as per election returns. On May 23, 2001, respondents filed a petition with the Comelec for the annulment of election results and/or declaration of failure of elections[6] in several municipalities[7] in the province of Maguindanao. They claimed that the elections were completely sham and farcical. The ballots were filled-up en masse by a few persons the night before election day, and in some precincts, the ballot boxes, official ballots and other election paraphernalia were not delivered at all.[8] On May 25, 2001, the Comelec issued an order suspending the proclamation of the winning candidates for congressman of the second district, governor, vicegovernor and board members of Maguindanao.[9] On May 30, 2001, petitioners filed with the Comelec a motion to lift the suspension of proclamation.[10] On June 14, 2001, the Comelec issued an order lifting the suspension of proclamation of the winning candidates for governor, vicegovernor and board members of the first and second districts.[11] Consequently, the

Provincial Board of Canvassers proclaimed petitioners winners.[12] On June 16, 2001, respondents filed with the Supreme Court a petition to set aside the Comelec order dated June 14, 2001, and preliminary injunction to suspend the effects of the proclamation of the petitioners.[13] Meantime, petitioners assumed their respective offices on June 30, 2001. On July 17, 2001, the Court resolved to deny respondents petition.*14+ Petitioners assumption into office notwithstanding, on July 26, 2001, the Comelec ordered the consolidation of respondents petition for declaration of failure of elections with SPA Nos. 01-244, 01-332, 01-360, 01-388 and 01-390.[15] The COMELEC further ordered a random technical examination on four to seven precincts per municipality on the thumb-marks and signatures of the voters who voted and affixed in their voters registration records, and forthwith directed the production of relevant election documents in these municipalities.[16] On August 28, 2001, the Comelec issued another order[17] directing the continuation of the hearing and disposition of the consolidated SPAs on the failure of elections and other incidents related thereto. It likewise ordered the continuation of the technical examination of election documents as authorized in the July 26, 2001 order. On September 27, 2001, the Comelec issued an order outlining the procedure to be followed in the technical examination.[18] On September 26, 2001, petitioners filed the present petition.[19] They claimed that by virtue of their proclamation pursuant to the June 14, 2001 order issued by the Comelec, the proper remedy available to respondents was not a petition for declaration of failure of elections but an election protest. The former is heard summarily while the latter involves a full-blown trial. Petitioners argued that the manner by which the technical examination is to be conducted[20] would defeat the summary nature of a petition for declaration of failure of elections. On October 5, 2001, petitioners filed a motion[21] reiterating their request for a temporary restraining order to enjoin the implementation of the July 26, 2001 and August 28, 2001 Comelec orders. On October 22, 2001, the Comelec issued an order suspending the implementation of the two (2) assailed orders, the pertinent portion of which reads as follows: The Commission, in view of the pendency of G. R. No. 149803 xxx, requiring it to comment within ten (10) days from notice, hereby suspends implementation of its orders of July 26, 2001 and August 28, 2001 in deference to the resolution of said court.[22] However, on November 13, 2001, the Comelec issued another order lifting the suspension.[23] On November 20, 2001, we issued a temporary restraining order, to wit: xxx the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER prayed for, effective immediately and continuing until further orders from this Court,

ordering the respondent Commission on Elections to CEASE and DESIST from ordering the lifting of the suspended implementation orders dated 26 July 2001 and 28 August 2001 in SPA No. 01-323 xxx.[24] The main issue to be resolved is whether the Commission on Elections was divested of its jurisdiction to hear and decide respondents petition for declaration of failure of elections after petitioners had been proclaimed. We deny the petition. Petitioners submit that by virtue of their proclamation as winners, the only remedy left for private respondents is to file an election protest, in which case, original jurisdiction lies with the regular courts. Petitioners cited several rulings that an election protest is the proper remedy for a losing candidate after the proclamation of the winning candidate.[25] However, the authorities petitioners relied upon involved pre-proclamation controversies. In Loong v. Commission on Elections,[26] we ruled that a preproclamation controversy is not the same as an action for annulment of election results, or failure of elections. These two remedies were more specifically distinguished in this wise: While, however, the Comelec is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the Comelec is duty bound to investigate allegations of fraud, terrorism, violence, and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the Comelec, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters signatures and thumbprints in order to determine whether or not the elections had indeed been free, honest and clean.[27] The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its authority to annul any canvass and illegal proclamation.[28] In the case at bar, we cannot assume that petitioners proclamation and assumption into office on June 30, 2001, was legal precisely because the conduct by which the elections were held was put in issue by respondents in their petition for annulment of election results and/or declaration of failure of elections. Respondents allegation of massive fraud and terrorism that attended the May 14, 2001 election in the affected municipalities cannot be taken lightly as to warrant the dismissal of their petition by the Comelec on the simple pretext that petitioners had been proclaimed winners. We are not unmindful of the fact that a pattern of conduct observed in past elections has been the pernicious grab-the-proclamationprolong-the-protest slogan of some candidates or parties such that even if the protestant wins, it becomes a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired. xxx We have but to reiterate the oftcited rule that the validity of a proclamation may be challenged even after the

irregularly proclaimed candidate has assumed office.*29+ Petitioners likewise rely on the case of Typoco, Jr. v. Commission on Elections.[30] This Court held that Comelec committed no grave abuse of discretion in dismissing a petition for declaration of failure of elections. However, we made a pronouncement that the dismissal was proper since the allegations in the petition did not justify a declaration of failure of elections. Typocos relief was for Comelec to order a recount of the votes cast, on account of the falsified election returns, which is properly the subject of an election contest.[31] Respondents petition for declaration of failure of elections, from which the present case arose, exhaustively alleged massive fraud and terrorism that, if proven, could warrant a declaration of failure of elections. Thus: 4.1. The elections in at least eight (8) other municipalities xxx were completely sham and farcical. There was a total failure of elections in these municipalities, in that in most of these municipalities, no actual voting was done by the real, legitimate voters on election day itself but voting was made only by few persons who prepared in advance, and en masse, the ballots the day or the night before election and, in many precincts, there was completely no voting because of the nondelivery of ballot boxes, official ballots and other election paraphernalia; and in certain municipalities, while some semblance of voting was conducted on election day, there was widespread fraudulent counting and/or counting under very irregular circumstances and/or tampering and manufacture of election returns which completely bastardized the sovereign will of the people. These illegal and fraudulent acts of desecration of the electoral process were perpetrated to favor and benefit respondents. These acts were, by and large, committed with the aid and/or direct participation of military elements who were deployed to harass, intimidate or coerce voters and the supporters or constituents of herein petitioners, principally, of reelectionist Governor Datu Zacaria Candao. Military units and personnel visibly, openly and flagrantly violated election laws and regulations by escorting people or elements engaged in the illegal, advanced preparation of ballots and election returns and, at times, manning the polling places or precincts themselves and/or staying within the prohibited radius. Ballot boxes and other election paraphernalia were brought not to the precincts or voting centers concerned but somewhere else where massive manufacture of ballots and election documents were perpetrated.[32] The Comelec en banc has the authority to annul election results and/or declare a failure of elections.[33] Section 6 of the Omnibus Election Code further provides that: 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 of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call

for the holding or continuation of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election of failure to elect. Elucidating on the concept of failure of election, we held that: xxx before Comelec can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and second, the votes cast would affect the result of the election. In Loong vs. Commission on Elections, this Court added that the cause of such failure of election should have been any of the following: force majeure, violence, terrorism, fraud or other analogous cases.[34] In another case, we ruled that while it may be true that election did take place, the irregularities that marred the counting of votes and the canvassing of the election returns resulted in a failure to elect.*35+ In the case at bar, the Comelec is duty-bound to conduct an investigation as to the veracity of respondents allegations of massive fraud and terrorism that attended the conduct of the May 14, 2001 election. It is well to stress that the Comelec has started conducting the technical examination on November 16, 2001. However, by an urgent motion for a temporary restraining order filed by petitioners, in virtue of which we issued a temporary restraining order on November 20, 2001, the technical examination was held in abeyance until the present. In order not to frustrate the ends of justice, we lift the temporary restraining order and allow the technical examination to proceed with deliberate dispatch. WHEREFORE, the petition is hereby DISMISSED. The temporary restraining order issued on November 20, 2001 is DISSOLVED. The Commission on Elections is directed to proceed with the hearing of the consolidated petitions and the technical examination as outlined in its September 27, 2001 order with deliberate dispatch. No costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., and Carpio, JJ., concur. Melo, J., please see dissenting opinion. Sandoval-Gutierrez, J., joins Justice Melo in his dissent.

EN BANC [G.R. No. 149666. December 19, 2003]

SANGCAD S. BAO, petitioner, vs. COMMISSION ON ELECTIONS, ATTY. RAY SUMALIPAO, COL. FELIX CASTRO, JR., MUNICIPAL BOARD OF CANVASSERS OF BUTIG, LANAO DEL SUR, DIMNATANG L. PANSAR, GORIGAO LANGCO, and RASMIA U. SALIC ROMATO, respondents. DECISION CARPIO-MORALES, J.: Petitioner Sangcad S. Bao sought re-election as mayor of Butig, Lanao del Sur in the May 14, 2001 elections. Aside from petitioner, the other candidates for mayor were Gorigao Langco (Langco), Dimnatang L. Pansar (Pansar), and Rasmia U. Salic Romato (Romato). On May 25, 2001, petitioner filed before the COMELEC a Very Urgent Petition for Suspension of Counting of Votes by [the] B[oard of] E[lection] I[nspectors], Canvass of Election Returns and Proclamation of Winners by [the Municipal Board of Canvassers], and Declaration of Failure of Election in Butig, Lanao del Sur,*1+ naming Pansar, COMELEC Provincial Election Supervisor Atty. Ray Sumalipao, and COMELEC Deputy Col. Felix Castro, Jr. as respondents. The petition, which was docketed as SPA Case No. 01-336, alleged that: 1. he requested Acting Election Officer Taha Casidar (Casidar) to adopt the Project of Precincts with six (6) clustered voting centers which he (petitioner) recommended, after consultation with political parties, but over his (petitioners) vehement opposition, Military COMELEC Deputy Col. Felix Castro, Jr. disregarded the plan without consulting both parties and the voters concerned; 2. in Precincts 1A-13A, Philippine National Police personnel bearing highpowered firearms were seen escorting persons who are not voters therein; 3. in Precincts 9A-10A, ballot boxes were missing during the period of casting of votes; 4. in Precincts 14A-15A, the wife of vice-mayoralty candidate Pundaracab Ander forcibly took possession of the Book of Voters and acted as Board of Election Inspectors and conducted the voting by herself;

5. in Precincts 20A-27A and 46A-49A, the casting of votes was stopped early because non-registrants and flying voters insisted on voting,

thus causing fighting and shooting among voters; 6. in Precincts 28A-29A, all the registered voters were not able to cast their votes because the ballot boxes were brought to the second floor of the school building and when the boxes were brought down, the ballots and the Book of Voters were already filled up and thumbmarked by non-voters; 7. in Precincts 1A-21A and 42A-43A, voting was closed at 3:30 p.m., but was illegally reopened; and 8. in Precincts 64A-65A, official ballots issued to voters were forcibly filled up by one person. Petitioner later filed on May 29, 2001 an Additional Submission*2+ containing Casidars Narrative Report on the Conduct of *the+ May 14, 2001 National and Local Elections in the Municipality of Butig, Lanao del Sur*3+ reading verbatim: xxx 1. Per my instruction, the BEIs immediately started the election. 2. while the election was going on, at around 2 pm, several bombings occurred almost in the area where the election was held which caused commotion. due to the incident and fear, the BEIs assigned in some other precincts locked their ballot boxes and brought them to the Municipal Hall while others continued the casting of votes [until] the last hour. . . . the electors and some other candidates were forcing and/or convincing me to open the ballot boxes brought to the Municipal Hall to continue the election which I refused as it was already too late. . . . due to intimidation and force shown or displayed by some of the supporters and candidates themselves, I failed to decide on time as it will endanger my life and other civilians in the area. xxx On June 4, 2001, petitioner filed a Very Urgent Motion to Defer Canvass of Election Returns and Suspend Proclamation,*4+ reiterating the arguments in his previous petition. On June 8, 2001, Langco (petitioner-intervenor), filed a petition-inintervention[5] adopting the allegations of petitioner and further alleging the occurrence of other irregularities during the conduct of the elections, to wit:

3.

4.

5.

1. watchers were not allowed to escort the ballot boxes and witness the distribution of ballots; 2. a member of the Philippine Army was putting inside the ballot box official ballots already filled up; 3. around 11:20 a.m., there were simultaneous explosions causing the voters to scamper away which resulted to low voter turn-out; 4. the casting of votes was stopped at 1:30 p.m.; 5. the clustering made by the COMELEC based on the convenience and safety of the voters was not followed; 6. the casting of votes was done in public as there were no voting booths; 7. there was illegal transfer of polling places; 8. there was massive substitution of voters; 9. there was no justification for the military to serve in the election; 10. the casting of votes in Precincts 1A-17A, 28A-32A and 59A-69A was closed around 2:30 p.m. but was again reopened until around 6:00 p.m.; and 11. the counting of votes was manned by Philippine Army soldiers known to favor mayoralty candidate Pansar. The COMELEC En Banc, without giving due course to the petition and the petition-in-intervention, resolved on June 14, 2001: 1. to admit the Petition-in-Intervention filed by Langco on June 8, 2001; 2. to direct the Municipal Board of Canvassers of Butig to hold in abeyance the proclamation of the respondent until lifted by the Commission; to direct the Clerk of the Commission to issue summons requiring the respondents to file their answers to the petition and petitionin-intervention and to set for hearing the instant case immediately in order to hear from the parties and determine whether the suspension will stay or has to be lifted; and to direct the Deputy Executive Director for Operations to implement this order with dispatch.[6]

3.

4.

The COMELEC En Banc conducted a hearing on June 28, 2001 during which all the parties were represented by counsels, after which it issued the following order, quoted verbatim:

At todays hearing parties were respectively represented by counsels. Counsel for intervenor-oppositor Rashmina Salic [Ro]mat[o] manifested that they filed a petition in intervention in this case as his client was not impleaded although was proclaimed also as mayor. Counsel for respondent Dimnatang L. Pansar manifested that his client the impleaded respondent who was also proclaimed did not receive any summons in this case. Considering the foregoing, the motion to intervene is granted. Respondents are hereby given three (3) days from today to file answer, after which this case shall be deemed submitted for resolution.[7] As noted in the above-quoted June 28, 2001 Resolution of the COMELEC En Banc, Romato who had in the meantime been proclaimed (on June 10, 2001)[8] as mayor, as was Pansar (on June 16, 2001),[9] manifested that he filed a petition-inintervention. By the questioned Resolution of August 13, 2001, the COMELEC En Banc dismissed the petition and Langcos petition-in-intervention, the dispositive portion of which reads: WHEREFORE, premises considered, the Very Urgent Petition and Petition in Intervention are DISMISSED for LACK OF MERIT. The Very Urgent Motion to Defer Canvass of Election Returns and Suspend Proclamation is likewise DENIED for the same reason. Hence, the present petition for certiorari under Rule 64 of the 1997 Revised Rules of Court raising the issue of: WHETHER OR NOT RESPONDENT COMMISSION ON ELECTIONS ILLEGALLY OR ARBITRARILY RESOLVED TO DENY THE PETITION OF BAO AND INTERVENOR LANGCO AND ROMATO, THAT THEIR ALLEGATIONS AND EVIDENCES ATTACHED TO THEIR PLEADINGS ARE INSUFFICIENT TO DECLARE FAILURE OF ELECTION.[10] (Underscoring omitted) Petitioner contends that SPA No. 01-336 being a contentious case, the COMELEC acts as a quasi-judicial tribunal and thus falls under the term court; that the questioned resolution failed to express clearly and distinctly the facts and the law on which it is based in contravention of Article VII of the 1987 Constitution;[11] that contrary to the findings of the COMELEC, the two (2) conditions set forth in Mitmug v. COMELEC[12] to declare a failure of election was present in the instant case; and that the serious and massive election irregularities in thirty out of forty precincts in Butig were more than sufficient to affect the election results as they disenfranchised more than 70% of the registered voters.[13]

Petitioner further contends that even if there was voting, the election nevertheless resulted in failure to elect;[14] that the COMELEC erred in not giving credence to the official Narrative Report of Casidar which contained facts affecting the validity of the elections;[15] and that in failing to conduct summary hearing for the reception of evidence, the COMELEC violated the Omnibus Election Code and its own rules.[16] The issue in the main is whether the COMELEC committed grave abuse of discretion in not declaring a failure of election. This Court holds in the negative. Section 6 of the Omnibus Election Code 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 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. In Mitmug v. COMELEC,[17] this Court held that before the 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. And in Typoco v. COMELEC ,[18] this Court held: Clearly then, there are only three instances where a failure of election may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in failure to elect on account of force rnajeure, violence, terrorism, fraud, or other analogous causes. In all instances there must have been a failure to elect; this is obvious in the first scenario, where the election was not held and second where the election was suspended. As to the third scenario, the preparation and transmission of election returns which give rise to the consequence of failure to elect must as aforesaid be literally interpreted to mean

that nobody emerged as winner. In the present case, the allegations-bases of both the petition and Langcos petition-in-intervention before the COMELEC are mostly grounds for an election contest, not for a declaration of failure of election. While there are allegations which may be grounds for failure of election, they are supported by mere affidavits and the narrative report of the election officer. That petitioner and petitioner-intervenor were not able to present substantial evidence in support of their allegations should not be blamed on the COMELEC, for during the June 28, 2001 hearing, Atty. Jose Ventura Aspiras, collaborating counsel for petitioner, on being informed that respondent Pansar had not yet received the summons to necessitate the resetting of the hearing, made a request, which was granted, that said respondent should just file an answer or memorandum to abbreviate the proceedings, and did not object to the COMELECs pronouncement to consider the petition submitted for resolution after the filing of the answer or memorandum. xxx Comm. Javier In the meantime, we will have to reset this case because it appears that the service of summons has not been done into the respondent, so, it would appear that this Commission would not have any jurisdiction yet because you appeared here already, your appearance, you are submitting to the jurisdiction of the Commission, so, in that case, we will request the petitioner to submit a copy to the respondent and give him time to answer, three (3) days to answer, okay. Atty. Aspiras May we just request that what we (sic) file would be an answer/ memorandum to abbreviate the proceedings. Comm. Javier Okay, answer together with memorandum in three (3) days, you have to submit simultaneous memorandum. Atty. Aspiras Yes, your Honor. Comm. Javier Three (3) days from today, we will consider this submitted for resolution. Atty. Aspiras Yes, your Honor, we will furnish already after this hearing, copy of the amended petition to the respondent your Honor.

Comm. Javier Okay, next case. xxx[19] (Emphasis a n d u n d e r s c o r i n g s u p p l i e d ) Under the circumstances, petitioner and petitioner-intervenor are deemed to have waived their right to present further evidence to substantiate their petition. Since, as the following portion of the assailed COMELEC resolution states, both petitioner and petitioner-intervenor failed to discharge the burden of proving their allegations, the COMELEC did not commit grave abuse of discretion: Thus, there can be no other recourse for this Commission than to deny the petition. General allegations, without sufficient evidentiary support, do not warrant a declaration of a failure of elections. Election results are the expression of the will of the people whose welfare and interests must immediately be served by those upon whom the people have placed their trust. Peripherally but not trivially, elections need be consummated with dispatch because the losers or even those just lagging behind in the counting, more often than not, file all kinds of protests and complaints and objections that delay the election process and threaten to deny the people their representation in government.[20]

WHEREFORE, the instant petition is DISMISSED for lack of merit. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

EN BANC [G.R. No. 134340. November 25, 1999]

LININDING PANGANDAMAN, petitioner, vs. COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF LANAO DEL SUR, MAHED MUTILAN, ALEEM, AMERRODIN SARANGANI and NARRA ABDUL JABBAR JIALIL, respondents. DECISION YNARES_SANTIAGO, J.: Recently, this Court emphatically stated that *U+pholding the sovereignty of the people is what democracy is all about. When the sovereignty of the people expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it should do everything to have that sovereignty obeyed by all. Well done is always better than well said.*1+ Corollarily, laws and statutes governing election contests especially the appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities.[2] These standards will be the legal matrix within which this controversy will be adjudged. Challenged in this petition for certiorari and prohibition with prayer for temporary restraining order and preliminary injunction is the Omnibus Order of the Commission on Elections (COMELEC) en banc dated July 14, 1998,[3] the dispositive portion of which reads as follows: WHEREFORE, premises considered, special elections for the municipalities, namely Butig Kapatagan Maguing Masiu Lumbabayabao shall be held on 18 July 1998. Special elections shall also be held on July 25, 1998 for the municipalities of Ganassi Lumbatan Lumbayabague Sultan Dumalondong Sultan Gumander Marawi City

Malabang Marantao

Pagayawan Tubaran

There shall be machine counting and consolidation of votes for all municipalities except Maguing and those precincts where ballots for manual count will be used. The Education and Information Department, the Acting PES of Lanao del Sur and the Election Officers in these municipalities are hereby directed to cause the immediate publication of this Omnibus Order in their respective municipality (sic). Schedule for special elections in the municipalities of Madalum and Tugaya is temporarily withheld pending unresolved issues before the Commission. Let the Executive Director for Operation[s] of the Commission execute this order with dispatch. SO ORDERED. The COMELECs challenged Omnibus Order summarizes the relevant facts of the controversy thus: The instant cases were filed by petitioners praying that the Commission declare [a] failure of elections in their respective municipalities and to hold special elections thereafter. The petitions were reinforced by reports received by the Commission from its field officers and deputies. A pre-trial for all cases in Lanao del Sur involving failure of elections was set and parties, their counsels, and the election officers of concerned municipalities appeared. During the pre-trial of the above cases, it was shown and admitted by the parties that total failure of election[s] took place in the following municipalities: 1. Butig 2. Kapatagan 3. Lumbatan 4. Lumba Bayabao 5. Lumbayanague 6. Madalum 7. Maguing 8. Masiu 9. Sultan Dumalondong 10. Sultan Gumander 11. Tubaran 12. Tugaya

No precinct in the above towns was able to function on election day.

It was also shown and admitted by the parties that in the following municipalities, partial failure of election[s] took place as follows: 1. Ganassi 2. Malabang 3. Marantao 4. Pagayawan 5. Marawi City TOTAL FAILURE OF ELECTIONS

It was found that the cause of failure of election[s] in the twelve municipalities where there was total failure of election[s] as follows : 1. BUTIG armed confrontation of opposing political groups and vehement disagreement on the clustering of precincts. + Acting election officer reported that all election paraphernalia are available except for 200 ballots for precinct 5A. 2. KAPATAGAN allegedly, Camad Benito, husband of mayoralty candidate Bailo Benito, terrorized the Acting Municipal Treasurer Okuo Macaumbas thus preventing the distribution of ballots and other election paraphernalia to the members of the Board of Election Inspectors (BEIs for brevity). Similarly, there were only twenty two (22) public school teachers who were available as BEIs and eighteen (18) of them were disqualified to act due to relationship to candidates within the prohibited degree. In Election Case No. 571, the Municipal Circuit Trial Court of Kapatagan, Lanao del Sur issued an order dated April 30, 1998 ordering the Election Officer of Kapatagan, Lanao del Sur to delete, erase, and cancel all Voters Registration Records with serial numbers 3676001 to 3676500 after finding that said VRRs were received only on December 15, 1998 by EA Camal Calandada from Atty. Muslemin Tahir. And yet, said VRRs appeared to be filled up, used and dated 14 December 1997. A copy of said order was received on 10 May 1998 by the Election Officer. The court having found by implication that said VRRs were irregularly/unlawfully issued, and its order having become final, this Commission in compliance with said court order hereby orders the Election Officer of Kapatagan to delete from the records said VRRs with serial nos. from 36767001 to 3676500. Pursuant to said order, the Law Department is directed to conduct a joint

investigation administrative and preliminary investigation for election offenses against Camal Calandada and Muslemin Tahir to determine their criminal and administrative liability and to submit to the Commission its findings and recommendation within sixty (60) days from receipt of this Order. The PNP, thru the Criminal Investigation Group in Region XII is similarly directed to initiate an investigation on the conduct of Camad Benito in contributing to the failure of election[s] in Kapatagan. + All election paraphernalia are available. 3. LUMBATAN all the members of the different Board of Inspectors are disqualified to act as such by reason of relationship either by consanguinity or affinity, within the prohibited degree. + All election paraphernalia for 39 precincts are intact and available. 4. LUMBABAYABAO candidates could not agree on the venue of the distribution of the election supplies and there was vehement disagreement on the clustering of precincts. + All election paraphernalia for fifty nine (59) precincts are available. 5. LUMBAYANAGUE there was non-completion of the composition of the BEIs in all precincts because almost all appointed members of [the] BEI are disqualified by reason of relationship either by affinity or consanguinity, within the prohibitive degree. + All election paraphernalia for the 35 precincts are available. 6 MADALUM the twenty (20) appointed teachers to act as members of the different BEIs did not arrive on election day. The issue on the existence of alleged ghost barangays/precincts is not yet resolved by the Commission considering that the alleged ghost precincts are being investigated and an ocular inspection is being made by an investigating team. The issue being factual and the findings determinative of a clean, honest and credible elections, it is the desire of the Commission that the issue on ghost precincts be resolved first before a special election in Madalum shall be scheduled. + All election paraphernalia are available. 7. MAGUING no members of the different Boards of Election Inspectors arrived in all precincts. + There is a need to print new ballots for all forty-nine (49) precincts and other

election forms due to the inadvertent non inclusion of a candidates name in the original ballots. 8. MASIU the Municipal Treasurer did not get the election paraphernalia from the Provincial Treasurer. Neither could the Municipal Treasurer be located on election day. Hence, there was nothing to distribute to the BEIs on election day. Similarly, the Acting Election Officer, EA Cayansalam Benaning, on her admission during the pre-trial hearing on June 25, 1998, arrived only at 7:00 A.M. of election day thus preventing the distribution of election paraphernalia from her office. Some parties claim in fact that she was only seen at noontime of election day while she was in the house of the incumbent mayor of Masiu. + All election paraphernalia for eighty (80) precincts are available. 9. SULTAN DUMALONDONG Municipal Treasurer did not appear on May 10 & 11, 1998 at the office of the Provincial Treasurer to receive the ballots and other election paraphernalia for distribution to the BEIs so there was no election supplies for distribution on election day. + All election paraphernalia for 16 precincts are available. 10. SULTAN GUMANDER no BEIs appeared on election day because most of them are disqualified by law to act as such; the remaining 12 who are not disqualified also did not appear; there was also disagreement on the venue of distribution of election supplies. + All election paraphernalia for 51 precincts are available. 11. TUBARAN non-appearance of all the members of the different BEIs due to intense rivalry among the opposing candidates. + All election supplies are intact and available. 12. TUGAYA widespread terrorism causing intimidation of the electorate to cast their vote. The order of inclusion by the Municipal Court of Tugaya, covering 4,075 voters, will be the subject of a petition to declare its nullity to be filed by the Law Department of the Commission before the Regional Trial Court in Marawi City. It is the desire of the Commission to put to rest the issue on the controversy surrounding the 4,075 voters to allow honest election in this municipality. After the controversy is put to rest, then the special election shall be scheduled. PARTIAL FAILURE OF ELECTION In the following municipalities and City of Marawi, there was partial failure of election in the specified precincts due to the following reasons:

1. GANASSI members of the BEIs for nine precincts as herein below enumerated did not appear thus election supplies were not distributed on election day for the following precincts: Barangay Name 1. Poblacion Precinct No. 1A2 1A3/1A4 2. Baya 3. Linuk 8A 14A 14A1 14A2 4. Macaguiling 18A 18A1 18A2 There was also failure of election in precinct 1A1 and 17A1 due to ballot box snatching. The ballot box containing official ballots and other election paraphernalia for precinct 17A1, Brgy. Macabao whose polling place was at Ganassi Central Elementary School was snatched allegedly by the incumbent mayor of Ganassi, Maning Diangka and his armed escorts. In precinct 2A in Brgy. Bagoingud, failure of election is declared and special election shall be held considering that the ballot box, official ballots and other election paraphernalia were illegally brought to a private dwelling in said barangay and voting irregularly took place therein despite the fact that the designated polling place was Gadungan Elementary School at Gadungan. This could not take place unless the BEIs assigned in Precinct 2A cooperated in these acts. The acts complained of against Ex-Mayor Maning Diangka shall be referred to the Provincial Prosecutor of Lanao del Sur for possible prosecution. Similarly, the Election Officer of Ganassi is directed to inform the Commission of the identity of the BEIs for precinct 2A for possible prosecution. Considering the charge of Maimona Diangka in SPA 98-404 that Baguio Macapodi, candidate for Vice Mayor of the Ompia Party and his cohort Bai Sa Ganassi terrorized registered voters in Precincts 32, 32A, 32A1, and 32A2 in Barangay Taliogan, Ganassi and that they were allegedly aided by the Barangay Chairman therein, said acts shall

be referred immediately to the office of the Provincial Prosecutor of Lanao del Sur for investigation. During the special election, the members of the Municipal Board of Canvassers of Ganassi are hereby directed to suspend the proclamation of Baguio Macapodi for vice mayor, if winning, until further orders from this Commission. + All election paraphernalia for the nine (9) precincts where there was nonappearance of BEIs are available. The Commission shall cause the printing of ballots and other election forms for precincts 1A1 (Poblacion), 17A1 (Brgy. Macabao), and 2A (Brgy. Bagoingud) for use in the special election since the snatched ballot box were not recovered. 2. MALABANG twenty three (23) precincts failed to function due to shooting incidents. Ballot boxes containing election paraphernalia for five precincts out of these 23 precincts were snatched and never recovered. The following are the precincts that failed to function on election day or whose ballot boxes were snatched: Barangay Name 1. Banday 2. Betayan 3. BPS Billage 4. Bunkhouse 5. Calumbog 6. Campo Muslim < 7. Chinatown 8. - do < Precinct No. 4A2 5A/5A1 7A2/7A3 8A1 11A/11A1 12A2 13A 13A4 14A 15A 15A1 < < 26A 29A

9. Curahab 10. 11. 12. 13. Diamaru - do Matampay Pasir

14. 15. 16. 17. 18. 19. 20. 21. 22. 23.

- do - do Sumbagarogong - do Tacub Tiongcop - do Tubok - do - do <

29A1 29A2 33A 33A1 34A 36A 36A1/36A2 37A2 37A5 37A6

< ballot box snatched + All election paraphernalia for eighteen precincts are intact and available. The Commission will cause the printing of 1,000 ballots and other election forms for five precincts (8A1, 12A2, 26A, 34A). 3. MARANTAO thirty-five (35) precincts failed to function due to terrorism in the area. Out of these 35, eight (8) precincts lost to armed groups their ballot boxes, ballots and other election paraphernalia. These eight are: Name of Barangay 1. Daana Ingud Proper 2. - do 7A 7A1 22A/22A-1 29A 29A-2 Precinct No. 3A 3A1/3A2

3. Tuca Kialdan 4. - do -

5. Banga Pantar 6. Inudaran Campong 7. - do -

8. Mapantao Goo

34A-2

Ballots are to be printed for these precincts by the Commission. Canvassing forms and other paraphernalia shall also be provided. In Precincts No. 12A, 24A and 24A1, ballots were cast but were not yet counted due to complaints that their integrity had been violated. There being no proof that the integrity of the ballots had been violated in these precincts, the members of the Municipal Board of Canvassers of Marantao are directed to include the same in the canvass. 4. PAGAYAWAN casting of votes was aborted due to widespread terrorism. Fifteen (15) precincts failed to function. + All election paraphernalia are available. However, in precinct 5A/5A1, some commotion took place. Eleven voters out of two hundred and sixty-eight (268) have already cast their votes at the time but only one ballot was found inside the ballot box after the commotion. The Commission deems it proper that the casting of votes by the eleven voters be annulled and a special election shall be conducted therein. 5. Marawi City there was partial failure of election in sixteen precincts (16), namely -Name of Barangay 1. Brgy. Banggolo 2. - do Precinct No. 6A2 6A3 42A-4 85A 83A-3 74A-6 3A 3A-1 3A-2 Brgy. Raya Saduc Brgy. Guimba - do 76A 38A 38A-1/38A-2

3. Brgy. Lilod Madaya 4. Brgy. South Madaya 5. Brgy. Sangkai Dansalan 6. Brgy. Raya Madaya I 7. Brgy. Bacolod Chico 8. - do 9. - do 10. 11. 12.

13. 14. 15. 16.

Brgy. Lolod Saduc Brgy. Bangco Brgy. Timbangalan - do -

73A-5 5A-5A-1 88A 88A-1/88A-2

due to non-appearance of the BEIs. All election paraphernalia are in order and available except for one ballot box intended for Precinct 5A/5A-1 in Brgy. Banco which is missing or undelivered or without ballots contained therein. The petition for declaration of failure of election in the municipality of Calanogas, Lanao del Sur will be covered by a different resolution. To avoid the risk of another failure of elections and to encourage public trust in the process and results of the special elections, the following changes shall be undertaken: a. Only elements of the Armed Forces of the Philippines and the Philippine National Police who are assigned to the affected areas shall serve as members of the Board of Election Inspectors (BEIs). The Acting Provincial Election Supervisor (PES) of Lanao del Sur, Atty. Suharto Ambolodto, shall ensure that said BEIs are given adequate briefing for this task; Considering that under-aged persons succeeded in registering voters, a complaint that is common in many areas in Lanao del Sur, the BEIs are given explicit authority to prevent from voting all those registered voters who are visibly under-aged and shall reflect their names and VRR numbers in the Minutes of Voting for future prosecution. For this purpose, all poll watchers are encouraged to provide themselves with camera and provide indubitable proof of under-aged voters. b. Election officers from areas outside of Lanao del Sur shall be tapped to act as Election Officers, while the regular election officers in Lanao del Sur shall perform such duties as directed by the Acting PES; c. The special election in the municipality of Madalum shall be scheduled only after the Investigating Team aforementioned has finished its investigation of alleged ghost precincts therein and the Commission has acted on their findings of facts and recommendation(s); d. The special election in the municipality of Tugaya shall be scheduled after the controversy on the four thousand and seventy-five (4,075) voters shall have been settled;

e. Considering the complaints received by the Commission against certain actuations of the Provincial Board of Canvassers, the same shall be replaced with a new Provincial Board of Canvassers whose members shall be designated by the Commission; f. The PNP, thru the Criminal Investigation Group in Region XII and the Prosecution Offices in Lanao del Sur shall actively help in the filing of criminal complaint for election offenses committed during the election period. Petitioner asserts that the COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in issuing the assailed Omnibus Order 1.] By insisting on holding special elections on July 18 and 25, 1998 more than thirty (30) days after the failure to elect, in certain municipalities, in contravention of the clear and explicit provisions of Section 6 of the Omnibus Election Code; 2.] By failing to declare a total failure of elections in the entire province of Lanao del Sur and to certify the same to the President of the Philippines and Congress so that the necessary legislation may be enacted for the holding of a special election; 3.] By ordering only elements of the Armed Forces of the Philippines and the Philippine National Police who are not assigned to the affected areas as members of the Board of Election Inspectors, in contravention of Sections 166, 170, 175 and 176 of the Omnibus Election Code; 4.] By insisting on machine counting despite the proven unreliability and undependability of the counting of votes with use of computer machines. In support of his cause, petitioner insists on a strict compliance with the holding of special elections not later than thirty (30) days after failure to elect pursuant to Section 6 of the Omnibus Election Code which provides that: SEC. 6. Failure of elections. If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. Petitioner argues that the above-quoted provision is mandatory because of the word shall. He further asserts that the prescribed time frame actually delimits

COMELECs authority to call for a special election and that instead, the power to call for a special election after the 30th day now resides in Congress. The provision invoked can not be construed in the manner as argued by petitioner for it would defeat the purpose and spirit for which the law was enacted. It is a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution and that the spirit, rather than the letter of the law determines its construction; for that reason, a statute must be read according to its spirit and intent.[4] Thus, a too literal interpretation of the law that would lead to absurdity prompted this Court to *a+dmonish against a tooliteral reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually found not in the letter that killeth but in the spirit that vivifieth xxx*5+ Section 2 (1) of Article IX (C) of the Constitution gives the COMELEC the broad power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall. There can hardly be any doubt that the text and intent of this constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful and credible elections. Pursuant to this intent, this Court has been liberal in defining the parameters of the COMELECs powers in conducting elections. As stated in the old but nevertheless still very much applicable case of Sumulong v. COMELEC:[6] Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions xxx. There are no ready made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of laws relative to the conduct of election xxx we must not by any excessive zeal take away from the Commission on Elections that initiative which by constitutional and legal mandates properly belongs to it. More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al.,[7] that *O+ur elections are not conducted under laboratory conditions. In running for public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen circumstances that threaten to subvert the will of our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism of these actions often taken under very difficult circumstances. The purpose of the governing statutes on the conduct of elections *i+s to protect the integrity of elections to suppress all evils that may violate its

purity and defeat the will of the voters. The purity of the elections is one of the most fundamental requisites of popular government. The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with.*8+ Guided by the above-quoted pronouncement, the legal compass from which the COMELEC should take its bearings in acting upon election controversies is the principle that clean elections control the appropriateness of the remedy.[9] In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than thirty (30) days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. The first involves a question of fact. The second must be determined in the light of the peculiar circumstances of a case.[10] Thus, the holding of elections within the next few months from the cessation of the cause of the postponement, suspension or failure to elect may still be considered reasonably close to the date of the election not held.*11+ In this case, the COMELEC can hardly be faulted for tardiness. The dates set for the special elections were actually the nearest dates from the time total/partial failure of elections was determined, which date fell on July 14, 1998, the date of promulgation of the challenged Omnibus Order. Needless to state, July 18 and 25, the dates chosen by the COMELEC for the holding of special elections were only a few days away from the time a total/partial failure of elections was declared and, thus, these were dates reasonably close thereto, given the prevailing facts herein. Furthermore, it bears stressing that in the exercise of the plenitude of its powers to protect the integrity of elections, the COMELEC should not and must not be straitjacketed by procedural rules in the exercise of its discretion to resolve election disputes.[12] Petitioners argument that respondent COMELEC gravely abused its discretion by failing to declare a total failure of elections in the entire province of Lanao del Sur and to certify the same to the President and Congress so that the necessary legislation may be enacted for the holding of a special election, likewise fails to persuade. No less than petitioner himself concedes that there was total failure of elections in twelve (12) municipalities and partial failure in eleven (11). Yet he now insists a total failure of elections should have been declared in the entire province of Lanao del Sur. Suffice it to state that the propriety of declaring whether or not there has been a total failure of elections in the entire province of Lanao del Sur is a factual issue which this Court will not delve into considering that the COMELEC, through its deputized officials in the field, is in the best position to assess the actual conditions

prevailing in that area. Absent any showing of grave abuse of discretion, the findings of fact of the COMELEC or any administrative agency exercising particular expertise in its field of endeavor, are binding on the Court.[13] There is no cogent reason to depart from the general rule in this case. The insistence of petitioner that the COMELEC violated Sections 166, 170, 175 and 176 of the Omnibus Election Code when it ordered elements of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) who are not assigned to the affected areas as members of the Board of Election Inspectors (BEIs) is likewise unconvincing vis--vis the underlying reason of the public respondent to have an effective and impartial military presence to avoid the risk of another failure of elections. So too must fall the argument that machine counting being allegedly undependable and unreliable should not be resorted to as the reasoning of petitioner, by itself, invokes the answer. If the COMELEC saw it fit to order a machine counting of votes in the municipalities enumerated, it could only mean that the decree of R.A. No. 8436 could be implemented without the interference of the claimed unreliability, inaccuracy and undependability of the computer sets. The absence of any satisfactory proof to support petitioners allegations to the contrary reduces them to mere self-serving claims. Be that as it may, we agree with the Solicitor General that the petition has been rendered moot by supervening events. For one, it seeks to enjoin the holding of special elections scheduled for July 18 and 25, 1998. However, petitioner himself admits that special elections were conducted on a staggered basis on July 4, 18 and 25, 1998.[14] For another, the petition questions the membership of the Board of Election Inspectors for being composed of elements of the Armed Forces of the Philippines and the Philippine National Police as well as the machine counting of the votes when these events have been superseded by the recent issuance of the Certificates Of Canvass Of Votes And Proclamation Of The Winning Candidates For Provincial Offices dated August 7, 1998.[15] In face of these supervening events, the arguments proffered by the petitioner to seek the annulment of the challenged Omnibus Order rings hollow. Verily At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections; literal or liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.*16+ Indeed, to embark upon the costly electoral exercise insisted upon by petitioner in terms of time and taxpayers money is an unwarranted imposition on the people of the affected areas and is an unacceptable option to the judicial conscience. WHEREFORE, in view of all the foregoing, the petition is DISMISSED for lack of

merit. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,Quisumbing Purisima, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Panganiban, J., in the result. Pardo, J., no part.

Recall

EN BANC [G.R. No. 126576. March 5, 1997]

MAYOR RICARDO M. ANGOBUNG, petitioner, vs. COMMISSSION ON ELECTIONS EN BANC, and ATTY. AURORA S. DE ALBAN, respondents. DECISION HERMOSISIMA, JR., J.: Before us on certiorari is a petition seeking to annul and set aside Resolution No. 96-2951[1] dated October 15, 1996 issued by public respondent Commission on Elections (COMELEC) which (1) approved the Petition for Recall filed and signed by only one registered voter - herein private respondent Ma. Aurora Siccuan de Alban, against petitioner - incumbent Mayor Ricardo Angobung; (2) set the further signing of said petition by the rest of the registered voters of Tumauini, Isabela on November 9, 1996; and (3) in case the said petition is signed by at least 25% of the total number of registered votes in Tumauni, Isabela, scheduled the recall election on December 2, 1996. On October 25, 1996, this court issued a Temporary Restraining Order[2] enjoining public respondent COMELEC from implementing and enforcing Resolution No. 96-2951. The facts of this case are not disputed. Petitioner won as the duly elected Mayor of the Municipality of Tumauini, Isabela in the local elections of 1995. He garnered 55% of all the votes cast. Private respondent de Alban was also a candidate in said elections. Sometime in early September, 1996, private respondent filed with the Local Election Registrar in Tumauni, Isabela, a Petition for Recall[3] against petitioner. On September 12, 1996, petitioner received a copy of this petition. Subsequently said petition was forwarded to the Regional Office in Tuguegarao, Cagayan and then to the main office of COMELEC in Manila, for approval. Acting on the petition, Deputy Executive Director for Operations Pio Jose Joson submitted to the COMELEC En Banc, a Memorandum[4] dated October 8, 1996 recommending approval of the petition for recall filed by private respondent and its signing by other qualified voters in order to garner at least 25% of the total number of registered voters as required by Section 69(d) of the Local Government code of 1991. In turn acting on the abovementioned Memorandum of Deputy Executive Director Joson, the COMELEC en banc issued the herein assailed Resolution No. 96-

2951. Petitioner now attacks the aforementioned resolution as being unconstitutional and therefore invalid, on two main grounds: (1) that the resolution approved the Petition for Recall albeit same was signed by just one person in violation of the statutory 25% minimum requirement as to the number of signatures supporting and petition for recall; and (2) that the resolution scheduled the recall election within one (1) year from the May 12, 1997 Barangay Elections. In at least three (3) urgent motions, private respondent has sought the lifting of the Temporary Retraining Order issued last October 25, 1996 on the twin grounds (1) that the issue of the one-year bar on recall elections has been resolved in the case of Paras v. COMELEC[5] promulgated on November 4, 1996; and (2) that the procedure prescribed by Resolution No. 96-2951 involving petition signing upon initiation of even just one person, is no different from that provided for in COMELEC Resolution No. 2272 which was upheld as constitutional in the 1991 cases of Sanches, et al. v. COMELEC[6] and Evardone v. COMELEC[7] Private respondent is correct in saying that in the light of our pronouncement in Paras v. COMELEC[8], the recall election scheduled on December 2, 1996 in the instant case cannot be said to be barred by the May 12, 1997 Barangay Elections. In construing the meaning of the term, regular local election in Section 74 of the Local Government Code of 1991 which provides that no recall shall take place within one (1) year x x x immediately preceding a regular local election, we ruled that for the time bar to apply, the approaching regular local election must be one where the position of the official to be recalled, is to be actually contested and filled by the electorate. Thus, in the instant case where the time bar is being invoked by petitioner mayor in view of the approaching Barangay Elections in May 1997, there can be no application of the one year bar, hence no invalidity may be ascribed to Resolution No. 96-2951 on this ground. We, however, find petitioners second ground to be impressed with merit. Before the enactment of the 1991 Local Government Code, the recall of public officials voted for in popular elections, was governed by Sections 54 to 59 of Batas Pambansa Blg. 337, otherwise known as the Local Government Code of 1983. Pursuant to Section 59 thereof, which states that the Commission on Elections shall conduct and supervise the process of and election on recall x x x and, in pursuance thereof, promulgate the necessary rules and regulations, the COMELEC promulgated Resolution No. 2272 Sections 4 and 5 of which provide as follows: Sec. 4. How instituted. - The recall of an elective provincial, city or municipal official shall be commenced by the filing of a duly verified notice of recall containing the address and precinct number of the voter filing the notice, and the name of the official sought to be recalled, his position, and the ground(s) for the recall. Each notice shall refer to only one official. The notice shall be filed in triplicate with the local Election Registrar if

the recall involves a city or municipal official, or with the Provincial Election Supervisor if it involves a provincial official, one copy of which shall be posted upon receipt thereof on the bulletin board in the city/municipal hall. If the recall involves a provincial official, two additional copies of the notice shall also be furnished by the voter filing the notice to the Election Registrar of each city and municipality in the province, one copy of which shall be posted upon receipt thereof on the bulletin board in the city/municipal hall. In every case, the voter filing the notice of recall shall furnish a copy thereof to the official sought to be recalled, the Commission on Elections in Manila and the Election Records and Statistics Department of the Commission. Section 5. Schedule and place of signing of the petition. - The Election Registrar shall submit to the Commission on Elections, not later than ten days from filing of the notice of recall, the schedule of the signing of the petition to recall for approval and funding x x x.*9+ In the case of Sanchez v. COMELEC[10], petitioners therein contended that the aforegoing Resolution No. 2272 is unconstitutional there being no legislative enactment yet on [the] mechanism of recall as mandated under Sec. 3, Art. X of the Constitution*11+ It is true, as private respondent asseverates, that we upheld the constitutionality of Resolution No. 2272, but not because we found nothing constitutionally infirm about the procedure of allowing the initiatory recall petition to be filed by only one person. The issue in Sanchez was not this questioned procedure but the legal basis for the exercise by the COMELEC of its rule-making power in the alleged absence of a grant of such power by an enabling statute on recall. Thus we ruled: While it is true that Sec. 3, Art. X of the Constitution mandates the Congress to enact a local government code providing among others for an effective mechanism of recall, nothing in said provision could be inferred the repeal of BP 337, the local government code existing prior to the adoption of the 1987 Constitution. Sec. 3, Art. X of the Constitution merely provides that the local government code to be enacted by Congress shall be more responsive than the one existing at present. Until such time that a more responsive and effective local government code is enacted, the present code shall remain in full force and effect. Thus, under Sec. 3, Art. XVIII, (a)ll existing laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked. Considering that the present local government code (BP 337) is still in effect, respondent COMELECs promulgation of Resolution No. 2272 is therefore valid and constitutional, the same having been issued pursuant to Sec. 59 of BP 337. It reads:

Sec. 59. Supervision by the Commission on Elections. - The Commission on Elections shall conduct and supervise the process of and election on recall x x x and, in pursuance thereof, promulgate the necessary rules and regulations.*12+ We reiterated the foregoing ruling in the case of Evardone v. COMELEC[13] in this wise: Article XVIII, Section 3 of the 1987 Constitution expressly provides that all existing laws not inconsistent with the 1987 Constitution shall remain operative, until amended, repealed or revoked. Republic Act No. 7160 providing for the Local Government Code of 1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But the Local Government Code of 1991 will take effect only on 1 January 1992 and therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable to the present case. xxx Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective officials. Section 59 expressly authorizes the respondent COMELEC to conduct and supervise the process of and election on recall and in the exercise of such powers, promulgate the necessary rules and regulations. x x x Thus, pursuant to the rule-making power vested in respondent COMELEC, it promulgated Resolution No. 2272 on 23 May 1990. We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and constitutional. Consequently, the respondent COMELEC had the authority to approve the petition for recall and set the date for the signing of said petition.*14+ In Sanchez and Evardone, the COMELEC prescribed procedure of (1) allowing the recall petition to be filed by at least one person or by less than 25% of the total number of registered voters and then (2) inviting voters to sign said petition on a date set for that purpose, was never put to issue. As this is the crux of the present constitutional challenge, the proper time has come for this court to issue a definitive ruling on the matter. Apropos for starters is the following chronicle of the evolution of the mechanism of recall as a mode of removing a public officer by direction action of the people, essayed in the case of Garcia v. COMELEC:[15] Recall is a mode of removal of a public officer by the people before the end of his term of office. The peoples prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as

a fundamental right of the people in a representative democracy. Recall as a mode of removal of elective local officials made its maiden appearance in section 2 of Article XI entitled Local Government, viz: SEC. 2. The Batasang Pambansa shall enact a local government code which may not thereafter be amended except by a majority vote of all its Members, defining a more responsive and accountable local government structure with an effective system of recall x x x The Batasang Pambansa then enacted BP 337 entitled, The Local Government Code of 1983 Section 54 of its Chapter 3 provided only one mode of initiating the recall elections of local election officials, i.e., by petition of at least twentyfive percent (25%) of the total number of registered voters in the local government unit concerned x x x. Our legal history does not reveal any instance when this power of recall as provided by BP 337 was exercised by our people. In February , 1986, however, our people more than exercised their right of recall for they resorted to revolution and they booted out of office the highest elective officials of the land. The successful use of people power to remove public officials who have forfeited the trust of the electorate led to its firm institutionalization of the 1987 Constitution. Its Articles XIII expressly recognized the Role and Rights of Peoples Organizations x x x. Section 3 of its Article X also reiterated the mandate for Congress to enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative and referendum x x x. In response to this constitutional call, Congress enacted R.A. 7160, otherwise known as the Local Government Code of 1991, which took effect on January 1, 1992.*16+ Section 69(d) of the Local Government Code of 1991 expressly provides that recall of any elective x x x municipal x x x official may also be validly initiated upon petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. The law is plain and unequivocal as to what initiates recall proceedings: only a petition of at least 25% of the total number of registered voters, may validly initiate recall proceedings. We take careful note of the phrase, petition of at least twenty-five percent (25%) and point out that the law does not state that the petition must be signed by at least 25% of the registered voters; rather, the petition must be of or by, at least 25% of the registered voters,

i.e., the petition must be filed, not by one person only, but by at least 25% of the total number of registered voters. This is understandable, since the signing of the petition is statutorily required to be undertaken before the election registrar or his representative, and in the presence of a represetantive of the official sought to be recalled, and in public place in the x x x municipality x x x.*17+ Hence, while the initiatory recall petition may not yet contain the signatures of at least 25% of the total number of registered voters, the petition must contain the names of at least 25% of the total number of registered voters in whose behalf only one person may sign the petition in the meantime. We cannot sanction the procedure of the filing of the recall petition by a number of people less than the foregoing 25% statutory requirement, much less, the filing thereof by just one person, as in the instant case, since this is indubitably violative of clear and categorical provisions of subsisting law. Our legislators did not peg the voter requirement at 25% out of caprice or in a vacuum. They knew that this is the requirement under a majority of the constitution and recall statutes in various American states to the same extent that they were aware of the rationale therefor. While recall was intended to be an effective and speedy remedy to remove an official who is not giving satisfaction to the electorate regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience dictates,[18] it is a power granted to the people who, in concert, desire to change their leaders for reasons only they, as a collective, can justify. In other words, recall must be pursued by the people, not just by one disgruntled loser in the elections or a small percentage of disenchanted electors. Otherwise, its purposes as a direct remedy of the people shall be defeated by the ill motives of a few among them whose selfish resort to recall would destabilize the community and seriously disrupt the running of government. A scrutiny of the rationale underlying the time bar provisions and the percentage of minimum voter requirement in American recall statutes, unmistakably reveals the vigilance of lawmakers against the abuse of the power of recall. For instance, the Supreme Court of Illinois held in the case of In Re Bower[19] that: *t+the only logical reasons which we can ascribe for requiring the electors to wait one year before petitioning for a recall election is to prevent premature action on their parting voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his political policies and decisions. We view the statutory provision requiring the number of petition signers to equal at least 45% of the total votes case in the last general election for mayor as a further attempt to insure that an official will not have to defend his policies against frivolous attacks launched by a small percentage of disenchanted electors.*20+ Along the same lines, the Supreme Court of Colorado held in the case of Bernzen v. City of Boulder[21] that: *t+he framers, by requiring that a recall petition contain the

signatures of at least 25% of all votes cast in the last election for all candidates for the position which the person sought to be recalled occupies, assured that a recall election will not be held in response to the wishes of a small and unrepresentative minority. However, once at least 25% of the electorate have expressed their dissatisfaction, the constitution reserves the recall power to the will of the electorate.*22] And in the case of Wallace v. Tripp[23], the Supreme Court of Michigan, echoed the foregoing posturings in this wise: Much of what has been said to justify a limit upon recall clearly not provided or contemplated by the Constitution has revealed fears about an irresponsible electorate xxx. A much cited Nebraska case pertaining to a Nebraska recall statute provides some answers which are equally applicable to the Michigan constitutional right of recall: xxx Doubtless the provision requiring 30 per cent of the electors to sign the petition before the council [is] compelled to act was designed to avoid such a contingency. The legislature apparently assumed that nearly one-third of the electorate would not entail upon the taxpayers the cost of an election unless the charges made approved themselves to their understanding and they were seriously dissatisfied with the services of the incumbent of the office.*24+ In the instant case, this Court is confronted with a procedure that is unabashedly repugnant to the applicable law and no less such to the spirit underlying that law. Private respondent who is a lawyer, knows that Section 69(d) of the Local Government Code plainly provides that recall is validly initiated by a petition of 25% of the total number of registered voters. Notwithstanding such awareness, private respondent proceeded to file the petition for recall with only herself as the filer and initiator. She claims in her petition that she has, together with many others in Tumauini, Isabela, lost confidence in the leadership of petitioner. But the petition does not bear the names of all these other citizens of Tumauini who have reportedly also become anxious to oust petitioner from the post of mayor. There is no doubt that private respondent is truly earnest in her cause, and the very fact that she affixed her name in the petition shows that she claims responsibility for the seeming affront to petitioners continuance in office. But the same cannot be said of all the other people whom private respondent claims to have sentiments similar to hers. While the people are vested with the power to recall their elected officials, the same power is accompanied by the concomitant responsibility to see through all the consequences of the exercise of such power, including rising above anonymity, confronting the official sought to be recalled, his family, his friends, and his supporters, and seeing the recall election to its ultimate end. The procedure of allowing just one person to file the initiatory recall petition and then setting a date for the signing of the petition, which amounts to inviting and courting the public which may have not, in the first place, even entertained any displeasure in the performance of the official sought to be recalled, is not only violative of statutory law but also tainted with an attempt to go around the law. We

can not and must not, under any and all circumstances, countenance a circumvention of the explicit 25% minimum voter requirement in the initiation of the recall process. WHEREFORE, premises considered, the PETITION FOR CERTIORARI is hereby GRANTED. COMELEC Resolution No. 96-2951 is hereby DECLARED NULL and VOID and accordingly SET ASIDE. The RESTRAINING ORDER heretofore issued is hereby made permanent. Costs against private respondent. SO ORDERED. Narvasa, C.J. (Chairman), Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Panganiban, and Torres, Jr., JJ., concur.

EN BANC [G.R. No. 140560. May 4, 2000] JOVITO O. CLAUDIO, petitioner, vs. COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT, COMMISSION ON AUDIT and RICHARD ADVINCULA, respondents. [G.R. No. 140714. May 4, 2000] PREPARATORY RECALL ASSEMBLY OF PASAY CITY, herein represented by its Chairman, RICHARD ADVINCULA, petitioner, vs. THE COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT, COMMISSION ON AUDIT and HON. JOVITO O. CLAUDIO, respondents. DECISION MENDOZA, J.: Calrky These are petitions arising from the proceedings initiated by the Preparatory Recall Assembly of Pasay City (PRA) in the Commission on Elections in E.M. No. 99-005 entitled IN THE MATTER OF THE PREPARATORY RECALL ASSEMBLY RESOLUTION NO. 01, S-1999 ADOPTED ON 29 MAY 1999 FOR THE RECALL OF MAYOR JOVITO CLAUDIO OF PASAY CITY. G.R. No. 140560 is a petition for certiorari and prohibition, seeking the nullification of the resolution,[1] dated October 18, 1999, of the COMELEC giving due course to the petition for the recall of petitioner Jovito O. Claudio as mayor of Pasay City. On the other hand, G.R. No. 140714 is a petition for mandamus filed by the PRA, represented by its Chair, Richard Advincula, to compel the COMELEC to set the date for the holding of recall elections in Pasay City pursuant to the aforecited resolution of the COMELEC. The facts are as follows: Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected mayor of Pasay City in the May 11, 1998 elections. He assumed office on July 1, 1998. Sometime during the second week of May 1999, the chairs of several barangays in Pasay City gathered to discuss the possibility of filing a petition for recall against Mayor Claudio for loss of confidence. On May 19, 1999, at the residence of barangay chair Benjamin Lim, Jr. in Barangay 11, Zone 4, Pasay City, several barangay chairs formed an ad hoc committee for the purpose of convening the PRA. Richard Advincula, private respondent in G.R. No. 140560 and petitioner in G.R. No. 140714, was designated chair. On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads, and sangguniang kabataan chairs of Pasay City, adopted Resolution No.

01, S-1999, entitled RESOLUTION TO INITIATE THE RECALL OF JOVITO O. CLAUDIO AS MAYOR OF PASAY CITY FOR LOSS OF CONFIDENCE. In a letter dated June 29, 1999, Advincula, as chair of the PRA, invited the Mayor, Vice-Mayor, Station Commander, and thirteen (13) Councilors of Pasay City to witness the formal submission to the Office of the Election Officer on July 2, 1999 of the petition for recall. Mesm As scheduled, the petition for recall was filed on July 2, 1999, accompanied by an affidavit of service of the petition on the Office of the City Mayor. Pursuant to the rules of the COMELEC, copies of the petition were posted on the bulletin boards of the local COMELEC office, the City Hall, the Police Department, the public market at Libertad St. and Taft Avenue, and at the entrance of the Sta. Clara Church on P. Burgos St., all in Pasay City. Subsequently, a verification of the authenticity of the signatures on the resolution was conducted by Ligaya Salayon, the election officer for Pasay City designated by the COMELEC. Oppositions to the petition were filed by petitioner Jovito O. Claudio, Rev. Ronald Langub, and Roberto L. Angeles, alleging procedural and substantive defects in the petition, to wit: (1) the signatures affixed to the resolution were actually meant to show attendance at the PRA meeting; (2) most of the signatories were only representatives of the parties concerned who were sent there merely to observe the proceedings; (3) the convening of the PRA took place within the one-year prohibited period; (4) the election case,[2] filed by Wenceslao Trinidad in this Court, seeking the annulment of the proclamation of petitioner Claudio as mayor of Pasay City, should first be decided before recall proceedings against petitioner could be filed; and (5) the recall resolution failed to obtain the majority of all the members of the PRA, considering that 10 were actually double entries, 14 were not duly accredited members of the barangays, 40 sangguniang kabataan officials had withdrawn their support, and 60 barangay chairs executed affidavits of retraction. Slx In its resolution of October 18, 1999, the COMELEC granted the petition for recall and dismissed the oppositions against it. On the issue of whether the PRA was constituted by a majority of its members, the COMELEC held that the 1,073 members who attended the May 29, 1999 meeting were more than necessary to constitute the PRA, considering that its records showed the total membership of the PRA was 1,790, while the statistics of the Department of Interior and Local Government (DILG) showed that the total membership of the PRA was 1,876. In either case, since only a majority is required to constitute the PRA, clearly, a majority had been obtained in support of the recall resolution. Based on the verification made by election officer Ligaya Salayon, the COMELEC found the signatures of 958 members of the PRA sufficient. On whether the pendency of the case questioning the proclamation of petitioner was a prejudicial question which must first be decided before any recall election could be held, the COMELEC ruled that it was not and that petitioner was merely using the pendency of the case to delay the recall proceedings. Finally, on whether the petition for recall violated the bar on recall within one year from the elective official's assumption of office, the COMELEC ruled in the negative, holding that recall is a process which starts with the filing of the petition for recall. Since the petition was filed on July 2, 1999, exactly one year and a

day after petitioner Claudio's assumption of office, it was held that the petition was filed on time. Hence, these petitions. Oral arguments were held in these cases in Baguio City on April 4, 2000, after which the Court, by the vote of 8 to 6 of its members,[3] resolved to dismiss the petition in G.R. No. 140560 for lack of showing that the COMELEC committed a grave abuse of discretion. On the other hand, the Court unanimously dismissed the petition in G.R. No. 140714 on the ground that the issue raised therein had become moot and academic. We now proceed to explain the grounds for our resolution. In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date of the recall elections in Pasay City on April 15, 2000. Consequently, the petition for mandamus in G.R. No. 140714 to compel the COMELEC to fix a date for the recall elections in Pasay City is no longer tenable. We are thus left with only petitioner Claudio's action for certiorari and prohibition. The bone of contention in this case is 74 of the Local Government Code (LCG)[4] which provides: Scslx Limitations on Recall. - (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election. As defined at the hearing of these cases on April 4, 2000, the issues are: WHETHER, under Section 74 of the Local Government Code of 1991 (R.A. No. 7160) ... A. The word "recall" in paragraph (b) covers a process which includes the convening of the Preparatory Recall Assembly and its approval of the recall resolution. B. The term "regular local election" in the last clause of paragraph (b) includes the election period for that regular election or simply the date of such election. (1) On Whether the Word "Recall" in Paragraph (b) of 74 of the Local Government Code

Includes the Convening of the Preparatory Recall Assembly and the Filing by it of a Recall Resolution Petitioner contends that the term "recall" in 74(b) refers to a process, in contrast to the term "recall election" found in 74(a), which obviously refers to an election. He claims that "when several barangay chairmen met and convened on May 19, 1999 and unanimously resolved to initiate the recall, followed by the taking of votes by the PRA on May 29, 1999 for the purpose of adopting a resolution to initiate the recall of Jovito Claudio as Mayor of Pasay City for loss of confidence, the process of recall began" and, since May 29, 1999 was less than a year after he had assumed office, the PRA was illegally convened and all proceedings held thereafter, including the filing of the recall petition on July 2, 1999, were null and void. Slxsc The COMELEC, on the other hand, maintains that the process of recall starts with the filing of the petition for recall and ends with the conduct of the recall election, and that, since the petition for recall in this case was filed on July 2, 1999, exactly one year and a day after petitioner's assumption of office, the recall was validly initiated outside the one-year prohibited period. Both petitioner Claudio and the COMELEC thus agree that the term "recall" as used in 74 refers to a process. They disagree only as to when the process starts for purposes of the one-year limitation in paragraph (b) of 74. We can agree that recall is a process which begins with the convening of the preparatory, recall assembly or the gathering of the signatures at least 25% of the registered voters of a local government unit, and then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of the recall election, and the holding of the election on the scheduled date.[5] However, as used in paragraph (b) of 74, "recall" refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement. Several reasons can be cited in support of this conclusion. First, 74 deals with restrictions on the power of recall. It is in fact entitled "Limitations on Recall." On the other hand, 69 provides that "the power of recall ...shall be exercised by the registered voters of a local government unit to which the local elective official belongs." Since the power vested on the electorate is not the power to initiate recall proceedings[6] but the power to elect an official into office, the limitations in 74 cannot be deemed to apply to the entire recall proceedings. In other words, the term "recall" in paragraph (b) refers only to the recall election, excluding the convening of the PRA and the filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25 % of the voters for a petition for recall. Thus, there may be several PRAs held (as in the case of Bataan Province in 1993) or petitions for recall filed with the COMELEC - there is no legal limit on the number of

times such processes may be resorted to. These are merely preliminary steps for the purpose of initiating a recall. The limitations in 74 apply only to the exercise of the power of recall which is vested in the registered voters. It is this - and not merely, the preliminary steps required to be taken to initiate a recall - which paragraph (b) of 74 seeks to limit by providing that no recall shall take place within one year from the date of assumption of office of an elective local official. Indeed, this is the thrust of the ruling in Garcia v. COMELEC[7] where two objections were raised against the legality of PRAs: (1) that even the power to initiate recall proceedings is the sole prerogative of the electorate which cannot be delegated to PRAs, and (2) that by vesting this power in a PRA, the law in effect unconstitutionally authorizes it to shorten the term of office of incumbent elective local officials. Both objections were dismissed on the ground that the holding of a PRA is not the recall itself. With respect to the first objection, it was held that it is the power to recall and not the power to initiate recall that the Constitution gave to the people. With respect to the second objection, it was held that a recall resolution "merely sets the stage for the official concerned before the tribunal of the people so he can justify why he should be allowed to continue in office. [But until] the people render their sovereign judgment, the official concerned remains in office . . . ." Sdaadsc If these preliminary proceedings do not produce a decision by the electorate on whether the local official concerned continues to enjoy the confidence of the people, then, the prohibition in paragraph (b) against the holding of a recall, except one year after the official's assumption of office, cannot apply to such proceedings. The second reason why the term "recall" in paragraph (b) refers to recall election is to be found in the purpose of the limitation itself. There are two limitations in paragraph (b) on the holding of recalls: (1) that no recall shall take place within one year from the date of assumption of office of the official concerned, and (2) that no recall shall take place within one year immediately preceding a regular local election. The purpose of the first limitation is to provide a reasonable basis for judging the performance of an elective local official. In the Bower case[8] cited by this Court in Angobung v. COMELEC,[9] it was held that "The only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a recall election is to prevent premature action on their part in voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his policies and decisions." The one-year limitation was reckoned as of the filing of a petition for recall because the Municipal Code involved in that case expressly provided that "no removal petition shall be filed against any officer or until he has actually held office for at least twelve months." But however the period of prohibition is determined, the principle announced is that the purpose of the limitation is to provide a reasonable basis for evaluating the performance of an elective local official. Hence, in this case, as long as the election is held outside the one-year period, the preliminary proceedings to initiate a recall can be held even before the end of the first year in office of a local official.

It cannot be argued that to allow recall proceedings to be initiated before the official concerned has been in office for one-year would be to allow him to be judged without sufficient basis. As already stated, it is not the holding of PRA nor the adoption of recall resolutions that produces a judgment on the performance of the official concerned; it is the vote of the electorate in the Election that does. Therefore, as long as the recall election is not held before the official concerned has completed one year in office, he will not be judged on his performance prematurely. Rtcspped Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the purpose of discussing the performance in office of elective local officials would be to unduly restrict the constitutional right of speech and of assembly of its members. The people cannot just be asked on the day of the election to decide on the performance of their officials. The crystallization and formation of an informed public opinion takes time. To hold, therefore, that the first limitation in paragraph (b) includes the holding of assemblies for the exchange of ideas and opinions among citizens is to unduly curtail one of the most cherished rights in a free society. Indeed, it is wrong to assume that such assemblies will always eventuate in a recall election. To the contrary, they may result in the expression of confidence in the incumbent. Our esteemed colleague Justice Puno says in his dissent that the purpose of the oneyear period in paragraph (b) is to provide the local official concerned a "period of repose" during which "[his] attention should not be distracted by any impediment, especially by disturbance due to political partisanship." Unfortunately, the law cannot really provide for a period of honeymoon or moratorium in politics. From the day an elective official assumes office, his acts become subject to scrutiny and criticism, and it is not always easy to determine when criticism of his performance is politically motivated and when it is not. The only safeguard against the baneful and enervating effects of partisan politics is the good sense and self restraint of the people and its leaders against such shortcomings of our political system. A respite from partisan politics may, have the incidental effect of providing respite from partisanship, but that is not really the purpose of the limitation on recall under the law. The limitation is only intended to provide a sufficient basis for evaluating and judging the performance of an elected local official. In any event, it is argued that the judgments of PRAs are not "as politically unassailable as recalls initiated directly by the people." Justice Puno cites the "embarrassing repudiation by the people of [Kaloocan City's] Preparatory Recall Assembly" when, instead of ousting Mayor Rey Malonzo, they reelected him. Two points may be made against this argument. One is that it is no disparagement of the PRA that in the ensuing election the local official whose recall is sought is actually reelected. Laws converting municipalities into cities and providing for the holding of plebiscites during which the question of cityhood is submitted to the people for their approval are not always approved by

the people. Yet, no one can say that Congress is not a good judge of the will of the voters in the locality. In the case of recall elections in Kaloocan City, had it been shown that the PRA was resorted to only because those behind the move to oust the incumbent mayor failed to obtain the signatures of 25% of the voters of that city to a petition for his recall, there may be some plausibility for the claim that PRAs are not as good a gauge of the people's will as are the 25 % of the voters. Indeed, recalls initiated directly by 25% of the registered voters of a local government unit cannot be more representative of the sentiments of the people than those initiated by PRAs whose members represent the entire electorate in the local government unit. Voters who directly initiate recalls are just as vulnerable to political maneuverings or manipulations as are those composing PRAs. Korte The other point regarding Justice Punos claim is that the question here is not whether recalls initiated by 25% of the voters are better. The issue is whether the one-year period of limitation in paragraph (b) includes the convening of the PRA. Given that question, will convening the PRA outside this period make it any more representative of the people, as the petition filed by 25 % of the registered voters is claimed to be? To sum up, the term "recall" in paragraph (b) refers to the recall election and not to the preliminary proceedings to initiate recall 1. Because 74 speaks of limitations on "recall" which, according to 69, is a power which shall be exercised by the registered voters of a local government unit. Since the voters do not exercise such right except in an election, it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided in paragraph (b); 2. Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an elective local official, and final judging is not done until the day of the election; and 3. Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed in the Constitution. As the recall election in Pasay City is set on April 15, 2000, more than one year after petitioner assumed office as mayor of that city, we hold that there is no bar to its holding on that date. (2) On Whether the Phrase "Regular Local Election" in the Same Paragraph (b) of 74 of the Local Government Code includes the

Election Period for that Regular Election or Simply the Date of Such Election Petitioner contends, however, that the date set by the COMELEC for the recall election is within the second period of prohibition in paragraph (b). He argues that the phrase "regular local elections" in paragraph (b) does not only mean "the day of the regular local election" which, for the year 2001 is May 14, but the election period as well, which is normally at least forty five (45) days immediately before the day of the election. Hence, he contends that beginning March 30, 2000, no recall election may be held. Sclaw This contention is untenable. The law is unambiguous in providing that "[n]o recall shall take place within . . . one (1) year immediately preceding a regular local election." Had Congress intended this limitation to refer to the campaign period, which period is defined in the Omnibus Election Code,[10] it could have expressly said so. Moreover, petitioner's interpretation would severely limit the period during which a recall election may be held. Actually, because no recall election may be held until one year after the assumption of office of an elective local official, presumably on June 30 following his election, the free period is only the period from July 1 of the following year to about the middle of May of the succeeding year. This is a period of only nine months and 15 days, more or less. To construe the second limitation in paragraph (b) as including the campaign period would reduce this period to eight months. Such an interpretation must be rejected, because it would devitalize the right of recall which is designed to make local government units" more responsive and accountable." Sclex Indeed, there is a distinction between election period and campaign period. Under the Omnibus Election Code,[11] unless otherwise fixed by the COMELEC, the election period commences ninety (90) days before the day of the election and ends thirty (30) days thereafter. Thus, to follow petitioner's interpretation that the second limitation in paragraph (b) includes the "election period" would emasculate even more a vital right of the people. To recapitulate the discussion in parts 1 and 2, 74 imposes limitations on the holding of recall elections. First, paragraph (a) prohibits the holding of such election more than once during the term of office of an elective local official. Second, paragraph (b) prohibits the holding of such election within one year from the date the official assumed office. And third, paragraph (b) prohibits the holding of a recall election within one year immediately preceding a regular local election. As succinctly stated in Paras v. COMELEC,[12] "[p]aragraph (b) construed together with paragraph (a) merely designates the period when such elective local official may be subject to recall election, that is, during the second year of office." (3)

On Whether the Recall RESOLUTION was Signed by a Majority of the PRA and Duly Verified Petitioner alleges other grounds for seeking the annulment of the resolution of the COMELEC ordering the holding of a recall election. He contends that a majority of the signatures of the members of the PRA was not obtained because 74 members did not really sign the recall resolution. According to petitioner, the 74 merely signed their names on pages 94-104 of the resolution to signify their attendance and not their concurrence. Petitioner claims that this is shown by the word "Attendance" written by hand at the top of the page on which the signatures of the 74 begin. This contention has no basis. To be sure, this claim is being raised for the first time in this case. It was not raised before the COMELEC, in which the claim made by petitioner was that some of the names in the petition were double entries, that some members had withdrawn their support for the petition, and that Wenceslao Trinidad's pending election protest was a prejudicial question which must first be resolved before the petition for recall could be given due course. The order of the COMELEC embodying the stipulations of the parties and defining the issues to be resolved does not include the issue now being raised by petitioner. Xlaw Although the word "Attendance" appears at the top of the page, it is apparent that it was written by mistake because it was crossed out by two parallel lines drawn across it. Apparently, it was mistaken for the attendance sheet which is a separate document. It is absurd to believe that the 74 members of the PRA who signed the recall resolution signified their attendance at the meeting twice. It is more probable to believe that they signed pages 94-104 to signify their concurrence in the recall resolution of which the pages in question are part. The other point raised by petitioner is that the recall petition filed in the COMELEC was not duly verified, because Atty. Nelson Ng, who notarized it, is not commissioned as notary public for Pasay City but for Makati City. As in the case of the first claim, this issue was not raised before the COMELEC itself. It cannot, therefore, be raised now. WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the petition in G.R. No. 140714 is DISMISSED for having been rendered moot and academic. SO ORDERED. MENDOZA, J Davide, Jr., C.J., Bellosillo, Quisumbing, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. Melo, and Purisima, JJ., on leave. Puno, J., see dissenting opinion.

Vitug, J., reiterate his separate opinion in the resolution of 5 Apr. 2000. Kapunan, J., see attached separate and dissenting opinion. Panganiban, J., joined the dissents of JJ. Puno and Kapunan. Xsc Pardo, and De Leon, Jr., JJ., join the dissent of J. Puno.

EN BANC [G.R. No. 123169. November 4, 1996]

DANILO E. PARAS, petitioner, vs. COMMISSION ON ELECTIONS, respondent. RESOLUTION FRANCISCO, J.: Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan City who won during the last regular barangay election in 1994. A petition for his recall as Punong Barangay was filed by the registered voters of the barangay. Acting on the petition for recall, public respondent Commission on Elections (COMELEC) resolved to approve the petition, scheduled the petition signing on October 14, 1995, and set the recall election on November 13, 1995.[1] At least 29.30% of the registered voters signed the petition, well above the 25% requirement provided by law. The COMELEC, however, deferred the recall election in view of petitioners opposition. On December 6, 1995, the COMELEC set anew the recall election, this time on December 16, 1995. To prevent the holding of the recall election, petitioner filed before the Regional Trial Court of Cabanatuan City a petition for injunction, docketed as SP Civil Action No. 2254-AF, with the trial court issuing a temporary restraining order. After conducting a summary hearing, the trial court lifted the restraining order, dismissed the petition and required petitioner and his counsel to explain why they should not be cited for contempt for misrepresenting that the barangay recall election was without COMELEC approval.[2] In a resolution dated January 5, 1996, the COMELEC, for the third time, rescheduled the recall election on January 13, 1996; hence, the instant petition for certiorari with urgent prayer for injunction. On January 12, 1996, the Court issued a temporary restraining order and required the Office of the Solicitor General, in behalf of public respondent, to comment on the petition. In view of the Office of the Solicitor Generals manifestation maintaining an opinion adverse to that of the COMELEC, the latter through its law department filed the required comment. Petitioner thereafter filed a reply.[3] Petitioners argument is simple and to the point. Citing Section 74 (b) of Republic Act No. 7160, otherwise known as the Local Government Code, which states that no recall shall take place within one (1) year from the date of the officials assumption to office or one (1) year immediately preceding a regular local election, petitioner insists that the scheduled January 13, 1996 recall election is now barred as the Sangguniang Kabataan (SK) election was set by Republic Act No. 7808 on the first Monday of May 1996, and every three years thereafter. In support thereof, petitioner cites Associated Labor Union v. Letrondo-Montejo, 237 SCRA 621, where the Court considered the SK election as a regular local election. Petitioner maintains that as the SK election is a regular local election, hence no recall election can be had for barely four months separate the SK election from the recall

election. We do not agree. The subject provision of the Local Government Code provides: SEC. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the officials assumption to office or one (1) year immediately preceding a regular local election. [Emphasis added.] It is a rule in statutory construction that every part of the statute must be interpreted with reference to the context, i.e., that every part of the statute must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.[4] The evident intent of Section 74 is to subject an elective local official to recall election once during his term of office. Paragraph (b) construed together with paragraph (a) merely designates the period when such elective local official may be subject of a recall election, that is, during the second year of his term of office. Thus, subscribing to petitioners interpretation of the phrase regular local election to include the SK election will unduly circumscribe the novel provision of the Local Government Code on recall, a mode of removal of public officers by initiation of the people before the end of his term. And if the SK election which is set by R.A. No. 7808 to be held every three years from May 1996 were to be deemed within the purview of the phrase regular local election, as erroneously insisted by petitioner, then no recall election can be conducted rendering inutile the recall provision of the Local Government Code. In the interpretation of a statute, the Court should start with the assumption that the legislature intended to enact an effective law, and the legislature is not presumed to have done a vain thing in the enactment of a statute.[5] An interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative or nugatory.[6] It is likewise a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution.[7] Thus, the interpretation of Section 74 of the Local Government Code, specifically paragraph (b) thereof, should not be in conflict with the Constitutional mandate of Section 3 of Article X of the Constitution to enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum x x x. Moreover, petitioners too literal interpretation of the law leads to absurdity which we cannot countenance. Thus, in a case, the Court made the following admonition:

We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually found not in the letter that killeth but in the spirit that vivifieth x x x[8] The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this case, must be read according to its spirit and intent. Finally, recall election is potentially disruptive of the normal working of the local government unit necessitating additional expenses, hence the prohibition against the conduct of recall election one year immediately preceding the regular local election. The proscription is due to the proximity of the next regular election for the office of the local elective official concerned. The electorate could choose the officials replacement in the said election who certainly has a longer tenure in office than a successor elected through a recall election. It would, therefore, be more in keeping with the intent of the recall provision of the Code to construe regular local election as one referring to an election where the office held by the local elective official sought to be recalled will be contested and be filled by the electorate. Nevertheless, recall at this time is no longer possible because of the limitation stated under Section 74 (b) of the Code considering that the next regular election involving the barangay office concerned is barely seven (7) months away, the same having been scheduled on May 1997.[9] ACCORDINGLY, the petition is hereby dismissed for having become moot and academic. The temporary restraining order issued by the Court on January 12, 1996, enjoining the recall election should be as it is hereby made permanent. SO ORDERED. Romero, Melo, Puno, Kapunan, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur. Narvasa, C.J., Padilla, Regalado, Bellosillo, Vitug, and Mendoza, JJ., concur in the majority and separate concurring opinions. Davide, Jr., Please see separate concurring opinion.

EN BANC [G.R. No. 111511, October 05, 1993] ENRIQUE T. GARCIA, ET AL., PETITIONERS, VS. COMMISSION ON ELECTIONS AND LUCILA PAYUMO, ET. AL., RESPONDENTS. DECISION PUNO, J.: The EDSA revolution of 1986 restored the reality that the people's might is not a myth. The 1987 Constitution then included people power as an article of faith and Congress was mandated to pass laws for its effective exercise. The Local Government Code of 1991 was enacted providing for two (2) modes of initiating the recall from office of local elective officials who appear to have lost the confidence of the electorate. One of these modes is recall through the initiative of a preparatory recall assembly. In the case at bench, petitioners assail this mode of initiatory recall as unconstitutional. The challenge cannot succeed. We shall first unfurl the facts. Petitioner Enrique T. Garcia was elected governor of the province of Bataan in the May 11, 1992 elections. In the early evening of July 1, 1993, some mayors, vice mayors and members of the Sangguniang Bayan of the twelve (12) municipalities of the province met at the National Power Corporation compound in Bagac, Bataan. At about 12:30 A.M. of the following day, July 2, 1993, they proceeded to the Bagac town plaza where they constituted themselves into a Preparatory Recall Assembly to initiate the recall election of petitioner Garcia. The mayor of Mariveles, Honorable Oscar de los Reyes, and the mayor of Dinalupihan, the Honorable Lucila Payumo, were chosen as Presiding Officer and Secretary of the Assembly, respectively. Thereafter, the Vice-Mayor of Limay, the Honorable Ruben Roque, was recognized and he moved that a resolution be passed for the recall of the petitioner Garcia on

the ground of "loss of confidence."[1] The motion was "unanimously seconded."[2] The resolution, states: RESOLUTION NO. 1

Whereas, the majority of all the members of the Preparatory Recall Assembly in the Province of Bataan have voluntarily constituted themselves for the purpose of the recall of the incumbent provincial governor of the province of Bataan, Honorable Enrique T. Garcia pursuant to the provisions of Section 70, paragraphs (a), (b) and (c) of Republic Act 7160, otherwise known as the Local Government Code of 1991; Whereas, the total number of all the members of the Preparatory Recall Assembly in the province of Bataan is One Hundred and Forty-Six (146) composed of all mayors, vice-mayors and members of the Sangguniang Bayan of all the 12 towns of the province of Bataan; Whereas, the majority of all the members of the Preparatory Recall Assembly, after a serious and careful deliberation have decided to adopt this resolution for the recall of the incumbent provincial governor Enrique T. Garcia for loss of confidence; Now, therefore, be it resolved as it is hereby resolved that having lost confidence on the incumbent provincial governor of Bataan, Enrique T. Garcia, recall proceedings be immediately initiated against him; Resolved Further, that copy of this resolution be furnished the Honorable Commission on Elections, Manila and the Provincial Election Supervisor, Balanga, Bataan. One hundred forty-six (146) names appeared in Resolution No. 1 but only eighty (80) carried the signatures of the members of the PRA. Of the eighty (80) signatures, only seventy-four (74) were found genuine.[3] The PRAC of the province had a membership of one hundred forty-four (144)[4] and its majority was seventy-three (73). On July 7, 1993, petitioners filed with the respondent COMELEC a petition to deny due course to said Resolution No. 1. Petitioners alleged that the PRAC failed to comply with the "substantive and procedural requirements" laid down in Section 70 of R.A. 7160, otherwise known as the Local Government Code of 1991. In a per curiam Resolution promulgated August 31, 1993, the respondent COMELEC dismissed the petition and scheduled the recall elections for the position of Governor of Bataan on October 11, 1993. Petitioners then filed with Us a petition for

certiorari and prohibition with writ of preliminary injunction to annul the said Resolution of the respondent COMELEC on various grounds. They urged that section 70 of R.A. 7160 allowing recall through the initiative of the PRAC is unconstitutional because: (1) the people have the sole and exclusive right to decide whether or not to initiate recall proceedings, and (2) it violated the right of elected local public officials belonging to the political minority to equal protection of law. They also argued that the proceedings followed by the PRAC in passing Resolution No. 1 suffered from numerous defects, the most fatal of which was the deliberate failure to send notices of the meeting to sixty-five (65) members of the assembly. On September 7, 1993, We required the respondents to file their Comments within a non-extendible period of ten (10) days.[5] On September 16, 1993, We set the petition for hearing on September 21, 1993 at 11 A.M. After the hearing, We granted the petition on the narrow ground that the sending of selective notices to members of the PRAC violated the due process protection of the Constitution and fatally flawed the enactment of Resolution No. 1. We ruled: xxx "After deliberation, the Court opts not to resolve the alleged constitutional infirmity of sec. 70 of R.A. No. 7160 for its resolution is not unavoidable to decide the merits of the petition. The petition can be decided on the equally fundamental issues of: (1) whether or not all the members of the Preparatory Recall Assembly were notified of its meeting; and (2) assuming lack of notice, whether or not it would vitiate the proceedings of the assembly including its Resolution No. 1. The failure to give notice to all members of the assembly, especially to the members known to be political allies of petitioner Garcia was admitted by both counsels of the respondents. They did not deny that only those inclined to agree with the resolution of recall were notified as a matter of political strategy and security. They justified these selective notices on the ground that the law does not specifically mandate the giving of notice. We reject this submission of the respondents. The due process clause of the Constitution requiring notice as an element of fairness is inviolable and should always be considered as part and parcel of every law in case of its silence. The need for notice to all the members of the assembly is also imperative for these members represent the different sectors of the electorate of Bataan. To the extent that they are not notified of the meeting of the assembly, to that extent is the sovereign voice of the people they represent nullified. The resolution to recall should articulate the

majority will of the members of the assembly but the majority will can be genuinely determined only after all the members of the assembly have been given a fair opportunity to express the will of their constituents. Needless to stress, the requirement of notice is mandatory for it is indispensable in determining the collective wisdom of the members of the Preparatory Recall Assembly. Its nonobservance is fatal to the validity of the resolution to recall petitioner Garcia as Governor of the province of Bataan. The petition raises other issues that are not only prima impressionis but also of transcendental importance to the rightful exercise of the sovereign right of the people to recall their elected officials. The Court shall discuss these issues in a more extended decision." In accord with this Resolution, it appears that on September 22, 1993, the Honorable Mayor of Dinalupihan, Oscar de los Reyes again sent Notice of Session to the members of the PRAC to "convene in session on September 26, 1993 at the town plaza of Balanga, Bataan at 8:30 o'clock in the morning."[6] From news reports, the PRAC convened in session and eighty-seven (87) of its members once more passed a resolution calling for the recall of petitioner Garcia.[7] On September 27, 1993, petitioners filed with Us a Supplemental Petition and Reiteration of Extremely Urgent Motion pressing for a resolution of their contention that section 70 of R.A. 7160 is unconstitutional. We find the original Petition and the Supplemental Petition assailing the constitutionality of section 70 of R.A. 7160 insofar as it allows a preparatory recall assembly to initiate the recall of local elective officials as bereft of merit. Every law enjoys the presumption of validity. The presumption rests on the respect due to the wisdom, integrity, and the patriotism of the legislative, by which the law is passed, and the Chief Executive, by whom the law is approved.[8] For upholding the Constitution is not the responsibility of the judiciary alone but also the duty of the legislative and executive.[9] To strike down a law as unconstitutional, there must be a clear and unequivocal showing that what the fundamental law prohibits, the statute permits.[10] The annulment cannot be decreed on a doubtful and arguable implication. The universal rule of legal hermeneutics is that all reasonable doubts should be resolved in favor of the constitutionality of a law.[11]

Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs.[12] Not undeservedly, it is frequently described as a fundamental right of the people in a representative democracy.[13] Recall as a mode of removal of elective local officials made its maiden appearance in our 1973 Constitution.[14] It was mandated in section 2 of Article XI entitled Local Government, viz: SEC. 2. The Batasang Pambansa shall enact a local government code which may not thereafter be amended except by a majority vote of all its Members, defining a more responsive and accountable local government structure with an effective system of recall, allocating among the different local government units their powers, responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries, powers, functions, and duties of local officials, and all other matters relating to the organization and operation of the local units. However, any change in the existing form of local government shall not take effect until ratified by a majority of the votes cast in a plebiscite called for the purpose. (Underscoring supplied) The Batasang Pambansa then enacted BP 337 entitled "The Local Government Code of 1983." Section 54 of its Chapter 3 provided only one mode of initiating the recall elections of local elective officials, i.e., by petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned, viz: Sec. 54. By Whom Exercised; Requisites. - (1) The power of recall shall be exercised by the registered voters of the unit to which the local elective official subject to such recall belongs. (2) Recall shall be validly initiated only upon petition of at least twenty-five percent of the total number of registered voters in the local government unit concerned based on the election in which the local official sought to be recalled was elected. Our legal history does not reveal any instance when this power of recall as provided by BP 337 was exercised by our people.

In February 1986, however, our people more than exercised their right of recall for they resorted to revolution and they booted out of office the highest elective officials of the land. The successful use of people power to remove public officials who have forfeited the trust of the electorate led to its firm institutionalization in the 1987 Constitution. Its Article XIII expressly recognized the Role and Rights of People's Organizations, viz: Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means. People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure. Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by laws, facilitate the establishment of adequate consultation mechanisms. Section 3 of its Article X also reiterated the mandate for Congress to enact a local government code which "shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative and referendum," viz: Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units." In response to this constitutional call, Congress enacted R.A. 7160, otherwise known as the Local Government Code of 1991, which took effect on January 1, 1992. In this Code, Congress provided for a second mode of initiating the recall process through a preparatory recall assembly which in the provincial level is composed of all mayors,

vice-mayors and sanggunian members of the municipalities and component cities. We quote the pertinent provisions of R.A. 7160, viz: CHAPTER 5 - RECALL

Sec. 69. By Whom Exercised. - The power of recall for loss of confidence shall be exercised by the registered voters of a local government unit to which the local elective official subject to such recall belongs. Sec. 70. Initiation of the Recall Process. (a) Recall may be initiated by a preparatory recall assembly or by the registered voters of the local government unit to which the local elective official subject to such recall belongs. (b) There shall be a preparatory recall assembly in every province, city, district, and municipality which shall be composed of the following: (1) Provincial level. - all mayors, vice-mayors and sanggunian members of the municipalities and component cities; (2) City level. - All punong barangay and sangguniang barangay members in the city; (3) Legislative District level. - In cases where sangguniang panlalawigan members are elected by district, all elective municipal officials in the district; and in cases where sangguniang panlungsod members are elected by district, all elective barangay officials in the district; and (4) Municipal level. - All punong barangay and sangguniang barangay members in the municipality. (c) A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the local government unit concerned. Recall of provincial, city, or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose. (d) Recall of any elective provincial, city, municipal, or barangay official may be validly initiated upon petition of at least twenty-five (25) percent of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. Sec. 71. Election Recall - Upon the filing of a valid resolution or petition for recall with the appropriate local office of the Comelec, the Commission or its duly authorized representative shall set the date of the election on recall, which shall not be later than thirty (30) days after the filing of the resolution or petition for recall in the case of the barangay, city, or municipal officials, and forty-five (45) days in the

case of provincial officials. The official or officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon. Sec. 72. Effectivity of Recall. The recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office. Sec. 73. Prohibition from Resignation. - The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. Sec. 74. Limitations on Recall. - (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular election. A reading of the legislative history of these recall provisions will reveal that the idea of empowering a preparatory recall assembly to initiate the recall from office of local elective officials originated from the House of Representatives and not the Senate.[15] The legislative records reveal that there were two (2) principal reasons why this alternative mode of initiating the recall process thru an assembly was adopted, viz: (a) to diminish the difficulty of initiating recall thru the direct action of the people; and (b) to cut down on its expenses.[16] Our lawmakers took note of the undesirable fact that the mechanism of initiating recall by direct action of the electorate was utilized only once in the City of Angeles, Pampanga, but even this lone attempt to recall the city mayor failed. Former Congressman Wilfredo Cainglet explained that this initiatory process by direct action of the people was too cumbersome, too expensive and almost impossible to implement.[17] Consequently, our legislators added in the Code a second mode of initiating the recall of local officials, i.e., thru a preparatory recall assembly. They brushed aside the argument that this second mode may cause instability in the local government units due to its imagined ease. We have belabored the genesis of our recall law for it can light up many of the unillumined interstices of the law. In resolving constitutional disputes, We should not be beguiled by foreign jurisprudence some of which are hardly applicable

because they have been dictated by different constitutional settings and needs. Prescinding from this proposition, We shall now resolve the contention of petitioners that the alternative mode of allowing a preparatory recall assembly to initiate the process of recall is unconstitutional. It is first postulated by the petitioners that "the right to recall does not extend merely to the prerogative of the electorate to reconfirm or withdraw their confidence on the official sought to be recalled at a special election. Such prerogative necessarily includes the sole and exclusive right to decide on whether to initiate a recall proceedings or not."[18] We do not agree. Petitioners cannot point to any specific provision of the Constitution that will sustain this submission. To be sure, there is nothing in the Constitution that will remotely suggest that the people have the "sole and exclusive right to decide on whether to initiate a recall proceeding." The Constitution did not provide for any mode, let alone a single mode, of initiating recall elections.[19] Neither did it prohibit the adoption of multiple modes of initiating recall elections. The mandate given by section 3 of Article X of the Constitution is for Congress to "enact a local government code which shall provide for a more responsive and accountable local government structure through a system of decentralization with effective mechanisms of recall, initiative, and referendum x x x" By this constitutional mandate, Congress was clearly given the power to choose the effective mechanisms of recall as its discernment dictates. The power given was to select which among the means and methods of initiating recall elections are effective to carry out the judgment of the electorate. Congress was not straightjacketed to one particular mechanism of initiating recall elections. What the Constitution simply required is that the mechanisms of recall, whether one or many, to be chosen by Congress should be effective. Using its constitutionally granted discretion, Congress deemed it wise to enact an alternative mode of initiating recall elections to supplement the former mode of initiation by direct action of the people.

Congress has made its choice as called for by the Constitution and it is not the prerogative of this Court to supplant this judgment. The choice may be erroneous but even then, the remedy against a bad law is to seek its amendment or repeal by the legislative. By the principle of separation of powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any law.[20] Petitioners also posit the thesis that in passing Resolution No. 1, the Bataan Preparatory Recall Assembly did not only initiate the process of recall but had de facto recalled petitioner Garcia from office, a power reserved to the people alone. To quote the exact language of the petitioners: "The initiation of a recall through the PRA effectively shortens and ends the term of the incumbent local officials. Precisely, in the case of Gov. Garcia, an election was scheduled by the COMELEC on 11 October 1993 to determine who has the right to assume the unexpired portion of his term of office which should have been until June 1995. Having been relegated to the status of a mere candidate for the same position of governor (by operation of law) he has, therefore, been effectively recalled."[21] In their Extremely Urgent Clarificatory Manifestation,[22] petitioners put the proposition more bluntly by stating that a "PRA resolution of recall is the recall itself." Again, the contention cannot command our concurrence. Petitioners have misconstrued the nature of the initiatory process of recall by the PRAC. They have embraced the view that initiation by the PRAC is not initiation by the people. This is a misimpression for initiation by the PRAC is also initiation by the people, albeit done indirectly through their representatives. It is not constitutionally impermissible for the people to act through their elected representatives. Nothing less than the paramount task of drafting our Constitution is delegated by the people to their representatives, elected either to act as a constitutional convention or as a congressional constituent assembly. The initiation of a recall process is a lesser act and there is no rhyme or reason why it cannot be entrusted to and exercised by the elected representatives of the people. More far out is petitioners' stance that a PRA

resolution of recall is the recall itself. It cannot be seriously doubted that a PRA resolution of recall merely starts the process. It is part of the process but is not the whole process. This ought to be self evident for a PRA resolution of recall that is not submitted to the COMELEC for validation will not recall its subject official. Likewise, a PRA resolution of recall that is rejected by the people in the election called for the purpose bears no effect whatsoever. The initiatory resolution merely sets the stage for the official concerned to appear before the tribunal of the people so he can justify why he should be allowed to continue in office. Before the people render their sovereign judgment, the official concerned remains in office but his right to continue in office is subject to question. This is clear in section 72 of the Local Government Code which explicitly states that "the recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall." We shall next settle the contention of petitioners that the disputed law infracts the equal protection clause of the Constitution. Petitioners asseverate: 5.01.2. It denied petitioners the equal protection of the laws for the local officials constituting the majority party can constitute itself into a PRA and initiate the recall of a duly elected provincial official belonging to the minority party thus rendering ineffectual his election by popular mandate. Relevantly, the assembly could, to the prejudice of the minority (or even partyless) incumbent official, effectively declare a local elective position vacant (and demand the holding of a special election) for purely partisan political ends regardless of the mandate of the electorate. In the case at bar, 64 of the 74 signatories to the recall resolution have been political opponents of petitioner Garcia, not only did they not vote for him but they even campaigned against him in the 1992 elections. Petitioners' argument does not really assail the law but its possible abuse by the members of the PRAC while exercising their right to initiate recall proceedings. More specifically, the fear is expressed that the members of the PRAC may inject political color in their decision as they may initiate recall proceedings only against their political opponents especially those belonging to the minority. A careful reading of

the law, however, will ineluctably show that it does not give an asymmetrical treatment to locally elected officials belonging to the political minority. First to be considered is the politically neutral composition of the preparatory recall assembly. Sec. 70 (b) of the Code provides: Sec. 70. Initiation of the Recall Process. (a) Recall may be initiated by a preparatory recall assembly or by the registered voters of the local government unit to which the local elective official subject to such recall belongs. (b) There shall be a preparatory recall assembly in every province, city, district, and municipality which shall be composed of the following: (1) Provincial level. - All mayors, vice mayors and sanggunian members of the municipalities and component cities; (2) City level. - All punong barangay and sangguniang barangay members in the city; (3) Legislative District level. - In cases where sangguniang panlalawigan members are elected by district, all elective municipal officials in the district; and in cases where sangguniang panlungsod members are elected by district, all elective barangay officials in the district; and (4) Municipal level. - All punong barangay and sangguniang barangay members in the municipality. Under the law, all mayors, vice-mayors and sangguniang members of the municipalities and component cities are made members of the preparatory recall assembly at the provincial level. Its membership is not apportioned to political parties. No significance is given to the political affiliation of its members. Secondly, the preparatory recall assembly at the provincial level includes all the elected officials in the province concerned. Considering their number, the greater probability is that no one political party can control its majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a locally elected public official is loss of confidence of the people. The members of the PRAC are in the PRAC not in representation of their political parties but as representatives of the people. By necessary implication, loss of confidence cannot be premised on mere differences in political party affiliation. Indeed, our Constitution encourages the multi-party system

for the existence of opposition parties is indispensable to the growth and nurture of the democratic system. Clearly then, the law as crafted cannot be faulted for discriminating against elected local officials belonging to the minority. The fear that a preparatory recall assembly may be dominated by a political party and that it may use its power to initiate the recall of officials of opposite political persuasions, especially those belonging to the minority, is not a ground to strike down the law as unconstitutional. To be sure, this argument has long been in disuse for there can be no escape from the reality that all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of power to an individual or entity. To deny power simply because it can be abused by the grantee is to render government powerless and no people need an impotent government. There is no democratic government that can operate on the basis of fear and distrust of its officials, especially those elected by the people themselves. On the contrary, all our laws assume that our officials, whether appointed or elected, will act in good faith and will regularly perform the duties of their office. Such a presumption follows the solemn oath that they took after assumption of office, to faithfully execute all our laws. Moreover, the law instituted safeguards to assure that the initiation of the recall process by a preparatory recall assembly will not be corrupted by extraneous influences. As explained above, the diverse and distinct composition of the membership of a preparatory recall assembly guarantees that all the sectors of the electorate province shall be heard. It is for this reason that in Our Resolution of September 21, 1993, We held that notice to all the members of the recall assembly is a condition sine qua non to the validity of its proceedings. The law also requires a qualified majority of all the preparatory recall assembly members to convene in session and in a public place. It also requires that the recall resolution by the said majority must be adopted during its session called for the purpose. The underscored words carry distinct legal meanings and purvey some of the parameters limiting the

power of the members of a preparatory recall assembly to initiate recall proceedings. Needless to state, compliance with these requirements is necessary, otherwise, there will be no valid resolution of recall which can he given due course by the COMELEC. Furthermore, it cannot be asserted with certitude that the members of the Bataan preparatory recall assembly voted strictly along narrow political lines. Neither the respondent COMELEC nor this Court made a judicial inquiry as to the reasons that led the members of the said recall assembly to cast a vote of lack of confidence against petitioner Garcia. That inquiry was not undertaken for to do so would require crossing the forbidden borders of the political thicket. Former Senator Aquilino Pimentel, Jr., a major author of the subject law in his book The Local Government Code of 1991: The Key to National Development, stressed the same reason why the substantive content of a vote of lack of confidence is beyond any inquiry, thus: "There is only one ground for the recall of local government officials: loss of confidence. This means that the people may petition or the Preparatory Recall Assembly may resolve to recall any local elective officials without specifying any particular ground except loss of confidence. There is no need for them to bring up any charge of abuse or corruption against the local elective officials who are the subject of any recall petition. In the case of Evardone vs. Commission on Elections, et al., 204 SCRA 464, 472 (1991), the Court ruled that "loss of confidence" as a ground for recall is a political question. In the words of the Court, "whether or not the electorate of the municipality of Sulat has lost confidence in the incumbent mayor is a political question." Any assertion therefore that the members of the Bataan preparatory recall assembly voted due to their political aversion to petitioner Garcia is at best a surmise. Petitioners also contend that the resolution of the members of the preparatory recall assembly subverted the will of the electorate of the province of Bataan who elected petitioner Garcia with a majority of 12,500 votes. Again, the contention proceeds from the erroneous premise that the resolution of recall is the recall itself.

It refuses to recognize the reality that the resolution of recall is a mere proposal to the electorate of Bataan to subject petitioner to a new test of faith. The proposal will still be passed upon by the sovereign electorate of Bataan. As this judgment has yet to be expressed, it is premature to conclude that the sovereign will of the electorate of Bataan has been subverted. The electorate of Bataan may or may not recall petitioner Garcia in an appropriate election. If the electorate re-elects petitioner Garcia, then the proposal to recall him made by the preparatory recall assembly is rejected. On the other hand, if the electorate does not re-elect petitioner Garcia, then he has lost the confidence of the people which he once enjoyed. The judgment will write finis to this political controversy. For more than judgments of courts of law, the judgment of the tribunal of the people is final for "sovereignty resides in the people and all government authority emanates from them." In sum, the petition at bench appears to champion the sovereignty of the people, particularly their direct right to initiate and remove elective local officials thru recall elections. If the petition would succeed, the result will be a return to the previous system of recall elections which Congress found should be improved. The alternative mode of initiating recall proceedings thru a preparatory recall assembly is, however, an innovative attempt by Congress to remove impediments to the effective exercise by the people of their sovereign power to check the performance of their elected officials. The power to determine this mode was specifically given to Congress and is not proscribed by the Constitution. IN VIEW WHEREOF, the original Petition and the Supplemental Petition assailing the constitutionality of section 70 of R.A. 7160 insofar as it allows a preparatory recall assembly to initiate the recall process are dismissed for lack of merit. This Decision is immediately executory. SO ORDERED.

OTHER ELECTION ISSUES

EN BANC [G.R. Nos. 141952-53, April 20, 2001] RODOLFO DUMAYAS, JR., PETITIONER, VS. COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF THE MUNICIPALITY OF CARLES, PROVINCE OF ILOILO AND FELIPE BERNAL, JR., RESPONDENTS. DECISION QUISUMBING, J.: In this special civil action, petitioner Rodolfo Dumayas, Jr., seeks to nullify the Resolution promulgated March 2, 2000 by the Commission on Elections (COMELEC) en banc, reversing that of the Second Division dated August 4, 1998, which annulled the petitioner's proclamation as Municipal Mayor of Carles, Iloilo. The antecedent facts of the case, as found by the COMELEC en banc, are as follows: Petitioner Dumayas, Jr. and respondent Bernal, Jr. were rival candidates for the position of mayor in Carles, Iloilo last 11 May 1998 synchronized elections. During the canvassing on 13 May 1998, election returns for precincts nos. 61A, 62A, and 63A/64A all of Barangay Pantalan were protested for inclusion in the canvass before the Municipal Board of Canvassers (MBC for brevity) by petitioner-appellant Dumayas Jr. The grounds relied upon for their exclusion are all the same- that is, "violation of Secs. 234, 235, 236 of the Omnibus Election Code and other election laws; acts of terrorism, intimidation, coercion, and similar acts prohibited by law." Appellant Dumayas, Jr. submitted his evidence to the Board of Canvassers on 14 May 1998 which consist of (a) the joint affidavits executed by LAMMP watchers for precinct 61A: Teresita Oblido, Reyland de la Rosa, and Armando Flores [signed by Oblido and Flores only]; (b) affidavit of petitioner's supporter Virgilisa Capao; (c) joint affidavit of precinct 63A - watcher Nona Dichosa and precinct 62A - watcher Daniel Carmona; (d) blotter report dated 12 May 1998 of Carles PNP, Iloilo; and (d) corroborating affidavit of LAMMP supporter Honorato Gallardo. All the affidavits submitted by petitioner contain similar attestations such as: certain local baranggay (sic) officials were inside the polling place during the casting and counting of votes, or acted as watcher of respondent; SPO3 Gilbert Sorongon who was in shorts and t-shirt armed with an armalite roamed around and inside the polling places; a CVO in uniform was roaming precinct 63A; the presence of the

public officials posed threat and intimidation driving most of the watchers of other political parties away; the BEIs were so intimidated and coerced that no election return was prepared simultaneous with the tallying; the election returns were prepared under duress; the voters were coerced to vote for certain favored candidates especially herein respondent; petitioner's watchers were made to sign or affix their thumbmarks on the already prepared election returns; in precinct 63A/64A, the voting ended at almost 9:00 P.M. without the BEI members writing the names of such voters. Petitioner also submitted a certification issued by PO3 Tito Billones, Desk Officer of PNP Carles representing the blotter report (extracted from the police log book) which states that on 12 May 1998, Virgilisa Capao reported to the Police Station of Carles, Iloilo that PO3 Sorongon and Brgy. Capt. Mahilum entered Precinct 63A with (sic) the company of other CVO and Brgy. Kagawad during election. And that these people gravely intimidated the voters by telling them the names of the candidates they should vote for. It also states that PO3 Sorongon was not in his prescribed uniform when seen with hand grenades hanging on his neck and carrying an armalite roaming inside and outside the polling place. On the other hand, respondent Bernal, Jr. in vehemently denying the allegations of petitioner, submitted joint affidavits of the members of the different Boards of Election Inspectors for precinct nos. 61A, 62A and 63A/64A. xxx All the supplemental affidavits of the different BEIs categorically declared that the elections in their respective precincts "starting from the start of the voting to its closing, to the counting of votes and to the preparation and submission of election returns" were peaceful, clean, orderly and no acts of terrorism, intimidation, coercion and similar acts prohibited by law was (sic) exerted on anybody including the voters and members of the BEIs. They all attested that the incidents alleged by petitioner's watchers did not happen. The alleged terrorism, coercion, or violation of election laws like the opening of ballots and reading the votes allegedly done by certain public officials like SPO3 Sorongon, Nody Mahilum, Anonia Barrios, Telesforo Gallardo and others are not true, the truth being that these people were only inside the polling place to exercise their right of suffrage. They also vehemently denied that the election returns were not simultaneously prepared with the tallying and counting of votes. They stressed that as public school teachers, they cannot risk their future and career and will not allow or tolerate anybody to make a mockery of the electoral process to (sic) which they were duly sworn to uphold. Nody Mahilum and PO3 Gilbert Sorongon also executed a joint affidavit denying the accusations of Dumayas, Jr. and his watchers stating therein that they only entered

their respective precinct-polling place in order to exercise their right of suffrage and that the election in the three precincts of Barangay Pantalan was orderly, peaceful, and honest which (sic) truly reflects the will of the electorate. x x x[1] In the afternoon of May 14, 1998, the Municipal Board of Canvassers denied petitioner's objection to the inclusion of the contested returns and proceeded with the canvass. The results of the voting were as follows: DUMAYAS CONTESTED PRECINCTS Prec. 61A Prec. 62A Prec. 63A/64A (clustered) 54 159 Uncontested prec[incts] total Over all total 44 43 117 114 BERNAL

7, 636 7,777

7,514 7, 904[2]

Petitioner filed a Notice of Appeal before the MBC on May 15, 1998. The appeal was given due course by the COMELEC Second Division[3] which rendered a resolution dated August 4, 1998, disposing as follows: WHEREFORE, finding the preparation of the contested election returns to be tainted with irregularities, this Commission (SECOND DIVISION) RESOLVED, as it hereby RESOLVES, to EXCLUDE Election Return No. 3000976 from Precinct No. 61-A; Election Return No. 3000977 from Precinct No. 62-A; and Election return No. 3000978 from Precinct Nos. 63-A/64-A (clustered). Respondent Mun(i)cipal Board of Canvassers is hereby directed to RECONVENE and FINISH the canvass of the remaining or uncontested returns and thereafter, PROCLAIM the winning mayoralty candidate of Carles, Iloilo. SO ORDERED.[4] On August 10, 1998, private respondent Felipe Bernal, Jr., filed a motion for reconsideration of the above-cited resolution with the COMELEC en banc. On August 12, 1998, an order certifying that the motion for reconsideration and records of the case were elevated to the COMELEC en banc was signed by

Commissioner Julio F. Desamito and issued by the Clerk of the Commission. Pending resolution of the motion for reconsideration and pursuant to the resolution of the COMELEC Second Division, Election Officer Rolando Dalen set the reconvening of the MBC on August 13, 1998, for the continuation of canvass proceedings and proclamation of winning candidates for Vice-Mayor and Municipal Councilors of Carles, Iloilo. No winner for the position of Mayor was proclaimed since private respondent was able to present a copy of his motion for reconsideration before the MBC. The MBC then reset the date for reconvening of the board on August 17, 1998, after confirming by phone with COMELEC-Manila that a motion for reconsideration was indeed filed by private respondent. Thereafter, the MBC ruled that proclamation of the winning candidate for Mayor would proceed on August 17, 1998 unless private respondent could present a certification from the COMELEC that the motion for reconsideration was elevated to the COMELEC en banc. On August 17, 1998, despite presentation of the August 12, 1998 order, petitioner was proclaimed winner of the election after excluding from the canvass the election returns from the three contested precincts in accordance with the COMELEC Second Division Resolution. The MBC, with its Vice-Chairman dissenting, justified its act by reasoning that it did not receive an official copy of the order directing the elevation of the case to the banc. The following day, private respondent immediately filed an urgent motion to declare void ab initio the proclamation of petitioner on the ground that the resolution of the COMELEC Second Division was not yet final and executory. For his part, petitioner opposed both the motion for reconsideration and motion to declare void ab initio his proclamation as Mayor of Carles, asserting that private respondent failed to show palpable errors to warrant reconsideration of said resolution and maintaining, at the same time, that his proclamation was legal since respondent failed to produce the certification required by the MBC. Meanwhile, on August 25, 1998, the duly-proclaimed Vice-Mayor Arnold Betita filed an action for quo warranto[5] against petitioner before the Regional Trial Court of Iloilo, Branch 66. Docketed as Spl. Civil Action No. 98-141, said petition included respondent Bernal as one of the petitioners together with Vice-Mayor Betita. On September 18, 1998, petitioner filed before the COMELEC en banc a motion to expunge respondent Bernal's motion for reconsideration and motion to declare petitioner's proclamation void ab initio, on the ground that respondent Bernal should be deemed to have abandoned said motions by the filing of Spl. Civil Action No. 98-141 which, according to petitioner, is a formal election protest via quo warranto brought before the regular courts.

In a resolution dated August 24, 1999 but promulgated on March 2, 2000, the COMELEC en banc denied petitioner's motion to expunge, thus: WHEREFORE, premises considered, the Resolution of the Second Division is hereby REVERSED and SET ASIDE and the proclamation of Rodolfo Dumayas, Jr. is hereby ANNULLED. A new Municipal Board of Canvassers of Carles, Iloilo is hereby constituted with the following members: Atty. Nelia Aureus, Chairman; Atty. Rosel Abad, Vice-Chairman; and Atty. Manuel Lucero, Third Member -- all of Election Contests and Adjudication Department of the Commission. They are directed to convene at Session Hall of the COMELEC -- Main Office, Manila on the tenth (10th) day from the date of promulgation of this Resolution with notice to the parties. The new board of canvassers shall complete the canvassing of all the returns and proceed with the proclamation of the true winner for the position of mayor of Carles, Iloilo. Petitioner Rodolfo Dumayas, Jr. is hereby directed to cease and desist from performing the functions of the office of mayor of Carles, Iloilo. Election Officer Rolando Dalen is hereby directed to bring to the Commission's Main Office the election returns of Carles, Iloilo which need to be canvassed and the other election documents necessary for the canvassing and proclamation and turn them over to the new board of canvassers. The Law Department is directed to investigate the election offense allegedly committed by PO3 Gilbert Sorongon on election day. Let the Deputy Executive Director for Operations of the Commission implement this Resolution with dispatch giving a copy thereof to the Secretary of the Department of Interior and Local Government. SO ORDERED.[6] On March 13, 2000, respondent Bernal, Jr. was proclaimed by the newly-constituted Municipal Board of Canvassers as the duly-elected Mayor of the Municipality of Carles, thereby unseating petitioner Dumayas. Hence, this instant special civil action where he alleges that: A. RESPONDENT COMMISSION ERRED IN NOT HOLDING THAT, PRIVATE RESPONDENT FELIPE BERNAL JR. IS DEEMED TO HAVE ABANDONED HIS MOTION FOR RECONSIDERATION BEFORE THE COMMISSION ON ELECTION EN BANC CONSIDERING THAT PRIVATE RESPONDENT, TOGETHER WITH ARNOLD BETITA FILED AN ELECTION CASE THRU A QUO WARRANTO, BEFORE THE REGIONAL TRIAL COURT OF ILOILO BRANCH 66, DOCKETED AS CASE NO. 98141. B. RESPONDENT COMMISSION ERRED IN UPHOLDING THE INCLUSION FOR CANVASS

THE THREE ELECTION RETURNS FOR PRECINCT NOS. 61-A, 62-A, and 63-A/64A (CLUSTERED) BY THE MUNICIPAL BOARD OF CANVASSERS OF CARLES, ILOILO NOTWITHSTANDING THE FACT THAT THERE IS CLEAR AND SUFFICIENT EVIDENCE TO SHOW THAT THE ELECTION RETURNS FOR THESE THREE PRECINCT(S) WERE PREPARED UNDER DURESS AND NOT PREPARED SIMULTANEOUSLY WITH THE COUNTING OF VOTES. C. THE RESOLUTION PROMULGATED ON MARCH 2, 2000 IS ILLEGAL AS IT WAS VIOLATIVE OF ARTICLE IX (A) SECTION 7 OF THE CONSTITUTION CONSIDERING THAT ONLY FOUR COMMISSIONERS VOTED TO REVERSE THE RESOLUTION DATED AUGUST 4, 1998 OF THE SECOND DIVISION COMMISSION ON ELECTION AND THAT, TWO COMMISSIONER(S) HAVE ALREADY RETIRED, AT THE TIME OF THE PROMULGATION.[7] The following are the issues to be resolved: (1) Should respondent Bernal, who was named as petitioner in the quo warranto proceedings commenced before the regular court, be deemed to have abandoned the motions he had filed with respondent Commission? (2) Did the COMELEC err in ordering the inclusion of the contested election returns in the canvassing of ballots? (3) In view of the retirement of Commissioners Gorospe and Guiani before the date of the promulgation of the assailed resolution on March 2, 2000, should said resolution be deemed null and void for being violative of Article IX-A, Section 7 of the 1987 Constitution? We shall first discuss the third issue. Petitioner claims that March 2, 2000 Resolution of the COMELEC is void because Commissioners Manolo Gorospe and Japal Guiani have already retired on the date of its promulgation, even if they had participated earlier in the deliberations of the case and signed the resolution dated August 24, 1999. Petitioner submits that this defect invalidated the entire decision of the Commission and that accordingly, a new vote should be taken to settle the matter. In Jamil vs. Commission on Elections,[8] we held that a decision becomes binding only after its promulgation. If at the time it is promulgated, a judge or member of the collegiate court who had earlier signed or registered his vote has vacated office, his vote on the decision must automatically be withdrawn or cancelled. Accordingly, the votes of Commissioners Gorospe and Guiani should merely be considered as withdrawn for the reason that their retirement preceded the resolution's promulgation. The effect of the withdrawal of their votes would be as if they had not signed the resolution at all and only the votes of the remaining commissioners would be properly considered for the purpose of deciding the controversy. However, unless the withdrawal of the votes would materially affect the result insofar as votes for or against a party is concerned, we find no reason for declaring the decision a nullity. In the present case, with the cancellation of the votes of retired Commissioners Gorospe and Guiani, the remaining votes among the four

incumbent commissioners at the time of the resolution's promulgation would still be 3 to 1 in favor of respondent. Noteworthy, these remaining Commissioners still constituted a quorum. In our view, the defect cited by petitioner does not affect the substance or validity of respondent Commission's disposition of the controversy. The nullification of the challenged resolution, in our view, would merely prolong the proceedings unnecessarily. Now, regarding the first issue raised by petitioner. Did respondent Bernal effectively abandon his pending motions before the COMELEC en banc by the filing of Spl. Civil Action No. 98-141? Petitioner's contention that Bernal did appears to us untenable. As a general rule, the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. The reason for this rule is that once the competent tribunal has acquired jurisdiction of an election protest or a petition for quo warranto, all questions relative thereto will have to be decided in the case itself and not in another proceeding, so as to prevent confusion and conflict of authority. [9] Nevertheless, the general rule is not absolute. It admits of certain exceptions, as where: (a) the board of canvassers was improperly constituted; (b) quo warranto was not the proper remedy; (c) what was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation; (d) the filing of a quo warranto petition or an election protest was expressly made without prejudice to the pre-proclamation controversy or was made ad cautelam; and (e) the proclamation was null and void.[10] An examination of the petition filed primarily by Vice-Mayor Betita with the Regional Trial Court of Iloilo City reveals that it is neither a quo warranto petition under the Omnibus Election Code nor an election protest. In Samad vs. COMELEC[11], we explained that a petition for quo warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. An election protest is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns. It raises the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office. The allegations contained in Betita's petition before the regular court do not present any proper issue for either an election protest or a quo warranto case under the Omnibus Election Code. Spl. Civil Action No. 98-141 appears to be in the nature of an action for usurpation of public office brought by Betita to assert his right to the

position of Mayor pursuant to the rules on succession of local government officials contained in the Local Government Code.[12] Although said petition is also denominated as a quo warranto petition under Rule 66 of the Rules of Court, it is different in nature from the quo warranto provided for in the Omnibus Election Code where the only issue proper for determination is either disloyalty or ineligibility of respondent therein. Neither can it be considered as an election protest since what was put forth as an issue in said petition was petitioner's alleged unlawful assumption of the office of Mayor by virtue of his alleged illegal proclamation as the winning candidate in the election. A closer look at the specific allegations in the petition disclose that Spl. Civil Action No. 98-141 is actually an action for the annulment of petitioner's proclamation on the ground of illegality and prematurity. This conclusion is consistent with the rule that the nature of the action is determined by the averments in the complaint or petition[13] and not the title or caption thereof. The material stipulations of the petition substantially state: 13. That when the Board of Canvassers convened in the afternoon and despite the submission of the copy of the order certifying the Motion for Reconsideration to the COMELEC En Banc and in violation of the Comelec Rules and Procedure and due to the threat received by the Board, Mr. Dalen, the Chairman of the Board and Mr. Serafin Provido, Jr. signed the Certificate of Proclamation proclaiming respondent as winner of the elections for Mayor. Mr. Deony Cabaobao did not signed (sic) the said Certificate of Proclamation as he dissented to (sic) the decision to proclaim respondent; The proclamation, therefore, of respondent is illegal and null and void from the very beginning for it was done in violation of law and under duress. The affidavit of Mr. Serafin Provido, Jr. a member of the Board of Canvassers showing duress is hereto attached as Annex "C"; On account of the illegal proclamation of the respondent said proclamation does not vest any right or authority for him to sit as Mayor of the town of Carles thus when he sits as such Mayor he usurps, intrudes into, and unlawfully holds and exercise(s) a public office without authority; The authority to act as mayor for and in the absence of the duly proclaimed mayor is vested on petitioner Betita pursuant to law; That the continued unlawful exercise by the respondent of the position of mayor of the town of Carles will cause great and irreparable damage to the petitioners, particularly petitioner Betita, who pursuant to law is entitled to act as Mayor of the town of Carles and the people of Carles who pays his salaries unless he be restrained or enjoined from sitiing (sic) as such Mayor;x x x [14]

14.

15.

16. 17.

Thus, respondent Commission did not err, much less abuse its discretion, when it

refused to consider as abandoned Bernal's motion for reconsideration and urgent motion to declare petitioner's proclamation as void ab initio. Note that under the allegations cited above, the determination of Betita's right would ultimately hinge on the validity of petitioner's proclamation in the first place. To repeat, the "quo warranto" petition brought by Vice-Mayor Betita is a petition to annul petitioner's proclamation over which COMELEC exercises original exclusive jurisdiction. Consequently, it could not be deemed as a proper remedy in favor of respondent Bernal, Jr. even if his name was included in the title of said petition. We now consider whether the MBC's proclamation of petitioner Dumayas as the winning candidate in the 1998 mayoralty election is null and void. For where a proclamation is null and void, it is no proclamation at all such that the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation.[15] Although petitioner's proclamation was undertaken pursuant to the resolution of the COMELEC's Second Division, it appears plain to us that the latter grievously erred in ordering the exclusion of the contested returns from Precincts 61A, 62A and 63A/64A (clustered). On this score, the Comelec en banc correctly reversed the Second Division by holding that petitioner Dumayas failed to justify the exclusion of said returns on the ground of duress, intimidation, threat or coercion. We note that the only evidence submitted by petitioner to prove said irregularities were selfserving affidavits executed by his watchers and supporters. Aside from the fact that these allegations were countered by opposing affidavits made by the members of the Boards of Election Inspectors who are presumed to have regularly performed their duties[16] and who categorically denied the allegations, the election returns were also observed to be genuine, clean, signed and/or thumbmarked by the proper officials and watchers.[17] Well-entrenched is the rule that findings of fact by the COMELEC or any other administrative agency exercising particular expertise in its field of endeavor, are binding on this Court.[18] In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issues the resolution of which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy is a regular election protest, not a pre-proclamation controversy.[19] In the present case, petitioner barely alleged that the preparation of said returns was attended by threats, duress, intimidation or coercion without offering any proof, other than the affidavits mentioned above, that these had affected the regularity or genuineness of the contested returns. Absent any evidence appearing on the face of the returns that they are indeed spurious, manufactured or tampered with, the

election irregularities cited by petitioner would require the reception of evidence aliunde which cannot be done in a pre-proclamation controversy such as the one initiated by petitioner. Returns can not be excluded on mere allegation that the returns are manufactured or fictitious when the returns, on their face, appear regular and without any physical signs of tampering, alteration or other similar vice. If there had been sham voting or minimal voting which was made to appear as normal through falsification of the election returns, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy.[20] In sum, we hold that the COMELEC en banc did not commit grave abuse of discretion in reversing the ruling of its Second Division. The appeal brought by petitioner from the order of inclusion issued by the MBC should have been dismissed by that Division right away, since the grounds for exclusion relied upon by petitioner are not proper in a pre-proclamation case, which is summary in nature. WHEREFORE, the instant petition is DISMISSED for lack of merit, public respondent having committed no grave abuse of discretion. Its challenged resolution dated August 24, 1999 is AFFIRMED. Costs against petitioner. SO ORDERED.

EN BANC G.R. No. L-53953 January 5, 1981 SANDE AGUINALDO, NARCISO MENDIOLA, OLYMPIO MEDINA, ROLANDO HERNANDEZ and LEOPOLDO PINON petitioners, vs. HONORABLE COMMISSION ON ELECTIONS and SATURNINO V. TIAMSON, Respondents.

FERNANDO, C.J.: Two circumstances decisive in their significance stand out in this certiorari proceeding against respondent Commission on Elections. It was filed only on May 30, 1980, after an election duly held and after the proclamation of the victorious candidate for Mayor, private respondent Saturnino TIAMSON. Moreover, as far back as March 10, 1980, an action for quo warranto had been instituted by his opponent Cesar Villones. The plea for its dismissal made in the comments both of the Solicitor General, 1 appearing for respondent Commission, as well as respondent Tiamson, considered as answers, must therefore be sustained. Since Venezuela v. Commission on Elections, 2 this Court has invariably adhered to the principle that after the holding of the January 30, 1980 election, and a proclamation thereafter made, a petition to disqualify a candidate based on a change of political party affiliation within six months immediately preceding or following an election, 3 filed with this Court after January 30, 1980, arising from a pre-proclamation controversy, should be dismissed without prejudice to such ground being passed upon in a proper election protest or quo warranto proceeding. Where, however, such constitutional provision had been seasonably invoked prior to that date with the Commission on Elections having acted on it and the matter then elevated to this Court before such election, the issue thus presented should be resolved. The facts are undisputed. In the January 30, 1980 election, there were three candidates, Saturnino Tiamson of the Nacionalista Party, Cesar Villones of the Kilusang Bagong Lipunan and Edgardo Samson of the National Union for Liberation. 4 After the canvassing of the election returns, it was shown that private respondent Tiamson had more than 117 votes over the candidate Villones. 5 On February 29, 1980, he was proclaimed as Mayor by the Municipal Board of Canvassers and on March 3, 1980 assumed such position. 6 On March 10, 1980, as mentioned, Villones filed a quo warranto petition based on the above disqualification provision of the Constitution. 7 This certiorari proceeding, as noted at the outset, was not filed until May 30, 1980, directed against an order of respondent Commission on Elections denying the motion for reconsideration of a previous order of dismissal of a petition to disqualify private respondent Tiamson. 8 It is thus manifest why this certiorari proceeding must be dismissed. The ruling in Venezuela was applied in Villegas v. Commission on Elections, 9 Potencion v. Conunission on Elections, 10 Arcenas v. Commission on Elections, 11 and Singco v. Conunission on Elections. 12 A citation from Arcenas finds pertinence: "Nor does a

decision of this character detract from the binding force of the principle announced in Reyes v. Comelec, that the provision on disqualification arising from a change in a political party affiliation by a candidate within six months is both 'innovative and mandatory. 'As should be clear, the issue of disqualification has not been rendered moot and academic, only the remedy to be pursued is no longer the preproclamation controversy." 13 So it must be in this case with a quo warranto petition having already been filed as far back as March 10, 1980, by the party most interested, no less than the losing candidate, Cesar Villones. WHEREFORE, the petition is dismissed for lack of merit. No costs. Barredo, Makasiar, Aquino, Concepcion, Jr., Fernandez, Guerrero. De Castro and Melencio-Herrera, JJ., concur. Abad Santos J., is on leave.

Separate Opinions

TEEHANKEE, J., concurring. I concur. The decision at bar penned by the Chief Justice adheres to his concurring opinion in Singco v. Comelec (G.R. No. 52830, November 28, 1980) to the effect that 11 after the holding of the January 30, 1980 election, and a proclamation thereafter made, a petition to disqualify a candidate based on a change of political party affiliation .... filed with this Court after January 30, 1980, arising from a preproclamation controversy, should be dismissed without prejudice to such ground being passed upon in a proper election protest or quo warranto proceeding" (at page 2, main opinion). I submit that the better rule is that stated by the Chief Justice himself for the Court in his ponencia in Arcenas vs. Comelec (G. R. No. 54039, November 28, 1980), to wit: "that it is of "no materiality" to distinguish whether the petition for disqualification against the winning candidate was filed before the election or after the proclamation of the winner since "the ratio decidendi is broad enough to cover the present situation for it would be time-consuming and in the end self-defeating if at this stage the pre-proclamation controversy is not laid to rest. The better view, as noted in Venezuela (G.R. No. 53532, July 25, 1980), is that resort be had to the remedy of an election protest or a quo warranto, whichever is proper." This is in line with my separate concurrence in Reyes vs. Comelec (G.R. No. 52699, May 15, 1980), reiterating my submittal that all such pre-proclamation cases seeking to disqualify the winner on the ground of alleged turncoatism should be ordered disraissed after the elections, subject to the filing of an appropriate quo warranto

action or election protest against the winner in the appropriate forum (the Comelec for provincial and city officials and the proper Court of First Instance for municipal officials). This coincides with the President's own view as he reported in the February 27, 1980 newspapers "to have ordered the lawyers of the KBL [Kilusang Bagong Lipunan] to withdraw all disqualification charges to allow already proclaimed opposition candidates involved in such cases to assume office," reserving the right to file an election protest (although such Presidential orders seem to have been ignored since I am not aware of any of the numerous disqualification cases before us that have been so withdrawn). All such pre-proclamation cases on grounds of alleged turncoatism of the winning candidate should now be laid to rest and the winning candidate should be snowed at last to assume his office in accordance with the electorate's verdict and set right matters where even at this late stage, or 11 months after the holding of the elections, the winning candidate has been stopped from assuming office whereas the rejected loser was the one wrongfully proclaimed or allowed to continue in office on a holdover capacity as in Singco, supra, Abrasaldo vs. Comelec (G.R. No. 53730, November 13,1980) and other cases.

Separate Opinions TEEHANKEE, J., concurring. I concur. The decision at bar penned by the Chief Justice adheres to his concurring opinion in Singco v. Comelec (G.R. No. 52830, November 28, 1980) to the effect that 11 after the holding of the January 30, 1980 election, and a proclamation thereafter made, a petition to disqualify a candidate based on a change of political party affiliation .... filed with this Court after January 30, 1980, arising from a preproclamation controversy, should be dismissed without prejudice to such ground being passed upon in a proper election protest or quo warranto proceeding" (at page 2, main opinion). I submit that the better rule is that stated by the Chief Justice himself for the Court in his ponencia in Arcenas vs. Comelec (G. R. No. 54039, November 28, 1980), to wit: "that it is of "no materiality" to distinguish whether the petition for disqualification against the winning candidate was filed before the election or after the proclamation of the winner since "the ratio decidendi is broad enough to cover the present situation for it would be time-consuming and in the end self-defeating if at this stage the pre-proclamation controversy is not laid to rest. The better view, as noted in Venezuela (G.R. No. 53532, July 25, 1980), is that resort be had to the remedy of an election protest or a quo warranto, whichever is proper." This is in line with my separate concurrence in Reyes vs. Comelec (G.R. No. 52699, May 15, 1980), reiterating my submittal that all such pre-proclamation cases seeking to disqualify the winner on the ground of alleged turncoatism should be ordered

disraissed after the elections, subject to the filing of an appropriate quo warranto action or election protest against the winner in the appropriate forum (the Comelec for provincial and city officials and the proper Court of First Instance for municipal officials). This coincides with the President's own view as he reported in the February 27, 1980 newspapers "to have ordered the lawyers of the KBL [Kilusang Bagong Lipunan] to withdraw all disqualification charges to allow already proclaimed opposition candidates involved in such cases to assume office," reserving the right to file an election protest (although such Presidential orders seem to have been ignored since I am not aware of any of the numerous disqualification cases before us that have been so withdrawn). All such pre-proclamation cases on grounds of alleged turncoatism of the winning candidate should now be laid to rest and the winning candidate should be snowed at last to assume his office in accordance with the electorate's verdict and set right matters where even at this late stage, or 11 months after the holding of the elections, the winning candidate has been stopped from assuming office whereas the rejected loser was the one wrongfully proclaimed or allowed to continue in office on a holdover capacity as in Singco, supra, Abrasaldo vs. Comelec (G.R. No. 53730, November 13,1980) and other cases.

EN BANC [G.R. No. 165983, April 24, 2007] JOY CHRISMA B. LUNA, PETITIONER, VS. COMMISSION ON ELECTIONS, TOMAS LAYAO, SOLOMON LALUGAN III, NELIA LAZAGA, ANTHONY LAYAO, CIPRIANO LAPEZ, JR., VICTORIA LAYAO, MODERNO LAPEZ, RODRIGO PARIAS, AND EUGENIO CABER DONATO, RESPONDENTS. DECISION CARPIO, J.: The Case Before this Court is a petition for certiorari[1] with prayer for the issuance of a temporary restraining order, writ of preliminary injunction or status quo order questioning the 4 June 2004 Resolution of the Commission on Elections (COMELEC) First Division and the 22 November 2004 Resolution of the COMELEC En Banc in SPA Case No. 04-306. The 4 June 2004 Resolution denied due course to the substitution of petitioner Joy Chrisma B. Luna (Luna) for Hans Roger Luna (Hans Roger) and declared the substitution invalid. The 22 November 2004 Resolution denied Luna's motion for reconsideration. The Facts On 15 January 2004, Luna filed her certificate of candidacy for the position of vicemayor of Lagayan, Abra as a substitute for Hans Roger, who withdrew his certificate of candidacy on the same date. Ruperto Blanco, Election Officer of Lagayan, Abra removed the name of Hans Roger from the list of candidates and placed the name of Luna. On 20 April 2004, private respondents Tomas Layao, Solomon Lalugan III, Nelia Lazaga, Anthony Layao, Cipriano Lapez, Jr., Victoria Layao, Moderno Lapez, Rodrigo Parias, and Eugenio Caber Donato (private respondents) filed a petition for the cancellation of the certificate of candidacy or disqualification of Luna. Private respondents alleged that Luna made a false material representation in her certificate of candidacy because Luna is not a registered voter of Lagayan, Abra but a registered voter of Bangued, Abra. Private respondents also claimed that Luna's certificate of candidacy was not validly filed because the substitution by Luna for Hans Roger was invalid. Private respondents alleged that Hans Roger was only 20 years old on election day and, therefore, he was disqualified to run for vice-mayor and cannot be

substituted by Luna.[2] The COMELEC's Ruling In the 4 June 2004 Resolution, the COMELEC First Division granted the petition and denied due course to the substitution of Luna for Hans Roger. The COMELEC First Division ruled that, while Luna complied with the procedural requirements for substitution, Hans Roger was not a valid candidate for vice-mayor. The COMELEC First Division pointed out that Hans Roger, being underage, [3] did not file a valid certificate of candidacy and, thus, Hans Roger was not a valid candidate for vicemayor who could be substituted by Luna. The COMELEC First Division also ruled that Luna was not a registered voter of Lagayan, Abra and that this was sufficient to disqualify Luna from running as vice-mayor. On 28 June 2004, Luna filed a motion for reconsideration with the COMELEC En Banc. Luna added that the 4 June 2004 Resolution was issued in violation of her right to due process because she was not given the opportunity to present evidence on her behalf with the COMELEC First Division. In the 22 November 2004 Resolution, the COMELEC En Banc denied the motion for reconsideration and affirmed with modification the 4 June 2004 Resolution. The COMELEC En Banc affirmed the finding that Hans Roger, being underage, may not be validly substituted by Luna. The COMELEC En Banc also ruled that Luna's right to due process was not violated because Luna was notified of the petition and was given the opportunity to be heard. However, the COMELEC En Banc ruled that Luna was a registered voter of Lagayan, Abra. Hence, this petition. In a Resolution dated 11 January 2005, we required the parties to maintain the status quo prevailing before the issuance of the assailed COMELEC resolutions pending the resolution of this petition.[4] The Issues Luna raised the following issues: D. Whether the COMELEC committed grave abuse of discretion when it ruled that there was no violation of Luna's right to due process; and E. Whether the COMELEC committed grave abuse of discretion when it ruled that there was no valid substitution by Luna for Hans Roger. The Court's Ruling The petition is partly meritorious.

Luna's Right to Due Process was not Violated Luna contends that her right to due process was violated because she was not given the opportunity to present her evidence before the COMELEC First Division. Under Rule 23 of the 1993 COMELEC Rules of Procedure, a petition to deny due course to or cancel a certificate of candidacy shall be heard summarily after due notice. The law mandates that the candidates must be notified of the petition against them and should be given the opportunity to present evidence on their behalf.[5] This is the essence of due process. In this case, the COMELEC En Banc stated that the records showed that three days after the petition was filed, the Provincial Election Supervisor, as hearing officer, with the assistance of the Philippine National Police Provincial Command, tried to personally serve a copy of the petition to Luna. But Luna refused to formally receive the petition. On 26 April 2004, the Office of the Provincial Election Supervisor sent the notice via registered mail and still Luna did not file an answer. The Court finds that Luna's right to due process was not violated. The COMELEC notified Luna of the petition filed against her and Luna was given the opportunity to present evidence on her behalf. This constitutes compliance with the requirements of due process. Substitution of Luna for Hans Roger was Valid Luna contends that Hans Roger filed a valid certificate of candidacy and, subsequently, upon Hans Roger's withdrawal of his certificate of candidacy, there was a valid substitution by Luna. On the other hand, the COMELEC ruled that Hans Roger, being under age, could not be considered to have filed a valid certificate of candidacy and, therefore, is not a valid candidate who could be substituted by Luna. When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its receipt. Section 76 of the Omnibus Election Code (Election Code) provides: Sec. 76. Ministerial duty of receiving and acknowledging receipt.- The Commission, provincial election supervisor, election registrar or officer designated by the Commission or the board of election inspectors under the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of candidacy. In this case, when Hans Roger filed his certificate of candidacy on 5 January 2004, [6]

the COMELEC had the ministerial duty to receive and acknowledge receipt of Hans Roger's certificate of candidacy. Thus, the COMELEC had the ministerial duty to give due course to Hans Roger's certificate of candidacy.[7] On 15 January 2004, Hans Roger withdrew his certificate of candidacy. The Election Code allows a person who has filed a certificate of candidacy to withdraw the same prior to the election by submitting a written declaration under oath. [8] There is no provision of law which prevents a candidate from withdrawing his certificate of candidacy before the election.[9] On the same date, Luna filed her certificate of candidacy as substitute for Hans Roger. Section 77 of the Election Code prescribes the rules on substitution of an official candidate of a registered political party who dies, withdraws, or is disqualified for any cause after the last day for the filing of certificate of candidacy. Section 77 of the Election Code provides: 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. 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 election 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. Since Hans Roger withdrew his certificate of candidacy and the COMELEC found that Luna complied with all the procedural requirements for a valid substitution, [10] Luna can validly substitute for Hans Roger. The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in declaring that Hans Roger, being under age, could not be considered to have filed a valid certificate of candidacy and, thus, could not be validly substituted by Luna. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form.[11] In Sanchez v. Del Rosario,[12] the Court ruled that the question of eligibility or ineligibility of a candidate for non-age is beyond the usual and proper cognizance of the COMELEC. Section 74[13] of the Election Code provides that the certificate of candidacy shall state, among others, the date of birth of the person filing the certificate. Section

78[14] of the Election Code provides that in case a person filing a certificate of candidacy has committed false material representation, a verified petition to deny due course to or cancel the certificate of candidacy of said person may be filed at any time not later than 25 days from the time of filing of the certificate of candidacy. If Hans Roger made a material misrepresentation as to his date of birth or age in his certificate of candidacy, his eligibility may only be impugned through a verified petition to deny due course to or cancel such certificate of candidacy under Section 78 of the Election Code. In this case, there was no petition to deny due course to or cancel the certificate of candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a valid certificate of candidacy and, thus, was not a valid candidate in the petition to deny due course to or cancel Luna's certificate of candidacy. In effect, the COMELEC, without the proper proceedings, cancelled Hans Roger's certificate of candidacy and declared the substitution by Luna invalid. It would have been different if there was a petition to deny due course to or cancel Hans Roger's certificate of candidacy. For if the COMELEC cancelled Hans Roger's certificate of candidacy after the proper proceedings, then he is no candidate at all and there can be no substitution of a person whose certificate of candidacy has been cancelled and denied due course.[15] However, Hans Roger's certificate of candidacy was never cancelled or denied due course by the COMELEC. Moreover, Hans Roger already withdrew his certificate of candidacy before the COMELEC declared that he was not a valid candidate. Therefore, unless Hans Roger's certificate of candidacy was denied due course or cancelled in accordance with Section 78 of the Election Code, Hans Roger's certificate of candidacy was valid and he may be validly substituted by Luna. WHEREFORE, we PARTLY GRANT the petition. We AFFIRM the ruling of the COMELEC En Banc that there was no violation of petitioner Joy Chrisma B. Luna's right to due process. We SET ASIDE the ruling of the COMELEC En Banc that the substitution by petitioner Joy Chrisma B. Luna for Hans Roger Luna was invalid. Petitioner Joy Chrisma B. Luna validly substituted for Hans Roger Luna. SO ORDERED.

EN BANC [G.R. No. 147741, May 10, 2001] REP. MA. CATALINA L. GO, PETITIONER, VS. COMMISSION ON ELECTIONS, FELIPE V. MONTEJO AND ARVIN V. ANTONI, RESPONDENTS. DECISION PARDO, J.: The Case In her petition for certiorari,[1] petitioner seeks to nullify the resolution of the Commission on Elections (COMELEC) en banc declaring her disqualified to run for the office of governor of Leyte and mayor of Baybay, Leyte, because she filed certificates of candidacy for both positions and the withdrawal of her certificate of candidacy for mayor was filed late by twenty eight minutes from the deadline. Forthwith, we issued an order[2] to maintain the status quo ante, in effect allowing petitioner's certificate of candidacy for governor in the meantime. In its Comment,[3] the COMELEC justified its resolution on the ground that petitioner's affidavit of withdrawal of her certificate of candidacy for mayor of Baybay, Leyte was ineffectual because it was submitted twenty eight (28) minutes late at the office of the municipal election officer at Baybay. The facsimile copy thereof was filed with said office at 12:28 a.m., 1 March 2001, and the original copy thereof was actually received by the office of the municipal election officer of Baybay at 1:15 p.m., the same day. The provincial election supervisor of Leyte, with office at Tacloban City, to whom petitioner filed her certificate of candidacy for governor at 11:47 p.m., 28 February 2001, refused to accept the affidavit of withdrawal tendered simultaneously therewith because, as he claimed, the affidavit must be filed with the office of the municipal election officer of Baybay, Leyte where petitioner filed her certificate of candidacy for mayor. The Facts Petitioner is the incumbent representative of the Fifth District, province of Leyte, whose term of office will expire at noon on 30 June 2001. On 27 February 2001, petitioner filed with the municipal election officer of the municipality of Baybay, Leyte, a certificate of candidacy for mayor of Baybay, Leyte.

On 28 February 2001, at 11:47 p.m., petitioner filed with the provincial election supervisor of Leyte, with office at Tacloban City, another certificate of candidacy for governor of the province of Leyte. Simultaneously therewith, she attempted to file with the provincial election supervisor an affidavit of withdrawal of her candidacy for mayor of the municipality of Baybay, Leyte. However, the provincial election supervisor of Leyte refused to accept the affidavit of withdrawal and suggested that, pursuant to a COMELEC resolution, she should file it with the municipal election officer of Baybay, Leyte where she filed her certificate of candidacy for mayor. At that late hour, with only minutes left to midnight, the deadline for filing certificates of candidacy or withdrawal thereof, and considering that the travel time from Tacloban to Baybay was two (2) hours, petitioner decided to send her affidavit of withdrawal by fax[4] to her father at Baybay, Leyte and the latter submitted the same to the office of the lection officer of Baybay, Leyte at 12:28 a.m., 01 March 2001.[5] On the same day, at 1:15 p.m., the election officer of Baybay, Leyte, received the original of the affidavit of withdrawal.[6] On 05 March 2001, respondent Montejo filed with the provincial election supervisor of Leyte, at Tacloban City a petition to deny due course and/or to cancel the certificates of candidacy of petitioner.[7] Respondent Antoni filed a similar petition to disqualify petitioner.[8] The petitions were based on the ground that petitioner filed certificates of candidacy for two positions, namely, that for mayor of Baybay, Leyte, and that for governor of Leyte, thus, making her ineligible for both. On 06 March 2001, Atty. Manuel L. Villegas, the provincial election supervisor of Leyte, by 1st indorsement, referred the cases to the Commission on Election, Manila, Law Department, on the ground that he was inhibiting himself due to his prior action of refusing to receive the petitioner's affidavit of withdrawal tendered simultaneously with the filing of the certificate of candidacy for governor on 28 February 2001.[9] In the meantime, the Law Department, COMELEC, under Director Jose P. Balbuena, made a study of the cases without affording petitioner an opportunity to be heard or to submit responsive pleadings. On 05 April 2001, they submitted a report and recommendation to the COMELEC en banc.[10] The report and recommendation reads: "Submitted for due consideration is the petition filed by Atty. Felipe V. Montejo and Atty. Arvin V. Antoni on March 5, 2001, before the Office of the Provincial Election Supervisor of Leyte, seeking to deny due course and/or to cancel the certificate of candidacy of Catalina L. Go for Governor of Leyte.

"Both petitions which are exactly worded in the same language allege, as follows: `This petition is heretofore filed pursuant to the provisions of Rule 23 of the COMELEC RULES OF PROCEDURE and Section 15, as well, of RESOLUTION NO. 3253-A of the COMELEC EN BANC promulgated on November 20, 2000. Ditto, this petition is filed within the reglementary period following the last day for the filing of certificates of candidacy on February 28, 2001. `Petitioner Atty. Felipe V. Montejo is of voting age, Filipino, Lawyer by profession, married, and a resident of #50 Juan Luna Street, Tacloban City, of which locality he is a registered voter. `Respondent re. Catalina L. Go, on the other hand is likewise of legal age, married, resident of Baybay, Leyte, of which locality she is a registered voter, and the incumbent Member of the House of Representatives representing the 5th Congressional District of Leyte. `Respondent CATALINA L. GO filed a certificate of candidacy for the office of Mayor of the Municipality of Baybay, Leyte on February 27, 2001. Without cancelling or withdrawing the said certificate of candidacy this time for the office of Provincial Governor of Leyte on February 28, 2001. However, before the expiration of the period for the filing of certificates of candidacy, respondent indubitably failed to declare under oath the office for which she desires to be eligible and cancel the certificate of candidacy for the other office. 'Verily, at the time respondent filed her certificate of candidacy for Provincial Governor, she knew fully well that she was ineligible for the said office, having filed, a day earlier, a certificate of candidacy for Mayor of Baybay, Leyte. Hence, respondent falsely represented in her certificate of candidacy for Provincial Governor, and under oath, that she is ELIGIBLE for the said office; a material fact required by law to be sworn to and contained in certificates of candidacy. In fine, respondent likewise falsely represented in her certificates of candidacy, under oath, that she will OBEY THE LAWS, ORDERS, DECRESS, RESOLUTIONS AND REGULATIONS PROMULGATED AND ISSUED BY THE DULY CONSTITUTED AUTHORITIES; a material fact required by law to be sworn to and contained in certificates of candidacy.' "Petitioners' ground to deny due course and/or to cancel the said certificate of candidacy is anchored on Section 73 of the Omnibus Election Code, quoted hereunder. 'No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

'No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices.` "In relation to Section (1) (b) of the Comelec Resolution No. 3253-A, to wit: 'SECTION 1. Certificate of Candidacy. x x x x x (b) No person shall be eligible for more than one office to be filled in the same election. If he files a certificate of candidacy for more than one office he shall not be eligible for either. However, before the expiration of the period for the filing of certificate of candidacy, he may declare under oath the office for which he desire to be eligible and cancel the certificate of candidacy for the office or offices.' "Moreover, petitioners contended that CATALINA LOPEZ LORETO-GO is ineligible to run for either Mayor of Baybay, Leyte or Governor of Leyte Province. "Based on the certified list of candidate for the provincial candidates of Leyte on March 7, 2001, the certificate of candidacy of Catalina Lopez Loreto-Go for the position of Governor of Leyte was filed with the Office of the Provincial Election Supervisor on February 28, 2001 at 11:47 p.m. the last day for filing certificates of candidacy. "In support of the petitions of Atty. Montejo and Atty. Antoni, is a certified machine copy of the affidavit of withdrawal of Catalina L. Loreto-Go, which was filed on March 01, 2001 at the Office of the Election Officer of Baybay, Leyte, which she filed on February 28, 2001. "The affidavit of withdrawal of Catalina Loreto-Go, a portion of which reads: "1. That last February 27, 2001 I filed my certificate of candidacy for Mayor for the MUNICIPALITY OF BAYBAY, LEYTE; "2. That due to political exigency and influence from my political leaders urging me to run for Mayor of the Municipality of Baybay, Leyte, I have no other recourse but to follow desire of my political constituents; "3. That therefore, I am formally withdrawing my certificate of candidacy for Mayor of the Municipality of Baybay, Leyte and in it stead I am formally filing my certificate for Governor of Leyte.

"A careful scrutiny and examination of Catalina Loreto-Go certificate of candidacy for Governor of Leyte Province, although filed on the last day of February 28, 2001, her affidavit of withdrawal for Mayor of Baybay, Leyte, was filed only on March 1,2001 or one (1) day after the February 28, 2001 deadline. In other word, there are two (2) certificates of candidacy filed by Catalina Loreto-Go, one for governor of Leyte and the other for Mayor of Baybay, Leyte. "Clearly, on March 1, 2001 when she filed her affidavit of withdrawal for Mayor of Baybay, Leyte, both her certificates of candidacy for Mayor of Baybay, Leyte and Governor of Leyte were still subsisting and effective making her liable for filing two certificates of candidacy on different elective positions, thus, rendering her ineligible for both positions, in accordance with Section (1) (b) of Comelec Resolution No. 3253-A. "PREMISES CONSIDERED, the Law Department RECOMMENDS as follows: "1.) To give due course to the petition of Atty. Felipe V. Montejo and Atty. Arvin V. Antonio against the certificates of candidacy of Catalina Loreto-Go for Governor of Leyte; and "2.) To direct the Provincial Election Supervisor of Leyte and the Election Officer to delete/cancel the name of CATALINA LOPEZ LORETO-GO from the certified list of candidates for Governor of Leyte and Mayoralty candidates of Baybay, Leyte, and to accordingly notify the parties and the above-named Comelec Officials."[11] On 23 April 2001, the COMELEC en banc approved the recommendation of the Director, Law Department and adopted the resolution in question as set out in the opening paragraph of this decision.[12] Hence, this petition.[13] The Issues

At the oral argument on 07 May 2001, at 3:00 p.m., we defined the following issues to be addressed by the parties: I. Is petitioner disqualified to be candidate for governor of Leyte and mayor of Baybay, Leyte because she filed certificates of candidacy for both positions? II. Was there a valid withdrawal of the certificate of candidacy for municipal mayor of Baybay, Leyte?

(a) Must the affidavit of withdrawal be filed with the election officer of the place where the certificate of candidacy was filed? (b) May the affidavit of withdrawal be validly filed by fax? II. Was there denial to petitioner of procedural due process of law? The Court's Ruling We grant the petition. We annul the COMELEC resolution declaring petitioner disqualified for both positions of governor of Leyte and mayor of the municipality of Baybay, Leyte. The filing of the affidavit of withdrawal with the election officer of Baybay, Leyte, at 12:28 a.m., 1 March 2001 was a substantial compliance with the requirement of the law.[14] We hold that petitioner's withdrawal of her certificate of candidacy for mayor of Baybay, Leyte was effective for all legal purposes, and left in full force her certificate of candidacy for governor.[15] Section 73, Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, provides that: "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. "A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath. "No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices." There is nothing in this Section which mandates that the affidavit of withdrawal must be filed with the same office where the certificate of candidacy to be withdrawn was filed. Thus, it can be filed directly with the main office of the COMELEC, the office of the regional election director concerned, the office of the provincial election supervisor of the province to which the municipality involved belongs, or the office of the municipal election officer of the said municipality.

While it may be true that Section 12 of COMELEC Resolution No. 3253-A, adopted on 20 November 2000, requires that the withdrawal be filed before the election officer of the place where the certificate of candidacy was filed,[16] such requirement is merely directory, and is intended for convenience. It is not mandatory or jurisdictional. An administrative resolution can not contradict, much less amend or repeal a law, or supply a deficiency in the law.[17] Hence, the filing of petitioner's affidavit of withdrawal of candidacy for mayor of Baybay with the provincial election supervisor of Leyte sufficed to effectively withdraw such candidacy. The COMELEC thus acted with grave abuse of discretion when it declared petitioner ineligible for both positions for which she filed certificates of candidacy. There is another important moiety that affects the validity of the COMELEC resolution canceling petitioner's certificates of candidacy. It is that petitioner was deprived of procedural due process of law.[18] The petition to cancel her certificate of candidacy or to deny due course to both were filed before the provincial election supervisor of Leyte who inhibited himself and referred the cases to the Law Department, COMELEC, Manila. On 11 April 2001, the COMELEC, First Division, acting on the first indorsement of Atty. Villegas approved his inhibition and required the provincial election supervisor of Leyte to immediately forward his copy of the records of these cases to the Regional Election Director, Region 08, at Tacloban, Leyte, for hearing.[19] On 18 April 2001, Regional Election Director, Region 08, Atty. Adolfo A. Ibaez issued summons/subpoena to petitioner Go to submit her consolidated answer to the petitions and counter affidavits including position paper within three (3) days from notice.[20] On 23 April 2001, petitioner submitted her consolidated position paper.[21] On 25 April 2001, at 9:00 a.m., Director Ibaez set the cases for hearing for reception of evidence of the parties. In the meantime, however, the Law Department, COMELEC conducted an ex-parte study of the cases. It did not give petitioner an opportunity to be heard. Petitioner was not required to submit a comment or opposition to the petitions for cancellation of her certificates of candidacy and/or for disqualification. It did not set the cases for hearing. It was not even aware of the proceedings before Director Ibanez in Tacloban. After an ex-parte study of the cases, on 05 April 2001, the Law Department submitted its report and recommendation, approved by Director Balbuena, to the COMELEC en banc. During the oral argument on 07 May 2001, Director Balbuena candidly admitted that the COMELEC Rules of Procedure requires that notice be given to the respondent. Indeed, Section 3, Rule 23 of said Rules on petition to deny due course to or cancel certificates of candidacy explicitly provides: "Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy

"x x x x "Sec. 3. Summary Proceeding. - The petition shall be heard summarily after due notice. (emphasis supplied) Obviously, the COMELEC en banc in approving the report and recommendation of the Law Department, deprived the petitioner of procedural due process of law. [22] The COMELEC, acting as a quasi-judicial tribunal, cannot ignore the requirements of procedural due process in resolving cases before it.[23] WHEREFORE, the Court GRANTS the petition. The Court ANNULS COMELEC Resolution No. 3982, adopted on 23 April 2001, and DECLARES valid petitioner's certificate of candidacy for Governor of Leyte. The Chairman, Commision on Elections, Manila, and the provincial election supervisor of Leyte shall immediately order the inclusion of petitioner's name in the certified list of candidates for Governor, province of Leyte, to be posted in each polling place/voting booth in every precinct throughout the province of Leyte, in the voters information sheet to be given to each registered voter therein, in the election returns, statement of votes by precincts, and certificate of canvass, and all other election papers. The status quo ante order heretofore issued is made permanent. This decision is immediately executory. No motion for reconsideration shall be entertained. No costs. SO ORDERED.

EN BANC [G.R. NOS. 186007 & 186016, July 27, 2009] SALVADOR DIVINAGRACIA, JR., PETITIONER, VS. COMMISSION ON ELECTIONS AND ALEX A. CENTENA, RESPONDENTS. DECISION CARPIO MORALES, J.: Salvador Divinagracia, Jr. (petitioner) and Alex Centena (private respondent) vied for the vice-mayoralty race in Calinog, Iloilo during the May 14, 2007 Elections wherein petitioner garnered 8,141 votes or 13 votes more than the 8,128 votes received by respondent. After the proclamation of petitioner as the duly elected vice-mayor on May 16, 2007, private respondent filed with the Regional Trial Court (RTC) of Iloilo City an election protest, docketed as Election Case No. 07-2007, claiming that irregularities attended the appreciation of marked ballots in seven precints.[1] By Decision of December 5, 2007, Branch 24 of the RTC dismissed private respondent's protest. It ruled that private respondent failed to overcome the disputable presumption of regularity in the conduct of elections [2] since no challenge of votes or objection to the appreciation of ballots was raised before the Board of Elections Inspectors or the Municipal Board of Canvassers. Private respondent and petitioner filed their respective notices of appeal before the trial court, upon payment of the P1,000 appeal fee under Section 9, Rule 14 of the "Rules of Procedure in Election Contests before the Courts involving Elective Municipal and Barangay Officials" (A.M. No. 07-4-15-SC) which took effect on May 15, 2007. The Comelec, by Order of March 12, 2008, consolidated the appeals of the parties and directed them to file their respective briefs. Meanwhile, the duly elected mayor of Calinog, Teodoro Lao, died on March 18, 2008. On even date, petitioner assumed office as mayor. On July 17, 2008, the Comelec Second Division issued its first assailed resolution declaring private respondent as the duly elected vice mayor. Thus it disposed:

WHEREFORE, this Commission GRANTS the Appeal in EAC No. A-10-2008, and hereby DECLARES protestant-appellant Alex Centena as the duly elected Vice-Mayor of the Municipality of Calinog, Iloilo, with a total of 8,130 votes against protestee-appellee Salvador Divinagracia, Jr.'s total of 8,122 votes, or a winning margin of eight (8) votes. The Decision of the Regional Trial Court of Iloilo City, Branch 24, dated 5 December 2007, is hereby REVERSED and SET ASIDE. The Appeal in EAC No. A-11-2008 is hereby DENIED for lack of merit. SO ORDERED.[3] In reversing the trial court's Decision, the Comelec Second Division found the same to be fatally defective in form for non-observance of the prescribed rules[4] as it failed to indicate the specific markings in the contested ballots and merely discussed in a general manner the reasons why those ballots should not be declared as "marked."[5] The Comelec re-appreciated those ballots and ascertained that respondent was the true winner in the elections for the vice-mayoralty post. Petitioner filed a Verified Motion for Reconsideration, alleging, inter alia, that both parties failed to pay the appeal fee/s in the amount of P3,200 under Section 3, Rule 40 of the Comelec Rules of Procedure,[6] and following Section 9, Rule 22 of the same Rules, an appeal may be dismissed motu proprio or upon motion on the ground of failure of the appellant to pay the correct appeal fee. On January 26, 2009, the Comelec En Banc issued its second assailed Resolution affirming[7] the pronouncements of the Second Division. It held that petitioner was barred under the doctrine of estoppel by laches when he failed to raise the question of jurisdiction when he filed his Appellant's and Appellee's Briefs. Hence, the present petition for certiorari and prohibition which asserts that payment of the appeal fee is a mandatory and jurisdictional requirement and that the question of jurisdiction may be raised at any stage of the proceedings. It cites earlier rulings of the Comelec dismissing analogous cases involving the same issue of nonpayment of appeal fee which, so he contends, contradict the assailed Resolutions. In support of the issue of whether the Comelec gravely abused its discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions, petitioner submits the following arguments: 7.1. THE PUBLIC RESPONDENT COMELEC DID NOT ACQUIRE JURISDICTION OVER THE APPEAL DOCKETED AS EAC NO. A-10-2008 FOR FAILURE OF THE APPELLANT TO PAY

THE FILING FEE/APPEAL FEE. 7.2. PAYMENT OF FILING FEE/APPEAL FEE IS MANDATORY AND JURISDICTIONAL, HENCE, CAN BE RAISED AT ANY STAGE OF THE PROCEEDINGS PENDING WITH THE SAME COURT/COMELEC. 7.3. THE FLIP-FLOPPING RULINGS OF THE PUBLIC RESPONDENT COMELEC SECOND DIVISION IS IN DEROGATION OF THE RULES AND THE PROPER ADMINISTRATION OF JUSTICE. 7.4. IN ASSAILING THE RULING TO AFFIRM THE SECOND DIVISION RESOLUTION, THE PETITIONER IS NOT BARRED BY ESTOPPEL BECAUSE HIS PARTICIPATION IN THE PROCEEDINGS WAS DIRECTED BY THE PUBLIC RESPONDENT COMELEC. 7.5. THERE APPEARS TO BE AN INCONSISTENCY IN THE APPLICATION OF THE RULES BETWEEN THE FIRST AND SECOND DIVISION OF THE PUBLIC RESPONDENT COMELEC.[8] Private respondent filed his Comment of March 17, 2009, while petitioner submitted a Reply of May 11, 2009. Records show that private respondent took his oath of office as vice-mayor and, forthwith successively, as mayor on March 6, 2009,[9] pursuant to the Comelec Order of March 3, 2009 directing the issuance of a writ of execution.[10] The petition lacks merit. The jurisprudence on payment of filing fees in election cases metamorphosed in the 1997 case of Loyola v. Comelec.[11] In Loyola, the Court did not dismiss the election protest for inadequate payment of filing fees arising from the incorrect assessment by the clerk of court, after finding substantial compliance with the filing fee requirement in election cases. The Court noted the clerk's ignorance or confusion as to which between Section 5(a)(11),[12] Rule 141 of the Rules of Court and Section 9, Rule 35 of the Comelec Rules of Procedure would apply in assessing the filing fee, considering that the particular election protest fell within the exclusive original jurisdiction of the Regional Trial Court. After clarifying the matter, the Court in Loyola warned that the cases cited therein would no longer provide any excuse for such shortcoming and would now bar any claim of good faith, excusable negligence or mistake in any failure to pay the full amount of filing fees in election cases which may be filed after the promulgation of the decision in said case.

Shortly thereafter, in the similar case of Miranda v. Castillo[13] which involved two election protests filed on May 24, 1995, the Court did not yet heed the Loyola warning and instead held that an incomplete payment of filing fee is correctible by the payment of the deficiency. The Court, nonetheless, reiterated the caveat in Loyola that it would no longer tolerate any mistake in the payment of the full amount of filing fees for election cases filed after the promulgation of the Loyola decision on March 25, 1997. The force of the Loyola doctrine was strongly felt in the 2000 case of Soller v. Comelec,[14] where the Court ordered the dismissal of the therein election protest for, inter alia, incomplete payment of filing fee, after finding a P268 deficiency in the fees paid, similar to what occurred in Loyola and Miranda. The Court once again clarified that the then P300 filing fee prescribed by the Comelec under Section 9, Rule 35 of the Comelec Rules of Procedure was the correct filing fee that must be paid. The ripples of the caveat in Loyola continued in Villota v. Commission on Elections[15] and Zamoras v. Commission on Elections,[16] both of which involved, this time, the matter of full payment of the appeal fee in election contests within the five-day reglementary period. The petitioner in Villota timely filed a notice of appeal and simultaneously paid to the trial court's cashier the appeal fees totaling P170. Four days beyond the reglementary period, the therein petitioner realized his mistake and again paid to the Cash Division of the Comelec the appeal fees in the sum of P520, pursuant to Sections 3 and 4, Rule 40 of the Comelec Rules of Procedure, which Sections fix the amount of the fees and the place of payment thereof. Maintaining that errors in the matter of non-payment or incomplete payment of filing fees in election cases are no longer excusable, the Court sustained the Comelec's dismissal of the appeal. The Court was more emphatic in Zamoras in reiterating the Loyola doctrine. In that case, the petitioner failed to fully pay the appeal fees under Comelec Resolution No. 02-0130 (September 18, 2002) which amended Section 3, Rule 40 of the Comelec Rules of Procedure by increasing the fees to P3,200. There the Court ruled: x x x A case is not deemed duly registered and docketed until full payment of the filing fee. Otherwise stated, the date of the payment of the filing fee is deemed the actual date of the filing of the notice of appeal. x x x xxxx x x x The payment of the filing fee is a jurisdictional requirement and noncompliance is a valid basis for the dismissal of the case. The subsequent full payment

of the filing fee after the lapse of the reglementary period does not cure the jurisdictional defect. x x x[17] (Italics in the original, underscoring supplied) Such has been the jurisprudential landscape governing the matter of payment of filing fees and appeal fees in election cases. On May 15, 2007, the Court, by A.M. No. 07-4-15-SC, introduced the "Rules of Procedure in Election Contests before the Courts involving Elective Municipal and Barangay Officials," which superseded Rules 35 and 36 of the Comelec Rules of Procedure governing elections protests and quo warranto cases before the trial courts.[18] Not only was the amount of the filing fee increased from P300 to P3,000 for each interest;[19] the amount of filing fee was determined by the Court, not by the Comelec, which was, to recall, the cause of confusion in Loyola, Miranda and Soller. Another major change introduced by A.M. No. 07-4-15-SC is the imposition of an appeal fee under Section 9 of Rule 14 thereof, separate and distinct from, but payable within the same period as, the appeal fee imposed by the Comelec under Sections 3 and 4, Rule 40 of the Comelec Rules of Procedure, as amended by Comelec Resolution No. 02-0130. Contrary to respondent's contention, the Comelec-prescribed appeal fee was not superseded by A.M. No. 07-4-15-SC. The requirement of these two appeal fees by two different jurisdictions had caused confusion in the implementation by the Comelec of its procedural rules on payment of appeal fees for the perfection of appeals, prompting the Comelec to issue Resolution No. 8486 (July 15, 2008) clarifying as follows: 1. That if the appellant had already paid the amount of P1,000.00 before the Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court or lower courts within the five-day period, pursuant to Section 9, Rule 14 of the Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials (Supreme Court Administrative Order No. 07-4-15) and his Appeal was given due course by the Court, said appellant is required to pay the Comelec appeal fee of P3,200.00 at the Commission's Cash Division through the Electoral Contests Adjudication Department (ECAD) or by postal money order payable to the Commission on Elections through ECAD, within a period of fifteen days (15) from the time of the filing of the Notice of Appeal with the lower court. If no payment is made within the prescribed period, the appeal shall be dismissed pursuant to Section 9(a) of Rule 22 of the COMELEC Rules of Procedure, which provides: Sec. 9. Grounds for Dismissal of Appeal. The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds:

(a) Failure of the appellant to pay the correct appeal fee; x x x

2. That if the appellant failed to pay the P1,000.00-appeal fee with the lower court within the five (5) day period as prescribed by the Supreme Court New Rules of Procedure but the case was nonetheless elevated to the Commission, the appeal shall be dismissed outright by the Commission, in accordance with the aforestated Section 9(a) of Rule 22 of the Comelec Rules of Procedure. (Emphasis, italics and underscoring supplied) That Comelec Resolution No. 8486 took effect on July 24, 2008[20] or after a party had filed a notice of appeal, as in the case of petitioner, does not exempt it from paying the Comelec-prescribed appeal fees. The Comelec merely clarified the existing rules on the payment of such appeal fees, and allowed the payment thereof within 15 days from filing the notice of appeal. In the recent case of Aguilar v. Comelec,[21] the Court harmonized the rules with the following ratiocination: The foregoing resolution is consistent with A.M. No. 07-4-15-SC and the COMELEC Rules of Procedure, as amended. The appeal to the COMELEC of the trial court's decision in election contests involving municipal and barangay officials is perfected upon the filing of the notice of appeal and the payment of the P1,000.00 appeal fee to the court that rendered the decision within the five-day reglementary period. The non-payment or the insufficient payment of the additional appeal fee of P3,200.00 to the COMELEC Cash Division, in accordance with Rule 40, Section 3 of the COMELEC Rules of Procedure, as amended, does not affect the perfection of the appeal and does not result in outright or ipso facto dismissal of the appeal. Following, Rule 22, Section 9(a) of the COMELEC Rules, the appeal may be dismissed. And pursuant to Rule 40, Section 18 of the same rules, if the fees are not paid, the COMELEC may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. In such a situation, the COMELEC is merely given the discretion to dismiss the appeal or not. (Italics in the original; emphasis and underscoring supplied) In Aguilar, the Court recognized the Comelec's discretion to allow or dismiss a "perfected" appeal that lacks payment of the Comelec-prescribed appeal fee. The Court stated that it was more in keeping with fairness and prudence to allow the appeal which was, similar to the present case, perfected months before the issuance of Comelec Resolution No. 8486. Aguilar has not, however, diluted the force of Comelec Resolution No. 8486 on the matter of compliance with the Comelec-required appeal fees. To reiterate,

Resolution No. 8486 merely clarified the rules on Comelec appeal fees which have been existing as early as 1993, the amount of which was last fixed in 2002. The Comelec even went one step backward and extended the period of payment to 15 days from the filing of the notice of appeal. Considering that a year has elapsed after the issuance on July 15, 2008 of Comelec Resolution No. 8486, and to further affirm the discretion granted to the Comelec which it precisely articulated through the specific guidelines contained in said Resolution, the Court now declares, for the guidance of the Bench and Bar, that for notices of appeal filed after the promulgation of this decision, errors in the matter of non-payment or incomplete payment of the two appeal fees in election cases are no longer excusable. On the Comelec's application of the doctrine of estoppel by laches, records show that petitioner raised the issue of lack of jurisdiction for his and private respondent's non-payment of the appeal fee only after the Comelec appreciated the contested ballots and ruled in favor of respondent, an issue which could have been raised with reasonable diligence at the earliest opportunity. The Court finds the Comelec resolution well-taken. That petitioner's filing of the appellee's brief was an invocation of the Comelec's jurisdiction and an indication of his active participation cannot be refuted on the mere asseveration that he was only complying with the Comelec's directive to file the same. The submission of briefs was ordered precisely because the Comelec could not anticipate the claims and defenses that would be raised by the parties. Moreover, in his Verified Motion for Reconsideration, petitioner once again pleaded to the Comelec to exercise its jurisdiction by dismissing private respondent's appeal on the merits.[22] The doctrine of estoppel by laches is not new in election cases. It has been applied in at least two cases involving the payment of filing fees. In Navarosa v. Comelec,[23] the therein petitioner questioned the trial court's jurisdiction over the election protest in the subsequent petition for certiorari before the Comelec involving the ancillary issue of execution pending appeal. The petitioner having raised for the first time the therein private respondent's incomplete payment of the filing fee in her Memorandum submitted to the Comelec, the Court applied the doctrine of estoppel in this wise: In an earlier ruling, the Court held that an election protest is not dismissible if the protestant, relying on the trial court's assessment, pays only a portion of the COMELEC filing fee. However, in Miranda v. Castillo, the Court, reiterating Loyola v. Commission on Elections, held that it would no longer tolerate "any mistake in the

payment of the full amount of filing fees for election cases filed after the promulgation of the Loyola decision on March 25, 1997." Nevertheless, our rulings in Miranda and Loyola are inapplicable to the present case. At no time did petitioner Navarosa ever raise the issue of respondent Esto's incomplete payment of the COMELEC filing fee during the full-blown trial of the election protest. Petitioner Navarosa actively participated in the proceedings below by filing her Answer, presenting her evidence, and later, seeking a stay of execution by filing a supersedeas bond. Not only this, she even invoked the trial court's jurisdiction by filing a counter-protest against respondent Esto in which she must have prayed for affirmative reliefs. Petitioner Navarosa raised the issue of incomplete payment of the COMELEC filing fee only in her memorandum to respondent Esto's petition before the COMELEC Second Division. Petitioner Navarosa's conduct estops her from claiming, at such late stage, that the trial court did not after all acquire jurisdiction over the election protest. Although a party cannot waive jurisdictional issues and may raise them at any stage of the proceedings, estoppel may bar a party from raising such issues. In Pantranco North Express v. Court of Appeals, this Court applied the doctrine of estoppel against a party who also belatedly raised the issue of insufficient payment of filing fees to question the court's exercise of jurisdiction over the case. We held: The petitioner raised the issue regarding jurisdiction for the first time in its Brief filed with public respondent [Court of Appeals] x x x After vigorously participating in all stages of the case before the trial court and even invoking the trial court's authority in order to ask for affirmative relief, the petitioner is effectively barred by estoppel from challenging the trial court's jurisdiction. Indeed, in Miranda and Loyola, as in every other case where we sustained the dismissal of the election protest for lack or incomplete payment of the COMELEC filing fee, the protestee timely raised the non-payment in a motion to dismiss. Before any revision of the contested ballots, the protestee filed a petition for certiorari questioning the trial court's jurisdiction before the COMELEC and eventually before this Court. In contrast, in the instant case, petitioner Navarosa did not raise the incomplete payment of the COMELEC filing fee in a motion to dismiss. Consequently, the trial court proceeded with the revision of the contested ballots and subsequently rendered judgment on the election protest. Petitioner Navarosa raised for the first time the incomplete payment of the COMELEC filing fee in her memorandum before the COMELEC Second Division. Thus, estoppel has set in precluding petitioner Navarosa from questioning the incomplete payment of the COMELEC filing fee, and in effect assailing the exercise of jurisdiction by the trial court over the election protest. The law vests in the trial

court jurisdiction over election protests although the exercise of such jurisdiction requires the payment of docket and filing fees by the party invoking the trial court's jurisdiction. Estoppel now prevents petitioner Navarosa from questioning the trial court's exercise of such jurisdiction, which the law and not any act of the parties has conferred on the trial court. At this stage, the remedy for respondent Esto's incomplete payment is for him to pay the P200 deficiency in the COMELEC filing fee. It is highly unjust to the electorate of Libacao, Aklan, after the trial court has completed revision of the contested ballots, to dismiss the election protest and forever foreclose the determination of the true winner of the election for a mere P200 deficiency in the COMELEC filing fee. x x x[24] (Italics and emphasis in the original; underscoring supplied) In Villagracia v. Commission on Elections,[25] the Court dismissed the petition after finding that the therein petitioner was estopped from raising the jurisdictional issue for the first time on appeal. The Court ratiocinated: Petitioner contends that had public respondent followed the doctrine in Soller v. COMELEC, it would have sustained the ruling of the First Division that the trial court lacked jurisdiction to hear the election protest due to private respondent's failure to pay the correct filing fees. We disagree. The Soller case is not on all fours with the case at bar. In Soller, petitioner therein filed with the trial court a motion to dismiss private respondent's protest on the ground of, among others, lack of jurisdiction. In the case at bar, petitioner actively participated in the proceedings and voluntarily submitted to the jurisdiction of the trial court. It was only after the trial court issued its decision adverse to petitioner that he raised the issue of jurisdiction for the first time on appeal with the COMELEC's First Division. While it is true that a court acquires jurisdiction over a case upon complete payment of the prescribed filing fee, the rule admits of exceptions, as when a party never raised the issue of jurisdiction in the trial court. As we stated in Tijam v. Sibonghanoy, et al., viz.: xxx [I]t is too late for the loser to question the jurisdiction or power of the court. xxx [I]t is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape a penalty. It was therefore error on the part of the COMELEC's First Division to indiscriminately apply Soller to the case at bar. As correctly pointed out by public respondent in its questioned Resolution, viz.:

x x x. Villagracia never assailed the proceedings of the trial court for lack of jurisdiction during the proceedings therein. Instead, he filed an Answer to the Protest on 2 August 2002 and then actively participated during the hearings and revision of ballots and subsequently filed his Formal Offer of Exhibits. The issue on the filing fees was never raised until the Decision adverse to his interest was promulgated by the trial court and only on [a]ppeal to the COMELEC. Necessarily, we apply the case of Alday vs. FGU Insurance Corporation where the Supreme Court instructed that "although the lack of jurisdiction of a court may be raised at any stage of the action, a party may be estopped from raising such questions if he has actively taken part in the very proceedings which he questions, belatedly objecting to the court's jurisdiction in the event that the judgment or order subsequently rendered is adverse to him." Villagracia is therefore estopped from questioning the jurisdiction of the trial court only on [a]ppeal.[26] (Underscoring supplied) To allow petitioner to espouse his stale defense at such late stage of the proceedings would run afoul of the basic tenets of fairness. It is of no moment that petitioner raised the matter in a motion for reconsideration in the same appellate proceedings in the Comelec, and not before a higher court. It bears noting that unlike appellate proceedings before the Comelec, a motion for reconsideration of a trial court's decision in an election protest is a prohibited pleading,[27] which explains why stale claims of non-payment of filing fees have always been raised belatedly before the appellate tribunal. In appellate proceedings before the Comelec, the stage to belatedly raise a stale claim of non-payment of appeal fees to subvert an adverse decision is a motion for reconsideration. The Commission thus did not gravely abuse its discretion when it did not countenance the glaring inequity presented by such situation. More. Petitioner, guilty as he is of the same act that he assails, stands on equal footing with private respondent, for he himself admittedly did not pay the appeal fee, yet the Comelec similarly adjudicated his appeal on the merits, the resolution of which he glaringly does not assail in the present petition. He who comes to court must come with clean hands. Election cases cannot be treated in a similar manner as criminal cases where, upon appeal from a conviction by the trial court, the whole case is thrown open for review and the appellate court can resolve issues which are not even set forth in the pleadings.[28] Petitioner having set his eyes only on the issue of appeal fees, the present petition must be resolved, as it is hereby resolved, on the basis of such singular ground which, as heretofore discussed, failed to convince the Court. En passant, appreciation of the contested ballots and election documents involves a question of fact best left to the determination of the Comelec, a specialized agency tasked with the supervision of elections all over the country. In the absence of grave

abuse of discretion or any jurisdictional infirmity or error of law, the factual findings, conclusions, rulings and decisions rendered by the Comelec on matters falling within its competence shall not be interfered with by this Court.[29] By the assailed Resolutions, the Comelec declared as "marked" those ballots containing the words "Ruby," "Ruby Lizardo" and its variants after finding a discernible pattern in the way these words were written on the ballots, leading to the conclusion that they were used to identify the voter. The Comelec found material the following evidence aliunde: the name "Ruby Lizardo" referred to a community leader and political supporter of petitioner; said name and its variants were written on several ballots in different precints; and the fact that Ruby Lizardo acted as an assistor in the elections cannot hold water since an assistor cannot assist in the preparation of the ballots for more than three times.[30] The Comelec did not invalidate the other ballots for absence of evidence aliunde to prove that the markings therein were used for the purpose of identifying the voter. It ruled that circles, crosses and lines (e.g., "X" marks) placed on spaces on which the voter has not voted are considered signs to indicate his desistance from voting and should not invalidate the ballot. Petitioner failed to establish, or even allege, the presence of grave abuse of discretion with respect to the substance of the assailed Resolutions. Petitioner's silent stance on this point is an implied waiver of whatever infirmities or errors of law against the substantive aspect of the assailed Resolutions, for the Court abhors a piecemeal approach in the presentation of arguments and the adjudication thereof. WHEREFORE, the petition is DISMISSED for lack of merit. The July 17, 2008 Resolution and the January 26, 2009 Resolution of the Commission on Elections are AFFIRMED. SO ORDERED. Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Corona, Chico-Nazario, Velasco, Jr., Nachura, Leonardo-De Castro, Peralta, and Bersamin, JJ., concur. Brion, J., on official leave. EN BANC [G.R. No. 155618, March 26, 2003] EDGAR Y. SANTOS, PETITIONER, VS. COMMISSION ON ELECTIONS (FIRST DIVISION) AND PEDRO Q. PANULAYA, RESPONDENTS. DECISION

YNARES-SANTIAGO, J.: Petitioner Edgar Y. Santos and respondent Pedro Q. Panulaya were both candidates for Mayor of the Municipality of Balingoan, Misamis Oriental in the May 14, 2001 elections. On May 16, 2001, after the votes were counted and canvassed, the Municipal Board of Canvassers proclaimed respondent Panulaya as the duly elected Mayor. Petitioner filed an election protest before the Regional Trial Court of Misamis Oriental, Branch 26, which was docketed as SPL Election Protest No. 1-M(2001). After trial and revision of the ballots, the trial court found that petitioner garnered 2,181 votes while respondent received only 2,105. Hence, on April 2, 2002, it rendered judgment as follows: WHEREFORE, judgment is hereby rendered declaring and proclaiming protestant/petitioner Edgar Y. Santos as the duly elected Municipal Mayor of Balingoan, Misamis Oriental, in the mayoralty elections held on May 14, 2001 with the plurality of Seventy Six (76) votes over and above his protagonist-protestee Pedro Q. Panulaya setting aside as null and void the proclamation of protestee made by the Municipal Board of Canvassers on May 16, 2001, ordering to pay protestant/petitioner the costs and expenses that the latter incurred in this protest in accordance with Section 259 of the Omnibus Election Code of the Philippines (B.P. 881) and Section 7 of the COMELEC Resolution 1566, to wit: xxx xxx xxx.

The Clerk of Court of this Court is hereby directed to furnish copy of the DECISION to the following: Office of the Commission on Elections (COMELEC); Office of the Commission on Audit; Office of the Department of Interior and Local Government; Office of the Sangguniang Panlalawigan of Misamis Oriental, in accordance with Section 15 of the COMELEC Resolution 1566. SO ORDERED.[1] Petitioner thereafter filed a motion for execution pending appeal. Meanwhile, before the trial court could act on petitioners motion, respondent filed on April 22, 2002 with the Commission on Elections (COMELEC) a petition for certiorari, docketed as SPR No. 20-2002, assailing the decision of the trial court.[2] Likewise on April 22, 2002, respondent appealed the trial courts decision to the COMELEC, where it was docketed as EAC No. A-12-2002. The COMELEC, in SPR No. 20-2002, issued a Writ of Preliminary Injunction, which effectively enjoined the trial court from acting on petitioners motion for execution pending appeal. Subsequently, on August 19, 2002, the COMELEC

dismissed SPR No. 20-2002 after finding that the trial court did not commit grave abuse of discretion in rendering the assailed judgment. Moreover, the COMELEC held that the remedy from the decision of the court a quo was to file a notice of appeal, which respondent precisely did in EAC No. A-12-2002. Hence, it directed the trial court to dispose of all pending incidents in SPL Election Protest No. 1-M(2001) with dispatch, to wit: WHEREFORE, premises considered, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant petition for lack of merit. ACCORDINGLY, the Writ of Preliminary Injunction issued on 16 May 2002, as well as the Order issued on 27 April 2002 by the Commission (First Division), are hereby set aside and lifted, respectively. The Court a quo is hereby directed to dispose with immediate dispatch all pending incidents in SPL Election Case No. 1-M (2001) entitled Edgar Y. Santos, Petitioner/Protestant versus Pedro Q. Panulaya, Respondent/Protestee. No pronouncement as to cost. SO ORDERED. (underscoring ours)[3] Thus, on August 20, 2002, the trial court issued an Order as follows: WHEREFORE, premises considered, this Court hereby upholds and approves the Motion for Execution Pending Appeal. Further, finding good reasons therefor, the Court hereby directs and orders the immediate execution of the Decision promulgated on April 18, 2002, and as prayed for install protestant/petitioner EDGAR Y. SANTOS as the duly elected Mayor of Balingoan, Misamis Oriental, to take his oath of office and assume the functions and duties of Mayor after he shall have filed a bond of One Hundred Thousand Pesos (P100,000.00). SO ORDERED.[4] After petitioner posted the required bond, the trial court issued the Writ of Execution,[5] thereby installing petitioner as Municipal Mayor of Balingoan, Misamis Oriental. Accordingly, petitioner took his oath of office and thereafter assumed the duties and functions of his office. On August 21, 2002, respondent filed with the COMELEC a motion for reconsideration of the dismissal of his petition in SPR No. 20-2002.[6] After five days, or on August 26, 2002, he filed a supplemental petition in SPR No. 20-2002,[7] wherein he prayed: WHEREFORE, foregoing premises considered, petitioner [herein respondent] respectfully prays unto this Honorable Commission that the following Orders of the public respondent: F. Resolution dated 20 August 2002; G.

H. Order dated 20 August 2002; I. J. Writ of execution dated 21 August 2002; Be nullified and set aside. It is further prayed that in the event that the public respondent has carried out its Order of ousting petitioner [herein respondent] from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no legal effect. It is likewise prayed that a STATUS QUO ANTE ORDER be issued by the Honorable Commission in order to reinstate the petitioner to his rightful position as Mayor of Balingoan, Misamis Oriental. Other reliefs, just and equitable are likewise prayed for.[8] Barely two days later, on August 28, 2002, and while his motion for reconsideration and supplemental petition in SPR No. 20-2002 were pending, respondent filed another petition with the COMELEC, docketed as SPR No. 37-2002.[9] The petition contained the same prayer as that in the supplemental petition filed in SPR 20-2002, viz: WHEREFORE, foregoing premises considered, petitioner [herein respondent] respectfully prays unto this Honorable Commission that immediately upon the filing of the herein petition, the following Orders of the public respondent: 1. Resolution dated 20 August 2002; 2. Order dated 20 August 2002; 3. Writ of execution dated 21 August 2002; Be nullified and set aside. Pending trial and final judgment, and soon after the issuance, but during the effectivity of the Temporary Restraining Order, a Writ of Preliminary Injunction be issued prohibiting, restraining and/or enjoining the public respondent from further implementing the highly unjust, irregular and oppressive Orders above-quoted; It is further prayed that in the event that the public respondent has carried out its Order of ousting petitioner [herein respondent] from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no legal effect. It is likewise prayed that a STATUS QUO ANTE ORDER be issued by the Honorable Commission in order to reinstate the petitioner to his rightful position as Mayor of Balingoan, Misamis Oriental. Upon due notice and hearing, judgment be rendered in favor of the petitioner

[herein respondent] and against the respondent [herein petitioner] as follows: 18. Making the Writ of Preliminary Prohibitory Injunction permanent; 19. 20. Declaring Resolution dated 20 August 2002, Order dated 20 August 2002, and Writ of Execution dated 21 August 2002; as null and void for being highly unjust, irregular and oppressively prepared in utter violation of the Constitutional provisions on equal protection of the laws and due process, and for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction. 21. 22. A writ of Prohibition be issued specifically commanding public respondent to cease and desist from further implementing the highly unjust, irregular and oppressive Orders above-mentioned are concerned (sic); and 23. 24. Ordering the respondents to pay the costs of suit. Such other reliefs and remedies, as are just and equitable in the premises, are likewise prayed for.[10] On September 3, 2002, the COMELEC issued the assailed Order directing the parties to maintain the status quo ante and enjoining petitioner from assuming the functions of Mayor. Pertinent portion of the Order reads: In the interest of justice and so as not to render moot and academic the issues raised in the petition, the Commission (First Division) hereby directs the parties to maintain the status quo ante, which is the condition prevailing before the issuance and implementation of the questioned Order of the court a quo dated August 20, 2002 and the Writ of Execution issued pursuant thereto dated August 21, 2002, in SPL. ELECTION CASE NO. 1-M (2001) entitled EDGAR Y. SANTOS versus PEDRO Q. PANULAYA. Accordingly, effective immediately, private respondent EDGAR Y. SANTOS is hereby ordered to cease and desist from assuming the duties and functions of the office of Mayor of Balingoan, Misamis Oriental until further orders from this Commission.[11] Petitioner filed a motion for reconsideration of the above Order. However, the COMELEC First Division did not refer the said motion to the COMELEC En Banc. Hence, petitioner, citing our ruling in Kho v. COMELEC,[12] brought the instant special civil action for certiorari with this Court. Meanwhile, on September 9, 2002, petitioner filed an Omnibus Motion (1) To Dissolve The Status Quo Order As It Was Based On An Unverified And Dismissed Petition With Pending Motion For Reconsideration; And (2) To Refer This Motion To The Commission En Banc Under Section 2, Rule 3 of the COMELEC Rules of Procedure.[13] On October 14, 2002, the COMELEC issued a Resolution in SPR No. 37-2002, the dispositive portion of which states: WHEREFORE, premises considered, the Petition is hereby GRANTED. Accordingly, the August 20, 2002 Resolution of the respondent judge granting the Motion for

Execution Pending Appeal as well as his Order also dated August 20, 2002 directing the issuance of the Writ of Execution and his Writ of Execution dated August 21, 2002 are hereby set aside. Private Respondent Edgar Y. Santos is enjoined from assuming the function of mayor of Balingoan, Misamis Oriental until the final determination of the election appeal case. This resolution shall be immediately executory. The Department of Interior and Local Government (DILG) is hereby requested to assist in the peaceful and orderly implementation of this Resolution. SO ORDERED.[14] The petition is impressed with merit. It is at once apparent from the records, as shown above, that respondent was guilty of forum-shopping when he instituted SPR No. 37-2002 with the COMELEC. Forumshopping is an act of a party against whom an adverse judgment or order has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. For it to exist, there should be (a) identity of parties, or at least such parties as would represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.[15] In the case at bar, respondent obtained an adverse decision when his petition in SPR No. 20-2002 was dismissed by the COMELEC. He thereafter filed a motion for reconsideration and a supplemental petition, praying for the nullification of the trial courts order for the execution of its decision pending appeal. Two days after filing the supplemental petition, and while the same was very much pending before the COMELEC, he filed a wholly separate petition for certiorari, docketed as SPR No. 37-2002, wherein he pleaded the same reliefs prayed for in the supplemental petition. This is plainly evident from the respective prayers in the supplemental petition and the petition for certiorari as reproduced hereinabove. In doing so, respondent, before allowing the COMELEC to fully resolve the incidents in SPR No. 20-2002, both of which were at his own instance, sought to increase his chances of securing a favorable decision in another petition. He filed the second petition on the supposition that the COMELEC might look with favor upon his reliefs. Forum-shopping is considered a pernicious evil; it adversely affects the efficient

administration of justice since it clogs the court dockets, unduly burdens the financial and human resources of the judiciary, and trifles with and mocks judicial processes.[16] The most important factor in determining the existence of forum shopping is the vexation caused the courts and parties-litigants by a party who asks different courts to rule on the same or related causes or grant the same or substantially the same reliefs.[17] Considering that respondent was indubitably guilty of forum-shopping when he filed SPR No. 37-2002, his petition should have been dismissed outright by the COMELEC.[18] Willful and deliberate forum-shopping is a ground for summary dismissal of the case, and constitutes direct contempt of court.[19] The petition for certiorari in SPR No. 37-2002 assailed the trial courts orders for the execution of its decision pending appeal. The grant of execution pending appeal was well within the discretionary powers of the trial court. In order to obtain the annulment of said orders in a petition for certiorari, it must first be proved that the trial court gravely abused its discretion. He should show not merely a reversible error committed by the trial court, but a grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility which must be so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Mere abuse of discretion is not enough.[20] We find that no grave abuse of discretion was committed by the trial court. In its order granting execution pending appeal, it held: It is of judicial notice that for the public official elected last May 14, 2001 elections only a short period is left. Relative to this Courts jurisdiction over the instant case, the settled rule that the mere filing of the notice of appeal does not divest the trial court of its jurisdiction over the case and to resolve pending incidents, i.e., motion for execution pending appeal (Asmala vs. COMELEC, 289 SCRA 745) need not be overemphasized.[21] However, the COMELEC set aside the aforesaid order, saying that shortness of term alone is not a good reason for execution of a judgment pending appeal. We disagree. While it was indeed held that shortness of the remaining term of office and posting a bond are not good reasons, we clearly stated in Fermo v. COMELEC[22] that: A valid exercise of the discretion to allow execution pending appeal requires that it should be based upon good reasons to be stated in a special order. The following constitute good reasons and a combination of two or more of them will suffice to grant execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the remaining portion of the term of the

contested office; and (3.) the length of time that the election contest has been pending (italics supplied).[23] The decision of the trial court in Election Protest No. 1-M(2001) was rendered on April 2, 2002, or after almost one year of trial and revision of the questioned ballots. It found petitioner as the candidate with the plurality of votes. Respondent appealed the said decision to the COMELEC. In the meantime, the three-year term of the Office of the Mayor continued to run. The will of the electorate, as determined by the trial court in the election protest, had to be respected and given meaning. The Municipality of Balingoan, Misamis Oriental, needed the services of a mayor even while the election protest was pending, and it had to be the candidate judicially determined to have been chosen by the people. Between the determination by the trial court of who of the candidates won the elections and the finding of the Board of Canvassers as to whom to proclaim, it is the courts decision that should prevail. This was sufficiently explained in the case of Ramas v. COMELEC[24] in this wise: All that was required for a valid exercise of the discretion to allow execution pending appeal was that the immediate execution should be based upon good reasons to be stated in a special order. The rationale why such execution is allowed in election cases is, as stated in Gahol v. Riodique,[25] to give as much recognition to the worth of a trial judges decision as that which is initially ascribed by the law to the proclamation by the board of canvassers. Thus: Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is considered that the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield to extraneous considerations, and that the board must act summarily, practically racing against time, while, on the other hand, the judge has benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing the immediate execution of decisions in election cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are, in the sound discretion of the court, good reasons therefor. To deprive trial courts of their discretion to grant execution pending appeal would, in the words of Tobon Uy v. COMELEC,[26] bring back the ghost of the grab-theproclamation-prolong the protest techniques so often resorted to by devious politicians in the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will of the electorate. [27] Thus, the COMELEC committed grave abuse of discretion in giving due course, instead of dismissing outright, the petition in SPR No. 37-2002 despite the clear

showing that respondent was guilty of forum-shopping; and in setting aside the trial courts order granting execution pending appeal. WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The Order dated September 3, 2002 and the Resolution dated October 14, 2002 of the Commission on Elections in SPR No. 37-2002 are ANNULLED and SET ASIDE and the said case is ordered DISMISSED on the ground of forum-shopping. The Order dated August 20, 2002 of the Regional Trial Court of Misamis Oriental, Branch 26, granting the execution pending appeal of its decision in Election Protest No. 1-M(2001), and the Writ of Execution dated August 21, 2002, are REINSTATED. The full enforcement of the said Writ must forthwith be made. The court of origin shall transmit immediately to the Commission on Elections the records of SPL Election Case No. 1M(2001), and the Commission on Elections shall dispose of the appeal in EAC No. A12-2002 with deliberate dispatch. This Decision shall be immediately executory. Costs against private respondent. SO ORDERED.

EN BANC [G.R. No. 157957, September 18, 2003] CHARITO NAVAROSA, PETITIONER, VS. COMMISSION ON ELECTIONS, HONORABLE DEAN R. TELAN, AS PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 9, KALIBO, AKLAN AND ROGER M. ESTO, RESPONDENTS. DECISION CARPIO, J.: The Case This is a petition for certiorari of the Commission on Elections ("COMELEC") En Banc Resolution dated 15 April 2003 denying petitioner Charito Navarosa's motion for reconsideration of the COMELEC Second Division Resolution[1] dated 28 November 2002. The COMELEC Second Division Resolution ordered the execution pending appeal of the Decision[2] of the Regional Trial Court, Branch 9, Kalibo, Aklan, proclaiming respondent Roger M. Esto winner in the mayoralty race in the 14 May 2001 elections. The Facts Petitioner Charito Navarosa ("petitioner Navarosa") and respondent Roger M. Esto ("respondent Esto") were candidates for mayor of Libacao, Aklan in the 14 May 2001 elections. On 17 May 2001, the COMELEC Municipal Board of Canvassers of Libacao proclaimed petitioner Navarosa as the duly elected mayor, with a winning margin of three (3) votes over respondent Esto.[3] Claiming that irregularities marred the canvassing of ballots in several precincts, respondent Esto filed an election protest docketed as Election Case No. 129 ("election protest") in the Regional Trial Court, Branch 9, Kalibo, Aklan ("trial court"). Petitioner Navarosa, who also claimed that canvassing irregularities prejudiced her, filed a counter-protest in the same case. On 4 March 2002, after revision of the contested ballots, the trial court rendered judgment in favor of respondent Esto. The trial court found that respondent Esto obtained 4,595 votes over petitioner Navarosa's 4,553 votes. Thus, the trial court declared respondent Esto the elected mayor of Libacao by a margin of 42 votes and annulled the earlier proclamation of petitioner Navarosa. The trial court also ordered petitioner Navarosa to pay respondent Esto actual damages and attorney's fees. The

dispositive portion of the decision provides: WHEREFORE, judgment is hereby rendered: a) Declaring the Proclamation of xxx protestee [Navarosa] as the duly elected Mayor of Libacao, Aklan and the Certificate of Canvass of Votes and the Proclamation of the Winning Candidates for Municipal Offices, dated May 17, 2001, as null and void;

b)

Declaring the protestant, Roger M. Esto, as the duly elected Municipal Mayor of Libacao, Aklan in the May 14, 2001 election;

c)

Ordering the protestee [Navarosa] to pay the sum of P14,215.00 as actual and compensatory damages, and the amount of P50,000.00 as and for attorney's fees, plus the cost of suit.[4] Petitioner Navarosa appealed the trial court's ruling to the COMELEC (EAC Case No. A-9-2002). Respondent Esto, on the other hand, filed with the trial court a motion for execution of the judgment pending petitioner Navarosa's appeal. Petitioner Navarosa opposed respondent Esto's motion. In the alternative, petitioner Navarosa offered to file a supersedeas bond to stay execution pending appeal, should the trial court grant respondent Esto's motion. In its Order of 22 March 2002 ("Order"), the trial court granted respondent Esto's motion subject to the filing of a P300,000 bond. However, in the same order, the trial court also granted petitioner Navarosa's prayer to stay the execution pending appeal, upon filing a P600,000 supersedeas bond. The Order reads: The Supreme Court has explicitly recognized and given approval to execution of judgments pending appeal in election cases, filed under existing election laws. In these cases, the immediate execution was made in accordance with Sec. 2, Rule 39 of the Rules of Court (Ramas et al. vs. COMELEC, et al., G.R. No. 130831, 2/10/98). There is, therefore, no question now that execution pending appeal may be granted. xxx [T]he grant of execution would give substance and meaning to the people's mandate specially since the court has established protestant's right to the office (Lindo vs. COMELEC cited in the Ramas case); more than 10 months or nearly 1/3 of the 3-year term for Mayor had already lapsed (Gutierrez vs. COMELEC, G.R. 126298, 3-25-97; Tobon Uy vs. COMELEC also cited in the Ramas case). These are two "good reasons" to justify execution of the decision pending appeal. [P]rotestee [Navarosa] however, prays in the alternative, that should execution

pending appeal be granted, the same be stayed upon his [sic] filing of supersedeas bond to be fixed by the court under Sec. 3, Rule 39, 1997 Rules of Civil Procedure. Unlike Sec. 2, Rule 39 where the grant of execution pending appeal is conditioned upon the presence of the "good and valid reason" for its grant, Sec. 3, Rule 39 does not provide for any condition precedent before the discretionary execution of Rule 2 may be stayed. All that it requires is that a sufficient supersedeas bond must be approved by the court conditioned upon the performance of the judgment allowed to be executed in case it shall be finally sustained in whole or in part. Under this section, therefore, the filing of a supersedeas bond sufficient in amount is enough to stay the execution granted under Sec. 2. Moreover, the margin of 42 votes in the instant case is not so big, overwhelming or insurmountable as to be practically beyond or improbable of being overturned by the higher courts. xxx WHEREFORE, in view of the foregoing[,] the court finds that the protestant, Roger M. Esto is entitled to the execution of the decision dated March 4, 2002, pending appeal, upon the filing of a bond which covers the salary and emoluments of the office of the Municipal Mayor of Libacao, Aklan and or the payment of all damages in the amount of P300,000.00, Philippine Currency, in cash, surety bond or real property with assessed value in said amount to be filed on or before April 3, 2002, furnishing copy thereof to the protestee or his duly authorized representative. The protestee, Charito Navarosa, considering that the margin is not so insurmountable as to be beyond reversal by the higher court[,] is hereby allowed to stay the execution of the decision of March 4, 2002 pending appeal, by filing a supersedeas bond in double the amount posted by the protestant, on or before April 3, 2002, furnishing copy thereof the protestant or his duly authorized representative.[5] Both petitioner Navarosa and respondent Esto sought reconsideration of the Order but the trial court denied their motions on 5 April 2002. Respondent Esto filed a petition for certiorari with the COMELEC against the Order. In her memorandum to the petition, petitioner Navarosa raised for the first time the issue of the trial court's failure to acquire jurisdiction over the election protest because of respondent Esto's failure to pay the COMELEC filing fee. The Ruling of the COMELEC In its Resolution dated 28 November 2002 ("Resolution"), the COMELEC Second Division affirmed the trial court's Order granting execution pending appeal and nullified the stay of the execution. The Second Division also found that respondent

Esto duly paid the COMELEC filing fee. The Resolution reads: Going now to the main issue at hand, did respondent judge gravely abuse his discretion and/or exceed his jurisdiction when he stayed the immediate execution of his decision on a finding of "good reasons" he made in his questioned Order of March 22, 2002 by allowing in the same Order the filing of a supersedeas bond double the amount posted by petitioner? The answer is yes. It is [for] the Commission on Elections, in the exercise of its appellate jurisdiction to issue the extraordinary writs of certiorari, prohibition, mandamus and injunction over all contests involving elective municipal officials decided by the trial courts of general jurisdiction elevated on appeal, and not the trial court, that may order the stay or restrain the immediate execution of the decision pending appeal granted by the trial court of general jurisdiction in an election contest. Except when the trial court reversed itself in a motion for reconsideration of its order granting immediate execution, it cannot later on stay or restrain the execution thereof in the guise of allowing the losing party to file a supersedeas bond. The issue before the trial court where a motion for execution pending appeal is filed is to determine whether or not there are "good reasons" to justify the immediate execution pending appeal. The issue is not whether x x x there are good reasons to stay the immediate execution of the decision pending appeal. The trial court, by granting the immediate execution of the March 4, 2002 decision, recognized that the "good reasons" cited in the questioned Order constitute superior circumstances demanding urgency that will outweigh the injuries or damages to the adverse party if the decision is reversed. By declaring that petitioner Esto is the duly elected Mayor of Libacao, Aklan, the trial court gave substance and meaning to the people's mandate as expressed in the ballot, especially since it has established petitioner Esto's right to the office. The trial court cannot indirectly reverse its substantial finding of "good reasons" by a rule of procedure which does not strictly apply in election protest cases when it allowed the filing of a supersedeas bond under Section 3, Rule 39 of the 1997 Rules of Civil Procedure. To allow the application of the said procedural relief would defeat the right of the winning candidate in an election protest to hold the public office by virtue of the people's mandate expressed through the ballot and to perform the functions of the said public office. xxx It is interesting to note that instead of expounding on the propriety of the supersedeas bond to stay the execution of a judgment in an election protest case, private respondent raised for the first time in his [sic] memorandum the issue of lack

of jurisdiction of the trial court over the instant election protest for the alleged failure of petitioner Esto to pay the filing fee of P300.00 required under Section 9, Rule 35 of the COMELEC Rules of Procedure. However, the records of Election Case No. 129 of the RTC of Kalibo, Aklan, Branch 9 showed otherwise. The Official Receipts issued by the RTC of Kalibo, Aklan shows [sic] that petitioners paid a total of P515.00 filing fees in Election Case No. 129 by specifically stating therein "[F]iling Fee in Election Case No. 129". At the time of filing the election protest, petitioner specified that the payment made was to cover the COMELEC filing fee for the election protest. Upon assessment, petitioner paid not only the amount of P300.00 required under Section 9, Rule 35 of the COMELEC Rules of Procedure, but a total sum of P515.00 as filing fees. While it is true that the issue of jurisdiction may be raised anytime, even on appeal, the same is of no moment now.[6] Petitioner Navarosa sought reconsideration of this ruling but the COMELEC En Banc denied her motion on 15 April 2003. Hence, this petition. On 10 June 2003, the Court required the parties to maintain the status quo pending resolution of this petition. The Issues Petitioner Navarosa raises the following issues: K. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28 NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND DIVISION FOR FAILURE TO RULE ON THE BASIC ISSUE OF LACK OF JURISDICTION OF THE COURT A QUO OVER RESPONDENT ESTO'S ELECTION PROTEST FOR NON-PAYMENT OF THE MANDATORY COMELEC FILING FEE OF P300.00. L. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28 NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND DIVISION DESPITE THE FACT THAT THERE WERE NO "GOOD REASONS" TO EXECUTE THE 4 MARCH 2002 DECISION OF THE TRIAL COURT. M. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT AFFIRMED THE 28 NOVEMBER 2002 RESOLUTION OF THE COMELEC SECOND DIVISION WHEN THE LATTER RULED THAT THE TRIAL COURT HAD NO POWER TO ORDER THE STAY OF EXECUTION OF ITS 4 MARCH 2002 DECISION PENDING APPEAL IN AN ELECTION CONTEST, BECAUSE SECTION 3, RULE 39 OF THE REVISED RULES OF COURT DOES NOT APPLY TO ELECTION CASES.[7]

The Ruling of the Court The petition has no merit. The Trial Court Acquired Jurisdiction Over Election Case No. 129 Petitioner Navarosa contends that the trial court did not acquire jurisdiction over the election protest because of respondent Esto's failure to pay the COMELEC filing fee under Rule 35, Section 9 of the COMELEC Rules of Procedure ("Section 9"). Procedurally, petitioner Navarosa should not have raised this jurisdictional issue in this petition which involves only the ancillary issue of whether to allow execution of the trial court's decision pending appeal. Nevertheless, as the question of the trial court's jurisdiction also affects its authority to issue ancillary orders such as its Order of 22 March 2002 subject of this petition, we have resolved to pass upon this issue. Section 9 provides: Filing Fee. No protest, counter-protest, or protest-in-intervention shall be given due course without the payment of a filing fee in the amount of three hundred pesos (P300.00) for each interest. Each interest shall further pay the legal research fee as required by law. Respondent Esto must pay this filing fee before the trial court can exercise its jurisdiction over the election protest.[8] The COMELEC filing fee, to distinguish from the other mandatory fees under Rule 141 of the Rules of Court, as amended, is credited to the Court's General Fund.[9] Petitioner Navarosa claims that although the receipts issued by the trial court show that respondent Esto paid P515 as "filing" and other fees, only P100 was credited to the General Fund. The rest of what respondent Esto paid accrued to the Judiciary Development Fund (P400), the Legal Research Fund (P10) and the Victim's Compensation Fund (P5).[10] Consequently, respondent Esto paid only P100 of the P300 COMELEC filing fee, for which reason the trial court did not acquire jurisdiction over the election protest. Petitioner Navarosa also claimed that the Second Division did not rule on this issue. Contrary to petitioner Navarosa's claim, the COMELEC Second Division did rule on the issue of respondent Esto's non-payment of the full amount of the COMELEC filing fee. The Second Division held that the P515 fees respondent Esto paid already covered the P300 COMELEC filing fee. However, based on the trial court's Election Fees Form for Election Case No. 129, [11] of the total amount of P515 respondent Esto paid, only P100 was indeed credited to

the General Fund. Consequently, respondent Esto only paid P100 of the required P300 COMELEC filing fee. In an earlier ruling,[12] the Court held that an election protest is not dismissible if the protestant, relying on the trial court's assessment, pays only a portion[13] of the COMELEC filing fee. However, in Miranda v. Castillo,[14] the Court, reiterating Loyola v. Commission on Elections,[15] held that it would no longer tolerate "any mistake in the payment of the full amount of filing fees for election cases filed after the promulgation of the Loyola decision on March 25, 1997." Nevertheless, our rulings in Miranda and Loyola are inapplicable to the present case. At no time did petitioner Navarosa ever raise the issue of respondent Esto's incomplete payment of the COMELEC filing fee during the full-blown trial of the election protest. Petitioner Navarosa actively participated in the proceedings below by filing her Answer, presenting her evidence, and later, seeking a stay of execution by filing a supersedeas bond. Not only this, she even invoked the trial court's jurisdiction by filing a counter-protest against respondent Esto in which she must have prayed for affirmative reliefs.[16] Petitioner Navarosa raised the issue of incomplete payment of the COMELEC filing fee only in her memorandum to respondent Esto's petition before the COMELEC Second Division. Petitioner Navarosa's conduct estops her from claiming, at such late stage, that the trial court did not after all acquire jurisdiction over the election protest. Although a party cannot waive jurisdictional issues and may raise them at any stage of the proceedings, estoppel may bar a party from raising such issues.[17] In Pantranco North Express v. Court of Appeals,[18] this Court applied the doctrine of estoppel against a party who also belatedly raised the issue of insufficient payment of filing fees to question the court's exercise of jurisdiction over the case. We held: The petitioner raised the issue regarding jurisdiction for the first time in its Brief filed with public respondent [Court of Appeals] x x x After vigorously participating in all stages of the case before the trial court and even invoking the trial court's authority in order to ask for affirmative relief, the petitioner is effectively barred by estoppel from challenging the trial court's jurisdiction. Indeed, in Miranda and Loyola, as in every other case[19] where we sustained the dismissal of the election protest for lack or incomplete payment of the COMELEC filing fee, the protestee timely raised the non-payment in a motion to dismiss. Before any revision of the contested ballots, the protestee filed a petition for certiorari questioning the trial court's jurisdiction before the COMELEC and eventually before this Court. In contrast, in the instant case, petitioner Navarosa did not raise the incomplete payment of the COMELEC filing fee in a motion to dismiss. Consequently, the trial court proceeded with the revision of the contested ballots and subsequently rendered judgment on the election protest. Petitioner Navarosa

raised for the first time the incomplete payment of the COMELEC filing fee in her memorandum before the COMELEC Second Division. Thus, estoppel has set in precluding petitioner Navarosa from questioning the incomplete payment of the COMELEC filing fee, and in effect assailing the exercise of jurisdiction by the trial court over the election protest. The law vests in the trial court jurisdiction over election protests although the exercise of such jurisdiction requires the payment of docket and filing fees by the party invoking the trial court's jurisdiction.[20] Estoppel now prevents petitioner Navarosa from questioning the trial court's exercise of such jurisdiction, which the law and not any act of the parties has conferred on the trial court. At this stage, the remedy for respondent Esto's incomplete payment is for him to pay the P200 deficiency in the COMELEC filing fee.[21] It is highly unjust to the electorate of Libacao, Aklan, after the trial court has completed revision of the contested ballots, to dismiss the election protest and forever foreclose the determination of the true winner of the election for a mere P200 deficiency in the COMELEC filing fee. We repeat that: [E]lection 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. And also settled is the rule that 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.[22] Good Reasons Exist to Grant Execution Pending Appeal in this Case To grant execution pending appeal in election protest cases, the following requisites must concur: (1) there must be a motion by the prevailing party with notice to the adverse party; (2) there must be "good reasons" for the execution pending appeal; and (3) the order granting execution pending appeal must state the "good reasons."[23] Petitioner Navarosa concedes respondent Esto's compliance with the first and third requisites. What she contests is the trial court's finding that there are "good reasons" to order discretionary execution of its decision. In Ramas v. Commission on Elections,[24] the Court, after reviewing pertinent jurisprudence, summarized the circumstances qualifying as "good reasons" justifying execution pending appeal, thus: In a nutshell, the following constitute "good reasons," and a combination of two or more of them will suffice to grant execution pending appeal: (1) the public interest involved or the will of the electorate; (2) the shortness of the remaining portion of the term of the contested office; and (3) the length of time that the election contest has been pending.

The trial court in the present case, relying on cases[25] reviewed in Ramas, invoked two "good reasons" to justify its order allowing execution pending appeal. First, the order will "give substance and meaning to the people's mandate." Second, "more than 10 months or nearly 1/3 of the 3-year term" of the office in question had already lapsed. The COMELEC found these "good reasons" sufficient. Being consistent with Ramas, we find no grave abuse of discretion in the ruling of the trial court or of the COMELEC. Petitioner Navarosa's invocation of Camlian v. Commission on Elections[26] is unavailing. In Camlian, the COMELEC ruled that circumstances such as "public interest in the true outcome of the elections[;] that the protestee illegally manufactured votes[;] and that the appeal was interposed for delay" do not suffice to justify execution pending appeal. On appeal, we sustained the COMELEC, noting that "not every invocation of public interest with x x x reference to the will of the electorate can be appreciated as a good reason especially so if the same appears to be self-serving and has not been clearly established." The Court further pointed out that the protestant failed to substantiate his claim that the appeal is dilatory as it in fact assails the trial court's ruling. These circumstances are absent in the present case, precluding Camlian's application. Section 3 of Rule 39 Not Applicable To Election Protest Cases Unlike the Election Code of 1971,[27] which expressly provided for execution pending appeal of trial courts' rulings in election protests, the present election laws are silent on such remedy. Nevertheless, Section 2, Rule 39 ("Section 2") of the Rules of Court (now 1997 Rules of Civil Procedure) applies in suppletory character to election cases, thus allowing execution pending appeal in the discretion of the court. As explained in Ramas: The Omnibus Election Code of the Philippines (B.P. Blg. 881) and the other election laws do not specifically provide for execution pending appeal of judgment in election cases, unlike the Election Code of 1971 whose Section 218 made express reference to the Rules of Court on execution pending appeal; xxx The failure of the extant election laws to reproduce Section 218 of the Election Code of 1971 does not mean that execution of judgment pending appeal is no longer available in election cases. In election contests involving elective municipal officials, which are cognizable by courts of general jurisdiction; and those involving elective barangay officials, which are cognizable by courts of limited jurisdiction, execution of judgment pending appeal under Section 2 of Rule 39 of the Rules of Court are permissible pursuant to Rule 143 of the Rules of Court, which is now Section 4, Rule 1 of the 1997 Rules of Civil Procedure. This Section 4 provides: SEC 4. In what cases not applicable.- These Rules shall not apply to election cases,

land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. As to election cases involving regional, provincial, and city officials, which fall within the exclusive original jurisdiction of the COMELEC, Section 3 of Article IX-C of the Constitution vests the COMELEC with the authority to promulgate its rules of procedure in order to expedite disposition of election cases, including preproclamation controversies. Additionally, Section 52(c), Article VII of the Omnibus Election Code empowers the COMELEC to promulgate rules and regulations implementing the provisions of the Code or other laws which it is required to enforce and administer. Accordingly, the COMELEC promulgated the COMELEC Rules of Procedure. Section 1 of Rule 41 thereof expressly provides that "[i]n the absence of any applicable provision in [said] Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in a suppletory character and effect."[28] In the earlier case of Gahol v. Riodique,[29] the Court explained the legislative intent behind the enactment of Section 218 of the Election Code of 1971. In Gahol, the Court gave an additional justification for allowing execution pending appeal of decisions of trial courts, thus: xxx [T]his innovative provision is the product of the bad experience of the people under the previous election laws. Public policy underlies it. xxx [S]omething had to be done to strike the death blow at the "pernicious grab-the-proclamation-prolongthe-protest" technique often, if not invariably, resorted to by unscrupulous politicians who would render nugatory the people's verdict against them and persist in continuing in an office they very well know they have no legitimate right to hold. xxx [T]o uphold the theory of Protestee that the very nature of the matter in dispute in election contests, the holding of a public office and the performance of its functions, makes gravely doubtful the propriety of an execution pending appeal, what with the possible placing of the corresponding powers of government in the hands of one who might ultimately turn out not to be really entitled to the position, is to negate the unquestionable and patent intent of the legislature to give as much recognition to the worth of a trial judge's decision as that which is initially ascribed by the law to the proclamation by the board of canvassers. Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is considered that the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield extraneous considerations, that the board must act summarily, practically [racing] against time, while, on the other hand, the judge has the benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing the

immediate execution of decisions in election cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are, in the sound discretion of the court, good reasons therefor. (Emphasis supplied) Thus, a primordial public interest to obviate a hollow victory for the duly elected candidate as determined by the trial court lies behind the present rule giving suppletory application to Section 2. Only a more compelling contrary policy consideration can prevent the suppletory application of Section 2. In insisting that the simple expedient of posting a supersedeas bond can stay execution pending appeal, petitioner Navarosa neither claims nor offers a more compelling contrary policy consideration. Instead, she merely contends that Section 3 of Rule 39 ("Section 3") applies also in a suppletory character because its "Siamese twin"[30] provision, Section 2, is already being so applied. Such simplistic reasoning both ignores and negates the public interest underlying Section 2's application. We cannot countenance such argument. Furthermore, a supersedeas bond under Section 3 cannot fully protect the interests of the prevailing party in election protest cases. Section 3 provides: Stay of discretionary execution. Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of a sufficient bond, filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to the surety. (Emphasis supplied) A supersedeas bond secures the performance of the judgment or order appealed from in case of its affirmation.[31] Section 3 finds application in ordinary civil actions where the interest of the prevailing party is capable of pecuniary estimation, and consequently, of protection, through the filing of a supersedeas bond. Thus, the penultimate sentence of Section 3 states: "[T]he bond thus given may be proceeded against on motion with notice to the surety." Consequently, it finds no application in election protest cases where judgments invariably include orders which are not capable of pecuniary estimation such as the right to hold office and perform its functions. As well observed by the COMELEC Second Division in its Resolution in the instant case: The supersedeas bond, as used under Section 3, Rule 39 of the 1997 Rules of Civil Procedure, refers to a bond, either in cash or a surety bond, filed by the losing party in an ordinary civil action to secure the performance or to satisfy the judgment appealed from in case it is affirmed on appeal in favor of the prevailing party. A supersedeas bond is filed purposely for the performance of the judgment appealed from in case it is affirmed by the appellate court. On the assumption that the filing of the supersedeas bond applies in an election protest case, the practical considerations of the matter dictate that it cannot secure the performance of or satisfy the judgment rendered in an election protest which basically involves the right to hold a public office and the performance of its functions in accordance with

the mandate of the law, except insofar as the monetary award provided in the special order. By allowing the filing of a supersedeas bond to stay the execution of a judgment in an election protest declaring the protestant, as in the case of petitioner herein, as the winning candidate who is entitled to the right to hold and perform the functions of the contested public office, would render the judgment in an election protest illusory. xxx While the supersedeas bond ensures that the appealed decision if affirmed is satisfied, in an election protest case, such bond, in the event the appealed case is affirmed and the execution pending appeal is proven to be meritorious, cannot adequately answer for the deprivation of a duly elected candidate of his post, and his constituents of their leader of choice, such deprivation being unquantifiable.[32] (Emphasis added) As applied to the present case, the supersedeas bond petitioner Navarosa filed can only answer for that portion of the trial court's ruling ordering her to pay to respondent Esto actual damages, attorney's fees and the cost of the suit. It cannot secure execution of that portion proclaiming respondent Esto duly elected mayor of Libacao, Aklan by popular will of the electorate and authorizing him to assume the office. This anomalous situation defeats the very purpose for the filing of the supersedeas bond in the first place. In sum, the Court holds that the COMELEC did not commit grave abuse of discretion in ordering execution pending appeal of the trial court's decision. 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. [33] This does not obtain in the present case. WHEREFORE, we DISMISS the instant petition. The Resolution dated 28 November 2002 of the COMELEC Second Division, and the Resolution dated 15 April 2003 of the COMELEC En Banc, are AFFIRMED. The status quo order dated 10 June 2003 is LIFTED and the COMELEC is directed to cause the implementation of the Decision of the Regional Trial Court of Kalibo, Aklan, Branch 9, in Election Case No. 129, without prejudice to any judgment the COMELEC may render in EAC Case No. A-9-2002. Moreover, respondent Roger M. Esto shall pay immediately the P200 deficiency in the COMELEC filing fee. SO ORDERED.