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G.R. No. 135150 July 28, 1999

ROMEO
vs.
THE
HONORABLE
MULI, respondents.

a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and
Alvez assumed office for the remainder of the term.
LONZANIDA, petitioner,

In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy
EUFEMIO for mayor of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely
filed a petition to disqualify Lonzanida from running for mayor of San Antonio in
the 1998 elections on the ground that he had served three consecutive terms in
the same post. On May 13, 1998, petitioner Lonzanida was proclaimed winner. On
GONZAGA-REYES, J.:
May 21, 1998 the First Division of the COMELEC issued the questioned resolution
This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside granting the petition for disqualification upon a finding that Lonzanida had served
the resolutions issued by the COMELEC First Division dated May 21, 1998 and by three consecutive terms as mayor of San Antonio, Zambales and he is therefore
the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the disqualified to run for the same post for the fourth time. The COMELEC found that
matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Lonzanida's assumption of office by virtue of his proclamation in May 1995,
Antonio, Zambales, Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. although he was later unseated before the expiration of the term, should be
The assailed resolutions declared herein petitioner Romeo Lonzanida disqualified counted as service for one full term in computing the three term limit under the
to run for Mayor in the municipality of San Antonio, Zambales in the May 1998 Constitution and the Local Government Code. The finding of the COMELEC First
elections and that all votes cast in his favor shall not be counted and if he has Division was affirmed by the COMELEC En Banc in a resolution dated August 11,
been proclaimed winner the said proclamation is declared null and 1998.
COMMISSION

ON

ELECTION

and

void.1wphi1.nt
Petitioner Romeo Lonzanida was duly elected and served two consecutive terms
as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections.
In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and
was again proclaimed winner. He assumed office and discharged the duties
thereof. His proclamation in 1995 was however contested by his then opponent
Juan Alvez who filed an election protest before the Regional Trial Court of
Zambales, which in a decision dated January 9, 1997 declared a failure of
elections. The court ruled:
PREMISES CONSIDERED, this court hereby renders judgment
declaring the results of the election for the office of the mayor in
San Antonio, Zambales last May 8, 1995 as null and void on the
ground that there was a failure of election.

Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding

him disqualified to run for mayor of San Antonio Zambales in the 1998 elections.
He maintains that he was duly elected mayor for only two consecutive terms and
that his assumption of office in 1995 cannot be counted as service of a term for
the purpose of applying the three term limit for local government officials,
because he was not the duly elected mayor of San Antonio in the May 1995
elections as evidenced by the COMELEC decision dated November 13, 1997 in
EAC No. 6-97 entitled Juan Alvez, Protestant-Appellee vs. Romeo Lonzanida,
Protestee-Appellant; wherein the COMELEC declared Juan Alvez as the duly
elected mayor of San Antonio, Zambales. Petitioner also argues that the
COMELEC ceased to have jurisdiction over the petition for disqualification after he
was proclaimed winner in the 1998 mayoral elections; as the proper remedy is a
petition for quo warranto with the appropriate regional trial court under Rule 36
of the COMELEC Rules of Procedure.

Private respondent Eufemio Muli filed comment to the petition asking this court to
sustain the questioned resolutions of the COMELEC and to uphold its jurisdiction
over the petition for disqualification. The private respondent states that the
petition for disqualification was filed on April 21, 1998 or before the May 1998
Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC mayoral elections. Under section 6, RA 6646 and Rule 25 of the COMELEC Rules
resolved the election protest filed by Alvez and after a revision and re- of Procedure petitions for disqualification filed with the COMELEC before the
appreciation of the contested ballots declared Alvez the duly elected mayor of elections and/or proclamation of the party sought to be disqualified may still be
San Antonio, Zambales by plurality of votes cast in his favor totaling P1,720 votes heard and decided by the COMELEC after the election and proclamation of the
as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued said party without distinction as to the alleged ground for disqualification,
Accordingly, the office of the mayor of the Municipality of San
Antonio, Zambales is hereby declared vacant.

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whether for acts constituting an election offense or for ineligibility. Accordingly, it

consecutive terms. Voluntary renunciation of the office for any
is argued that the resolutions of the COMELEC on the merits of the petition for
length of time shall not be considered as an interruption in the
disqualification were issued within the commission's jurisdiction. As regards the
continuity of his service for the full term for which he was
merits of the case, the private respondent maintains that the petitioner's
elected.
assumption of office in 1995 should be considered as service of one full term
because he discharged the duties of mayor for almost three years until March 1, Sec. 43 of the Local Government Code (R.A. No. 7160) restates the same rule:
1998 or barely a few months before the next mayoral elections.
The Solicitor-General filed comment to the petition for the respondent COMELEC
praying for the dismissal of the petition. The Solicitor-General stressed that
section 8, Art. X of the Constitution and section 43 (b), Chapter 1 of the Local
Government Code which bar a local government official from serving more than
three consecutive terms in the same position speaks of "service of a term" and so
the rule should be examined in this light. The public respondent contends that
petitioner Lonzanida discharged the rights and duties of mayor from 1995 to
1998 which should be counted as service of one full term, albeit he was later
unseated, because he served as mayor for the greater part of the term. The issue
of whether or not Lonzanida served as a de jure or de facto mayor for the 19951998 term is inconsequential in the application of the three term limit because
the prohibition speaks or "service of a term" which was intended by the framers
of the Constitution to foil any attempt to monopolize political power. It is likewise
argued by the respondent that a petition for quo warranto with the regional trial
court is proper when the petition for disqualification is filed after the elections and
so the instant petition for disqualification which was filed before the elections may
be resolved by the COMELEC thereafter regardless of the imputed basis of
disqualification.

Sec. 43. Term of Office.

(b) No local elective official shall serve for more than three
consecutive terms in the same position. Voluntary renunciation
of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which
the elective official concerned was elected.
The issue before us is whether petitioner Lonzanida's assumption of office as
mayor of San Antonio Zambales from May 1995 to March 1998 may be
considered as service of one full term for the purpose of applying the three-term
limit for elective local government officials.

The records of the 1986 Constitutional Commission show that the three-term
limit which is now embodied in section 8, Art. X of the Constitution was initially
proposed to be an absolute bar to any elective local government official from
running for the same position after serving three consecutive terms. The said
disqualification was primarily intended to forestall the accumulation of massive
political power by an elective local government official in a given locality in order
to perpetuate his tenure in office. The delegates also considered the need to
The petitioner filed Reply to the comment. It is maintained that the petitioner
broaden the choices of the electorate of the candidates who will run for office,
could not have served a valid term from 1995 to 1998 although he assumed
and to infuse new blood in the political arena by disqualifying officials from
office as mayor for that period because he was not lawfully elected to the said
running for the same office after a term of nine years. The mayor was compared
office. Moreover, the petitioner was unseated before the expiration of the term
by some delegates to the President of the Republic as he is a powerful chief
and so his service for the period cannot be considered as one full term. As
executive of his political territory and is most likely to form a political
regards the issue of jurisdiction, the petitioner reiterated in his Reply that the
dynasty. 1 The drafters however, recognized and took note of the fact that some
COMELEC ceased to have jurisdiction to hear the election protest after the
local government officials run for office before they reach forty years of age; thus
petitioner's proclamation.
to perpetually bar them from running for the same office after serving nine
consecutive years may deprive the people of qualified candidates to choose from.
The petition has merit.
As finally voted upon, it was agreed that an elective local government official
should be barred from running for the same post after three consecutive terms.
Sec. 8, Art. X of the Constitution provides:
After a hiatus of at least one term, he may again run for the same office. 2
Sec. 8. The term of office of elective local officials, except The scope of the constitutional provision barring elective local officials with the
barangay officials, which shall be determined by law shall be exception of barangay officials from serving more than three consecutive terms
three years and no such officials shall serve for more than three

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was discussed at length in the case of Benjamin Borja, Jr.; vs.COMELEC and Jose
Capco, Jr. 3 where the issue raised was whether a vice-mayor who succeeds to
the office of the mayor by operation of law upon the death of the incumbent
mayor and served the remainder of the term should be considered to have served
a term in that office for the purpose of computing the three term limit. This court
pointed out that from the discussions of the Constitutional Convention it is
evident that the delegates proceeded from the premise that the official's
assumption of office is by reason of election. This Court stated: 4
Two ideas emerge from a consideration of the proceedings of the
Constitutional Commission. The first is the notion of service of
term, derived from the concern about the accumulation of power
as a result of a prolonged stay in office. The second is the idea of
election, derived from the concern that the right of the people to
choose those whom they wish to govern them be preserved.

So it is not really a period of hibernation for six

years. That was the Committees' stand.
xxx xxx xxx
Second, not only historical examination but textual analysis as
well supports the ruling of the COMELEC that Art X, section 8
contemplates service by local officials for three consecutive
terms as a result of election. The first sentence speaks of "theterm of office of elective local officials" and bars "such officials"
from serving for more than three consecutive terms. The second
sentence, in explaining when an elective official may be deemed
to have served his full term of office, states that "voluntary
renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for
the full term for which he was elected." The term served must
therefore be one "for which the official concerned was elected."
The purpose of the provision is to prevent a circumvention of the
limitation on the number of terms an elective official may serve."

It is likewise noteworthy that, in discussing term limits, the

drafters of the Constitution did so on the assumption that the
officials concerned were serving by reason of election. This is
clear from the following exchange in the Constitutional
Commission concerning term limits, now embodied in Art. VI This Court held that the two conditions for the application of the disqualification
sections 4 and 7 of the Constitution, for members of Congress:
must concur: 1) that the official concerned has been elected for three consecutive
terms in the same local government post and 2) that he has fully served three
MR. GASCON. I would like to ask a question consecutive terms. It stated:
with regard to the issue after the second term.
We will allow the Senator to rest for a period of
To recapitulate, the term limit for elective local officials must be
time before he can run again?
taken to refer to the right to be elected as well as the right to
MR. DAVIDE. That is correct.

serve in the same elective position. Consequently, it is not

enough that an individual has served three consecutive terms in
an elective local office, he must also have beenelected to the
same position for the same number of times before the
disqualification can apply.

MR. GASCON. And the question that we left

behind before if the Gentlemen will
remember-was: How long will that period of
rest be? Will it be one election which is three It is not disputed that the petitioner was previously elected and served two
years or one term which is six years?
consecutive terms as mayor of San Antonio Zambales prior to the May 1995
mayoral elections. In the May 1995 elections he again ran for mayor of San
MR. DAVIDE. If the Gentlemen will remember, Antonio, Zambales and was proclaimed winner. He assumed office and discharged
Commissioner Rodrigo expressed the view that the rights and duties of mayor until March 1998 when he was ordered to vacate
during the election following the expiration of the post by reason of the COMELEC decision dated November 13, 1997 on the
the first 12 years, whether such election will be election protest against the petitioner which declared his opponent Juan Alvez,
on the third year or on the sixth year thereafter, the duly elected mayor of San Antonio. Alvez served the remaining portion of the
this particular member of the Senate can run. 1995-1998 mayoral term.

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The two requisites for the application of the three term rule are absent. First, the
petitioner cannot be considered as having been duly elected to the post in the
May 1995 elections, and second, the petitioner did not fully serve the 1995-1998
mayoral term by reason of involuntary relinquishment of office. After a reappreciation and revision of the contested ballots the COMELEC itself declared by
final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections
and his previous proclamation as winner was declared null and void. His
assumption of office as mayor cannot be deemed to have been by reason of a
valid election but by reason of a void proclamation. It has been repeatedly held
by this court that a proclamation subsequently declared void is no proclamation
at all 5 and while a proclaimed candidate may assume office on the strength of
the proclamation of the Board of Canvassers he is only a presumptive winner who
assumes office subject to the final outcome of the election protest. 6Petitioner
Lonzanida did not serve a term as mayor of San Antonio, Zambales from May
1995 to March 1998 because he was not duly elected to the post; he merely
assumed office as presumptive winner, which presumption was later overturned
by the COMELEC when it decided with finality that Lonzanida lost in the May 1995
mayoral elections.

cannot be counted as a term for purposes of computing the three term limit. The
Resolution of the COMELEC finding him disqualified on this ground to run in the
May 1998 mayoral elections should therefore be set aside.

Second, the petitioner cannot be deemed to have served the May 1995 to 1998
term because he was ordered to vacate his post before the expiration of the
term. The respondents' contention that the petitioner should be deemed to have
served one full term from May 1995-1998 because he served the greater portion
of that term has no legal basis to support it; it disregards the second requisite for
the application of the disqualification, i.e., that he has fully served three
consecutive terms. The second sentence of the constitutional provision under
scrutiny states, "Voluntary renunciation of office for any length of time shall not
be considered as an interruption in the continuity of service for the full term for
which he was elected. "The clear intent of the framers of the constitution to bar
any attempt to circumvent the three-term limit by a voluntary renunciation of
office and at the same time respect the people's choice and grant their elected
official full service of a term is evident in this provision. Voluntary renunciation of
a term does not cancel the renounced term in the computation of the three term
limit; conversely, involuntary severance from office for any length of time short of
the full term provided by law amounts to an interruption of continuity of service.
The petitioner vacated his post a few months before the next mayoral elections,
not by voluntary renunciation but in compliance with the legal process of writ of
execution issued by the COMELEC to that effect. Such involuntary severance from
office is an interruption of continuity of service and thus, the petitioner did not
fully serve the 1995-1998 mayoral term.

The petitioner's contention that the COMELEC ceased to have jurisdiction over the
petition for disqualification after he was proclaimed winner is without merit. The
instant petition for disqualification was filed on April 21, 1998 or before the May
1998 elections and was resolved on May 21, 1998 or after the petitioner's
proclamation. It was held in the case of Sunga vs. COMELEC and Trinidad 7 that
the proclamation nor the assumption of office of a candidate against whom a
petition for disqualification is pending before the COMELEC does not divest the
COMELEC of jurisdiction to continue hearing the case and to resolve it on the
merits.

In sum, the petitioner was not the duly elected mayor and that he did not hold
office for the full term; hence, his assumption of office from 1995 to March 1998

The respondents harp on the delay in resolving the election protest between
petitioner and his then opponent Alvez which took roughly about three years and
resultantly extended the petitioners incumbency in an office to which he was not
lawfully elected. We note that such delay cannot be imputed to the petitioner.
There is no specific allegation nor proof that the delay was due to any political
maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez,
was not without legal recourse to move for the early resolution of the election
protest while it was pending before the regional trial court or to file a motion for
the execution of the regional trial court's decision declaring the position of mayor
vacant and ordering the vice-mayor to assume office while the appeal was
pending with the COMELEC. Such delay which is not here shown to have
intentionally sought by the petitioner to prolong his stay in office cannot serve as
basis to bar his right to be elected and to serve his chosen local government post
in the succeeding mayoral election.

Sec. 6 of RA 6646 specifically mandates that:

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

Election Law |5

This court held that the clear legislative intent is that the COMELEC should
continue the trial and hearing of the disqualification case to its
conclusion i.e., until judgment is rendered. The outright dismissal of the petition
for disqualification filed before the election but which remained unresolved after
the proclamation of the candidate sought to be disqualified will unduly reward the
said candidate and may encourage him to employ delaying tactics to impede the
resolution of the petition until after he has been proclaimed.

of election offenses would not be decided before the election.

This scenario is productive of more fraud which certainly is not
the main intent and purpose of the law.
The fact that Trinidad was already proclaimed and had assumed
the position of mayor did not divest the COMELEC of authority
and jurisdiction to continue the hearing and eventually decide
the disqualification case. In Aguam v. COMELEC this Court held

The court stated:

Clearly, the legislative intent is that the COMELEC should
continue the trial and hearing of the disqualification case to its
conclusion i.e., until judgment is rendered thereon. The word
"shall" signified that this requirement of the law is mandatory,
operating to impose a positive duty which must be enforced. The
implication is that the COMELEC is left with no discretion but to
proceed with the disqualification case even after the election.
Thus, in providing for the outright dismissal of the
disqualification case which remains unresolved after the
election, Silvestre vs. Duavit in effect disallows what R.A. No.
6646 imperatively requires. This amounts to a quasijudicial legislation by the COMELEC which cannot be
countenanced and is invalid for having been issued beyond the
scope of its authority. Interpretative rulings of quasijudicial bodies or administrative agencies must always be in
perfect harmony with statutes and should be for the sole
purpose of carrying their general provisions into effect. By such
interpretative or administrative rulings, of course, the scope of
the law itself cannot be limited. Indeed, a quasi-judicial body or
an administrative agency for that matter cannot amend an act of
Congress. Hence, in case of a discrepancy between the basic law
and an interpretative or administrative ruling, the basic law
prevails.
Besides, the deleterious effect of the Silvestre ruling is not
difficult to foresee. A candidate guilty of election offenses would
be undeservedly rewarded, instead of punished, by the dismissal
of the disqualification case against him simply because the
investigating body was unable, for any reason caused upon it, to
determine before the election if the offenses were indeed
committed by the candidate sought to be disqualified. All that
the erring aspirant would need to do is to employ delaying
tactics so that the disqualification case based on the commission

Time and again this Court has given its

imprimatur on the principle that COMELEC is
with authority to annul any canvass and
proclamation which was illegally made. The fact
that a candidate proclaimed has assumed office,
we have said, is no bar to the exercise of such
power. It of course may not be availed of where
there has been a valid proclamation. Since
private respondent's petition before the
COMELEC is precisely directed at the annulment
of the canvass and proclamation, we perceive
that inquiry into this issue is within the area
allocated by the Constitution and law to
COMELEC . . . Really, were a victim of a
proclamation to be precluded from challenging
the validity thereof after that proclamation and
the assumption of office thereunder, baneful
effects may easily supervene.
It must be emphasized that the purpose of a disqualification
proceeding is to prevent the candidate from running or, if
elected. From serving, or to prosecute him for violation of the
election laws. Obviously, the fact that a candidate has been
proclaimed elected does not signify that his disqualification is
deemed condoned and may no longer be the subject of a
separate investigation .
Accordingly, the petition is granted. The assailed resolutions of the COMELEC
declaring petitioner Lonzanida disqualified to run for mayor in the 1998 mayoral
elections are hereby set aside.1wphi1.nt
SO ORDERED.

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G.R. No. 150605

December 10, 2002

EUFROCINO
M.
CODILLA,
SR., petitioner,
vs.
HON. JOSE DE VENECIA, ROBERTO P. NAZARENO, in their official
capacities
as
Speaker
and Secretary-General of the House of Representatives, respectively,
and MA. VICTORIA L. LOCSIN, respondents.
DECISION
PUNO, J.:
In a democracy, the first self-evident principle is that he who has been rejected
by the people cannot represent the people. Respondent Ma. Victoria L. Locsin lost
to petitioner Eufrocino M. Codilla, Sr. by 17,903 votes in the May 14, 2001
elections as Representative of the 4th legislative district of Leyte. The most
sophisticated legal alchemy cannot justify her insistence that she should continue
governing the people of Leyte against their will. The enforcement of the sovereign
will of the people is not subject to the discretion of any official of the land.
This is a Petition for Mandamus and Quo Warranto directed against respondents
Speaker Jose De Venecia and Secretary-General Roberto P. Nazareno of the
House of Representatives to compel them to implement the decision of the
Commission on Elections en banc by (a) administering the oath of office to
petitioner as the duly-elected Representative of the 4th legislative district of
Leyte, and (b) registering the name of the petitioner in the Roll of Members of
the House of Representatives, and against respondent Ma. Victoria L. Locsin for
usurping, intruding into, and unlawfully holding and exercising the said public
office on the basis of a void proclamation.

Election Law |7

The facts are uncontroverted. Petitioner and respondent Locsin were candidates
for the position of Representative of the 4th legislative district of Leyte during the
May 14, 2001 elections. At that time, petitioner was the Mayor of Ormoc City
while respondent Locsin was the sitting Representative of the 4th legislative
district of Leyte. On May 8, 2001, one Josephine de la Cruz, a registered voter of
Kananga, Leyte, filed directly with the COMELEC main office a Petition for
Disqualification1 against the petitioner for indirectly soliciting votes from the
registered voters of Kananga and Matag-ob, Leyte, in violation of Section 68 (a)
of the Omnibus Election Code. It was alleged that the petitioner used the
equipments and vehicles owned by the City Government of Ormoc to extract,
haul and distribute gravel and sand to the residents of Kananga and Matag-ob,
Leyte, for the purpose of inducing, influencing or corrupting them to vote for him.
Attached to the petition are the (a) Affidavits of Basilio Bates, 2 Danilo D.
Maglasang,3 Cesar A. Laurente;4 (b) Joint Affidavit of Agripino C. Alferez and
Rogelio T. Salvera;5 (c) Extract Records from the Police Blotter executed by Police
Superintendent Elson G. Pecho;6 and (d) Photographs showing government dump
trucks, haulers and surfacers and portions of public roads allegedly filled-in and
surfaced through the intercession of the respondent. 7 The case was docketed as
SPA No. 01-208 and assigned to the COMELEC's Second Division.
On May 10, 2001, the COMELEC Second Division issued an Order delegating the
hearing and reception of evidence on the disqualification case to the Office of the
Regional Director of Region VIII. 8 On May 11, 2001, the COMELEC Second
Division sent a telegram informing the petitioner that a disqualification case was
filed against him and that the petition was remanded to the Regional Election
Director for investigation.9
At the time of the elections on May 14, 2001, the Regional Election
Director had yet to hear the disqualification case. Consequently, petitioner
was included in the list of candidates for district representative and was voted for.
The initial results showed that petitioner was the winning candidate.
On May 16, 2001, before the counting could be finished, respondent Locsin joined
as intervenor in SPA No. 128 and filed a "Most Urgent Motion to Suspend
Proclamation of Respondent [herein petitioner]" with the COMELEC Second
Division.10 Respondent Locsin alleged that "the evidence on record against
respondent is very strong and unless rebutted remains." She urged the
Commission to set the hearing of the disqualification case and prayed for the
suspension of the proclamation of the respondent "so as not to render the
present disqualification case moot and academic." A copy of the Motion was
allegedly served on petitioner by registered mail but no registry receipt
was attached thereto.11

On May 18, 2001, respondent Locsin filed a "Second Most Urgent Motion to
Suspend Proclamation of Respondent" stating "there is clear and convincing
evidence showing that the respondent is undoubtedly guilty of the charges
against him and this remains unrebutted by the respondent." A copy of the
Motion was sent to the petitioner and the corresponding registry receipt was
attached to the pleading.12 The records, however, do not show the date the
petitioner received the motion.
On the same day, May 18, 2001, the COMELEC Second Division issued an ExParte Order13 directing the Provincial Board of Canvassers of Leyte to suspend
the proclamation of petitioner in case he obtains the highest number of votes by
reason of "the seriousness of the allegations in the petition for
disqualification."14 It also directed the Regional Election Director to speed up the
reception of evidence and to forward immediately the complete records together
with its recommendation to the Office of the Clerk of the Commission. 15 As a
result, petitioner was not proclaimed as winner even though the final election
results showed that he garnered 71,350 votes as against respondent Locsin's
53,447 votes.16
At the time that the COMELEC Second Division issued its Order suspending his
proclamation, the petitioner has yet to be summoned to answer the petition for
disqualification. Neither has said petition been set for hearing. It was only on May
24, 2001 that petitioner was able to file an Answer to the petition for his
disqualification with the Regional Election Director, alleging that: (a) he has not
received the summons together with the copy of the petition; (b) he became
aware of the matter only by virtue of the telegram sent by the COMELEC Second
Division informing him that a petition was filed against him and that the Regional
Election Director was directed to investigate and receive evidence therewith; and
(c) he obtained a copy of the petition from the COMELEC Regional Office No. 8 at
his own instance.17 Petitioner further alleged that the maintenance, repair and
rehabilitation of barangay roads in the municipalities of Matag-ob and Kananga
were undertaken without his authority, participation or directive as City Mayor of
Ormoc. He attached in his Answer the following: (a) Affidavit of Alex B.
Borinaga;18 (b) Copy of the Excerpt from the Minutes of the Regular Session of
Barangay Monterico;19 (c) Affidavit of Wilfredo A. Fiel; 20 (d) Supplemental
Affidavit of Wilfredo A. Fiel;21 and (e) Affidavit of Arnel Y. Padayao.22
On May 25, 2001, petitioner filed a Motion to Lift Order of
Suspension,23 alleging that (a) he did not receive a copy of the Motion to
Suspend his Proclamation and hence, was denied the right to rebut and refute the
allegations in the Motion; (b) that he did not receive a copy of the summons on
the petition for disqualification and after personally obtaining a copy of the
petition, filed the requisite answer only on May 24, 2001; and (c) that he

Election Law |8

received the telegraph Order of the COMELEC Second Division suspending his
proclamation only on May 22, 2001. He attached documentary evidence in
support of his Motion to Lift the Suspension of his proclamation, and requested
the setting of a hearing on his Motion.24

COMELEC Second Division which ordered his disqualification, as well as an

Addendum to the Motion for Reconsideration. 39 Petitioner alleged in his Motion for
Reconsideration that the COMELEC Second Division erred: (1) in disqualifying
petitioner on the basis solely of the dubious declaration of the witnesses for
respondent Locsin; (2) in adopting in toto the allegations of the witnesses for
On May 30, 2001, an oral argument was conducted on the petitioner's Motion and respondent Locsin; and (3) in promulgating the resolution in violation of its own
the parties were ordered to submit their respective memoranda. 25 On June 4, rules of procedure and in directing therein the immediate proclamation of the
2001, petitioner submitted his Memorandum26 in support of his Motion assailing second highest 'vote getter.' Respondent Locsin and her co-petitioner in SPA No.
40
the suspension of his proclamation on the grounds that: (a) he was not afforded 01-208 filed a joint Opposition to the Motion for Reconsideration.
due process; (b) the order has no legal and factual basis; and (c) evidence of his
guilt is patently inexistent for the purpose of suspending his proclamation. He On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for
prayed that his proclamation as winning congressional candidate be expediently Declaration of Nullity of Proclamation,41 docketed as SPC No. 01-324,
made, even while the disqualification case against him continue upon due notice assailing the validity of the proclamation of respondent Locsin who garnered only
and hearing. He attached the following additional evidence in his Memorandum: the second highest number of votes. Respondent Locsin filed her Answer
(a) Copy of certification issued by PNP Senior Inspector Benjamin T. Gorre; 27 (b) alleging that: (1) the Commission lost jurisdiction to hear and decide the case
Certification issued by Elena S. Aviles, City Budget Officer; 28 (c) Copy of because of the proclamation of Locsin and that any question on the "election,
certification issued by Wilfredo A. Fiel, City Engineer of Ormoc; 29 (d) Joint returns, and qualification" of Locsin can only be taken cognizance of by the House
Affidavit of Antonio Patenio and Pepito Restituto; 30and (e) Affidavits of Demetrio of Representatives Electoral Tribunal (HRET); (2) the case should be filed and
Brion,31 Igmedio Rita32 and Gerardo Monteza.33 Respondent Locsin's memorandum heard in the first instance by a Division of the Commission and not directly by the
also contained additional affidavits of his witnesses. 34
Commission en banc; and (3) the proclamation of Locsin was valid because she
received the highest number of valid votes cast, the votes of Codilla being stray.
Petitioner's Motion to Lift the Order of Suspension, however, was not
resolved. Instead, on June 14, 2001, the COMELEC Second Division
promulgated its Resolution35 in SPA No. 01-208 which found the petitioner
guilty of indirect solicitation of votes and ordered his disqualification. It directed
the "immediate proclamation of the candidate who garnered the highest
number of votes xxx." A copy of said Resolutionwas sent by fax to the
counsel of petitioner in Cebu City in the afternoon of the following day.36
By virtue of the said Resolution, the votes cast for petitioner, totaling
71,350, were declared stray even before said Resolution could gain
finality. On June 15, 2001, respondent Locsin was proclaimed as the duly
elected Representative of the 4th legislative district of Leyte by the Provincial
Board of Canvassers of Leyte. It issued a Certificate of Canvass of Votes and
Proclamation of the Winning Candidates for Member of the House of
Representatives stating that "MA. VICTORIA LARRAZABAL LOCSIN obtained a
total of FIFTY THREE THOUSAND FOUR HUNDRED FORTY SEVEN (53,447) votes
representing the highest number of votes legally cast in the legislative district
for said office."37 Respondent Locsin took her oath of office on June 18,
2001 and assumed office on June 30, 2001.

On June 28, 2001, petitioner filed an Urgent Manifestation42 stating that he

was deprived of a fair hearing on the disqualification case because while the
documentary evidence adduced in his Memorandum was in support of his
Motion for the lifting of the suspension of his proclamation, the COMELEC
Second Division instead ruled on the main disqualification case. In
consonance with his prayer that a full-dress hearing be conducted on the
disqualification case, he submitted Affidavits of additional witnesses 43 which he
claims
would
refute
and
substantially
belie
the
allegations
of
petitioner's/intervenor's witnesses. A Reply,44Rejoinder45 and Sur-Rejoinder46 were
respectively filed by the parties. Consequently, the motion for reconsideration in
SPA No. 01-208 and the petition for declaration of nullity in SPC No. 01-324 were
submitted for resolution.

From the records, it appears that initially, a "Resolution" penned by

Commissioner Rufino S.B. Javier, dated July 24, 2001, was submitted to the
Office of the Chairman, dismissing the petition for declaration of nullity for lack of
jurisdiction and denying the motion for reconsideration filed by petitioner
Codilla.47 Commissioners Florentino A. Tuason, Jr. and Resurreccion Z. Borra
submitted their respective dissenting opinions 48 to the Javier resolution. It bears
On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a emphasis that Commissioner Tuason, Jr. was the ponente of the Resolution of the
Motion for Reconsideration38 from the June 14, 2001 Resolution of the COMELEC Second Division which ordered the disqualification of petitioner but

Election Law |9

after considering the additional evidence presented by the latter, he concluded

that the totality of the evidence was clearly in petitioner's favor. Equally worth
mentioning is the fact that Commissioner Ralph C. Lantion, who was the Presiding
Commissioner of the Second Division, also dissented and voted to grant Codilla's
motion for reconsideration on the ground that "[T]he people of Leyte have spoken
and I respect the electorate's will. x x x." 49
On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a "Vote
and Opinion and Summary of Votes" reversing the resolution of the Second
Division and declaring the proclamation of respondent Locsin as null and
void. The dispositive portion reads:
"JUDGMENT
WHEREFORE, in view of all the foregoing considerations, I concur with
Commissioner Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and
Commissioner Ralph C. Lantion, in SPA No. 01-208, to GRANT the motion for
reconsideration and to REVERSE the resolution of the Commission (Second
Division) promulgated on June 1, 2001, disqualifying Codilla; and subsequently,
in SPC No. 01-324, to GRANT the petition of Eufrocino M. Codilla, Sr., and declare
as null and void the proclamation of losing candidate Locsin.
Accordingly:
1. On the Motion for Reconsideration of the disqualification resolution
against Codilla, promulgated by the Commission (Second Division) on
June 14, 2001 (SPA No. 01-208), I vote:

garnered the highest number of votes, to the exclusion of

respondent" and the concurrent order for "the Provincial Board
of Canvasser (sic) of Leyte to immediately reconvene and
thereafter proclaim forthwith the candidate who obtained the
highest number of votes counting out the Respondent" the same
being violative of election laws, established jurisprudence, and
resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the
Commission (Second Division) promulgated o June 14, 2001,
that the votes of respondent Codilla are "considered stray and
invalid" said ruling being issued on the basis of an inapplicable
decision, and contrary to established jurisprudence;
(e) to order the Provincial Board of Canvassers of Leyte, upon
the finality of this resolution, to reconvene and proclaim
petitioner Codilla as the winning candidate for Representative of
the Fourth Legislative district of Leyte to comply with its
ministerial duty to proclaim the candidate who garnered the
highest number of votes in the elections for that position; and
(f) to order intervenor-oppositor Locsin, upon the finality of this
resolution, to vacate the office of Representative of the House of
Representatives representing the Fourth legislative district of
Leyte and, for this purpose, to inform the House of
Representatives through the Honorable Speaker of this
resolution for its attention and guidance; and

(a) to GRANT the Motion for Reconsideration of respondent- 2. On the petition for Declaration of Nullity of proclamation of respondent Ma.
movant Eufrocino M. Codilla, Sr., and to REVERSE the Resolution Victoria L. Locsin (SPC No. 01-324), I vote:
of the Commission (Second Division) promulgated on June 14,
(a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null
2001, for insufficiency of evidence;
and void the proclamation of losing candidate Locsin, the proclamation
being violative of election laws, established jurisprudence, and
(b) to lift the order of suspension of proclamation of petitioner
resolutions of the Commission on Elections;
Codilla, issued by the Commission (Second Division) on May 18,
2001, having been issued without hearing and without any
finding that the evidence of guilt of petitioner Codilla is strong
and, thus, null and void;
(c) to nullify the order contained in the Resolution of the
Commission (Second Division) promulgated on June 14, 2001,
for "(t)he immediate proclamation of the candidate who

(b) to lift the order of suspension of proclamation of petitioner Codilla,

issued by the Commission (Second Division) on May 18, 2001, in SPA No.
01-208, having been issued without hearing and without any finding that
the evidence of guilt of petitioner Codilla is strong and, thus, null and
void;

Election Law |10

(c) to nullify the order contained in the Resolution of the Commission

(Second Division) promulgated on June 14, 2001, in SPA No. 01-208, for
"(t)he immediate proclamation of the candidate who garnered the
highest number of votes, to the exclusion of respondent" and the
concurrent order for "the provincial Board of Canvasser (sic) of Leyte to
immediately reconvene and thereafter proclaim forthwith the candidate
who obtained the highest number of votes counting out the Respondent"
the same being violative of election laws, established jurisprudence, and
resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the Commission
(Second Division) promulgated on June 14, 2001, in SPA No. 01-208,
that the votes of respondent Codilla are "considered stray and invalid"
said ruling being issued on the basis of an inapplicable decision, and
contrary to established jurisprudence;
(e) to order the provincial Board of Canvassers of Leyte, upon the finality
of this resolution, to reconvene and proclaim petitioner Codilla as the
winning candidate for Representative of the Fourth legislative district of
Leyte he (sic) having garnered the highest number of votes in the
elections for the position; and

The MAJORTIY DECISION was arrived at after proper consultation with those who
joined the majority. The Chairman and the three (3) Commissioners comprising
the majority decided that no one will be assigned to write a Majority Decision.
Instead, each one will write his own separate opinion. Commissioners Borra,
Tuason, Jr. and the undersigned Chairman submitted separate opinions.
Commissioner Lantion wrote an explanation on his vote."50
The aforequoted judgment was adopted in a "Vote of Adoption" signed by
Commissioners Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason,
Jr.51
Respondent Locsin did not appeal from this decision annulling her
proclamation. Instead, she filed a "Comment and Manifestation" 52 with the
COMELEC en banc questioning the procedure and the manner by which the
decision was issued. In addition, respondent Locsin requested and was issued an
opinion by House of Representatives Executive Director and Chief Legal Counsel
Leonardo B. Palicte III declaring that the COMELEC has no jurisdiction to nullify
the proclamation of respondent Locsin after she had taken her oath and assumed
office since it is the HRET which is the sole judge of election, returns and
qualifications of Members of the House. 53 Relying on this opinion, respondent
Locsin submitted a written privileged speech to the House during its regular
session on September 4, 2001, where she declared that she will not only
disregard but will openly defy and disobey the COMELEC en banc resolution
ordering her to vacate her position.54

(f) to order respondent Locsin, upon the finality of this resolution, to

vacate the office of Representative of the House of Representatives
representing the Fourth Legislative district of Leyte and, for this purpose,
to inform the House of Representatives through the Honorable Speaker On September 6, 2001, the COMELEC en banc issued an Order 55 constituting the
of this resolution for its attention and guidance.
members of the Provincial Board of Canvassers of Leyte to implement the
aforesaid decision. It likewise ordered the Board to reconvene and "proclaim the
candidate who obtained the highest number of votes in the district, as the dulySummary of Votes
elected Representative of the Fourth Legislative district of Leyte, and accordingly
Considering the FOUR (4) VOTES of the Chairman and Commissioners issue a Certificate of Canvass and Proclamation of Winning Candidate for Member
Resurreccion Z. Borra, Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant of the House of Representatives x x x, based on the city/municipal certificates of
the Motion for Reconsideration of Codilla and reverse the disqualification canvass submitted beforehand to the previous Provincial Board of Canvassers of
Resolution of the Commission (Second Division) in SPA No. 01-208, promulgated Leyte x x x."
on June 14, 2001, and as an inevitable consequence, in voting to grant the
petition for declaration of nullity of the proclamation of Ma. Victoria L. Locsin in
SPC No. 01-324, the verdict/opinion of the Chairman and the three (3)
Commissioners taken together now stands, as it is, the MAJORITY DECISION of
the Commission En Banc in both cases; and the "Resolution" submitted by three
(3) Commissioners, namely, Commissioner Rufino S.B. Javier, Commissioner
Luzviminda G. Tancangco, and Commissioner Mehol K. Sadain, is considered, as it
is, the MINORITY DECISION of the Commission En Banc in both cases.

On September 12, 2001, petitioner Codilla was proclaimed by the Provincial

Board of Canvassers as the duly-elected Representative of the 4th
legislative district of Leyte, having obtained a total of 71,350 votes
representing the highest number of votes cast in the district. 56 On the same day,
petitioner took his oath of office before Executive Judge Fortunito L. Madrona of
the Regional Trial Court of Ormoc City.57

Election Law |11

On September 14, 2001, petitioner wrote the House of Representatives, thru

respondent Speaker De Venecia, informing the House of the August 29, 2001
COMELEC en banc resolution annulling the proclamation of respondent Locsin,
and proclaiming him as the duly-elected Representative of the 4th legislative
district of Leyte.58 Petitioner also served notice that "I am assuming the duties
and responsibilities as Representative of the fourth legislative district of Leyte to
which position I have been lawfully elected and proclaimed. On behalf of my
constituents, I therefore expect that all rights and privileges intended for the
position of Representative of the fourth legislative district of Leyte be accorded to
me, including all physical facilities and staff support." On the basis of this letter, a
Memorandum59 dated October 8, 2001 was issued by Legal Affairs Deputy
Secretary-General Gaudencio A. Mendoza, Jr., for Speaker De Venecia, stating
that "there is no legal obstacle to complying with the duly promulgated and
now final and executory COMELEC Decision of August 29, 2001 x x x."

Petitioner submits that by virtue of the resolution of the COMELEC en banc which
has become final and executory for failure of respondent Locsin to appeal
therefrom, it has become the ministerial duty: (1) of the Speaker of the House of
Representatives, as its Administrative Head and Presiding Officer, to implement
the said resolution of the COMELEC en banc by installing him as the duly-elected
Representative of the 4th legislative district of Leyte; and (2) of the SecretaryGeneral, as official custodian of the records of the House, to formally register his
name in the Roll of Members of the House and delete the name of respondent
Locsin therefrom. Petitioner further contends that respondent Locsin has been
usurping and unlawfully holding the public office of Representative of the 4th
legislative district of Leyte considering that her premature proclamation has been
declared null and void by the COMELEC en banc. He alleges that the action or
inaction of public respondents has deprived him of his lawful right to assume the
office of Representative of the 4th legislative district of Leyte.

These notwithstanding, and despite receipt by the House of Representatives of a

copy of the COMELEC en banc resolution on September 20, 2001, 60 no action was
taken by the House on the letter-appeal of petitioner. Hence, petitioner sought
the assistance of his party, LAKAS-NUCD-UMDP, which sent a letter 61 addressed
to respondent Speaker De Venecia, dated October 25, 2001, and signed by Party
President Teofisto T. Guingona, Jr., Secretary-General Heherson T. Alvarez, and
Region VIII Party Chairman Sergio Antonio F. Apostol, requesting the House of
Representatives to act decisively on the matter in order that petitioner "can avail
of whatever remedy is available should their action remain unfavorable or
otherwise undecisive."

In his Comment,63 public respondent Speaker De Venecia alleged that mandamus

will not lie to compel the implementation of the COMELEC decision which is not
merely a ministerial duty but one which requires the exercise of discretion by the
Speaker of the House considering that: (1) it affects the membership of the
House; and (2) there is nothing in the Rules of the House of Representatives
which imposes a duty on the House Speaker to implement a COMELEC decision
that unseats an incumbent House member.

In response, Speaker De Venecia sent a letter 62 dated October 30, 2001, stating
that:

In his Comment,64 public respondent Secretary-General Nazareno alleged that in

reading the name of respondent Locsin during the roll call, and in allowing her to
take her oath before the Speaker-elect and sit as Member of the House during
the Joint Session of Congress, he was merely performing official acts in
compliance with the opinions65 rendered by House of Representatives Chief
Counsel and Executive Director Leonardo C. Palicte III stating that the COMELEC
has no jurisdiction to declare the proclamation of respondent Locsin as null and
void since it is the HRET which is the sole judge of all election, returns and
qualifications of Members of the House. He also contends that the determination
of who will sit as Member of the House of Representatives is not a ministerial
function and cannot, thus, be compelled by mandamus.

"We recognize the finality of the COMELEC decision and we are inclined to sustain
it. However, Rep. Locsin has officially notified the HOUSE in her privilege speech,
inserted in the HOUSE Journal dated September 4, 2001, that she shall 'openly
defy and disobey' the COMELEC ruling. This ultimately means that implementing
the decision would result in the spectacle of having two (2) legislators occupying
the same congressional seat, a legal situation, the only consideration, that
effectively deters the HOUSE's liberty to take action.
Respondent Locsin, in her Comment, 66 alleged that the Supreme Court has no
original jurisdiction over an action for quo warranto involving a member of the
In this light, the accepted wisdom is that the implementation of the House of Representatives for under Section 17, Article VI of the Constitution it is
COMELEC decision is a matter that can be best, and with finality, the HRET which is the sole judge of all contests relating to the election, returns
adjudicated by the Supreme Court, which, hopefully, shall act on it most and qualifications of Members of the House of Representatives. She likewise
asserts that this Court cannot issue the writ of mandamus against a co-equal
expeditiously." (emphases supplied)
legislative department without grossly violating the principle of separation of
powers. She contends that the act of recognizing who should be seated as a bona
Hence, the present petition for mandamus and quo warranto.

Election Law |12

fide member of the House of Representatives is not a ministerial function but a

legislative prerogative, the performance of which cannot be compelled by
mandamus. Moreover, the prayer for a writ of mandamus cannot be directed
against the Speaker and Secretary-General because they do not have the
authority to enforce and implement the resolution of the COMELEC.
Additionally, respondent Locsin urges that the resolution of the COMELEC en banc
is null and void for lack of jurisdiction. First, it should have dismissed the case
pending before it after her proclamation and after she had taken her oath of
office. Jurisdiction then was vested in the HRET to unseat and remove a Member
of the House of Representatives. Second, the petition for declaration of nullity is
clearly a pre-proclamation controversy and the COMELEC en banc has no original
jurisdiction to hear and decide a pre-proclamation controversy. It must first be
heard by a COMELEC Division. Third, the questioned decision is actually a
"hodge-podge" decision because of the peculiar manner in which the COMELEC
disposed of the case.
Finally, respondent Locsin asserts that the matter of her qualification and
eligibility has been categorically affirmed by the HRET when it dismissed the quo
warranto case filed against her, docketed as HRET Case No. 01-043, entitled
"Paciano Travero vs. Ma. Victoria Locsin," on the ground that "the allegations
stated therein are not proper grounds for a petition for quo warranto against a
Member of the House of Representatives under section 253 of the Omnibus
Election Code and Rule 17 of the HRET Rules, and that the petition was filed
late."67
In his Reply, petitioner asserts that the remedy of respondent Locsin from the
COMELEC decision was to file a petition for certiorari with the Supreme Court, not
to seek an opinion from the Chief Legal Counsel of the House of Representatives;
that the HRET has no jurisdiction over a petition for declaration of nullity of
proclamation which is based not on ineligibility or disloyalty, but by reason that
the candidate proclaimed as winner did not obtain the highest number of votes;
that the petition for annulment of proclamation is a pre-proclamation controversy
and, hence, falls within the exclusive jurisdiction of the COMELEC pursuant to
section 242 of B.P. Blg. 881 69 and section 3, Article IX (C) of the Constitution;
that respondent Speaker De Venecia himself recognizes the finality of the
COMELEC decision but has decided to refer the matter to the Supreme Court for
adjudication; that the enforcement and implementation of a final decision of the
COMELEC involves a ministerial act and does not encroach on the legislative
power of Congress; and that the power to determine who will sit as Member of
the House does not involve an exercise of legislative power but is vested in the
sovereign will of the electorate.
68

The core issues in this case are: (a) whether the proclamation of respondent
Locsin by the COMELEC Second Division is valid; (b) whether said proclamation
divested the COMELEC en banc of jurisdiction to review its validity; and (c)
assuming the invalidity of said proclamation, whether it is the ministerial duty of
the public respondents to recognize petitioner Codilla, Sr. as the legally elected
Representative of the 4th legislative district of Leyte vice respondent Locsin.
I
Whether the proclamation of respondent Locsin is valid.
After carefully reviewing the records of this case, we find that the proclamation of
respondent Locsin is null and void for the following reasons:
First. The petitioner was denied due process during the
proceedings leading to the proclamation of respondent Locsin.

entire

COMELEC Resolution Nos. 340270 sets the procedure for disqualification cases
pursuant to section 68 of the Omnibus Election Code, viz:
"C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE
OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF
QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION
(1) The verified petition to disqualify a candidate pursuant to Sec. 68 of
the Omnibus Election Code and the verified petition to disqualify a
candidate for lack of qualifications or possessing same grounds for
disqualification, may be filed any day after the last day for filing of
certificates of candidacy but not later than the date of proclamation.
(2) The petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code shall be filed in ten (10) legible copies by any
citizen of voting age, or duly registered political party, organization or
coalition of political parties against any candidate who in an action or
protest in which he is a party is declared by final decision of a competent
court guilty of, or found by the Commission of:
2.a having given money or other material consideration to
influence, induce or corrupt the voters or public officials
performing electoral functions;

Election Law |13

2.b having
candidacy;

committed

acts

of

terrorism

to

enhance

his

completion of the hearing and reception of evidence together with the

complete records of the case;

2.c having spent in his election campaign an amount in excess of

that allowed by the Omnibus Election Code;

(9) Upon receipt of the records of the case of the findings, reports and
recommendation of the hearing officer concerned, the Clerk of the
Commission shall immediately docket the case consecutively and
calendar the same for raffle to a division;

2.d having solicited, received or made any contribution

prohibited under Sections 89, 95, 96, 97 and 104 of the
Omnibus Election Code;

(10) The division to whom the case is raffled, shall after consultation,
assign the same to a member who shall pen the decision, within five (5)
days from the date of consultation."

2.e having violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6 of the Omnibus
Election Code, shall be disqualified from continuing as a Resolution No. 3402 clearly requires the COMELEC, through the Regional Election
candidate, or if he has been elected, from holding the office.
Director, to issue summons to the respondent candidate together with a copy of
the petition and its enclosures, if any, within three (3) days from the filing of the
petition for disqualification. Undoubtedly, this is to afford the respondent
xxxxxxxxx
candidate the opportunity to answer the allegations in the petition and hear his
(4) Upon payment of the filing fee of P1,000.00 and legal research fee of side. To ensure compliance with this requirement, the COMELEC Rules of
P20.00, the offices concerned shall docket the petition and assign to it a Procedure requires the return of the summons together with the proof of service
docket number which must be consecutive, according to the order of to the Clerk of Court of the COMELEC when service has been completed, viz:
receipt and must bear the year and prefixed as SPA with the
corresponding initial of the name of the office, i.e. SPA (RED) No. C01- "Rule 14. Summons
001; SPA (PES) No. C01-001;
xxxxxxxxx
(5) Within three (3) days from filing of the petitions, the offices
concerned shall issue summons to the respondent candidate together Section 5. Return.- When the service has been completed by personal service,
with a copy of the petition and its enclosures, if any;
the server shall give notice thereof, by registered mail, to the protestant or his
counsel and shall return the summons to the Clerk of Court concerned who issued
(6) The respondent shall be given three (3) days from receipt of it, accompanied with the proof of service.
summons within which to file his verified answer (not a motion to
dismiss) to the petition in ten (10) legible copies, serving a copy thereof Section 6. Proof of Service.- Proof of service of summons shall be made in the
upon the petitioner. Grounds for Motion to Dismiss may be raised as an manner provided for in the Rules of Court in the Philippines."
affirmative defense;
Thereafter, hearings, to be completed within ten (10) days from the filing of the
(7) The proceeding shall be summary in nature. In lieu of the Answer, must be conducted. The hearing officer is required to submit to the Clerk
testimonies, the parties shall submit their affidavits or counter-affidavits of the Commission his findings, reports and recommendations within five (5) days
and other documentary evidences including their position paper;
from the completion of the hearing and reception of evidence together with the
complete records of the case.
(8) The hearing must be completed within ten (10) days from the date of
the filing of the answer. The hearing officer concerned shall submit to the (a) Petitioner was not notified of the petition for his disqualification
Clerk of the Commission through the fastest means of communication, through the service of summons nor of the Motions to suspend his
his findings, reports and recommendations within five (5) days from the proclamation.

Election Law |14

The records of the case do not show that summons was served on the petitioner.
They do not contain a copy of the summons allegedly served on the petitioner
and its corresponding proof of service. Furthermore, private respondent never
rebutted petitioner's repeated assertion that he was not properly notified of the
petition for his disqualification because he never received summons. 71 Petitioner
claims that prior to receiving a telegraphed Order from the COMELEC Second
Division on May 22, 2001, directing the District Board of Canvassers to suspend
his proclamation, he was never summoned nor furnished a copy of the petition
for his disqualification. He was able to obtain a copy of the petition and the May
22 Order of the COMELEC Second Division by personally going to the COMELEC
Regional Office on May 23, 2001. Thus, he was able to file his Answer to the
disqualification case only on May 24, 2001.

shorter notice, especially on matters which the Commission or the Division may
dispose of on its own motion.
The notice shall be directed to the parties concerned and shall state the time and
place of the hearing of the motion.
Section 5. Proof of Service.- No motion shall be acted upon by the Commission
without proof of service of notice thereof, except when the Commission or a
Division is satisfied that the rights of the adverse party or parties are not
affected."

Respondent's Most Urgent Motion does not fall under the exceptions to notice and
service of motions. First, the suspension of proclamation of a winning candidate is
More, the proclamation of the petitioner was suspended in gross violation of not a matter which the COMELEC Second Division can dispose of motu proprio.
section 72 of the Omnibus Election Code which provides:
Section 6 of R.A. No. 6646 73 requires that the suspension must be "upon motion
by the complainant or any intervenor", viz:
"Sec. 72. Effects of disqualification cases and priority.- The Commission and the
courts shall give priority to cases of disqualification by reason of violation of this "Section 6. Effect of Disqualification Case.- Any candidate who has been declared
Act to the end that a final decision shall be rendered not later than seven by final judgment to be disqualified shall not be voted for, and the votes cast for
days before the election in which the disqualification is sought.
him shall not be counted. If for any reason, a candidate is not declared by final
Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. Nevertheless,
if for any reason, a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning
number of votes in such election, his violation of the provisions of the
preceding sections shall not prevent his proclamation and assumption to
office." (emphases supplied)
In the instant case, petitioner has not been disqualified by final judgment when
the elections were conducted on May 14, 2001. The Regional Election Director
has yet to conduct hearing on the petition for his disqualification. After the
elections, petitioner was voted in office by a wide margin of 17,903. On May 16,
2001, however, respondent Locsin filed a Most Urgent Motion for the suspension
of petitioner's proclamation. The Most Urgent Motion contained a statement to
the effect that a copy was served to the petitioner through registered mail. The
records reveal that no registry receipt was attached to prove such service. 72 This
violates COMELEC Rules of Procedure requiring notice and service of the motion
to all parties, viz:
"Section 4. Notice.- Notice of a motion shall be served by the movant to all
parties concerned, at least three (3) days before the hearing thereof, together
with a copy of the motion. For good cause shown, the motion may be heard on

judgment before an election to be disqualified and he is voted for and receives

the winning number of votes in such election, the Court or Commission
(COMELEC) shall continue with the trial or hearing of the action, inquiry,
or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong." (emphases
supplied)
Second, the right of an adverse party, in this case, the petitioner, is clearly
affected. Given the lack of service of the Most Urgent Motion to the petitioner,
said Motion is a mere scrap of paper.74 It cannot be acted upon by the COMELEC
Second Division.
On May 18, 2001 at exactly 5:00 p.m.,75 respondent Locsin filed a Second Most
Urgent Motion for the suspension of petitioner's proclamation. Petitioner was
served a copy of the Second Motion again by registered mail. A registry
receipt76 was attached evidencing service of the Second Most Urgent Motion to
the petitioner but it does not appear when the petitioner received a copy thereof.
That same day, the COMELEC Second Division issued an Order suspending the
proclamation of petitioner. Clearly, the petitioner was not given any opportunity
to contest the allegations contained in the petition for disqualification. The Order
was issued on the very same day the Second Most Urgent Motion was filed. The

Election Law |15

petitioner could not have received the Second Most Urgent Motion, let alone
answer the same on time as he was served a copy thereof by registered mail.
Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only
when evidence of the winning candidate's guilt is strong. In the case at bar, the
COMELEC Second Division did not make any specific finding that evidence
of petitioner's guilt is strong. Its only basis in suspending the proclamation of
the petitioner is the "seriousness of the allegations" in the petition for
disqualification. Pertinent portion of the Order reads:

On this score, it bears emphasis that the hearing for Motion to Lift the Order of
Suspension cannot be substituted for the hearing in the disqualification case.
Although intrinsically linked, it is not to be supposed that the evidence of the
parties in the main disqualification case are the same as those in the Motion to
Lift the Order of Suspension. The parties may have other evidence which they
may deem proper to present only on the hearing for the disqualification case.
Also, there may be evidence which are unavailable during the hearing for the
Motion to Lift the Order of Suspension but which may be available during the
hearing for the disqualification case.

In the case at bar, petitioner asserts that he submitted his Memorandum merely
to support his Motion to Lift the Order of Suspension. It was not intended to
answer and refute the disqualification case against him. This submission was
sustained by the COMELEC en banc. Hence, the members of the COMELEC en
banc concluded, upon consideration of the additional affidavits attached in his
Urgent Manifestation, that the evidence to disqualify the petitioner was
insufficient. More specifically, the ponente of the challenged Resolution of the
We hold that absent any finding that the evidence on the guilt of the petitioner is COMELEC Second Division held:
strong, the COMELEC Second Division gravely abused its power when it
"Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC
suspended his proclamation.
(Second Division) concerns only the incident relating to the Motion to Lift Order of
(b) The COMELEC Second Division did not give ample opportunity to the Suspension of Proclamation. It also appears that the order for the submission of
petitioner to adduce evidence in support of his defense in the petition for the parties' respective memoranda was in lieu of the parties' oral argument on
the motion. This would explain the fact that Codilla's Memorandum refers mainly
his disqualification.
to the validity of the issuance of the order of suspension of proclamation. There
is, however, no record of any hearing on the urgent motion for the suspension of
All throughout the proceeding, no hearing was conducted on the petition for
proclamation. Indeed, it was only upon the filing of the Urgent
disqualification in gross violation of section 6 of R.A. No. 6646 which specifically
Manifestation by Codilla that the Members of the Commission (Second
enjoins the COMELEC to "continue with the trial or hearing of the action,
Division) and other Members of the Commission en banc had the
inquiry, or protest." This is also in violation of COMELEC Resolution No. 3402
opportunity to consider Codilla's affidavits. This time, Codilla was able to
requiring the Regional Election Director to complete the hearing and
present his side, thus, completing the presentation of evidentiary
reception of evidence within ten (10) days from the filing of the Answer, and to
documents from both sides."78 (emphases supplied)
submit his findings, reports, and recommendations within the five (5) days from
completion of the hearing and the reception of evidence.
Indeed, careful reading of the petitioner's Memorandum shows that he confined
his arguments in support of his Motion to Lift the Order of Suspension. In said
Petitioner filed a Motion to Lift the Order of Suspension of his proclamation
Memorandum, petitioner raised the following issues: (a) he was utterly deprived
on May 25, 2001. Although an oral argument on this Motion was held, and the
of procedural due process, and consequently, the order suspending his
parties were allowed to file their respective memoranda, the Motion was not
proclamation is null and void; (b) the said order of suspension of proclamation
acted upon. Instead, the COMELEC Second Division issued a Resolution on the
has no legal and factual basis; and (c) evidence of guilt on his part is patently
petition for disqualification against the petitioner. It was based on the following
inexistent for the purpose of directing the suspension of his proclamation. 79 He
evidence: (a) the affidavits attached to the Petition for Disqualification; (b) the
urged the COMELEC Second Division to conduct a full dress hearing on the main
affidavits attached to the Answer; and (c) the respective memoranda of the
disqualification case should the suspension be lifted.80
parties.
"Without giving due course to the petition xxx the Commission (2 nd Division),
pursuant to Section 72 of the Omnibus Election Code in relation to Section 6,
Republic Act No. 6646 xxx and considering the serious allegations in the
petition, hereby directs the Provincial Board of Canvassers of Leyte to
suspend the proclamation of respondent, if winning, until further
orders."77 (emphases supplied)

Election Law |16

(c) the Resolution of the COMELEC Second Division disqualifying the belonging to and owned by the City Government of Ormoc City in extracting,
petitioner is not based on substantial evidence.
hauling and distributing gravel and sand to the residents and voters of the
Municipalities of Kananga and Matag-ob Leyte, well within the territorial limits of
The Resolution of the COMELEC Second Division cannot be considered to be the 4th Congressional District of Leyte, which acts were executed without period,
based on substantial evidence. It relied merely on affidavits of witnesses attached and clearly for the illicit purpose of unduly inducing or directly corrupting various
to the petition for disqualification. As stressed, the COMELEC Second Division voters of Kananga and Matag-ob, within the 4th legislative district of Leyte, for
gave credence to the affidavits without hearing the affiants. In reversing said the precise purpose of inducing and influencing the voters/beneficiaries of
Kananga and Matag-ob, Leyte to cast their votes for said respondent." 83
Resolution, the COMELEC en banc correctly observed:
"Lacking evidence of Codilla, the Commission (Second Division) made its
decisions based mainly on the allegation of the petitioner and the supporting
affidavits. With this lopsided evidence at hand, the result was predictable. The
Commission (Second Division) had no choice. Codilla was disqualified." 81

The affidavits relied upon by the COMELEC Second Division failed to prove these
allegations. For instance, Cesar A. Laurente merely stated that he saw three (3)
ten-wheeler dump trucks and a Hyundai Payloader with the markings "Ormoc City
Government" extracting and hauling sand and gravel from the riverbed adjacent
to the property owned by the Codilla family.84

Worse, the Resolution of the COMELEC Second Division, even without the
evidence coming from the petitioner, failed to prove the gravamen of the offense Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated
that they saw white trucks owned by the City Government of Ormoc dumping
for which he was charged.82
gravel and sand on the road of Purok 6, San Vicente, Matag-ob, Leyte. A
85
Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which payloader then scattered the sand and gravel unloaded by the white trucks.
reads:

On the other hand, Danilo D. Maglasang, a temporary employee of the City

Government of Ormoc assigned to check and record the delivery of sand and
gravel for the different barangays in Ormoc, stated as follows:

"Section 68. Disqualifications.- Any candidate who, in action or protest in which

he is a party is declared by final decision of a competent court guilty of, or found
by the Commission of having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing official "3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of
functions, xxx shall be disqualified from continuing as candidate, or if he has the City Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as
that will be the source of the sand and gravel. I inquired why we had to go to
been elected, from holding office"
Kananga but Engr. Padayao said that it's not a problem as it was Mayor Eufrocino
To be disqualified under the above-quoted provision, the following elements must M. Codilla, Sr. who ordered this and the property is owned by the family of Mayor
We were to deliver sand and gravel to whoever requests from Mayor
be proved: (a) the candidate, personally or through his instructions, must have Codilla. 86
Codilla."
given money or other material consideration; and (b) the act of giving money or

other material consideration must be for the purpose of influencing, inducing, or

Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against
corrupting the voters or public officials performing electoral functions.
the petitioner. He alleged that on April 18, 2001, a white truck with the marking
In the case at bar, the petition for disqualification alleged that (a) petitioner "City Government of Ormoc" came to his lot at Montebello, Kananga, Leyte and
the truck told him to "vote for Codilla
ordered the extraction, hauling and distribution of gravel and sand, and (b) his unloaded mixed sand and that the driver of
87
as
a
(sic)
congressman
during
election."
His
statement is hearsay. He has no
purpose was to induce and influence the voters of Kananga and Matag-ob, Leyte
personal
knowledge
of
the
supposed
order
of
the
petitioner to distribute gravel
to vote for him. Pertinent portion of the petition reads:
and sand for the purpose of inducing the voters to vote for him. The same could
be said about the affidavits of Randy T. Merin, 88 Alfredo C. De la Pea,89 Miguel P.
"[T]he respondent [herein petitioner], within the election period, took advantage
Pandac,90 Paquito Bregeldo, Cristeta Alferez , Glicerio Rios, 91 Romulo Alkuino,
of his current elective position as City Mayor of Ormoc City by illegally and
Sr.,92 Abner Casas,93 Rita Trangia,94 and Judith Erispe95attached to respondent
unlawfully using during the prohibited period, public equipments and vehicles
Locsin's Memorandum on the Motion to Lift the Suspension of Proclamation.

Election Law |17

Also valueless are the affidavits of other witnesses 96 of respondent Locsin, all
similarly worded, which alleged that the petitioner ordered the repair of the road
in Purok 6, Barangay San Vicente, Matag-ob, Leyte and the flattening of the area
where the cockfights were to be held. These allegations are extraneous to the
charge in the petition for disqualification. More importantly, these allegations do
not constitute a ground to disqualify the petitioner based on section 68 of the
Omnibus Election Code.
To be sure, the petition for disqualification also ascribed other election offenses
against the petitioner, particularly section 261 of the Omnibus Election Code, viz:
"Section 261. Prohibited Acts.- The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling.- (1) Any person who gives, offers or
promises money or anything of value, gives or promises any office or
employment, franchise or grant, public or private, or make or offers to
make an expenditure, directly or indirectly, or cause an expenditure to be
made to any person, association, corporation, entity or community in
order to induce anyone or the public in general, to vote for or against any
candidate or withhold his vote in the election, or to vote for or against
any aspirant for the nomination or choice of a candidate in a convention
or similar selection process of a political party.
xxxxxxxxx
(o) Use of public funds, money deposited in trust, equipment, facilities
owned or controlled by the government for an election campaign.- Any
person who uses under any guise whatsoever directly or indirectly, xxx
(3) any equipment, vehicle, facility, apparatus, or paraphernalia owned
by the government or by its political subdivisions, agencies including
government-owned or controlled corporations, or by the Armed Forces of
the Philippines for any election campaign or for any partisan political
activity x x x."

prosecuting
justice, viz:

the

alleged

offenders

before

the

regular

courts

of

"Section 265. Prosecution.- The Commission shall, through its duly

authorized legal officers, have the exclusive power to conduct preliminary
investigation of all election offenses punishable under this Code, and to
prosecute the same. The Commission may avail of the assistance of
other prosecuting arms of the government: Provided, however, That in
the event that the Commission fails to act on any complaint within four
months from his filing, the complainant may file the complaint with the
office of the fiscal or with the Ministry of Justice for proper investigation
and prosecution, if warranted.
xxxxxxxxx
Section 268. Jurisdiction.- The regional trial court shall have the exclusive
original jurisdiction to try and decide any criminal action or proceeding for
violation of this Code, except those relating to the offense of failure to register or
failure to vote which shall be under the jurisdictions of metropolitan or municipal
trial courts. From the decision of the courts, appeal will lie as in other criminal
cases."
The COMELEC Second Division grievously erred when it decided the
disqualification case based on section 261 (a) and (o), and not on section 68 of
the Omnibus Election Code.
(d) Exclusion of the votes in favor of the petitioner and the proclamation
of respondent Locsin was done with undue haste.

The COMELEC Second Division ordered the exclusion of the votes cast in favor of
the petitioner, and the proclamation of the respondent Locsin, without affording
the petitioner the opportunity to challenge the same. In the morning of June 15,
2001, the Provincial Board of Canvassers convened, and on the strength of the
said Resolution excluding the votes received by the petitioner, certified that
However, the jurisdiction of the COMELEC to disqualify candidates is respondent Locsin received the highest number of votes. On this basis,
limited to those enumerated in section 68 of the Omnibus Election Code. respondent Locsin was proclaimed.
All other election offenses are beyond the ambit of COMELEC
jurisdiction.97 They are criminal and not administrative in nature. Records reveal that the petitioner received notice of the Resolution of the
Pursuant to sections 265 and 268 of the Omnibus Election Code, the COMELEC Second Division only through his counsel via a facsimile message in the
power of the COMELEC is confined to the conduct of preliminary afternoon of June 15, 200198 when everything was already fait accompli.
investigation on the alleged election offenses for the purpose of Undoubtedly, he was not able to contest the issuance of the Certificate of

Election Law |18

Canvass and the proclamation of respondent Locsin. This is plain and simple Reconsideration. Section 13, Rule 18 of the COMELEC Rules of Procedure on
denial of due process.
Finality of Decisions and Resolutions reads:
The essence of due process is the opportunity to be heard. When a party is "Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special
deprived of that basic fairness, any decision by any tribunal in prejudice of his proceedings, provisional remedies and special reliefs, a decision or resolution of
rights is void.
the Commission en banc shall become final and executory after thirty (30) days
from its promulgation.
Second. The votes cast in favor of the petitioner cannot be considered
"stray" and respondent cannot be validly proclaimed on that basis.

(b) In Special Actions and Special Cases a decision or resolution of the

Commission en banc shall become final and executory after five (5) days in
The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two Special Actions and Special Cases and after fifteen (15) days in all other
dispositions: (1) it ruled that the petitioner was disqualified as a candidate for the proceedings, following their promulgation.
position of Congressman of the Fourth District of Leyte; and (2) it ordered the
immediate proclamation of the candidate who garnered the highest number of (c) Unless a motion for reconsideration is seasonably filed, a decision or
votes, to the exclusion of the respondent [herein petitioner].
resolution of a Division shall become final and executory after the lapse
of five (5) days in Special Actions and Special Cases and after fifteen
As previously stated, the disqualification of the petitioner is null and void for (15) days in all other actions or proceedings, following its
being violative of due process and for want of substantial factual basis. Even promulgation." (emphasis supplied)
assuming, however, that the petitioner was validly disqualified, it is still improper
for the COMELEC Second Division to order the immediate exclusion of votes cast
for the petitioner as stray, and on this basis, proclaim the respondent as having
garnered the next highest number of votes.

In this wise, COMELEC Resolution No. 4116, 101 issued in relation to the finality of
resolutions or decisions in disqualification cases, provides:

"This pertains to the finality of decisions or resolutions of the Commission en

(a) The order of disqualification is not yet final, hence, the votes cast in banc or division, particularly on Special Actions (Disqualification Cases).
favor of the petitioner cannot be considered "stray."
Special Action cases refer to the following:
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require
a final judgment before the election for the votes of a disqualified candidate
to be considered "stray." Hence, when a candidate has not yet been disqualified
by final judgment during the election day and was voted for, the votes cast in
his favor cannot be declared stray. To do so would amount to disenfranchising the
electorate in whom sovereignty resides.99 For in voting for a candidate who has
not been disqualified by final judgment during the election day, the people voted
for him bona fide, without any intention to misapply their franchise, and in the
honest belief that the candidate was then qualified to be the person to whom
they would entrust the exercise of the powers of government. 100

(a) Petition to deny due course to a certificate of candidacy;

(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.

Considering the foregoing and in order to guide field officials on the finality of
This principle applies with greater force in the case at bar considering that decisions or resolutions on special action cases (disqualification cases) the
the petitioner has not been declared by final judgment to be disqualified Commission, RESOLVES, as it is hereby RESOLVED, as follows:
not only before but even after the elections. The Resolution of the COMELEC
Second Division disqualifying the petitioner did not attain finality, and hence,
could not be executed, because of the timely filing of a Motion for

Election Law |19

(1) the decision or resolution of the En Banc of the Commission on More brazen is the proclamation of respondent Locsin which violates the settled
disqualification cases shall become final and executory after five (5) days doctrine that the candidate who obtains the second highest number of votes may
from its promulgation unless restrained by the Supreme Court;
not be proclaimed winner in case the winning candidate is disqualified. 102 In every
election, the people's choice is the paramount consideration and their expressed
(2) the decision or resolution of a Division on disqualification cases shall will must at all times be given effect. When the majority speaks and elects into
become final and executory after the lapse of five (5) days unless a office a candidate by giving him the highest number of votes cast in the election
for the office, no one can be declared elected in his place. 103 In Domino v.
motion for reconsideration is seasonably filed;
COMELEC,104 this Court ruled, viz:
(3) where the ground for disqualification case is by reason of nonresidence, citizenship, violation of election laws and other analogous
cases and on the day of the election the resolution has not become final
and executory the BEI shall tally and count the votes for such disqualified
candidate;

"It would be extremely repugnant to the basic concept of the constitutionally

guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed winner and imposed as representative of a
constituency, the majority of which have positively declared through their ballots
that they do not choose him. To simplistically assume that the second placer
(4) the decision or resolution of the En Banc on nuisance candidates, would have received that (sic) other votes would be to substitute our judgment
particularly whether the nuisance candidate has the same name as the for the mind of the voters. He could not be considered the first among the
qualified candidates because in a field which excludes the qualified candidate, the
bona fide candidate shall be immediately executory;
conditions would have substantially changed.
(5) the decision or resolution of a DIVISION on nuisance candidate,
particularly where the nuisance candidate has the same name as the
bona fide candidate shall be immediately executory after the lapse of five
(5) days unless a motion for reconsideration is seasonably filed. In which
case, the votes cast shall not be considered stray but shall be counted
and tallied for the bona fide candidate.

xxxxxxxxx

The effect of a decision declaring a person ineligible to hold an office is only that
the election fails entirely, that the wreath of victory cannot be transferred from
the disqualified winner to the repudiated loser because the law then as now only
authorizes a declaration in favor of the person who has obtained a plurality of
All resolutions, orders and rules inconsistent herewith are hereby modified or votes, and does not entitle the candidate receiving the next highest number of
votes to be declared elected. In such case, the electors have failed to make a
repealed."
choice and the election is a nullity. To allow the defeated and repudiated
candidate to take over the elective position despite his rejection by the electorate
Considering the timely filing of a Motion for Reconsideration, the COMELEC
is to disenfranchise the electorate without any fault on their part and to
Second Division gravely abused its discretion in ordering the immediate
undermine the importance and meaning of democracy and the people's right to
disqualification of the petitioner and ordering the exclusion of the votes cast in his
elect officials of their choice."105
favor. Section 2, Rule 19 of the COMELEC Rules of Procedure is very clear that a
timely Motion for Reconsideration shall suspend the execution or implementation
Respondent Locsin proffers a distinction between a disqualification based on
of the resolution, viz:
personal circumstances such as age, residence or citizenship and disqualification
based on election offenses. She contends that the election of candidates later
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
disqualified based on election offenses like those enumerated in section 68 of the
decision, resolution, order, or ruling of a Division shall be filed within five (5) days
Omnibus Election Code should be invalidated because they violate the very
from the promulgation thereof. Such motion, if not pro forma, suspends the
essence of suffrage and as such, the votes cast in his favor should not be
execution or implementation of the decision, resolution, order or ruling."
considered.106
(emphases supplied)
(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.

This contention is without merit. In the recent case of Trinidad v.

COMELEC,107 this Court ruled that the effect of a judgment disqualifying a

Election Law |20

candidate, after winning the election, based on personal circumstances or section The fact that the Petition for Nullity of Proclamation was filed directly with the
68 of the Omnibus Election Code is the same: the second placer could not take COMELEC en banc is of no moment. Even without said Petition, the COMELEC en
the place of the disqualified winner.
banc could still rule on the nullity of respondent's proclamation because it was
properly raised in the Motion for Reconsideration.
II
Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en banc
Whether the proclamation of respondent Locsin divested the COMELEC en banc of to review, on motion for reconsideration, decisions or resolutions decided by a
division, viz:
jurisdiction to review its validity.
Respondent Locsin submits that the COMELEC en banc has no jurisdiction to
annul her proclamation. She maintains that the COMELEC en banc was been
divested of jurisdiction to review the validity of her proclamation because she has
become a member of the House of Representatives. Thus, she contends that the
proper forum to question her membership to the House of Representatives is the
House of Representative Electoral Tribunal (HRET).
We find no merit in these contentions.
First. The validity of the respondent's proclamation was a core issue in
the Motion for Reconsideration seasonably filed by the petitioner.
In his timely Motion for Reconsideration with the COMELEC en banc, petitioner
argued that the COMELEC Second Division erred thus:
"(1) in disqualifying petitioner on the basis solely of the dubious
declaration of the witnesses for respondent Locsin;
(2) in adopting in toto the allegations of the witnesses for respondent
Locsin; and
(3) in promulgating the resolution in violation of its own rules of
procedure and in directing therein the immediate proclamation of
the second highest 'vote getter.'" (emphases supplied)
In support of his third assignment of error, petitioner argued that "the Second
Division's directive for the immediate proclamation of the second highest votegetter is premature considering that the Resolution has yet to become final and
executory."108 Clearly, the validity of respondent Locsin's proclamation was made
a central issue in the Motion for Reconsideration seasonably filed by the
petitioner. Without doubt, the COMELEC en banc has the jurisdiction to rule on
the issue.

"Sec. 3. The Commission on Elections may sit en banc or in two divisions, and
shall promulgate its rules of procedure in order to expedite disposition of election
cases, including pre-proclamation controversies. All such election cases shall be
heard and decided in division, provided that motions for reconsideration of
decision shall be decided by the Commission en banc."
Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure
provides:
"Rule 19. Motions for Reconsideration.Section 1. Grounds for Motion for Reconsideration.- A motion for
reconsideration may be filed on the grounds that the evidence is
insufficient to justify the decision, order or ruling, or that the said
decision, order or ruling is contrary to law.
Section 2. Period for filing Motion for Reconsideration.- A motion to
reconsider a decision, resolution, order, or ruling of a Division shall be
filed within five (5) days from the promulgation thereof. Such motion, if
not pro forma, suspends the execution or implementation of the
decision, resolution, order or ruling."
Section 3. Form and Contents of Motion for Reconsideration.- The motion
shall be verified and shall point out specifically the findings or conclusions
of the decision, resolution, order or ruling which are not supported by the
evidence or which are contrary to law, making express reference to the
testimonial or documentary evidence or to the provisions of law alleged
to be contrary to such findings or resolutions.
Section 4. Effect of Motion for Reconsideration on Period to Appeal.- A
motion to reconsider a decision, resolution, order or ruling when not pro
forma, suspends the running of the period to elevate the matter to the
Supreme Court.

Election Law |21

Section 5. How Motion for Reconsideration Disposed Of.- Upon the filing
of a motion to reconsider a decision, resolution, order or ruling of a
Division, the Clerk of Court concerned shall, within twenty-four (24)
hours from the filing thereof, notify the Presiding Commissioner. The
latter shall within two (2) days thereafter certify the case to the
Commission en banc.

Tribunal that has jurisdiction over an election contest involving members of the
House of Representatives, could not have been immediately applicable due
to the issue regarding the validity of the very COMELEC pronouncements
themselves." This is because the HRET has no jurisdiction to review resolutions
or decisions of the COMELEC, whether issued by a division or en banc.

(b) The instant case does not involve the election and qualification of
Section 6. Duty of the Clerk of Court of the Commission to set Motion for respondent Locsin.
Hearing.- The Clerk of Court concerned shall calendar the motion for
reconsideration for the resolution of the Commission en banc within ten Respondent Locsin maintains that the proper recourse of the petitioner is to file a
(10) days from the certification thereof." (emphases supplied)
petition for quo warranto with the HRET.
Since the petitioner seasonably filed a Motion for Reconsideration of the Order of
the Second Division suspending his proclamation and disqualifying him, the
COMELEC en banc was not divested of its jurisdiction to review the validity of the
said Order of the Second Division. The said Order of the Second Division was yet
unenforceable as it has not attained finality; the timely filing of the motion for
reconsideration suspends its execution. It cannot, thus, be used as the basis for
the assumption in office of the respondent as the duly elected Representative of
the 4th legislative district of Leyte.

A petition for quo warranto may be filed only on the grounds of ineligibility and
disloyalty to the Republic of the Philippines. 111 In the case at bar, neither the
eligibility of the respondent Locsin nor her loyalty to the Republic of the
Philippines is in question. There is no issue that she was qualified to run, and if
she won, to assume office.

A petition for quo warranto in the HRET is directed against one who has been
duly elected and proclaimed for having obtained the highest number of votes but
whose eligibility is in question at the time of such proclamation. It is evident that
Second. It is the House of Representatives Electoral Tribunal (HRET) respondent Locsin cannot be the subject of quo warranto proceeding in the HRET.
which has no jurisdiction in the instant case.
She lost the elections to the petitioner by a wide margin. Her proclamation was a
patent nullity. Her premature assumption to office as Representative of the 4th
Respondent contends that having been proclaimed and having taken oath as legislative district of Leyte was void from the beginning. It is the height of
representative of the 4th legislative district of Leyte, any question relative to her absurdity for the respondent, as a loser, to tell petitioner Codilla, Sr., the winner,
election and eligibility should be brought before the HRET pursuant to section 17 to unseat her via a quo warranto proceeding.
of Article VI of the 1987 Constitution.109
III
We reject respondent's contention.
Whether it is the ministerial duty of the public respondents to
(a) The issue on the validity of the Resolution of the COMELEC Second
Division has not yet been resolved by the COMELEC en banc.
recognize petitioner Codilla, Sr. as the legally elected Representative
To stress again, at the time of the proclamation of respondent Locsin, the validity
of the Resolution of the COMELEC Second Division was seasonably challenged by
the petitioner in his Motion for Reconsideration. The issue was still within the
exclusive jurisdiction of the COMELEC en banc to resolve. Hence, the HRET
cannot assume jurisdiction over the matter.

of the 4th legislative district of Leyte vice respondent Locsin.

Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may
file a verified petition for mandamus "when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
In Puzon vs. Cua,110 even the HRET ruled that the "doctrinal ruling that once a unlawfully excludes another from the use and enjoyment of a right or office to
proclamation has been made and a candidate-elect has assumed office, it is this which such other is entitled, and there is no other plain, speedy and adequate

Election Law |22

remedy in the ordinary course of law." 112 For a petition for mandamus to prosper,
it must be shown that the subject of the petition for mandamus is
a ministerial act or duty, and not purely discretionary on the part of the
board, officer or person, and that the petitioner has a well-defined, clear and
certain right to warrant the grant thereof.
The distinction between a ministerial and discretionary act is well delineated. A
purely ministerial act or duty is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of a
legal authority, without regard to or the exercise of his own judgment upon the
propriety or impropriety of the act done. If the law imposes a duty upon a public
officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the exercise of official
discretion or judgment.113
In the case at bar, the administration of oath and the registration of the petitioner
in the Roll of Members of the House of Representatives representing the 4th
legislative district of Leyte is no longer a matter of discretion on the part of the
public respondents. The facts are settled and beyond dispute: petitioner garnered
71,350 votes as against respondent Locsin who only got 53, 447 votes in the May
14, 2001 elections. The COMELEC Second Division initially ordered the
proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC
en banc set aside the order of its Second Division and ordered the proclamation
of the petitioner. The Decision of the COMELEC en banc has not been challenged
before this Court by respondent Locsin and said Decision has become final and
executory.
In sum, the issue of who is the rightful Representative of the 4th legislative
district of Leyte has been finally settled by the COMELEC en banc, the
constitutional body with jurisdiction on the matter. The rule of law demands
that its Decision be obeyed by all officials of the land. There is no
alternative to the rule of law except the reign of chaos and confusion.
IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of
the House of Representatives shall administer the oath of petitioner EUFROCINO
M. CODILLA, SR., as the duly-elected Representative of the 4th legislative district
of Leyte. Public respondent Secretary-General shall likewise register the name of
the petitioner in the Roll of Members of the House of Representatives after he has
taken his oath of office. This decision shall be immediately executory.
SO ORDERED.

Election Law |23

PADILLA, J.:
This is a petition for certiorari, prohibition and mandamus with a prayer for the
issuance of a temporary restraining order to: (1) compel the Commission on
Elections (COMELEC) to hear and decide the petition for disqualification of private
respondent in SPA No. 92-127; (2) declare unconstitutional Section 15 of R.A.
No. 7166 disallowing pre-proclamation controversies in the election of members
of the House of Representatives; (3) compel the Board of Canvassers in the
fourth legislative district of Quezon City to give due course to petitioner's
objections to 120 election returns; and (3) prohibit and enjoin said Board of
Canvassers from making further canvass of the returns and to suspend the
proclamation of the winning candidate or to nullify the canvass and set aside said
proclamation.
The antecedents are as follows:
The petitioner Francis Pancratius N. Pangilinan and private respondent Feliciano
Belmonte, Jr. were both candidates for congressman in the fourth legislative
district of Quezon City in the 11 May 1992 elections.

G.R. No. 105278 November 18, 1993

On 23 April 1992, Elmer Candano and Jose Umali, Jr. as registered voters of the
fourth legislative district of Quezon City, filed with the COMELEC a petition for
disqualification 1 against the private respondent for violation of Section 68 of the
Omnibus Election Code of the Philippines (B. P. Blg. 881), docketed therein as
SPA Case No. 92-127, alleging inter alia that: (a) during a rally held on 1 April
1992 at Agno Street, Barangay Tatalon, Quezon City, private respondent boasted
and acknowledged that he gave one (1) sack of rice, P5,000.00 and medicines to
the community and had made available to them the services of a lawyer, (b)
similarly, in Barangay San Vicente, during the coronation night of 4 April 1992 of
the winner of the Miss San Vicente pageant, private respondent gave tickets for
two to Hongkong to the winner, Miss Ana Marie Debil. 2

FRANCIS
PANCRATIUS
N.
PANGILINAN, petitioner, Acting upon said petition, the respondent COMELEC referred the same to its Law
vs.
Department
(Investigation
and
Prosecution
Division)
for
preliminary
COMMISSION ON ELECTIONS, BOARD OF CANVASSERS OF QUEZON CITY, investigation. 3
4TH LEGISLATIVE DISTRICT, and FELICIANO BELMONTE, JR., respondents.
Robles, Ricafrente & Aguirre Law Firm for petitioner.
Brillantes, Nachura, Navarro & Arcilla for private respondent.

On 20 May 1992, the petitioner herein together with the petitioners/complainants

in SPA Case No. 92-127 filed in the said case an Urgent Motion to Suspend
Canvass and/or Proclamation, 4 alleging therein that the election returns for the
fourth district of Quezon City were being canvassed by the City Board of

Election Law |24

Canvassers and that in order that the petition for disqualification against private
respondent may not become moot and academic, there was need for an
immediate order directing the City Board of Canvassers of Quezon City to
suspend at once the canvassing of the election returns and the proclamation of
the winning candidate for Representative of the fourth district of Quezon City. The
COMELEC, however, failed to act on the said motion.

2. Section 15 of R.A. No. 7166 and Section 23 of COMELEC Resolution No. 2413
disallowing pre-proclamation controversies in the election of members of the
House of Representatives are unconstitutional.
3. Petitioner was denied his right to due process when canvass committees were
formed without prior notice to him and without affording him the opportunity to
appoint watchers therein.

On 22 May 1992, five (5) other petitions for disqualification against private
respondent were filed with the COMELEC, 5 for violation of Section 68 of the We will first discuss the constitutional issue raised in the petition. Section 15 of
Omnibus Election Code outlawing the giving of money or other material R.A. 7166 provides:
consideration to influence, induce or corrupt the voters and Section 261(k) of the
same Code making it unlawful to solicit votes during the day of the election.
Sec. 15. Pre-Proclamation Cases Not Allowed in Elections for
President, Vice-President, Senator, and Members of the House of
During the canvass of the returns, the petitioner, thru his counsel, objected to
Representatives. For purposes of the elections for President,
over 120 election returns being canvassed by the City Board of Canvassers on the
Vice-President, Senator and Members of the House of
ground that they were tampered, altered or spurious. The City Board of
Representatives, no pre-proclamation cases shall be allowed on
Canvassers, however, overruled petitioner's objections on the ground that under
matters relating to the preparation, transmission, receipt,
Section 15 of R.A. No. 7166 and Section 23 of COMELEC Resolution No. 2413,
custody and appreciation of the election returns or the
entitled "General Instructions for the Provincial/City/District and Municipal Board
certificates of canvass, as the case may be. However, this does
of Canvassers" pre-proclamation controversies are not allowed in the election of
not preclude the authority of the appropriate canvassing
members of the House of Representatives.
body motu proprio or upon written complaint of an interested
person to correct manifest errors in the certificate of canvass or
On 21 May 1992, the Board of Canvassers created canvassing committees to
election returns before it.
canvass the returns. The petitioner objected to the creation of such committees
on the ground that he was not duly informed thereof and was not given the
Petitioner contends that the above-quoted provision is unconstitutional,
opportunity to appoint watchers and/or counsel before the said committees.
insofar as it disallows pre-proclamation controversies in the election of
The Board of Canvassers, however, ignored the petitioner's objections and
proceeded to canvass the returns.
The petitioner, therefore, filed the present petition, claiming that public
respondents acted with grave abuse of discretion and/or exceeded their
respective jurisdictions and/or unlawfully neglected to perform acts that the law
requires them to do, and that there was no plain, speedy and adequate remedy
in the ordinary course of law other than the present petition, and in support
thereof, the petitioner argues that:
1. Private respondent violated the penal provisions of the Omnibus Election Code,
which is a ground for his disqualification to run for Congressman in accordance
with Sec. 68 of the said Code and which justifies the suspension of the canvass
and proclamation of private respondent pursuant to Sec. 6 of R.A. No. 6646.

members of the House of Representatives because it violates Sec. 3,

Article IX-C of the 1987 Constitution which provides that:
Sec. 3. The Commission on elections may sit en banc or in
two divisions, and shall promulgate its rules or procedure in
order to expedite disposition of election cases, including preproclamation controversies. All such election cases shall be
heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the
Commission en banc.
The petitioner claims that the Constitution vests in the COMELEC the power to
hear and decide pre-proclamation controversies without distinction as to whether
the pre-proclamation controversy involves the election of Members of the House
of Representatives or provincial or local elective officials. Hence, the petitioner
concludes, the phrase "pre-proclamation controversies" in Sec. 3, Article IX-C of

Election Law |25

the 1987 Constitution embraces all pre-proclamation controversies, including pre- elections, returns, and qualifications of all Members of the Batasang Pambansa
proclamation controversies involving the election of Members of the House of and elective provincial and city officials." 7 Since the COMELEC had jurisdiction
Representatives.
over election contest pertaining to the election of Members of the Batasang
Pambansa, it had, likewise, as held in the Olfato case, the power and authority to
We do not accept petitioner's contention, Sec. 3, Article IX-C of the 1987 hear and decide pre-proclamation controversies involving the election of Members
Constitution should be read in relation to Sec. 2, Article IX-C of the same of the Batasang Pambansa.
Constitution which provides, among others, as follows:
Sec. 2 The Commission on Elections shall exercise the following
powers and functions:
xxx xxx xxx
(2) Exercise exclusive original jurisdiction over all contest
relating to the elections, returns, and qualifications of all elective
regional, provincial, and city officials, and appellate jurisdiction
over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction.
xxx xxx xxx

Since the 1973 Constitution has been replaced by the 1987 Constitution, the
Batasang Pambansa stands abolished and the legislative power is now vested in
the Congress of the Philippines consisting of the Senate and the House of
Representatives. 8 The Senate and the House of Representatives now have their
respective Electoral Tribunals which are the "sole judge of all contests relating to
the election, returns, and qualifications of their respective Members," 9 thereby
divesting the Commission on Elections of its jurisdiction under the 1973
Constitution over election cases pertaining to the election of the Members of the
Batasang Pambansa (Congress). It follows that the COMELEC is now bereft of
jurisdiction to hear and decide pre-proclamation controversies against members
of the House of Representatives as well as of the Senate.
Sec. 15 of R.A. 7166 is not, therefore, unconstitutional. On the contrary, it is in
harmony with the 1987 Constitution. As aptly observed by the Solicitor General in
his Comment

It will be noted that the aforequoted provision of the Constitution vests in the
The petitioner's arguments are totally misplaced. In fact, Section
COMELEC "exclusive original jurisdiction over all contest relating to the elections,
15, R.A. 7166 is consistent with Section 17, Article VI which
returns, and qualifications of all elective regional, provincialand city officials." It
makes the Electoral Tribunal of the Senate and the House of
has no jurisdiction over contests relating to the election, returns, and
Representatives the sole judge of all contests relating to
qualifications of Members of the House of Representatives. On the other hand,
the election, returns,
and qualifications of
their
respective
under Sec. 17, Article VI of the 1987 Constitution, the Electoral Tribunal of the
members. Petitioner's objection relating to the preparation,
House of Representatives is the "sole judge of all contests relating to the election,
transmission
and
appreciation
of
the election
returns, and qualifications" of its members. Consequently, the phrase "including
returns or certificates of canvass falls within the sole jurisdiction
pre-proclamation controversies" used in Sec. 3, Article IX-C of the Constitution
of
the
(House)
Electoral
should be construed as referring only to "pre-proclamation controversies" in
Tribunal. 10
election cases that fall within the exclusive original jurisdiction of the COMELEC,
i.e., election cases pertaining to the election of regional, provincial and city
Finally, the private respondent Feliciano Belmonte, Jr. has already been
officials.
proclaimed as the winner in the fourth district of Quezon City. He has taken his
oath of office and assumed his duties as representative; hence, the remedy open
The petitioner's reliance on the case of Olfato, et al. vs. COMELEC, et
to the petitioner was to have filed an electoral protest with the Electoral Tribunal
al., 6 wherein this Court held that the word "all" in Section 242 of the Omnibus
of the House of Representatives.
Election Code covers all pre-proclamation controversies involving elections of
Batasan, provincial, city and municipal officials, is misplaced. The Olfato case was
decided under the regime of the 1973 Constitution. Under the said Constitution, Having arrived at the above conclusion, We find it unnecessary to pass upon the
the Commission on Elections was "the sole judge of all contests relating to the other issues raised in the petition.

Election Law |26

WHEREFORE, the petition should be, as it is, hereby DISMISSED.

SO ORDERED.

G.R. No. L-52830 November 28, 1980

ANTONIO
O.
SINGCO, petitioner,
vs.
COMMISSION ON ELECTIONS, and FRANKLIN ONG, respondents.

DE CASTRO, J.:
Petitioner Antonio O. Singco seeks the reversal of the COMELEC's Resolution No.
9310 dated February 26, 1980 which resolved:
... not to give due course to the Certificate of candidacy of
respondent Antonio O. Singco for being a disqualified candidate
and hereby orders the Municipal Board of Canvassers of
Ginatilan, Cebu, to consider all votes cast in favor of respondent
Singco as stray votes and consequently, hereby orders the
Municipal Board of Canvassers of Ginatilan, Cebu, to proclaim
the remaining candidate who obtained the highest number of
votes as the duly elected Municipal Mayor of Ginatilan, Cebu. 1

Election Law |27

Petitioner was a candidate for Mayor in Ginatilan, Cebu, in the elections of

January 30, 1980 under the banner of the National Union for Liberation (NUL)
Private respondent was also a candidate for the same post under the Kilusang
Bagong Lipunan (KBL). Before the elections, on January 16, 1980, private
respondent filed a petition to disqualify petitioner on ground of turncoatism,
attaching thereto three Identical affidavits and other documentary evidence to
support his allegations. In due time, petitioner filed his answer. Since the petition
was not acted before the election day, Antonio O. Singco was voted for and
elected Mayor of the Municipality, having obtained the highest number of votes.
Considering the pendency of the disqualification suit against petitioner, the
COMELEC on January 31, 1980 sent a telegram order to the Municipal Board of
Canvassers of Ginatilan ordering the latter to suspend the proclamation with
respect to petitioner, pursuant to the COMELEC's earlier Resolution No.
8584, 2holding in abeyance the proclamation of any candidate that has ally
disqualification suit. Despite the order, however the Municipal Board of
Canvassers proceeded to proclaim petitioner as Mayor of Ginatilan, Cebu,
prompting private respondent, to immediately perform the COMELEC of the
proclamation of Singco and pray in his motion for the setting aside of the
proclamation of Singco. Acting on the motion, tile COMELEC, on February 2,
1980, set aside petitioner's proclamation and required the Board of Canvassers to
explain why no disciplinary action should be taken against it. 3
On February 26, 1980, COMELEC issued the above-quoted Resolution No. 9310
declaring Antonio O. Singco a disqualified candidate. Chairman Leonardo B. Perez
dissented as he was "for allowing the winner to be proclaimed, without prejudice
to disqualification case being heard and decided, following (the) ruling in the case
ofPimentel vs. COMELEC." 4 Pursuant to said resolution, respondent Franklin Ong
was proclaimed Mayor of Ginatilan, Cebu. After taking his oath of office as the
duly elected Municipal Mayor of Ginatilan, Cebu, private respondent immediately
discharged the duties and functions of said office.

alleging that said resolution was issued without benefit of hearing and the same
was not supported by substantial evidence. He pointed out that when private
respondent prayed in his manifestation and motion dated February 2, 1980 that
the case be calendared for hearing or in the alternative, the decision be rendered
based on documentary evidence attached to the petition, 8 petitioner vehemently
objected to the alternative prayer, inviting the attention of the COMELEC to the
fact that to admit such evidence consisting of affidavits and to decide the petition
on the basis thereof would be violative of due process of law, for one of the
affidavits attached to the petition was secured thru coercion, as shown in the
subsequent affidavit of the coerced affiant. 9
Petitioner also claims denial of due process in the annulment of his proclamation
which was ordered by the COMELEC without any hearing. The disputes the
applicability of the cases of Pedido vs. Commission on Elections10 and Aguam vs.
Commission on Elections 11 upon which private respondent relies to justify the
annulment, alleging that the decisions therein would show that the authority to
annul the proclamation exists where the basis of the proclamation is illegal
canvass. He maintains that the case particularly apt to the case at bar is the case
of Pimentel vs. COMELEC 12where this Court ordered the proclamation of the
winning candidates without prejudice to the disqualification suit.
Petitioner also contends that the questioned resolution was not supported by
substantial evidence and insists that since he had disclaimed and refuted the
documents which supposedly showed his affiliation with the KBL, alleging that his
signature appearing in the document was forged, and that the Identical affidavits
were either coerced or of doubtful credibility, the COMELEC should have accepted
them with circumspection.
In separate comments, respondents COMELEC and Ong do not deny the lack of
formal hearing in this case, but they would defend the assailed resolution by
insisting that since petitioner was informed of the disqualification suit as well as
the documentary evidence to support the petition to which he was given the
opportunity to answer, and in view of the time constraints imposed upon the
COMELEC in resolving the controversy, it cannot be said that petitioner was
denied due process. They also contend that even assuming that there was denial
of due process, there is nothing in petitioner's petition which would give the
remotest hint that if he was thus heard, the stand taken by the COMELEC would
have been different.

On March 6, 1980, this Court, acting on the petition for certiorari with prayer for
a writ of preliminary injunction or restraining order, issued a temporary
restraining order enjoining both the COMELEC from implementing its resolution of
February 26, 1980 and private respondent from assuming the position of Mayor
of the Municipality of Ginatilan. 5 Before said writ could be implemented, however,
private respondent designated Jaime Calunsod a new elected member of the
Sangguniang Bayan who received the second most number of votes for
Sangguniang Bayan of the municipality, as officer-incharge of the Municipality of
Ginatilan, Cebu. 6
In several cases brought to this Court on certiorari, We have always expressed
Our disapproval to the summary proceedings taken by the respondent COMELEC,
Invoking Our ruling in Renato Reyes vs. Comelec, 7 petitioner seeks the and stressed the need of complying with the essential requirement of procedural
nullification of the challenged resolution on ground of denial of due process, due process. 13 In the latest case of Renato Reyes vs. COMELEC where the

Election Law |28

questioned resolution was based merely on the pleadings and no formal hearing
was ever conducted, this Court thru Mr. Chief Justice Enrique M. Fernando, set
aside the resolution and ordered the remand of the case to the COMELEC for
further proceedings in accordance with the cardinal requirements of due process,
guided by the authoritative command in Ang Tibay vs. CIR 14as to the observance
by the administrative agencies, exercising quasi-judicial functions of the cardinal
requirements of due process, the most prominent of which, according to Mr. Chief
Justice, are the right to be heard and the necessity of substantial evidence to
support its decision, and Our ruling in Pimentel vs. COMELEC where this Court,
not satisfied that petitioner was fully heard, remanded the case to the COMELEC
also for the observance of the cardinal requirements of due process. In both
cases, We ordered the COMELEC to proclaim the winning candidates.

Section 1. Special Disqualifications of Candidates. The

Commission on Election shall, motu propio, or upon petition of
any voter, political party or candidate, after due notice and
hearing, refuse to give due course to a certificate of candidacy if
it is shown that the person filing the same does not possess all
the necessary qualifications for the office concerned or is
disqualified from running for said office as provided by law.
Section 6. Hearing. The Commission sitting en banc or by
division shag conduct a hearing after due notice to all parties
concerned.

Section 185 of the Election Code which provides the powers of the COMELEC
There is thus no proper course to take in the premises other than to remand also states:
the present case and give fun force and effect to Singco's proclamation without
prejudice to the disqualification suit with the directive that COMELEC should hold
Section 185. The Commission shall, in addition to the powers
a full dress hearing in accordance with the requirements of due process, and the
and functions conferred upon it by the Constitution, have
parties given fun opportunity to present all evidence relevant to the issue of
exclusive charge of the enforcement and administration of all
turncoatism. Unquestionably, the challenged resolution in the present case was
laws relative to the conduct of elections for the purpose of
based merely on pleadings without petitioner having been accorded the right to
insuring free, orderly and honest elections, and shall:
be fully heard as he demanded, clearly in disregard to his right to due process.
For it is not enough that petitioner was given the opportunity to answer the
xxx xxx xxx
petition for disqualification. Petitioner disowned the documents attached to the
petition which allegedly were submitted by him as Chairman of the KBL, alleging
(1) Summons the parties to a controversies pending before it,
that his signature was forged. He also refuted the affidavit by the supposed
issue subpoena and subpoena duces tecum, and take testimony
witness to his attendance to a KBL meeting by submitting another affidavit of the
in any investigation or hearing before it ... In case of failure of a
same witness who claimed that the first affidavit was secured thru coercion.
witness to attend, the Commission, upon proof of service of the
These allegations raise questions of fact that could have been thresed out fully by
subpoena to said witness, may issue a warrant to arrest the
the COMELEC through an actual hearing.
witness and bring him before the Commission or the officer
before whom Lis attendance is required. ... Any controversy
Private respondent's averment that the proliferation of cases in the COMELEC and
submitted to the Commission shall after compliance with the
the time constraints could neither justify the summary resolution under question.
requirements of due process, be heard and decided by it within
The demands of due process cannot be sacrificed in the face of a good and
the reglementary period provided by law.
substantial defense. Same must be applied at all times, for while an
administrative tribunal possessed of quasi-judicial powers is free from the rigidity
of certain procedural requirements, it does not mean that it can in justiciable Section 7 of the Batas Pambansa Blg. 52 provides:
cases coming before it entirely ignore or disregard the fundamental and essential
requirements of due process." 15 Significantly, by its own Resolution No. 1428,
which provides the guidelines on the filing of petition to disqualify candidates in
the January 30, 1980 elections, Sections 1 and 6 thereof expressly provide for
hearing of said petitions. Thus

xxx xxx xxx

... The Commission on Elections shall motu propio or upon sworn
petition of any voter, political party or candidate, after due
notice and hearing, refuse to give due course to a certificate of
candidacy if it is shown that the person filing the same does not

Election Law |29

possess all the necessary qualifications for the office concerned

or is disqualified from running for said office as provided by law.
Accordingly, We hold that, COMELEC Resolution No. 9310 dated February 26,
1980, disqualifying petitioner produced no legal effect, petitioner's candidacy
was, consequently, valid and subsisting when he was voted for during the
election, and his proclamation as the winner, having obtained the highest number
of votes, was perfectly in order and legal, The mere pendency of the
disqualification case against petitioner without the COMELEC having resolved the
same before the election and even before the canvass. does not justify the
suspension of his proclamation after winning in the election, as was done
pursuant to COMELEC Resolution No. 8584. To so hold would unduly encourage
the filing of even an entirely baseless petition for disqualification just to effect the
suspension of the proclamation of the winning candidate, not only to his damage
and prejudice but also to the frustration of the sovereign will of the electorate,
and for the undue benefit of undeserving third party or parties. Such an ulterior
motive can easily be accomplished by a late filing of the petition to assure that no
action thereon by COMELEC can be taken before the election and the canvassing,
and thereby bring into operation Resolution No. 8584.
As happened in this case, the losing candidate respondent Ong was proclaimed,
and he would have assumed the position without perhaps having any right
thereto under a previous ruling of this Court 16 had he not been restrained.17 If by
the uncalled for inducement of the. aforementioned Resolution, a petition for
disqualification of private respondent Ong had also been filed against him, then
no candidate for the position of Mayor could have been proclaimed, by the
application of said Resolution in utter disregard of the will of the electorate.
Hence, at least insofar as Resolution No. 8584 was applied by COMELEC in this
case, We declare the said Resolution without effect." 18
WHEREFORE, the writ of certiorari is granted. The Resolution No. 9310 of
respondent Commission on Elections of February 26, 1980 declaring petitioner
Antonio O. Singco, a disqualified candidate, and the proclamation of respondent
Board of Canvassers declaring Franklin Ong as Mayor-elect of Ginatilan, Cebu, are
hereby nullified, set aside and declared to be without force and effect. The
proclamation of petitioner as the Mayor-elect of Ginatilan, Cebu, on January 31,
1980 is hereby given full force and effect, without prejudice to the ruling
thereafter on the question of disqualification of petitioner Singco after a hearing
to be conducted in accordance with the cardinal requirements of procedural due
process.
SO ORDERED.

Election Law |30

question presented for determination, and which We cannot avoid, is whether the
COMELEC resolution under review is supported by substantial evidence, which
may also be said to go into the broad concept of due process. We have examined
the evidence on record, and We are satisfied that the COMELEC correctly
adjudged its sufficiency to support its conclusion that petitioner was disqualified
from running as NP candidate for the position of Mayor of Taytay, Rizal, by reason
of
violation
of
the
constitutional
provision
expressly
prohibiting
"turncoatism", 4 as well as PD 1661 against "guest candidates."

G.R. No. L-52390 March 31, 1981

MANUEL
I.
vs.
COMMISSION ON ELECTIONS,
FRANCISCO, respondents.
DE CASTRO, J.:

SANTOS, petitioner,
RICARDO

NAVAL

and

JUANITO

P.

The COMELEC in its Resolution dated January 19, 1980, the challenged
resolution, on a petition seeking petitioner's disqualification filed on January 14,
1980 by above-named private respondents, as NP candidate for Mayor of Taytay,
Rizal, found that " ... Santos changed his political party affiliation from the KBL as
shown by the aforesaid letter-resignation dated January 2, 1980 (Exh. A),
wherein he was 'tendering my resignation asMEMBER, Mun. Com. (Position)
Kilusang Bagong Lipunan, Taytay, Rizal,' to the NP, his present affiliation with the
NP having been expressly admitted by him (see also Exh. B); that the NP, thru its
Acting President Jose J. Roy, initially revoked/withdrew the NP nomination in
favor of Mr. Manuel Santos and other candidates ... because they were members
of good standing of the KBL as of January 2, 1980 ... and in view also of 'the
provisions of the Constitution against turncoatism' and the provisions 'of recent
Presidential Decree against Guest Candidates' (Exh. G); and that the NP revoked
respondent Santos' designation as Municipal Chairman of the NP in the
Municipality of Taytay (Exhs. 3 & 4), although later said respondent Santos was
chosen as the NP official candidate for Mayor of said municipality (Exh. 6),
thereby violating Section 10, Article XII (C) of the Constitution and Presidential
Decree No. 1661, as amended." 5

Invoked in this petition is the power of the Supreme Court to review, by

certiorari, any decision, order or ruling of the Commission on Elections 1 which, in
the case of Aratuc vs. COMELEC, 88 SCRA 251, was clearly defined to be confined
to questions of law, particularly violations of the Constitution and/or
constitutional rights. The right to due process is what has been noted to have
been allegedly isolated, more than any other constitutional right, in petitions like
the present which have assailed resolutions of the COMELEC holding certain
candidates disqualified from running for an elective office on ground of what is
The facts in this case as above recited find strong resemblance, if not almost
popularly known as "political turncoatism. "
exact similarity, with those in the case of Evasco vs. COMELEC, 6 a petition like
Where allegations of denial of procedural due process have been found to be the present, which We dismissed, there being substantial evidence to support the
clearly well-founded, factual or legal, We have taken the only course legally challenged COMELEC resolution disqualifying candidate Evasco as candidate of
proper in the premises. We have set aside the COMELEC resolution complained the NP for the position of Mayor of Liliw, Laguna for "political turncoatism". In
against, and remanded the case to the COMELEC for the observation of the said case, this Court noted that candidate Evasco attended as a member of the 7cardinal requirement of procedural due process. 2 Where municipal elective man municipal committee the reorganizational meeting of the leaders and
positions are involved, and the winning candidates have been proclaimed, We members of the YBL held in the evening of November 24, 1979, and thereafter
ordered the filing of election contests or quo warranto proceedings as may be said committee organized itself on November 26, 1979 with Evasco also
attending the same (Exh. C & C-1); that admittedly said Evasco submitted a
proper. 3
letter of irrevocable resignation dated December 28, 1979 as a member of the
Kilusang Bagong Lipunan (KBL) Chapter of the Municipality (Exh. B), thereby
In the instant case, We perceive no sign of complaint of denial of due process
clearly showing by the aforesaid overt acts that candidate Evasco was formerly
insofar as the sufficiently of notice and hearing is concerned. It appears that the
affiliated with the KBL on November 24, 1979 or earlier, but has later affiliated
evidence as was desired to be presented by petitioner who had duly filed his
with the NP as shown in his certificate of candidacy for municipal mayor of Liliw,
Answer, have been duly admitted for evaluation by the COMELEC. The only

Election Law |31

Laguna, subscribed and sworn to on December 31, 1979, (Exh. A), or within six
(6) months immediately preceding the election scheduled on January 30, 1980.

Under its Resolution No. 1406, promulgated December 22, 1979, laying down
rules on the accreditation of political parties, Section 1 thereof provides that any
duly registered political party in the April 7, 1978 election shall be entitled to
Petitioner Santos, however, comes up with the contention that he has always accreditation. Pursuant to this Resolution, KBL was duly accredited, separately
been an NP and has never ceased to be such, even when he joined the KBL and from the NP. That KBL had always been a political party or aggrupation can
became a member of the KBL Municipal Committee of Taytay, Rizal. He alleges therefore, no longer be open to question. Were KBL not such a political party,
9
with stress that KBL is not a political party when he joined it, but a mere block voting as was declared valid in the case of Peralta vs. COMELEC could not
umbrella organization, a mere movement to hasten the achievement of the goals, have been availed of by it, as it unquestionably did, in the 1978 elections. For
and firmly established the gains of the New Society, and so he cannot be said to block voting is voting for a political party
have changed political party. 7
In the light of the ruling in the cases of Evasco and Gabatan, COMELEC can by no
This argument does not appear to have been unequivocally put forth in means then be held to have gravely abused its discretion to justify Our setting
petitioner's Answer to the petition for his disqualification (Annex C to Petition), aside its assailed Resolution in the instant petition. Active involvement in KBL
which explains the lack of any ruling on this issue as raised by such argument, by political affairs as a party, such as being a member of the Municipal Committee
the COMELEC in its assailed resolution. In any case, the contention was evidently thereof was the primary and decisive consideration upon which "turncoatism" was
rejected by the COMELEC; otherwise, it would have denied the petition for found to have been committed in the aforesaid cases. We cannot avoid coming
petitioner's disqualification on ground of changing political party. After Our ruling upon the same conclusion here with how petitioner had similarly manifested his
in Evasco and Gabatan, and finding striking similarity in the evidence upon which adherence to the KBL as a political party which earned for him from no less than
We based Our finding of the existence of compliance with the substantial ranking officials of the NP to which he claims unbroken affiliation their regard of
evidence requirement for which We upheld the challenged resolutions of the him as "a KBL of good standing", for which initially, they cancelled his candidacy
COMELEC in those cases, particularly the act of "resigning" from the KBL, in in the NP slate obviously in fear of his being actually a "turncoat", from KBL to
whose municipal committees they were active members, an act obviously NP, that COMELEC correctly found him to be.
unnecessary unless petitioners feel that in joining the KBL then, had taken to a
distinct political aggrupation from the NP which remained as a distinct, in
dependent and active political party in the elections of 1978, for which COMELEC
accredited NP separately from the KBL, the conclusion seems inevitable that KBL
had always been a political party. Consequently, one who actively identified
himself with the KBL, without any reservation that he keeps intact his full status
as an NP member, had joined the KBL as a distinct aggrupation and ceased
thereafter to be an NP. Double affiliation is intolerable under a party system
which is the very essence of the parliamentary form of government We have
adopted and have just started firmly to established.
The COMELEC's determination of whether the KBL was a political party from the
inception of its existence, distinct and separate from the NP is undoubtedly an
exercise of its constitutional power of administering the laws relative to the
conduct of elections. This power is exclusive. Unless its exercise is tainted with
error correctible by certiorari which usually takes the form of lack or excess of
jurisdiction, or grave abuse of discretion, We should not disturb the orders,
resolutions or other acts of the COMELEC. 8 As was said in the early case
of Morrero vs. Bocar, et al., 66 Phil. 429, the decision of the COMELEC is beyond
judicial interference except upon a clear showing of such arbitrary and
improvident use of its power as will constitute denial of due process of law .

The constitutional provision against "political turncoatism" already in force upon

the effectivity of the New Constitution more than seven (7) years ago, is clearly
intended to apply to all elections held under its regime, regardless of whether the
holding of said elections is declared less than the 6-month period mentioned in
the provision. The stance taken by petitioner that it should not apply in the last
election the holding of which was announced only a month before, is clearly not
tenable, even only under the well-known legal maxim that where the law does
not distinguish, We should not distinguish. No right constitutionally protected
under the due process is involved for petitioner to complain against lack of
sufficient notice because of the less than six (6) months intervening between the
declaration of the holding of an election and the day of the election. The
Constitution speaks so unequivocally with its innovative and mandatory provision,
obedience thereof must be imposed.
It follows that the applicability of PD No. 1661, being merely an implementation,
or in furtherance, of the well-studied and wise constitutional provision is neither
open to doubt. The prohibition against ex post facto law which petitioner invokes
in his mistaken belief that the decree, if applied to him, is being given
retrospective effect, which it is not, does not apply, as We have already so held in
effect in the earlier cases of Evasco and Gabatan. The decree could by no stretch

Election Law |32

of the clear scope of the novel constitutional concept, be banned under the ex JUAN P. BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM,
post facto law clause of the Constitution, for it merely provides, for a certain SR., respondent, LUCILLE CHIONGBIAN-SOLON, intervenor.
disqualification of a candidate aspiring to be chosen to an elective office which,
being a mere privilege, is a fit subject for reasonable statutory regulation, clearly
not penal in character. As defined, ex post facto law is limited in its scope only to
matters criminal in nature.10
DAVIDE, JR., CJ.:
We must, therefore, declare that the Resolution of the COMELEC of January 19,
1980, disqualifying petitioner and cancelling his certificate of candidacy suffers
from no reversible error or infirmity. It must be enforced as if no restraining order
had been issued, for in issuing the restraining order, this Court's sole purpose was
to give petitioner a chance to be voted for, since the question of his
disqualification could not be resolved before the elections by reason of time
constraint, so that should he win and be ultimately declared by this Court not
disqualified, the people's will shall have been known and should be given effect,
as is the paramount object of holding elections, the instrument most valued in
the exercise of sovereignty by the people to whom such sovereignty belongs.

Challenged in this case for certiorari with a prayer for preliminary injunction are
the Resolution of 6 May 1998 1 of the Second Division of the Commission on
Elections (hereafter COMELEC), declaring petitioner Juan Domino (hereafter
DOMINO) disqualified as candidate for representative of the Lone Legislative
District of the Province of Sarangani in the 11 May 1998 elections, and the
Decision of 29 May 1998 2 of the COMELEC en banc denying DOMINO's motion for
reconsideration.
The antecedents are not disputed.1wphi1.nt

On 25 March 1998, DOMINO filed his certificate of candidacy for the position of
Representative of the Lone Legislative District of the Province of Sarangani
indicating in item nine (9) of his certificate that he had resided in the
constituency where he seeks to be elected for one (1) year and two (2) months
We must, therefore, declare that the Resolution of the COMELEC of January 19, immediately preceding the election. 3
1980, disqualifying petitioner and cancelling his certificate of candidacy suffers
from no reversible error or infirmity. It must be enforced as if no restraining order
On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java,
had been issued, for in issuing the restraining order, this Court's sole purpose was
Juan P. Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., fied with the
to give petitioner a chance to be voted for, since the question of his
COMELEC a Petition to Deny Due Course to or Cancel Certificate of Candidacy,
disqualification could not be resolved before the elections by reason of time
which was docketed as SPA No. 98-022 and assigned to the Second Division of
constraint, so that should he win and be ultimately declared by this Court not
the COMELEC. Private respondents alleged that DOMINO, contrary to his
disqualified, the people's will shall have been known and should be given effect,
declaration in the certificate of candidacy, is not a resident, much less a
as is the paramount object of holding elections, the instrument most valued in
registered voter, of the province of Sarangani where he seeks election. To
the exercise of sovereignty by the people to whom such sovereignty belongs.
substantiate their allegations, private respondents presented the following
evidence:
WHEREFORE, the petition is dismissed and the Resolution of January 19, 1980 of
the COMELEC should be allowed to stand with all its legal effects. No costs.
1. Annex "A" the Certificate of Candidacy of
respondent for the position of Congressman of
SO ORDERED.
the Lone District of the Province of Sarangani
filed with the Office of the Provincial Election
G.R. No. 134015 July 19, 1999
Supervisor of Sarangani on March 25, 1998,
where in item 4 thereof he wrote his date of
JUAN
DOMINO, petitioner,
birth as December 5, 1953; in item 9, he claims
vs.
he have resided in the constituency where he
COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA,
seeks election for one (1) year and two (2)
WHEREFORE, the petition is dismissed and the Resolution of January 19, 1980 of
the COMELEC should be allowed to stand with all its legal effects. No costs.

Election Law |33

months; and, in item 10, that he is registered

voter of Precinct No. 14A-1, Barangay
Poblacion, Alabel, Sarangani;
2. Annex "B" Voter's Registration Record with
SN 31326504 dated June 22, 1997 indicating
respondent's registration at Precinct No. 4400A, Old Balara, Quezon City;
3. Annex "C" Respondent's Community Tax
Certificate No. 11132214C dated January 15,
1997;
4. Annex "D" Certified true copy of the letter
of Herson D. Dema-ala, Deputy Provincial &
Municipal Treasurer of Alabel, Sarangani, dated
February 26, 1998, addressed to Mr. Conrado G.
Butil, which reads:
In connection with your letter of even date, we
are furnishing you herewith certified xerox copy
of the triplicate copy of COMMUNITY TAX
CERTIFICATE NO. 11132214C in the name of
Juan Domino.
Furthermore, Community Tax Certificate No.
11132212C of the same stub was issued to
Carlito Engcong on September 5, 1997, while
Certificate No. 11132213C was also issued to
Mr. Juan Domino but was cancelled and serial
no. 11132215C was issued in the name of
Marianita Letigio on September 8, 1997.
5. Annex "E" The triplicate copy of the
Community Tax Certificate No. 11132214C in
the name of Juan Domino dated September 5,
1997;
6. Annex "F" Copy of the letter of Provincial
Treasurer Lourdes P. Riego dated March 2, 1998
addressed to Mr. Herson D. Dema-ala, Deputy

Provincial Treasurer and Municipal Treasurer of

Alabel, Sarangani, which states:
For easy reference, kindly turn-over to the
undersigned for safekeeping, the stub of
Community Tax Certificate containing Nos.
11132201C-11132250C issued to you on June
13, 1997 and paid under Official Receipt No.
7854744.
Upon request
Chiongbian.

of

Congressman

James

L.

7. Annex "G" Certificate of Candidacy of

respondent for the position of Congressman in
the 3rd District of Quezon City for the 1995
elections filed with the Office of the Regional
Election Director, National Capital Region, on
March 17, 1995, where, in item 4 thereof, he
wrote his birth date as December 22, 1953; in
item 8 thereof his "residence in the constituency
where I seek to be elected immediately
preceding the election" as 3 years and 5
months; and, in item 9, that he is a registered
voter of Precinct No. 182, Barangay Balara,
Quezon City;
8. Annex "H" a copy of the APPLICATION FOR
TRANSFER OF REGISTRATION RECORDS DUE
TO CHANGE OF RESIDENCE of respondent
dated August 30, 1997 addressed to and
received by Election Officer Mantil Alim, Alabel,
Sarangani, on September 22, 1997, stating
among others, that "[T]he undersigned's
previous residence is at 24 Bonifacio Street,
Ayala Heights, Quezon City, III District, Quezon
City; wherein he is a registered voter" and "that
for business and residence purposes, the
undersigned has transferred and conducts his
business and reside at Barangay Poblacion,
Alabel, Province of Sarangani prior to this
application;"

Election Law |34

9. Annex "I" Copy of the SWORN

APPLICATION FOR OF CANCELLATION OF THE
VOTER'S
[TRANSFER
OF]
PREVIOUS
REGISTRATION of respondent subscribed and
sworn to on 22 October 1997 before Election
Officer Mantil Allim at Alabel, Sarangani. 4
For his defense, DOMINO maintains that he had complied with the one-year
residence requirement and that he has been residing in Sarangani since January
1997. In support of the said contention, DOMINO presented before the COMELEC
the following exhibits, to wit:
1. Annex "1" Copy of the Contract of Lease
between Nora Dacaldacal as Lessor and
Administrator of the properties of deceased
spouses Maximo and Remedios Dacaldacal and
respondent as Lessee executed on January 15,
1997, subscribed and sworn to before Notary
Public Johnny P. Landero;
2. Annex "2" Copy of the Extra-Judicial
Settlement of Estate with Absolute Deed of sale
executed by and between the heirs of deceased
spouses Maximo and Remedios Dacaldacal,
namely: Maria Lourdes, Jupiter and Beberlie
and the respondent on November 4, 1997,
subscribed and sworn to before Notary Public
Jose A. Alegario;
3. Annex "3" True Carbon Xerox copy of the
Decision dated January 19, 1998, of the
Metropolitan Trial Court of Metro Manila, Branch
35, Quezon City, in Election Case NO. 725
captioned as "In the Matter of the Petition for
the Exclusion from the List of voters of Precinct
No. 4400-A Brgy. Old Balara, Quezon City,
Spouses Juan and Zorayda Domino, Petitioners,
-versus- Elmer M. Kayanan, Election Officer,
Quezon City, District III, and the Board of
Election Inspectors of Precinct No. 4400-A, Old
Balara, Quezon City, Respondents." The
dispositive portion of which reads:

1. Declaring the registration of

petitioners as voters of Precinct
No. 4400-A, Barangay Old
Balara, in District III Quezon
City as completely erroneous
as petitioners were no longer
residents of Quezon City but of
Alabel, Sarangani where they
have
been
residing
since
December 1996;
2. Declaring this erroneous
registration of petitioners in
Quezon City as done in good
faith due to an honest mistake
caused
by
circumstances
beyond
their
control
and
without any fault of petitioners;
3. Approving the transfer of
registration
of
voters
of
petitioners from Precint No.
4400-A of Barangay Old Balara,
Quezon City to Precinct No.
14A1 of Barangay Poblacion of
Alabel, Sarangani; and
4. Ordering the respondents to
immediately
transfer
and
forward all the election/voter's
registration records of the
petitioners in Quezon City to
the
Election
Officer,
the
Election Registration Board and
other
Comelec
Offices
of
Alabel, Sarangani where the
petitioners
are
obviously
qualified to excercise their
respective rights of suffrage.
4. Annex "4" Copy of the Application for
Transfer of Registration Records due to Change
of Residence addressed to Mantil Alim,

Election Law |35

COMELEC Registrar, Alabel, Sarangani, dated

August 30, 1997.
5. Annex "5" Certified True Copy of the
Notice of Approval of Application, the roster of
applications for registration approved by the
Election Registration Board on October 20,
1997, showing the spouses Juan and Zorayda
Bailon Domino listed as numbers 111 and 112
both under Precinct No. 14A1, the last two
names in the slate indicated as transferees
without VRR numbers and their application
dated August 30, 1997 and September 30,
1997, respectively.
6. Annex "6" same as Annex "5"
7. Annex "6-a" Copy of the Sworn Application
for Cancellation of Voter's Previous Registration
(Annex "I", Petition);
8. Annex "7" Copy of claim card in the name
of respondent showing his VRR No. 31326504
dated October 20, 1997 as a registered voter of
Precinct No. 14A1, Barangay Poblacion, Alabel,
Sarangani;
9. Annex "7-a" Certification dated April 16,
1998, issued by Atty. Elmer M. Kayanan,
Election Officer IV, District III, Quezon City,
which reads:
This is to certify that the spouses JUAN and
ZORAYDA DOMINO are no longer registered
voters of District III, Quezon City. Their
registration records (VRR) were transferred and
are now in the possession of the Election Officer
of Alabel, Sarangani.

10. Annex "8" Affidavit of Nora Dacaldacal

and Maria Lourdes Dacaldacal stating the
circumstances and incidents detailing their
alleged acquaintance with respondent.
11. Annexes "8-a", "8-b", "8-c" and "8-d"
Copies of the uniform affidavits of witness
Myrna Dalaguit, Hilario Fuentes, Coraminda
Lomibao and Elena V. Piodos subscribed and
sworn to before Notary Public Bonifacio F. Doria,
Jr., on April 18, 1998, embodying their alleged
personal knowledge of respondent's residency
in Alabel, Sarangani;
12. Annex "8-e" A certification dated April
20, 1998, subscribed and sworn to before
Notary Public Bonifacio, containing a listing of
the names of fifty-five (55) residents of Alabel,
Sarangani, declaring and certifying under oath
that they personally know the respondent as a
permanent resident of Alabel, Sarangani since
January 1997 up to present;
13. Annexes "9", "9-a" and "9-b" Copies of
Individual Income Tax Return for the year 1997,
BIR form 2316 and W-2, respectively, of
respondent; and,
14. Annex "10" The affidavit of respondent
reciting the chronology of events
and
circumstances leading to his relocation to the
Municipality of Alabel, Sarangani, appending
Annexes "A", "B", "C", "D", "D-1", "E", "F", "G"
with sub-markings "G-1" and "G-2" and "H" his
CTC No. 111`32214C dated September 5,
1997, which are the same as Annexes "1", "2",
"4", "5", "6-a", "3", "7", "9" with sub-markings
"9-a" and "9-b" except Annex "H". 5

This certification is being issued upon the On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring
DOMINO disqualified as candidate for the position of representative of the lone
request of Mr. JUAN DOMINO.
district of Sarangani for lack of the one-year residence requirement and likewise

Election Law |36

ordered the cancellation of his certificate of candidacy, on the basis of the On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution
following findings:
dated 6 May 1998, which was denied by the COMELEC en banc in its decision
dated 29 May 1998. Hence, the present Petition for Certiorari with prayer for
What militates against respondent's claim that he has met the Preliminary Mandatory Injunction alleging, in the main, that the COMELEC
residency requirement for the position sought is his own Voter's committed grave abuse of discretion amounting to excess or lack of jurisdiction
Registration Record No. 31326504 dated June 22, 1997 [Annex when it ruled that he did not meet the one-year residence requirement.
"B", Petition] and his address indicated as 24 Bonifacio St., Ayala
Heights, Old Balara, Quezon City. This evidence, standing alone,
negates all his protestations that he established residence at
Barangay Poblacion, Alabel, Sarangani, as early as January
1997. It is highly improbable, nay incredible, for respondent who
previously ran for the same position in the 3rd Legislative
District of Quezon City during the elections of 1995 to
unwittingly forget the residency requirement for the office
sought.

On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary

Restraining Order, the Court directed the parties to maintain the status
quo prevailing at the time of the filing of the instant petition. 9

On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR),

the candidate receiving the second highest number of votes, was allowed by the
Court to Intervene. 10 INTERVENOR in her Motion for Leave to Intervene and in
her Comment in Intervention 11 is asking the Court to uphold the disqualification
of petitioner Juan Domino and to proclaim her as the duly elected representative
Counting, therefore, from the day after June 22, 1997 when of Sarangani in the 11 May 1998 elections.
respondent registered at Precinct No. 4400-A, up to and until the
day of the elections on May 11, 1998, respondent clearly lacks Before us DOMINO raised the following issues for resolution, to wit:
the one (1) year residency requirement provided for candidates
for Member of the House of Representatives under Section 6,
a. Whether or not the judgment of the
Article VI of the Constitution.
Metropolitan Trial Court of Quezon City
All told, petitioner's evidence conspire to attest to respondent's
lack of residence in the constituency where he seeks election
and while it may be conceded that he is a registered voter as
contemplated under Section 12 of R.A. 8189, he lacks the
qualification to run for the position of Congressman for the Lone
District of the Province of Sarangani. 6
On 11 May 1998, the day of the election, the COMELEC issued Supplemental
Omnibus Resolution No. 3046, ordering that the votes cast for DOMINO be
counted but to suspend the proclamation if winning, considering that the
Resolution disqualifying him as candidate had not yet become final and
executory. 7

declaring petitioner as resident of Sarangani

and not of Quezon City is final, conclusive and
binding upon the whole world, including the
Commission on Elections.
b. Whether or not petitioner herein has resided
in the subject congressional district for at least
one (1) year immediately preceding the May 11,
1998 elections; and
c. Whether or not respondent COMELEC has
jurisdiction over the petition a quo for the
disqualification of petitioner. 12

The result of the election, per Statement of Votes certified by the Chairman of the
The first issue.
Provincial Board of Canvassers,8 shows that DOMINO garnered the highest
number of votes over his opponents for the position of Congressman of the
The contention of DOMINO that the decision of the Metropolitan Trial Court of
Province of Sarangani.
Quezon City in the exclusion proceedings declaring him a resident of the Province
of Sarangani and not of Quezon City is final and conclusive upon the COMELEC
cannot be sustained.

Election Law |37

The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus
on the allegation that she is a Filipino citizen qualified to vote,
Election Code, over a petition to deny due course to or cancel certificate of
her alleged Filipino citizenship would still have been left open to
candidacy. In the exercise of the said jurisdiction, it is within the competence of
question.
the COMELEC to determine whether false representation as to material facts was
made in the certificate of candidacy, that will include, among others, the Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision
residence of the candidate.
exceeded its jurisdiction when it declared DOMINO a resident of the Province of
Sarangani, approved and ordered the transfer of his voter's registration from
The determination of the Metropolitan Trial Court of Quezon City in the exclusion Precinct No. 4400-A of Barangay Old Balara, Quezon City to precinct 14A1 of
proceedings as to the right of DOMINO to be included or excluded from the list of Barangay Poblacion, Alabel, Sarangani. It is not within the competence of the trial
voters in the precinct within its territorial jurisdicton, does not preclude the court, in an exclusion proceedings, to declare the challenged voter a resident of
COMELEC, in the determination of DOMINO's qualification as a candidate, to pass another municipality. The jurisdiction of the lower court over exclusion cases is
upon the issue of compliance with the residency requirement.
limited only to determining the right of voter to remain in the list of voters or to
declare that the challenged voter is not qualified to vote in the precint in which he
The proceedings for the exclusion or inclusion of voters in the list of voters are is registered, specifying the ground of the voter's disqualification. The trial court
summary in character. Thus, the factual findings of the trial court and its has no power to order the change or transfer of registration from one place of
resultant conclusions in the exclusion proceedings on matters other than the right residence to another for it is the function of the election Registration Board as
17
The only effect of the decision of
to vote in the precinct within its territorial jurisdiction are not conclusive upon the provided under Section 12 of R.A. No. 8189.
the
lower
court
excluding
the
challenged
voter
from
the list of voters, is for the
COMELEC. Although the court in inclusion or exclusion proceedings may pass
Election
Registration
Board,
upon
receipt
of
the
final
decision, to remove the
upon any question necessary to decide the issue raised including the questions of
voter's
registration
record
from
the
corresponding
book
of
voters, enter the order
citizenship and residence of the challenged voter, the authority to order the
of
exclusion
therein,
and
thereafter
place
the
record
in
the
inactive file. 18
inclusion in or exclusion from the list of voters necessarily caries with it the power
to inquire into and settle all matters essential to the exercise of said authority.
However, except for the right to remain in the list of voters or for being excluded
therefrom for the particular election in relation to which the proceedings had
been held, a decision in an exclusion or inclusion proceeding, even if final and
unappealable, does not acquire the nature of res judicata. 13 In this sense, it does
not operate as a bar to any future action that a party may take concerning the
subject passed upon in the proceeding. 14 Thus, a decision in an exclusion
proceeding would neither be conclusive on the voter's political status, nor bar
subsequent proceedings on his right to be registered as a voter in any other
election. 15

Finally, the application of the rule on res judicata is unavailing. Identity of parties,
subject matter and cause of action are indispensable requirements for the
application of said doctrine. Neither herein Private Respondents nor INTERVENOR,
is a party in the exclusion proceedings. The Petition for Exclusion was filed by
DOMINDO himself and his wife, praying that he and his wife be excluded from the
Voter's List on the ground of erroneous registration while the Petition to Deny
Due Course to or Cancel Certificate of Candidacy was filed by private respondents
against DOMINO for alleged false representation in his certificate of candidacy.
For the decision to be a basis for the dismissal by reason of res judicata, it is
essential that there must be between the first and the second action identity of
parties, identity of subject matter and identity of causes of action. 19 In the
Thus, in Tan Cohon v. Election Registrar 16 we ruled that:
present case, the aforesaid essential requisites are not present. In the case
20
. . . It is made clear that even as it is here held that the order of of Nuval v. Guray, et al., the Supreme Court in resolving a similar issue ruled
that:
the City Court in question has become final, the same does not
constitute res adjudicata as to any of the matters therein
The question to be solved under the first assignment of error is
contained. It is ridiculous to suppose that such an important and
whether or not the judgment rendered in the case of the petition
intricate matter of citizenship may be passed upon and
for the exclusion of Norberto Guray's name from the election list
determined with finality in such a summary and peremptory
of Luna, isres judicata, so as to prevent the institution and
proceeding as that of inclusion and exclusion of persons in the
prosecution of an action in quo warranto, which is now before
registry list of voters. Even if the City Court had granted
us.
appellant's petition for inclusion in the permanent list of voters

Election Law |38

The procedure prescribed by section 437 of the Administrative

Code, as amended by Act No. 3387, is of a summary character
and the judgment rendered therein is not appealable except
when the petition is tried before the justice of the peace of the
capital or the circuit judge, in which case it may be appealed to
the judge of first instance, with whom said two lower judges
have concurrent jurisdiction.
The petition for exclusion was presented by Gregorio Nuval in his
dual capacity as qualified voter of the municipality of Luna, and
as a duly registered candidate for the office of president of said
municipality, against Norberto Guray as a registered voter in the
election list of said municipality. The present proceeding
of quo warranto was interposed by Gregorio Nuval in his capacity
as a registered candidate voted for the office of municipal
president of Luna, against Norberto Guray, as an elected
candidate for the same office. Therefore, there is no identity of
parties in the two cases, since it is not enough that there be an
identity of persons, but there must be an identity of capacities in
which said persons litigate. (Art. 1259 of the Civil Code; Bowler
vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par.
1165)

issues (Aquino v. Director of Lands, 39 Phil. 850). And as in the

case
of
the
petition
for
excluision
and
in
the
present quo warranto proceeding, as there is no identity of
parties, or of things or litigious matter, or of issues or causes of
action, there is no res judicata.
The Second Issue.
Was DOMINO a resident of the Province of Sarangani for at least one year
immediately preceding the 11 May 1998 election as stated in his certificate of
candidacy?
We hold in the negative.

It is doctrinally settled that the term "residence," as used in the law prescribing
the qualifications for suffrage and for elective office, means the same thing as
"domicile," which imports not only an intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such
intention. 21 "Domicile" denotes a fixed permanent residence to which, whenever
absent for business, pleasure, or some other reasons, one intends to
return.22 "Domicile" is a question of intention and circumstances. In the
consideration of circumstances, three rules must be borne in mind, namely: (1)
that a man must have a residence or domicile somewhere; (2) when once
In said case of the petition for the exclusion, the object of the established it remains until a new one is acquired; and (3) a man can have but
litigation, or the litigious matter was the exclusion of Norberto one residence or domicile at a time. 23
Guray as a voter from the election list of the municipality of
Luna, while in the present que warranto proceeding, the object
Records show that petitioner's domicile of origin was Candon, Ilocos
of the litigation, or the litigious matter is his exclusion or
Sur 24 and that sometime in 1991, he acquired a new domicile of choice at 24
expulsion from the office to which he has been elected. Neither
Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by his certificate
does there exist, then, any identity in the object of the litigation,
of candidacy for the position of representative of the 3rd District of Quezon City
or the litigious matter.
in the May 1995 election. Petitioner is now claiming that he had effectively
abandoned his "residence" in Quezon City and has established a new "domicile"
In said case of the petition for exclusion, the cause of action was of choice at the Province of Sarangani.
that Norberto Guray had not the six months' legal residence in
the municipality of Luna to be a qualified voter thereof, while in
A person's "domicile" once established is considered to continue and will not be
the present proceeding of quo warranto, the cause of action is
deemed lost until a new one is established. 25 To successfully effect a change of
that Norberto Guray has not the one year's legal residence
domicile one must demonstrate an actual removal or an actual change of
required for eligibility to the office of municipal president of
domicile; a bona fide intention of abandoning the former place of residence and
Luna. Neither does there exist therefore, identity of causes of
establishing a new one and definite acts which correspond with the
action.
purpose. 26 In other words, there must basically be animus manendi coupled
with animus non revertendi. The purpose to remain in or at the domicile of choice
In order that res judicata may exist the following are necessary: must be for an indefinite period of time; the change of residence must be
(a) identity of parties; (b) identity of things; and (c) identity of

Election Law |39

voluntary; and the residence at the place chosen for the new domicile must be
actual. 27

particular locality is a strong factor in assisting to determine the status of his

domicile. 32

It is the contention of petitioner that his actual physical presence in Alabel,

Sarangani since December 1996 was sufficiently established by the lease of a
house and lot located therein in January 1997 and by the affidavits and
certifications under oath of the residents of that place that they have seen
petitioner and his family residing in their locality.

His claim that his registration in Quezon City was erroneous and was caused by
events over which he had no control cannot be sustained. The general
registration of voters for purposes of the May 1998 elections was scheduled for
two (2) consecutive weekends, viz.: June 14, 15, 21, and 22. 33

While this may be so, actual and physical is not in itself sufficient to show that
from said date he had transferred his residence in that place. To establish a new
domicile of choice, personal presence in the place must be coupled with conduct
indicative of that intention. While "residence" simply requires bodily presence in a
given place, "domicile" requires not only such bodily presence in that place but
also a declared and probable intent to make it one's fixed and permanent place of
abode, one's home. 28

While, Domino's intention to establish residence in Sarangani can be gleaned

from the fact that be bought the house he was renting on November 4, 1997,
that he sought cancellation of his previous registration in Qezon City on 22
October 1997, 34 and that he applied for transfer of registration from Quezon City
to Sarangani by reason of change of residence on 30 August 1997, 35 DOMINO
still falls short of the one year residency requirement under the Constitution.

In showing compliance with the residency requirement, both intent and actual
presence in the district one intends to represent must satisfy the length of time
As a general rule, the principal elements of domicile, physical presence in the prescribed by the fundamental law. 36 Domino's failure to do so rendered him
locality involved and intention to adopt it as a domicile, must concur in order to ineligible and his election to office null and void. 37
establish a new domicile. No change of domicile will result if either of these
elements is absent. Intention to acquire a domicile without actual residence in the
The Third Issue.
locality does not result in acquisition of domicile, nor does the fact of physical
presence without intention. 29
DOMINO's contention that the COMELEC has no jurisdiction in the present petition
The lease contract entered into sometime in January 1997, does not adequately
support a change of domicile. The lease contract may be indicative of DOMINO's
intention to reside in Sarangani but it does not engender the kind of permanency
required to prove abandonment of one's original domicile. The mere absence of
individual from his permanent residence, no matter how long, without the
intention to abandon it does not result in loss or change of
domicile. 30 Thus the date of the contract of lease of a house and lot located in
the province of Sarangani, i.e., 15 January 1997, cannot be used, in the absence
of other circumstances, as the reckoning period of the one-year residence
requirement.

is bereft of merit.
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus
Election Code, has jurisdiction over a petition to deny due course to or cancel
certificate of candidacy. Such jurisdiction continues even after election, if for any
reason no final judgment of disqualification is rendered before the election, and
the candidate facing disqualification is voted for and receives the highest number
of votes 38 and provided further that the winning candidate has not been
proclaimed or has taken his oath of office. 39

It has been repeatedly held in a number of cases, that the House of

Representatives Electoral Tribunal's sole and exclusive jurisdiction over all
Further, Domino's lack of intention to abandon his residence in Quezon City is contests relating to the election, returns and qualifications of members of
further strengthened by his act of registering as voter in one of the precincts in Congress as provided under Section 17 of Article VI of the Constitution begins
Quezon City. While voting is not conclusive of residence, it does give rise to a only after a candidate has become a member of the House of Representatives. 40
strong presumption of residence especially in this case where DOMINO registered
in his former barangay. Exercising the right of election franchise is a deliberate
The fact of obtaining the highest number of votes in an election does not
public assertion of the fact of residence, and is said to have decided
automatically vest the position in the winning candidate. 41 A candidate must be
preponderance in a doubtful case upon the place the elector claims as, or
believes to be, his residence. 31 The fact that a party continously voted in a

Election Law |40

proclaimed and must have taken his oath of office before he can be considered a Sound policy dictates that public elective offices are filled by those who have
member of the House of Representatives.
received the highest number of votes cast in the election for that office, and it is
fundamental idea in all republican forms of government that no one can be
In the instant case, DOMINO was not proclaimed as Congressman-elect of the declared elected and no measure can be declared carried unless he or it receives
47
Lone Congressional District of the Province of Sarangani by reason of a a majority or plurality of the legal votes cast in the election.
Supplemental Omnibus Resolution issued by the COMELEC on the day of the
election ordering the suspension of DOMINO's proclamation should he obtain the
winning number of votes. This resolution was issued by the COMELEC in view of
the non-finality of its 6 May 1998 resolution disqualifying DOMINO as candidate
for the position.

The effect of a decision declaring a person ineligible to hold an office is only that
the election fails entirely, that the wreath of victory cannot be transferred 48 from
the disqualified winner to the repudiated loser because the law then as now only
authorizes a declaration of election in favor of the person who has obtained a
plurality of votes 49 and does not entitle the candidate receiving the next highest
Cosidering that DOMINO has not been proclaimed as Congressman-elect in the number of votes to be declared elected. In such case, the electors have failed to
50
Lone Congressional District of the Province of Sarangani he cannot be deemed a make a choice and the election is a nullity. To allow the defeated and
repudiated
candidate
to
take
over
the
elective
position
despite his rejection by
member of the House of Representatives. Hence, it is the COMELEC and not the
the
electorate
is
to
disenfranchise
the
electorate
without
any fault on their part
Electoral Tribunal which has jurisdiction over the issue of his ineligibility as a
42
and
to
undermine
the
importance
and
meaning
of
democracy
and the people's
candidate.
right to elect officials of their choice. 51
Issue raised by INTERVENOR.

INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray
sustained. INTERVENOR's reliance on the opinion made in the
After finding that DOMINO is disqualified as candidate for the position of votes cannot be
52
Labo,
Jr.
case
to
wit: if the electorate, fully aware in fact and in law of a
representative of the province of Sarangani, may INTERVENOR, as the candidate
candidate's
disqualification
so as to bring such awareness within the realm of
who received the next highest number of votes, be proclaimed as the winning
notoriety,
would
nevertheless
cast their votes in favor of the ineligible candidate,
candidate?
the electorate may be said to have waived the validity and efficacy of their votes
by notoriously misapplying their franchise or throwing away their votes, in which
It is now settled doctrine that the candidate who obtains the second highest
case, the eligible candidate obtaining the next higher number of votes may be
number of votes may not be proclaimed winner in case the winning candidate is
deemed elected, is misplaced.
43
disqualified. In every election, the people's choice is the paramount
consideration and their expressed will must, at all times, be given effect. When
the majority speaks and elects into office a candidate by giving the highest Contrary to the claim of INTERVENOR, petitioner was not notoriously known by
number of votes cast in the election for that office, no one can be declared the public as an ineligible candidate. Although the resolution declaring him
ineligible as candidate was rendered before the election, however, the same is not
elected in his place. 44
yet final and executory. In fact, it was no less than the COMELEC in its
Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be voted for
It would be extremely repugnant to the basic concept of the constitutionally
the office and ordered that the votes cast for him be counted as the Resolution
guaranteed right to suffrage if a candidate who has not acquired the majority or
declaring him ineligible has not yet attained finality. Thus the votes cast for
plurality of votes is proclaimed a winner and imposed as the representative of a
DOMINO are presumed to have been cast in the sincere belief that he was a
constituency, the majority of which have positively declared through their ballots
qualified candidate, without any intention to misapply their franchise. Thus, said
that they do not choose him. 45 To simplistically assume that the second placer
votes can not be treated as stray, void, or meaningless. 53
would have received the other votes would be to substitute our judgment for the
mind of the voters. He could not be considered the first among qualified
candidates because in a field which excludes the qualified candidate, the WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998
of the COMELEC 2nd Division and the decision dated 29 May 1998 of the
conditions would have substantially changed. 46
COMELEC En Banc, are hereby AFFIRMED.1wphi1.nt

Election Law |41

SO ORDERED.

of the Comelec En Banc dated December 8, 1998 in SPA Case No. 98-288 which
disposed:
ACCORDINGLY, judgment is hereby rendered to:
1. AMEND and RECTIFY the dispositive portion of the Resolution
of the Commission (First Division) in SPA No. 98-019
promulgated on May 5, 1998, to read as follows:
WHEREFORE, in view of the foregoing, the
Commission (First Division) GRANTS the
Petition. Respondent JOSE "PEMPE" MIRANDA's
certificate of candidacy for the position of mayor
of Santiago City in the May 11, 1998 national
and local elections is hereby DENIED DUE
COURSE AND/OR CANCELLED.
SO ORDERED.
2. ANNUL the election and proclamation of respondent JOEL G.
MIRANDA as mayor of Santiago City in the May 11, 1998
election and CANCEL the Certificate of Canvass and Proclamation
(C.E. form 25) issued therefor;

G.R. No. 136351 July 28, 1999

JOEL
G.
MIRANDA, petitioner,
vs.
ANTONIO M. ABAYA and the COMMISSION ON ELECTIONS, respondents.
EN BANC

3. DIRECT THE City board of Canvassers of Santiago City to

RECONVENE, PREPARE a new certificate of canvass &
proclamation and PROCLAIM the winning candidate among those
voted upon as the duly elected mayor of Santiago City in the
May 11, 1998 election; and
4. DIRECT the Clerk of Court of the Commission to furnish copies
of this Decision to the Office of the President of the Philippines;
the Department of Interior and Local Government; the
Department of Finance, and the Secretary of the Sangguniang
Panglunsod of Santiago City.
SO ORDERED.

MELO, J.:

(pp. 90-91

Before us is a petition for certiorari with prayer for the issuance of a temporary
The aforementioned resolution dated December 8, 1998 reversed and set aside
restraining order and/or writ of preliminary injunction questioning the resolution
the earlier resolution of the First Division of the Comelec dated May 16, 1998,

Election Law |42

dismissing private respondent's petition to declare the substitution of Jose a temporary restraining order and to require respondents to comment on the
"Pempe" Miranda by petitioner as candidate for the City of Santiago's mayoralty petition. On December 14, 1998, private respondent filed his Comment (pp. 140post void.
187 and 188-234, Rollo) and on February 16, 1999, the Comelec, through its
counsel, the Solicitor General, filed its Comment (pp. 254-265, Rollo). The Court
required petitioner to file a consolidated reply within 10 days from notice, but
Briefly, the pertinent factual backdrop is summarized as follows:
petitioner twice asked for an extension of the period. Without granting the
On March 24, 1998, Jose "Pempe" Miranda, then incumbent mayor of Santiago motions for extension of time to file consolidated reply, the Court decided to
City, Isabela, filed his certificate of candidacy for the same mayoralty post for the resolve the controversy in favor of petitioner.
synchronized May 11, 1998 elections.

Tersely, the issues in the present case may be summarized as follows:

On March 27, 1998, private respondent Antonio M. Abaya filed a Petition to Deny
Due Course to and/or Cancel Certificate of Candidacy (pp. 26-33, Rollo), which
was docketed as SPA No. 98-019. The petition was GRANTED by the Comelec in
its resolution dated May 5, 1998 (pp. 36-43, Rollo). The Comelec further ruled to
DISQUALIFY Jose "Pempe" Miranda.

1. Whether the annulment of petitioner's

substitution and proclamation was issued
without jurisdiction and/or with grave abuse of
discretion amounting to lack of jurisdiction; and

On May 6, 1998, way beyond the deadline for filing a certificate of candidacy,
petitioner Joel G. Miranda filed his certificate of candidacy for the mayoralty post,
supposedly as a substitute for his father, Jose "Pempe" Miranda.

2. Whether the order of the Comelec directing

the proclamation of the private respondent was
issued with grave abuse of discretion amounting
to lack of jurisdiction.

During the May 11, 1998 elections; petitioner and private respondent vied for the
mayoralty seat, with petitioner garnering 22,002 votes, 1,666 more votes than
private respondent who got only 20,336 votes.

The Court finds neither lack of jurisdiction nor grave abuse of discretion attended
the annulment of the substitution and proclamation of petitioner.

On May 13, 1998, private respondent filed a Petition to Declare Null and Void
Substitution with Prayer for Issuance of Writ of Preliminary Injunction and/or
Temporary Restraining Order, which was docketed as SPA No. 98-288. He prayed
for the nullification of petitioner's certificate of candidacy for being void ab
initio because the certificate of candidacy of Jose "Pempe" Miranda, whom
petitioner was supposed to substitute, had already been cancelled and denied due
course.
On May 16, 1998, Comelec's First Division dismissed SPA No. 98-288 motu
proprio (pp. 57-61, Rollo). Private respondent moved for reconsideration (pp. 6272, Rollo). On December 8, 1998, the Comelec En Banc rendered the assailed
decision aforequoted, resolving to GRANT the motion for reconsideration, thus
nullifying the substitution by petitioner Joel G. Miranda of his father as candidate
for the mayoralty post of Santiago City.
On December 9, 1998, petitioner sought this Court's intercession via a petition
for certiorari, with prayer for the issuance of a temporary restraining order and/or
writ of preliminary injunction. On December 11, 1998, the Court resolved to issue

On the matter of jurisdiction, there is no question that the case at hand is within
the exclusive original jurisdiction of the Comelec. As early as in Herrera
vs. Barretto (25 Phil, 245 [1913]), this Court had occasion to apply the following
principles:
Jurisdiction is the authority to hear and determine a cause the
right to act in a case. Since it is the power to hear and
determine, it does not depend either upon the regularity of the
exercise of that power or upon the rightfulness of the decision
made. Jurisdiction should therefore be distinguished from the
exercise of jurisdiction. The authority to decide a cause at all,
and not the decision rendered therein, is what makes up
jurisdiction. Where there is jurisdiction over the subject matter,
as we have said before, the decision of all other questions
arising in the case is but an exercise of that jurisdiction.
(p. 251)

Election Law |43

On the issue of soundness of the disposition in SPA No. 98-288, the Court finds have so easily and conveniently included those persons whose certificates of
that the Comelec's action nullifying the substitution by and proclamation of candidacy have been denied due course and/or cancelled under the provisions of
petitioner for the mayoralty post of Santiago City, Isabela is proper and legally Section 78 of the Code.
sound.
Petitioner insists that the substitution at bar is allowed under Section 77 of the
Omnibus Election Code which provides:
Sec. 77. Candidates in case of death, disqualification or
withdrawal. If after the last day for the filing of certificates of
candidacy, an official candidate of a registered or accredited
political party dies, withdraws or is disqualified for any cause,
only a person belonging to, and certified by, the same political
party may file a certificate of candidacy to replace the candidate
who died, withdrew or was disqualified. The substitute candidate
nominated by the political party concerned may file his
certificate of candidacy for the office affected in accordance with
the preceding sections not later than mid-day of the day of the
election. If the death, withdrawal or disqualification should occur
between the day before the election and mid-day of election day,
said certificate may be filed with any board of election inspectors
in the political subdivision where he is a candidate, or, in the
case of candidates to be voted for by the entire electorate of the
country, with the Commission.

More importantly, under the express provisions of Section 77 of the Code, not
just any person, but only "an official candidate of a registered or accredited
political party" may be substituted. In Bautista vs. Comelec (G.R. No. 133840,
November 13, 1998) this Court explicitly ruled that "a cancelled certificate does
not give rise to a valid candidacy" (p.13).
A person without a valid certificate of candidacy cannot be considered a candidate
in much the same way as any person who has not filed any certificate of
candidacy at all can not, by any stretch of the imagination, be a candidate at all.
The law clearly provides:
Sec. 73. Certificate of candidacy No person shall be eligible for
any elective public office unless he files a sworn certificate of
candidacy within the period fixed herein.

By its express language, the foregoing provision of law is absolutely mandatory.

It is but logical to say that any person who attempts to run for an elective office
but does not file a certificate of candidacy, is not a candidate at all. No amount of
votes would catapult him into office. In Gador vs. Comelec (95 SCRA 431
[1980]), the Court held that a certificate of candidacy filed beyond the period
Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose fixed by law is void, and the person who filed it is not, in law, a candidate. Much
"Pempe" Miranda in the May 5, 1998 resolution and he heavily relies upon the in the same manner as a person who filed no certificate of candidacy at all and a
above-quoted provision allowing substitution of a candidate who has been person who filed it out of time, a person whose certificate of candidacy is
disqualified for any cause.
cancelled or denied due course is no candidate at all. No amount of votes should
entitle him to the elective office aspired for.
While there is no dispute as to whether or not a nominee of a registered or
accredited political party may substitute for a candidate of the same party who The evident purposes of the law in requiring the filing of certificates of candidacy
had been disqualified for any cause, this does not include those cases where the and in fixing the time limit therefor are: (a) to enable the voters to know, at least
certificate of candidacy of the person to be substituted had been denied due sixty days before the regular election, the candidates among whom they are to
course and cancelled under Section 78 of the Code.
make the choice, and (b) to avoid confusion and inconvenience in the tabulation
Expressio unius est exclusio alterius. While the law enumerated the occasions
where a candidate may be validly substituted, there is no mention of the case
where a candidate is excluded not only by disqualification but also by denial and
cancellation of his certificate of candidacy. Under the foregoing rule, there can be
no valid substitution for the latter case, much in the same way that a nuisance
candidate whose certificate of candidacy is denied due course and/or cancelled
may not be substituted. If the intent of the lawmakers were otherwise, they could

of the votes cast. For if the law did not confine the choice or election by the
voters to the duly registered candidates, there might be as many persons voted
for as there are voters, and votes might be cast even for unknown or fictitious
persons as a mark to identify the votes in favor of a candidate for another office
in the same election. (Monsale vs. Nice, 83 Phil. 758 [1949]).

Election Law |44

It is at once evident that the importance of a valid certificate of candidacy rests

at the very core of the electoral process. It cannot be taken lightly, lest there be
anarchy and chaos. Verily, this explains why the law provides for grounds for the
cancellation and denial of due course to certificates of candidacy.
After having considered the importance of a certificate of candidacy, it can be
readily understood why in Bautistawe ruled that a person with a cancelled
certificate is no candidate at all. Applying this principle to the case at bar and
considering that Section 77 of the Code is clear and unequivocal that only an
official candidate of a registered or accredited party may be substituted, there
demonstrably cannot be any possible substitution of a person whose certificate of
candidacy has been cancelled and denied due course.

Even on the most basic and fundamental principles, it is readily understood that
the concept of a substitute presupposes the existence of the person to be
substituted, for how can a person take the place of somebody who does not exist
or who never was. The Court has no other choice but to rule that in all the
instances enumerated in Section 77 of the Omnibus Election Code, the existence
of a valid certificate of candidacy seasonably filed is a requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had a valid

certificate of candidacy in the first place because, if the disqualified candidate did
not have a valid and seasonably filed certificate of candidacy, he is and was not a
candidate at all. If a person was not a candidate, he cannot be substituted under
Section 77 of the Code. Besides, if we were to allow the so-called "substitute" to
file a "new" and "original" certificate of candidacy beyond the period for the filing
Also, under ejusdem generis rule, where a general word or phrase (such as thereof, it would be a crystalline case of unequal protection of the law, an act
"disqualification for any cause" in this case) follows an enumeration of particular abhorred by our Constitution.
and specific words of the same class (such as the words "dies" and "withdraws" in
the instant case) or where the latter follow the former, the general word or From the foregoing discussion it is evident that the controversy at hand is not a
phrase is to be construed to include, or to be restricted to persons, things or simple case of hair-splitting. A candidate may not be qualified to run for election
cases akin to, resembling, or of the same kind or class as those specifically but may have filed a valid certificate of candidacy. Another candidate may
mentioned (see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A deceased candidate is likewise be not qualified and at the same time not have a valid certificate of
required to have duly filed a valid certificate of candidacy, otherwise his political candidacy, for which reason, said certificate of candidacy is also cancelled and/or
party would not be allowed to field a substitute candidate in his stead under denied due course. Or, a third candidate may be qualified but, his certificate of
Section 77 of the Code. In the case of withdrawal of candidacy, the withdrawing candidacy may be denied due course and/or cancelled. This is possible because
candidate is required to have duly filed a valid certificate of candidacy in order to the grounds for disqualification (see: Omnibus Election Code, Section 68
allow his political party to field a substitute candidate in his stead. Most Disqualifications) are totally separate and distinct from the grounds for
reasonable it is then, under the foregoing rule, to hold that a valid certificate of cancellation and/or denying due course to a certificate of candidacy (Ibid.,
candidacy is likewise an indispensable requisite in the case of a substitution of a Section 69 nuisance candidates; and Section 78 material
disqualified candidate under the provisions of Section 77 of the Code, just as it is misrepresentation). Only the candidate who had a valid certificate of candidacy
in the two previous instances.
may be substituted.
Furthermore, interpretatio talis in ambiguis semper freinda est, ut euiatur
inconveniens et absurdum, meaning, where there is ambiguity, such
interpretation as will avoid inconvenience and absurdity shall in all cases be
adopted. To include those disqualified candidates whose certificate of candidacy
had likewise been denied due course and/or cancelled among those who may be
substituted under Section 77 of the Omnibus Election Code, leads to the
absurdity where a substitute is allowed to take the place of somebody who had
not been a candidate in the first place a person who did not have a valid
certificate of candidacy prior to substitution. Nemo dat quod non habet. What
right can a non-candidate pass on to his substitute? Clearly, there is none
because no one can give what he does not have.

The question to settle next is whether or not aside from Joel "Pempe" Miranda
being disqualified by the Comelec in its May 5, 1998 resolution, his certificate of
candidacy had likewise been denied due course and cancelled.
The Court rules that it was.
Private respondent's petition in SPA No. 98-019 specifically prayed for the
following:
WHEREFORE, it is respectfully prayed that the Certificate of
Candidacy filed by respondent for the position of Mayor for the
City of Santiago be not given due course and/or cancelled.

Election Law |45

Other reliefs just and equitable in the premises are likewise

prayed for.(Rollo, p. 31; Emphasis ours.)

the safeguarding of free, peaceful and honest

elections. The framers of the new Constitution
must be presumed to have definite knowledge
of what it means to make the decisions, orders
and rulings of the Commission "subject to
review by the Supreme Court." And since
instead of maintaining that provision intact, it
ordained that the Commission's actuations be
instead "brought to the Supreme Court
on certiorari", We cannot insist that there was
no intent to change the nature of the remedy,
considering that the limited scope of certiorari,
compared to a review, is well known in remedial
law.

In resolving the petition filed by private respondent specifying a very particular

relief, the Comelec ruled favorably in the following manner:
SO ORDERED.(p,43, Rollo; Emphasis ours.)
From a plain reading of the dispositive portion of the Comelec resolution of May
5, 1998 in SPA No. 98-019, it is sufficiently clear that the prayer specifically and
particularly sought in the petition was GRANTED, there being no qualification on
the matter whatsoever. The disqualification was simply ruled over and above the
granting of the specific prayer for denial of due course and cancellation of the
certificate of candidacy. It may be stressed at this instance that the legal
consequences of this May 5, 1998 resolution are independent of the issue of
whether or not the Comelec was correct in reviving SPA No. 98-019 by
consolidating it with SPA No. 98-288 in its December 8, 1998 resolution.
As regards the procedural matter in the present petition for certiorari, the
following considerations are also in point:
It may be relevantly stressed that the review powers of the Supreme Court over
decisions of the Constitutional Commissions, in general, and the Commission on
Elections, in particular, were rather particularly defined and "limited" by the 1987
Constitution, as they were also circumscribed in the 1973 Constitution, to a
petition for review on certiorari under Rule 65. In Dario vs. Mison (176 SCRA 84
[1989]), the Court held:
. . . We affirm the teaching of Aratuc vs. Commission of
Elections, 88 SCRA 251 [1979]) as regards recourse to this
Court with respect to rulings of the Civil Service Commission
which is that judgments of the Commission may be brought to
the Supreme Court through certiorari alone, under Rule 65 of the
Rules of Court.
In Aratuc, we declared:
It is at once evident from these constitutional
and statutory modifications that there is a
definite tendency to enhance and invigorate the
role of the Commission on Elections as the
independent constitutional body charged with

xxx xxx xxx

. . . It should also be noted that under the new Constitution, as
under the 1973 Charter, "any decision, order, or ruling of each
Commission may be brought to the Supreme Court
on certiorari," which, asAratuc tells us, "technically connotes
something less than saying that the same "shall be subject to
review by the Supreme Court," which in turn suggests an appeal
by review by petition for review under Rule 45. Therefore, our
jurisdiction over cases emanating from the Civil Service
Commission is limited to complaints of lack or excess of
jurisdiction or grave abuse of discretion tantamount to lack or
excess of jurisdiction, complaints that justify certiorari under
Rule 65.(pp. 111-112)
To emphasize this procedural point, then Commissioner, later to become a
distinguished Member of this Court, Mr. Justice Florenz Regalado responded to
Commissioner Bernas' query during the deliberations of the 1987 Constitution
thusly:
FR. BERNAS. So, for purposes of the record, now, what is the
intention of the Committee? What are the grounds for certiorari?
MR. REGALADO. The Committee refers specifically to a technical
term of review by certiorari would be relying on the provision of
Rule XLV [Should be LXV] of the Rules of Court that laid down
the three grounds.

Election Law |46

(I
RECORD
OF
THE
CONSTITUTIONAL
COMMISSION, p. 539, as cited in Bernas, S.J,
The 1987 Constitution of the Republic of the
Philippines: A Commentary, 1996 Edition, p.
903.)

Petitioner further faults the Comelec for amending the dispositive portion of its
resolution in SPA No. 98-019, which was not elevated to it on review, the same
having already attained finality by then.
While it may be conceded that the Comelec stepped overboard and acted in
excess of its jurisdiction when it motu proprio took cognizance of SPA No. 98019, the decision in which was by then already final, it does not necessarily follow
that the Comelec also committed grave abuse of discretion in resolving to grant
private respondent's motion for reconsideration by nullifying the substitution of
petitioner Joel G. Miranda. Evidently, what is under review before us in
this certiorari proceedings is SPA No. 98-288, and not SPA No. 98-019.

Thus, we have to be guided by jurisprudence relating to review

by certiorari under Rule 65. Generally, certiorarilies where a court has acted
without or in excess of jurisdiction or with grave abuse of discretion. "Without
jurisdiction" refers to an absolute want of jurisdiction; "excess of jurisdiction"
refers to the case where the court has jurisdiction, but it transcended the same
or acted without any statutory authority; "grave abuse of discretion" implies such
capricious and whimsical exercise of judgment as is equivalent to lack of The question to answer is: will the Comelec's act which may constitute an excess
jurisdiction.
of jurisdiction in SPA No. 98-019 be tantamount to an act of grave abuse of
discretion in its judgment in the separate and distinct case of SPA No. 98-288 as
Even assuming for the sake of argument that the Comelec committed an error in well? Clearly, non sequitur. SPA No. 98-288 should be judged on its own accord,
the exercise of its jurisdiction in the present case, such is not within the province and not under the shadow of SPA No. 98-019.
of certiorari, as a remedial measure, to correct. The only issue that may be taken
cognizance of in the present case is whether or not the Comelec committed grave Comelec committed no grave abuse of discretion, in resolving SPA No. 98-288 in
abuse of discretion in rendering the assailed decision.
favor of private respondent. As earlier pointed out, the result in the dispositive
It is well-settled that an act of a court or tribunal may only be considered to have
been done in grave abuse of discretion when the same was performed in a
capricious or whimsical exercise of judgment which is equivalent to lack of
jurisdiction. The abuse of discretion must be so patent and gross as to amount to
an evasion of positive duty or to a virtual refusal to perform a duty enjoined or to
act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion or personal hostility (Intestate Estate
of Carmen de Luna vs. Intermediate Appellate Court, 170 SCRA 246 [1989];
Litton Mills vs. Galleon Traders, 163 SCRA 489 [1988]; Butuan Bay Export Co. vs.
Court of Appeals, 97 SCRA 297 [1980]). An error of judgment committed in the
exercise of its legitimate jurisdiction is not the same as "grave abuse of
discretion". An abuse of discretion is not sufficient by itself to justify the issuance
of a writ of certiorari. The abuse must be grave and patent, and it must be shown
that the discretion was exercised arbitrarily and despotically (Soriano vs. Atienza,
171 SCRA 284 [1989]).

portion of the December 8, 1998 resolution pertaining to the issues involved in

SPA No. 98-288 is correct insofar as it annulled the election and proclamation of
Joel G. Miranda. But even assuming for the sake of argument that it is not, still,
this supposed error does not constitute grave abuse of discretion which may be
annulled and reversed in the present petition for certiorari.

As earlier elucidated too, the crux of the Comelec's disposition in SPA No. 98-288
is the fact that former candidate Jose "Pempe" Miranda's certificate of candidacy
was denied due course and cancelled. There is no dispute that the complaint or
petition filed by private respondent in SPA No. 98-019 is one to deny due course
and to cancel the certificate of candidacy of Jose "Pempe" Miranda (Rollo, pp. 2631). There is likewise no question that the said petition was GRANTED without
any qualification whatsoever. It is rather clear, therefore, that whether or not the
Comelec granted any further relief in SPA No. 98-019 by disqualifying the
candidate, the fact remains that the said petition was granted and that the
certificate of candidacy of Jose "Pempe" Miranda was denied due course and
cancelled. In fact, it was not even necessary for the Comelec to reiterate this in
Petitioner posits that the Comelec committed grave abuse of discretion when it its December 8, 1998 resolution. At best, the Comelec's motu proprio act of
annulled the substitution by and proclamation of petitioner, who under Section 77 resurrecting SPA No. 98-019 should be treated as a mere surplusage. The fact
of the Omnibus Election Code, was allowed to substitute for disqualified the that the certificate of candidacy of Joel "Pempe" Miranda was denied due course
candidate Jose "Pempe" Miranda. Petitioner also contends that it was an act of and cancelled did not depend on the en banc resolution dated December 8, 1998
grave abuse of discretion for the Comelec to direct the proclamation of private of the Comelec. It stems from the fact that the May 5, 1998 resolution GRANTED
respondent as the winning candidate in the May 11, 1998 election.

Election Law |47

private respondent's Petition to Deny Due Course to and/or Cancel Certificate of

Candidacy.
Verily, there is clear basis to find that there indeed was a blatant
misrepresentation in the instant case and that it was a valid ground for the
granting of the petition in SPA No. 98-019. Also, there appears to be sound basis
to rule that a certificate of candidacy which has been denied due course on
account of misrepresentation is, in every legal contemplation, no certificate at all.
Ergo, there is nothing to substitute. If this judgment, rendered in the Comelec's
rightful exercise of its jurisdiction in SPA No. 98-288 may, at all, be considered
flawed, this blemish would only constitute an error of judgment and definitely not
grave abuse of discretion. And, of course, errors of judgment may not be
corrected by certiorari.
It may be noted that Commissioner Flores raised this supposed error in her
dissenting opinion (pp. 93-99, Rollo). However, her legal opinion failed to
convince the majority of the collegiate body and was not adopted by the
Commission en banc. This Court in the present certiorari proceedings cannot
substitute its judgment for that of the Comelec without violating the Constitution
and the Rules of Court on the matter. The Comelec's decision is not subject to
appeal to this Court. We may only strike out a Comelec decision if it was rendered
without jurisdiction, in excess thereof, or with grave abuse of discretion
amounting to lack of jurisdiction.
The Court cannot accede to the reasoning that this Court should now acquiesce
and submit to the sovereign will of the electorate, as expressed by their votes.
We should always be reminded that ours is a government of laws not of men. If
this Court should fold its arms and refuse to apply the law at every "clamor" of
the majority of the supposed constituency, where shall order and justice lie?
Without the least intention to degrade, where shall "people power" end, and
where shall "law and justice" begin? Would the apparent results of the canvassing
of votes justify this Court in refusing to apply the law instead? The answers to the
foregoing are obvious. The Court cannot choose otherwise but to exercise its
sacred duty to uphold the Constitution and the laws of the Republic for and under
which it exists. Besides, only history will discern whether Jose "Pempe" Miranda's
filing of a certificate of candidacy for a 4th term and the intended substitution by
his son was a ploy to perpetrate the Mirandas in power by way of a political
dynasty disdained and abhorred by our Constitution which declared:
Sec. 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be
defined by law.(Article II, 1987 Constitution)

The invalidation of petitioner's supposed substitution of Jose "Pempe" Miranda

brings about the disqualification of petitioner in the mayoralty race. In this
regard, what was said in Nolasco vs. Commission on Elections (275 SCRA 763
[1997]) may be recalled:
Our case law is now settled that in a mayoralty election, the
candidate who obtained the second highest number of votes, in
this case Alarilla, cannot be proclaimed winner in case the
winning candidate is disqualified. Thus, we reiterated the rule in
the fairly recent case of Reyes v. Comelec(254 SCRA 514
[1996]), viz.:
xxx xxx xxx
We likewise find no grave abuse of discretion on the part of the
Comelec in denying petitioner Julius O. Garcia's petition to be
proclaimed mayor in view of the disqualification of Renato U.
Reyes.
That the candidate who obtains the second highest number of
votes may not be proclaimed winner in case the winning
candidate is disqualified is now settled. The doctrinal instability
caused by see-sawing rulings has since been removed. In the
latest ruling on the question, this Court said:
To simplistically assume that the second placer would have
received the other votes would be to substitute our judgment for
the mind of the voter. The second placer is just that, a second
placer. He lost the elections. He was repudiated by either a
majority or plurality of voters. He could not be considered the
first among qualified candidates because in a field which
excludes the disqualified candidate, the conditions would have
substantially changed. We are not prepared to extrapolate the
results under the circumstances.
Garcia's plea that the votes case for Reyes be invalidated is
without merit. The votes cast for Reyes are presumed to have
been cast in the belief that Reyes was qualified and for that
reason can be treated as stray, void and meaningless. The
subsequent finding that he is disqualified cannot retroact to the
date of the elections as to invalidate the votes cast for him.

Election Law |48

Consequently, respondent Comelec committed grave abuse of

discretion insofar as it failed to follow the above doctrine, a
descendant of our ruling in Labo v. Comelec (176 SCRA
1[1989]).(pp. 782-783)

For purposes of succession as provided in this Chapter, ranking

in the sanggunian shall be determined on the basis of the
proportion of votes obtained by each winning candidate to the
total number of registered voters in each district in the
immediately preceding local election.

Thus, the Comelec committed grave abuse of discretion insofar as it failed to

follow the above-cited settled ruling consistently applied by this Court since the
case of Labo vs. Comelec (176 SCRA 1 [1989]), Aquino vs. Comelec, 248 SCRA
400 [1995], Reyes vs. Comelec (254 SCRA 514 [1996]); and Nolasco
vs. Comelec (275 SCRA 763 [1997]).

WHEREFORE, the petition is hereby partly DENIED, insofar as the Comelec ruling
to ANNUL the election and proclamation of petitioner is being AFFIRMED. The
petition is, however, hereby GRANTED so as to MODIFY the resolution of the
Comelec in SPA No. 98-288 by DELETING the portion directing the city board of
canvassers to reconvene and proclaim the winning candidate from among those
Even as the Court cannot accede to the contention that, in view of the election voted upon during the May 11, 1998 elections. The law on succession should be
results pointing to petitioner as the electors' choice for the mayoralty post, we enforced. Accordingly, the restraining order issued in this case is forthwith
should now close our eyes to the pertinent provisions of the Omnibus Election LIFTED.
Code on the matter, nevertheless, the Court duly notes that the said election
results point to the fact that private respondent was not then the choice of the SO ORDERED.
people of Santiago City, Isabela. This Court has no authority under any law to
impose upon and compel the people of Santiago City to accept private respondent
as their mayor. The law on succession under section 44 of Republic Act 7160,
otherwise known as the Local Government Code, would then apply. Said provision
relevantly states:
Sec. 44. Permanent Vacancies in the Offices of the Governor,
Vice-Governor, Mayor, and Vice Mayor, (a) If a permanent
vacancy occurs in the office of the governor or mayor, the vicegovernor or vice-mayor concerned shall become the governor or
mayor. If a permanent vacancy occurs in the offices of the
governor, vice governor, mayor, or vice mayor, the highest
ranking sanggunian member, or, in case of his permanent
disability, the second highest ranking sanggunian member, shall
become governor, vice governor, mayor or vice mayor, as the
case may be. Subsequent vacancies in the said office shall be
filled automatically by the other sanggunian members according
to their ranking as defined herein.
xxx xxx xxx

G.R. No. 212398

November 25, 2014

EMILIO
RAMON
vs.
HON. COMMISSION ON
LUIS, Respondents.

"E.R."
ELECTIONS

P.
and

EJERCITO, Petitioner,
EDGAR

"EGA

Y"

S.

SAN

DECISION

For purposes of this Chapter, a permanent vacancy arises when

an elective local official fills a higher vacant office, refuses to PERALTA, J.:
assume office, fails to qualify, dies, is removed from office,
to Rule 65 of the
voluntarily resigns, or is otherwise permanently incapacitated to Contested in this petition for certiorari under Rule 64, in relation
Rules of Court (Rules), is the May 21, 2014 Resolutio 1 of the Commission on
discharge the functions of his office.
Elections (COMELEC) En Banc in SPA No. 13-306 (DC), which affirmed the

Election Law |49

September 26, 2013 Resolution2 of the COMELEC First Division granting the
petition for disqualification filed by private respondent Edgar "Egay" S. San Luis
(San Luis) against petitioner Emilio Ramon "E.R." P. Ejercito (Ejercito). Three
days prior to the May 13, 2013 National and Local Elections, a petition for
disqualification was filed by San Luis before the Office of the COMELEC Clerk in
Manila against Ejercito, who was a fellow gubernatorial candidate and, at the
time, the incumbent Governor of the Province of Laguna. 3 Alleged in his Petition
are as follows:

SECOND CAUSE OF ACTION

9. Based on the records of the Provincial COMELEC, the Province of
Laguna has a total of 1,525,522 registered electorate. A certification
issued by the Provincial Election Supervisor is hereto attached and
marked as Annex "E" as an integral part hereof;
10. In this regard, par. (a), Section 5 of COMELEC Resolution No. 9615,
otherwise known as the Rules and Regulations Implementing FAIR
ELECTION ACT provides and I quote:

FIRST CAUSE OF ACTION

5. [Ejercito], during the campaign period for 2013 local election,
distributed to the electorates of the province of Laguna the so-called
"Orange Card" with an intent to influence, induce or corrupt the voters in
voting for his favor. Copy thereof is hereto attached and marked as
Annex "C" and made as an integral part hereof;

"Authorized Expenses of Candidates and Parties. The aggregate amount

that a candidate or party may spent for election campaign shall be as
follows:
a. For candidates Three pesos (P3.00) for every voter currently
registered in the constituency where the candidate filed his
certificate of candidacy.

6. In furtherance of his candidacy for the position of Provincial Governor

of Laguna, [Ejercito] and his cohorts claimed that the said "Orange Card"
could be used in any public hospital within the Province of Laguna for
their medical needs as declared by the statements of witnesses which
are hereto attached and marked as Annex "D" as integral part hereof;

b. For other candidates without any political party and without

any support from any political party Five pesos (P5.00) for
every voter currently registered in the constituency where the
candidate filed his certificate of candidacy.

7. The so-called "Orange Card" is considered a material consideration in

convincing the voters to cast their votes for [Ejercitos] favor in clear
violation of the provision of the Omnibus Election Code which provides
and I quote:
"Sec. 68.Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision by a competent court
guilty of, or found by the Commission of having (a) given money or other
materialconsideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism
to enhance his candidacy; (c) spent in his election campaign an amount
in excess of that allowed by this Code; (d) solicited, received or made
any contribution prohibited under Sections 89, 95, 96, 97 and 104; or
(e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs d, e, k,
v, and cc, subparagraph 6, shall be disqualified from continuing as a
candidate, or if hehas been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided
for in the election laws." (emphasis ours)
ABS-CBN
8. Thus, pursuant to the mandate of the aforesaid law, [Ejercito]
should
be disqualified;
ABS-CBN

c. For Political Parties and party-list groups Five pesos (P5.00)

for every voter currently registered in the constituency or
constituencies where it has official candidates. (underscoring
mine for emphasis)
11. Accordingly, a candidate for the position of Provincial Governor of
Laguna is only authorized to incur an election expense amounting to
FOUR MILLION FIVE HUNDRED SEVENTY-SIX THOUSAND FIVE HUNDRED
SIXTY-SIX (P4,576,566.00) PESOS.
12. However, in total disregard and violation of the afore-quoted
provision of law, [Ejercito] exceeded his expenditures in relation to his
campaign for the 2013 election. For television campaign commercials
alone, [Ejercito] already spent the sum of PhP23,730.784 based on our
partys official monitoring on the following dates[:] April 28, May 4 & May
5, 2013.
Date

Program

Time

Duration

April 28, 2013

TV Patrol

5:58 p.m.

4
minutes
P3,297,496
(approximately)

April 28, 2013

Sundays

Best 10:40 p.m.

Amount*

minutes P3,297,496

Election Law |50

(local specials)

MA

April 28, 2013

Sunday
Box Office

Night

MA

April 28, 2013

Sunday
Box Office

Night

MA

April 28, 2013

Sunday
Box Office

Night

MA

April 28, 2013

Sunday
Box Office

Night

(approximately)
10:46 p.m.

3
minutes
P2,635,200
(approximately)

11:06 p.m.

4
minutes
P2,635,200
(approximately)

11:18 p.m.

4
minutes
P2,635,200
(approximately)

11:47 p.m.

4
minutes
P2,635,200
(approximately)

BS-CBN

May 4, 2013

TODA MAX

11:26 p.m.

4
minutes
P3,297,496
(approximately)

BS-CBN

May 5, 2013

Rated K

8:06 p.m.

4
minutes
P3,297,496
(approximately)
Total

P23,730.784

* Total cost based on published rate card;

v, and cc, subparagraph 6, shall be disqualified from continuing asa

candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided
for in the election laws." (emphasis ours)
16. On the other hand, the effect of disqualification is provided under
Sec. 6 of Republic Act No. 6646, which states and I quote:
"Effect of Disqualification Case. Any candidate who has been declared
by final judgment to be disqualified shall not be voted for, and the votes
cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of [his] guilt is
strong." (emphasis mine)

PRAYER
13. Even assuming that [Ejercito] was given 30% discount as prescribed
under the Fair Election Act, he still exceeded in the total allowable
WHEREFORE, premises considered, it is respectfully prayed that:
expenditures for which he paid the sum of P16,611,549;
14. In view of the foregoing disquisitions, it is evident that [Ejercito]
committed an election offense as provided for under Section 35 of
COMELEC Resolution No. 9615, which provides and I quote:

1. Upon filing of this petition, a declaration by the Honorable Commission

of the existence of probable cause be made against [Ejercito] for
violating the afore-quoted provisions of laws;

"Election Offense. Any violation of R.A. No. 9006 and these Rules shall
constitute an election offense punishable under the first and second
paragraph of Section 264 of the Omnibus Election Code in addition to
administrative liability, whenever applicable. x x x"

2. In the event that [Ejercito] will beable to get a majority vote of the
electorate of the Province of Laguna on May 13, 2013, his proclamation
be suspended until further order of the Honorable Commission pursuant
to Sec. 6 of Republic Act No. 6646;

15. Moreover, it is crystal clear that [Ejercito] violated Sec. 68 of the

Omnibus Election Code which provides and I quote:

3. Lastly, a criminal case for VIOLATION OF ELECTION LAWS be filed

against [Ejercito] before the proper court[;] [and]

"Sec. 68.Disqualifications. Any candidate who, in an action or protest in

which he is a party is declared by final decision by a competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism
to enhance his candidacy; (c) spent in his election campaign an amount
in excess of that allowed by this Code; (d) solicited, received or made
any contribution prohibited under Sections 89, 95, 96, 97 and 104; or
(e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs d, e, k,

4. Other relief, just and equitable underthe premises, are also prayed
for.4
Subsequently, on May 16, 2013, San Luis filed a Very Urgent ExParte Motion to
Issue Suspension of Possible Proclamation of Respondent and Supplemental to
the Very Urgent Ex-Parte Motion to Issue Suspension of Possible Proclamation of
Respondent.5 However, these were not acted upon by the COMELEC. The next
day, Ejercito and Ramil L. Hernandez were proclaimed by the Provincial Board of
Canvassers as the duly-elected Governor and Vice-Governor, respectively, of

Election Law |51

Laguna.6 Based on the Provincial/District Certificate of Canvass, Ejercito obtained in evidence and the parties agreed to file their respective memorandum within
549,310 votes compared with San Luis 471,209 votes.7
ten (10) days.15
The COMELEC First Division issued a Summons with Notice of Conference on June
4, 2013.8 Ejercito then filed his Verified Answeron June 13, 2013 that prayed for
the dismissal of the petition due to procedural and substantive irregularities and
taking into account his proclamation as Provincial Governor.9 He countered that
the petition was improperly filed because, based on the averments and relief
prayed for, it is in reality a complaint for election offenses; thus, the case should
have been filed before the COMELEC Law Department, or the election registrar,
provincial election supervisor or regional election director, or the state, provincial
or city prosecutor in accordance with Laurel v. Presiding Judge, RTC, Manila, Br.
10.10 Assuming that the petition could be given due course, Ejercito argued that
San Luis failed to show, conformably with Codilla, Sr. v. Hon. De Venecia, 11 that
he (Ejercito) was previously convicted or declared by final judgment of a
competent court for being guilty of, or found by the COMELEC of having
committed, the punishable acts under Section 68 of Batas Pambansa (B.P.) Bilang
881, or the Omnibus Election Code of the Philippines, as amended (OEC). 12
As to the acts he allegedly committed, Ejercito claimed that the same are
baseless, unfounded, and totally speculative. He stated that the Health Access
Program or the E.R. "Orange Card" was a priority project of his administration as
incumbent Governor of Laguna and was never intended to influence the
electorate during the May 2013 elections. He added that the "Orange Card,"
which addressed the increasing need for and the high cost of quality health
services, provides the Laguneos not only access to medical services but also the
privilege to avail free livelihood seminars to help them find alternative sources of
income. With respect to the charge of having exceeded the total allowable
election expenditures, Ejercito submitted that the accusation deserves no
consideration for being speculative, self-serving, and uncorroborated by any other
substantial evidence.

San Luis substantially reiterated the content

Memorandum.16 Additionally, he alleged that:

of

the

Petitionin

his

15. After the election, [San Luis] was able to secure documents from the
Information and Education Department of the Commission on Elections showing
that [Ejercito] have incurred advertising expenses with ABS-CBN in the amount
of [P20,197,170.25] not to mention his advertisement with GMA 7. Copies of the
summary report, media purchase order, advertising contract[,] and official receipt
are marked as EXHS. "B-1", "B-2", "B-3", and"B-4" (Annexes "A", "B", "C", and
"D", supplemental to the very urgent ex-parte motion)[.] 17
It was stressed that the case is a "Special Action for Disqualification" seeking to
disqualify Ejercito as gubernatorial candidate for violation of Section 68 (a) (c) of
the OEC. He prayed that "[t]he Petition BE GRANTED [and] x x x [Ejercito] BE
DISQUALIFIED, and PREVENTED from further holding office as Governor of
Laguna."18 In refutation of Ejercitos defenses, San Luis argued that it is precisely
because of the commission of the election offenses under Section 68 of the OEC
that he (Ejercito) should be disqualified. Also, citing Section 6 of Republic Act
(R.A.) No. 6646,19 San Luis contended that Ejercitos proclamation and
assumption of office do not affect the COMELECs jurisdiction to continue with the
trial and hearing of the action until it is finally resolved.
For his part, Ejercito filed a Manifestation (In Lieu of Memorandum)20 restating
all the arguments set forth in his Verified Answer.
On September 26, 2013, the COMELEC First Division promulgated a Resolution,
the dispositive portion of which reads:

Citing Sinaca v. Mula,13 Ejercito asserted that the petition questioning his WHEREFORE, premises considered, the Commission (First Division) RESOLVED,
qualification was rendered moot and academic by his proclamation as the duly- as it hereby RESOLVES, to:
elected Provincial Governor ofLaguna for the term 2013-2016. He perceived that
his successful electoral bid substantiates the fact that he was an eligible
(1) GRANTthe Petition for Disqualification filed against respondent Emilio
candidate and that his victory is a testament that he is more than qualified and
Ramon "E.R." P. Ejercito;
competent to hold public office.
Lastly, Ejercito considered San Luis petition for disqualification as purely frivolous
and with no plain and clear purpose but to harass and cause undue hardship.
According to him, the fact that it was filed only a few days before the May 13,
2013 elections evidently shows that it was lodged as a last-ditch effort to
baselessly derail and obstruct his assumption of office and function as the dulyelected Laguna Governor.
The scheduled case conference between the parties on June 13, 2013 was reset
to June 27, 2013.14 In the latter date, all the documentary exhibits were marked

(2) DISQUALIFY respondent Ejercito from holding the Office of the

Provincial Governor of Laguna, pursuant to Section 68 of the Omnibus
Election Code;
(3) ORDER respondent Ejercito to CEASE and DESIST from performing
the functions of the Office of the Provincial Governor of Laguna;
(4) DECLARE a permanent VACANCY in the Office of the Provincial
Governor of Laguna;

Election Law |52

(5) DIRECT the duly elected Vice Governor of Laguna to assume the
Office of the Provincial Governor by virtue of succession as provided in
Section 44 of the Local Government Code; and

Advertising Contractbetween ABS-CBN Corporation and Scenema

International, Inc. ("SCI"). The details of the Contractare as follows:

(6) DIRECT the Campaign Finance Unit to coordinate with the Law Payor/Advertiser
Department of this Commission for the conduct of a preliminary
investigation into the alleged violations of campaign finance laws, rules Beneficiary
and regulations committed by respondent Ejercito.
Broadcast Schedule
SO ORDERED.

21

Number of Spots

Concept

Scenema Concept International, Inc.

Jeorge "ER" Ejercito Estregan
April 27, 28, May 3, 4, 10 & 11, 2013
6 spots of 3.5 minutes each

Unit Cost per Spot

PhP 3,366,195.04
On procedural matters, the COMELEC First Division held that the title of San Luis
petition and its reliance on Section 68 (a) (c) of the OEC as grounds for his Total Cost of Contract
PhP 20,197,170.25 plus VAT
causes of action clearly show that the case was brought under Rule 25 of the
22
COMELEC Rules of Procedure, as amended by COMELEC Resolution No.
9523,23 which allows petitions for disqualification to be filed "any day after the The Contract contains the signature of [Ejercito] signifying his acceptance of the
last day for filing of certificates of candidacy, but not later than the date of donation by SCI, the latter represented by its Executive Vice President, Ms.
proclamation." No credence was given to Ejercitos contention that the petition Maylyn Enriquez. In addition to the advertising contract, Exhibit "B-4" was
was mooted by his proclamation as Governor of Laguna. The COMELEC First submitted, which is a photocopy of an Official Receipt issued by ABS-CBN for the
Division opined that the case of Sinacais inapplicable, because it was not about contract, with the following details:
Sinacas eligibility or whether he committed any of the acts enumerated in
Section 68 of the OEC. Consistent with Maquiling v. Commission on Elections, 24 it
[April 26, 2013]
was declared that Ejercitos garnering of more votes than San Luis in the May Date of the Receipt
2013 elections is not tantamount to condonation of any act or acts that he
Received From
Scenema Concept International, Inc.
committed which may be found to bea ground for disqualification or election
offense.
Amount Received
PhP 6,409,235.28
The COMELEC First Division settled the substantive issues put forth in the petition
for disqualification in this wise:
Anent [San Luis] first cause of action, [San Luis] presented the Sworn Statement
dated [May 7, 2013]of a certain Mrs. Daisy A. Cornelio, together with the
"Orange Card" issued to Mrs. Cornelio, marked respectively as Exhibits "A-4" and
"A-3" as per [San Luis] Summary of Exhibits to prove that [Ejercito] committed
the act described in Section 68 (a) of the OEC. After reviewing Mrs. Cornelios
Sworn Statement, we do not find any averment to the effect that the Orange
Card was given to the affiant to influence or induce her to vote for [Ejercito].
Affiant only stated that she was given the Orange Card "last April of this year"
and that she was "not able to use it during those times when [she] or one of
[her] family members got sick and needed hospital assistance." Aside from Mrs.
Cornelios Sworn Statement, there is no other evidence to support [San Luis]
claim, leading us to reject[San Luis] first cause of action.

Official Receipt No.

278499

Upon verification of the submitted Exhibits "B-1" to "B-4" with this Commissions
Education and Information Department (EID), the latter having custody of all
advertising contracts submitted by broadcast stations and entities in relation
tothe [May 13, 2013] National and Local Elections, we find the said Exhibits tobe
faithful reproductions of our file copy of the same. A comparison of [Ejercitos]
signature on the Advertising Contractand that on his Certificate of Candidacy
show them to be identical to each other, leading us to the conclusion that
[Ejercito] had indeed accepted the PhP 20,197,170.25 donation in the form of
television advertisements to be aired on ABS-CBNs Channel 2. Even if we were to
assume that only PhP 6,409,235.28 was actually paid out of PhP 20,197,170.25
advertising contract, thisamount is still more than PhP 4,576,566.00, which is
[Ejercitos] total authorized aggregate amount allowed for his election campaign,
With respect to the second cause of action, [San Luis] presented Exhibits "B-1" to computed as follows:
"B-4", which are submissions made by the ABS-CBN Corporation as mandated by
Section 6 of Republic Act No. 9006 ("RA 9006" or the "Fair Election Act"),
Number of registered x Authorized
expense = Total
amount
of
implemented through Section 9 (a) of Resolution No. 9615. Exhibit "B-3" is an
voters for the whole
per voter registered
spending
allowed

Election Law |53

Province of Laguna

in the constituency

1,525,522
registered
x
voters in Laguna

PhP 3.00 per voter

for election campaign

=

PhP 4,576,566.00

While not presented as evidence in this case, we cannot deny the existence of
another Advertising Contract dated [May 8, 2013]for one (1) spot of a 3.5-minute
advertisement scheduled for broadcast on [May 9, 2013], amounting to PhP
3,366,195.05. This Contract also contains the signature of [Ejercito] accepting
the donation from SCI and is accompanied by an ABS-CBN-issued Official Receipt
No. 279513 dated [May 7, 2013] in SCIs name for PhP 6,409,235.28. If we add
the amounts from both contracts, we arrive at a total cost of PhP 23,563,365.29,
which, coincidentally, is the product of:
Number of spots

Unit cost per spot

ABS-CBN on [April 26] and [May 7, 2013], or even if we were only to consider
Exhibit ["B-4"] or the Php 6,409,235.28 payment to ABS-CBN on [April 26,
2013], it nevertheless supports our finding that [Ejercito] exceeded his
authorized expenditure limit of PhP 4,576,566.00 which is a ground for
disqualification under Section 68 (c) and concurrently an election offense
pursuant to Section 100 in relation to Section 262 of the Omnibus Election
Code.25
Only Ejercito filed a Verified Motion for Reconsideration before the COMELEC En
Banc.26 After the parties exchange of pleadings, 27 the Resolution of the COMELEC
First Division was unanimously affirmed on May 21, 2014.
The COMELEC En Bancagreed with the findings of its First Division that San Luis
petition is an action to disqualify Ejercito, reasoning that:

Total contract cost

x x x First, the title of the petition indicating that it is a petition for

disqualification clearly expresses the objective of the action. Second, it is
manifest from the language of the petition that the causes of action have relied
primarily on Section 68 (a) and (c) of the OEC[,] which are grounds for
This matches the data gathered by the Commissions EID from the reports and disqualification x x x. Third, notwithstanding that the relief portion of the petition
logs submitted by broadcast stations as required by the Fair Election Act. sounded vague in its prayer for the disqualification of Ejercito, the allegations and
According to the 99-page Daily Operations Log for Channel 2 submitted by ABS- arguments set forth therein are obviously geared towards seeking his
CBN covering the period of [April 27, 2013] to [May 11, 2013], [Ejercitos] 3.5- disqualification for having committed acts listed as grounds for disqualification in
minute or 210-second advertisement was aired seven (7) times. The specific Section 68 of OEC. Lastly, as correctly observed by the COMELEC First Division,
details on the dates of airing, program or time slot when the advertisements were San Luis Memorandum addresses and clarifies the intention of the petition when
aired, and the time when the advertisements as culled from the 99-page Daily it prayed for Ejercito to "be disqualified and prevented from holding office as
Operations Logare summarized as thus:
Governor of Laguna." While there is a prayerseeking that Ejercito be held
accountable for having committed election offenses, there can be no doubt that
the petition was primarily for his disqualification.
ate aired
Program/Time Slot
Airtime
Seven (7) spots

PhP 3,366,195.04

8 Apr 2013

TV Patrol Linggo/5:20-5:30 pm

8 Apr 2013

Harapan: Senatorial Debate/9:30-11:30 pm

4 May 2013

TODA MAX/10:30-11:15 pm

5 May 2013

Rated K-Handa Na Ba Kayo/7:15-8:15 pm

9 May 2013

TV Patrol/6:30-7:45 pm

0 May 2013

TV Patrol/6:30-7:45 pm

PhP 23,563,365.28

05:54:40 Section
PM
68 of the OEC expressly grants COMELEC the power to take cognizance of
an action or protest seeking the disqualification of a candidate who has
10:40:13 committed
PM
any of the acts listed therein from continuing as one, or if he or she
has been elected, from holding office. One ground for disqualification listed in
11:26:43 PM
Section 68 is spending in an election campaign an amount in excess of that
by law. It is exactly on said ground that San Luis is seeking the
08:06:42 allowed
PM
disqualification of Ejercito. The jurisdiction of COMELEC over the petition,
07:35:56 therefore,
PM
is clear.28

07:44:50 PM
The alleged violation of Ejercitos constitutional right to due process was also not
1 May 2013
TV Patrol Sabado/5:30-6:00 pm
06:12:30 sustained:
PM
Ejercito insists that he was deprived of his right to notice and hearing
and was not informed of the true nature of the case filed against him when San
Luis was allegedly allowed in his memorandum to make as substantial
Source: Pages 6, 8, 43, 47, 75, 84, and 93 of ABS-CBN Channel 2 Daily amendment in the reliefs prayed for in his petition. San Luis was allegedly
Operations Log for [April 27, 2013] to [May 11, 2013].
allowed to seek for Ejercitos disqualification instead of the filing of an election
offense against him.
Assuming arguendo, that the actual cost of both contracts only amounted to PhP
12,818,470.56 as substantiated by the two (2) Official Receipt sissued by the

Election Law |54

As discussed above, the allegations in the petition, particularly the causes of

action, clearly show that it is not merely a complaint for an election offense but a
disqualification case against Ejercito as well. San Luis memorandum merely
amplified and clarified the allegations and arguments in his petition. There was no
change in the cause or causes of action. Ejercito[,] therefore, cannot claim that
he was not aware of the true nature of the petition filed against him.

As discussed in the case of Lanot vs. Comelec, each of the acts listed as ground
for disqualification under Section 68 of the OEC has two aspects electoral and
criminal which may proceed independently from each other, to wit:

x x x The electoral aspect of a disqualification case determines whether the

offender should be disqualified from being a candidate or from holding office.
Proceedings are summary in character and require only clear preponderance of
Likewise, Ejercito cannot complainthat he was deprived of his right to notice and evidence. An erring candidate may be disqualified even without prior
hearing. He cannot feign ignorance that the COMELEC First Division, throughout determination of probable cause in a preliminary investigation. The electoral
the trial, was hearing the petition as a disqualification case and not as an election aspect may proceed independently of the criminal aspect, and vice-versa.
offense case. He was served with Summons with Notice of Conference on [June
4, 2013] and was given a copy of the petition. He likewise submitted to the The criminal aspect of a disqualification case determines whether there is
jurisdiction of the Commission when he filed his Verified Answer. He also probable cause to charge a candidate for an election offense. The prosecutor is
participated in the Preliminary Conference on [June 27, 2013] wherein he the COMELEC, through its Law Department, which determines whether probable
examined evidence on record and presented his own documentary exhibits. cause exists. If there is probable cause, the COMELEC, through its Law
Lastly, he filed a Manifestation (in lieu of Memorandum) incorporating all his Department, files the criminal information before the proper court. Proceedings
allegations and defenses.
before the proper court demand a full-blown hearing and require proof beyond
Ejercito contends that amending the reliefs prayed for is prohibited under Section
2, Rule 9 of the 1993 COMELEC Rules of Procedure. He asserts that the relief
prayed for in the memorandum is not the same as that in the petition. However, a
scrutiny of said amendment shows that no new issues were introduced. Moreover,
there was no departure from the causes of action and no material alterations on
the grounds of relief. The amendment[,] therefore[,] is not substantial as it
merely rectifies or corrects the true nature of reliefs being prayed for as set forth
in the petition. The records of the case will show that Ejercito has been afforded
the opportunity to contest and rebut all the allegations against him. He was never
deprived of his right to have access to the evidence against him. He was
adequately aware of the nature and implication of the disqualification case
against him. Thus, Ejercito cannot say that he was denied of his constitutional
right to due process.
It is important to note at this point that Ejercito, in his motion for
reconsideration, deliberately did not tackle the merit and substance of the
charges against him. He limited himself to raising procedural issues. This is
despite all the opportunity that he was given to confront the evidence lodged
against him. Therefore, there is no reason for the COMELEC En Bancto disturb the
findings of the COMELEC First Division on whether Ejercito indeed over-spent in
his campaign for governorship of Laguna in the [May 13, 2013] National and
Local Elections.29

reasonable doubt to convict. A criminal conviction shall result in the

disqualification of the offender, which may even include disqualification from
holding a future public office." (Emphasis supplied) 31
The petition for disqualification against Ejercito for campaign over-spending
before the Commission isheard and resolved pursuant to the electoral aspect of
Section 68 of the OEC. It is an administrative proceeding separate and distinct
from the criminal proceeding through which Ejercito may be made to undergo in
order to determine whether he can be held criminally liable for the same act of
over-spending. It is through this administrative proceeding that this Commission,
initially through its divisions, makes a factual determination on the veracity of the
parties respective allegations in a disqualification case. There is no need for a
preliminary investigation finding on the criminal aspect of the offenses in Section
68 before the Commission can act on the administrative or electoral aspect of the
offense. All that is needed is a complaint or a petition. As enunciated in Lanot,
"(a)n erring candidate may be disqualified even without prior determination of
probable cause in a preliminary investigation. The electoral aspect may proceed
independently of the criminal aspect, and vice-versa."

Moreover, Ejercitos reliance on Codilla is misplaced. The COMELEC En Banc

opined that the portion of the Codilla decision that referred to the necessity of the
conduct of preliminary investigation pertains to cases where the offenders are
charged with acts not covered by Section 68 of the OEC, and are, therefore,
beyond the ambit of the COMELECs jurisdiction. It said that the decision refers to
Anchoring on the case of Lanot v. Commission on Elections, 30 the COMELEC En this type of cases as criminal (not administrative) in nature, and,thus, should be
Banclikewise debunked Ejercitos assertion that the petition was prematurely and handled through the criminal process.
improperly filed on the ground that the filing of an election offense and the
factual determination on the existence of probable cause are required before a Further rejected was Ejercitos argument that the COMELEC lost its jurisdiction
disqualification case based on Section 68 of the OEC may proceed. It held:
over the petition for disqualification the moment he was proclaimed as the duly-

elected Governor of Laguna. For the COMELEC En Banc, its First Division
thoroughly and sufficiently addressed the matter when it relied on Maquiling

Election Law |55

instead of Sinaca. It maintained that Section 5 of COMELEC Resolution No. 9523,

not COMELEC Resolution No. 2050, 32 is relevant to the instant case as it states
that the COMELEC shall continue the trial and hearing of a pending
disqualification case despite the proclamation of a winner. It was noted that the
proper application of COMELEC Resolution No. 2050 was already clarified in
Sunga v. COMELEC.33

succession, if allowed by law, shall be observed. In the event the rule of

succession is not allowed, a vacancy shall exist for such position. 34
On May 23, 2014, Ejercito filed before this Court a Petition for certiorari with
application for the issuance of a status quo ante order or temporary restraining
order (TRO)/writ of preliminary injunction (WPI). 35 Without issuing a TRO/WPI,
the Honorable Chief Justice, Maria Lourdes P. A. Sereno, issued on May 28, 2014
an order to respondents to comment on the petition within a non-extendible
period of ten (10) days from notice.36 Such order was confirmed nunc pro tunc by
the Court En Bancon June 3, 2014.37

Finally, the COMELEC En Bancruled on one of San Luis contentions in his

Comment/Oppositionto Ejercitos motion for reconsideration. He argued that he
becomes the winner in the gubernatorial election upon the disqualification of
Ejercito. Relying on Maquiling, San Luis declared that he was not the second
placer as he obtained the highest number of valid votes cast from among the Meantime, on May 26, 2014, Ejercito filed before the COMELEC En Bancan
qualified candidates. In denying that Maquiling is on all fours with this case, the Omnibus Motion to suspend proceedings and to defer the implementation of the
COMELEC En Bancsaid:
May 21, 2014 Resolution.38 On the same day, San Luis also filed an Extremely
Urgent Motion to Declare COMELEC En Banc Resolution of May 21, 2014 and First
In the instant case, Ejercito cannot be considered as a noncandidate by reason of Division Resolution of September 26, 2013 Final and Executory and to Issue
his disqualification under Section 68 of the OEC. He was a candidate who filed a Forthwith Writ of Execution or Implementing Order 39 invoking Paragraph 2,
valid certificate of candidacy which was never cancelled.
Section 8 of COMELEC Resolution No. 9523, in relation to Section 13 (b), Rule 18
of the COMELEC Rules of Procedure. 40 On May 27, 2014, the COMELEC En
Ejercito was a bona fide candidate who was disqualified, not because of any Bancissued an Order denying Ejercitos omnibus motion, granted San Luis
Clerk of the Commission to issue the
ineligibility existing at the time of the filing of the certificate of candidacy, but extremely urgent motion, and directedthe
41
because he violated the rules of candidacy. His disqualifying circumstance, thatis, corresponding writ of execution. On even date, Vice-Governor Hernandez was
his having over-spent in his campaign, did not exist at the time of the filing of his sworn in as the Governor of Laguna at the COMELEC Main Office in Manila. The
certificate of candidacy. It did not affect the validity of the votes cast in his favor. service of the 42writ was deemed completed and validly served upon Ejercito on
Notwithstanding his disqualification, he remains the candidate who garnered the May 28, 2014.
highest number of votes.

In his petition before Us, Ejercito raised the following issues for resolution:

Ejercito cannot be on the same footing with Arnado in the Maquiling case. Arnado
was disqualified from running for Mayor of Kauswagan, Lanao Del Sur because he THE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION IN THAT:
was a dual citizen not qualified to run for election. His disqualification existed at
the time of the filing of the certificate of candidacy. The effect, pursuant to the
(I) IT VIOLATED THE RIGHT OF PETITIONER TO DUE PROCESS
Maquiling case, is that the votes he garnered are void, which in turn resulted in
WHEN IT RULED FOR THE DISQUALIFICATION OF PETITIONER
having considered the "second placer" Maquiling asthe candidate who
EVEN IF IT WAS NEVER PRAYED FOR IN THE PETITION. WORSE,
obtained the highest number of valid votes cast.
THERE IS YET NO FINDING OFGUILT BY A COMPETENT COURT
OR A FINDING OF FACT STATING THAT PETITIONER ACTUALLY
San Luis is in a different circumstance. The votes for the disqualified winning
COMMITTED
THE
ALLEGED
ELECTION
OFFENSE
OF
candidate remained valid. Ergo, San Luis, being the second placer in the vote
OVERSPENDING;
count, remains the second placer. He cannot[,] thus[,] be named the winner.
Section 6, Rule 25 of the COMELEC Resolution No. 9523, which governs Section
68 petitions for disqualification, enunciates the rule succinctly, to wit:

(II) IT RELIED ON A DOCUMENTARY EXHIBIT (ADVERTISING

CONTRACT) WHICH WAS NOT EVEN FORMALLY OFFERED AS
EVIDENCE; [AND]

Section 6. Effect of Granting of Petition. In the event a Petition to disqualify a

candidate is granted by final judgment as defined under Section 8 of Rule 23 and
the disqualified candidate obtains the highest number of votes, the candidate
with the second highest number of votes cannot be proclaimed and the rule of

(III) IT DISQUALIFIED PETITIONER FOR AN ACT DONE BY A

THIRD PARTY WHO SIMPLY EXERCISED ITS RIGHT TO FREE
EXPRESSION WITHOUT THE KNOWLEDGE AND CONSENT OF
PETITIONER[.]43

Election Law |56

The petition is unmeritorious.

The purpose of a disqualification proceeding is to prevent the candidate from

running or, if elected, from serving, or to prosecute him for violation of the
election laws.54 A petition to disqualifya candidate may be filed pursuant to
Section 68 of the OEC, which states:

A special civil action for certiorari under Rule 64, in relation to Rule 65, is an
independent action that is available only if there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law.44 It is a legal remedy
that is limited to the resolution of jurisdictional issues and is not meant to correct SEC. 68. Disqualifications.-- Any candidate who, in an action or protest in which
simple errors of judgment.45 More importantly, it will only prosper if grave abuse he is a party is declared by final decision of a competent court guilty of, or found
of discretion is alleged and isactually proved to exist. 46
by the Commission of having: (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral
Grave abuse of discretion arises when a lower court or tribunal violates the functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in
Constitution, the law or existing jurisprudence. It means such capricious and his election campaign an amount in excess of that allowed by this Code; (d)
whimsical exercise of judgment as would amount to lack of jurisdiction; it solicited, received or made any contribution prohibited under Sections 89, 95, 96,
contemplates a situation where the power is exercised in an arbitrary or despotic 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs
manner by reason of passion or personal hostility, so patent and gross as to d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
amount to an evasion of positive duty or a virtual refusal to perform the duty candidate, or if he has been elected, from holding the office. Any person who is a
permanent resident of or animmigrant to a foreign country shall not be qualified
enjoined by law. x x x.47
to run for any elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in accordance
Ejercito failed to prove that the COMELEC rendered its assailed Resolution with with the residence requirement provided for in the election laws.
grave abuse of discretion.
The prohibited acts covered by Section 68 (e) refer to election campaign or
partisan political activityoutside the campaign period (Section 80); removal,
destruction or defacement of lawful election propaganda (Section 83); certain
The
petition
filed
by
San
Luis forms of election propaganda (Section 85); violation of rules and regulations on
against
Ejercito
is
for
the election propaganda through mass media; coercion of subordinates (Section 261
latters
disqualification
and [d]); threats, intimidation, terrorism, use of fraudulent device or other forms of
coercion (Section 261 [e]); unlawful electioneering (Section 261 [k]); release,
prosecution for election offense
disbursement or expenditure of public funds (Section 261 [v]); solicitation of
Ejercito insists that his alleged acts of giving material consideration in the form of votes or undertaking any propaganda on the day of the election within the
restricted areas (Section 261 [cc], sub-par.6). All the offenses mentioned in
"Orange Cards" and election overspending are considered as election offenses
48
49
under Section 35 of COMELEC Resolution No. 9615, in relation to Section 13 of Section 68 refer to election offenses under the OEC, not toviolations of other
penal laws. In other words, offenses that are punished in laws other than in the
R.A. No. 9006, and punishable under Section 26450 of the OEC. Considering that
San Luis petition partakes of the nature of a complaint for election offenses, the OEC cannot be a ground for a Section 68 petition. Thus, We have held:
COMELEC First Division has no jurisdiction over the same based on COMELEC
x x x [T]he jurisdiction of the COMELEC to disqualify candidates is limited to
Resolution No. 938651 and Section 26552 of the OEC.
those enumerated in Section 68 of the [OEC]. All other election offenses are
beyond the ambit of COMELEC jurisdiction. They are criminal and not
Still, Ejercito contends that the COMELEC erroneously sanctioned a change in San
Luis cause of action by the mere expedient of changing the prayer in the latters administrative in nature. Pursuant to Sections 265 and 268 of the [OEC], the
power of the COMELEC is confined to the conduct of preliminary investigation on
Memorandum. According to him, San Luis additional prayer for disqualification in
the Memorandum is a substantial amendment to the Petitionas it constitutes a the alleged election offenses for the purpose of prosecuting the alleged offenders
before the regular courts of justice, viz:
material deviation from the original cause of action from a complaint for
election offenses to a petition for disqualification. Since such substantial
amendment was effected after the case was set for hearing, Ejercito maintains "Section 265.Prosecution. The Commission shall, through its duly authorized
that the same should have been allowed only with prior leave of the COMELEC legal officers, have the exclusive power to conduct preliminary investigation of all
First Division pursuant to Section 2, Rule 9 53 of the COMELEC Rules of Procedure, election offenses punishable under this Code, and to prosecute the same. The
Commission may avail of the assistance of other prosecuting arms of the
which San Luis never did.
government: Provided, however, That in the event that the Commission fails to
act on any complaint within four months from its filing, the complainant may file
The arguments are untenable.
We now explain.

Election Law |57

the complaint with the office of the fiscal or with the Ministry of Justice for proper
investigation and prosecution, if warranted.

With the foregoing, Ejercito cannot feign ignorance of the true nature and intent
of San Luis petition. This considering, it is unnecessary for Us to discuss the
applicability of Section 2,Rule 9 of the COMELEC Rules of Procedure, there being
no substantial amendment to San Luis petition that constitutes a material
xxx
xxx
xxx
deviation from his original causes of action. Likewise, COMELEC Resolution No.
9386 and Section 265 of the OEC do not apply since both refer solely to the
Section 268.Jurisdiction. The regional trial court shall have the exclusive prosecution of election offenses. Specifically, COMELEC Resolution No. 9386 is an
original jurisdiction to try and decide any criminal action orproceeding for amendment to Rule 34 of the COMELEC Rules of Procedure on the prosecution of
violation of this Code, except those relating to the offense of failure to register or election offenses, while Section 265 of the OEC is found under Article XXII of said
failure to vote which shall be under the jurisdictions of metropolitan or municipal law pertaining also to election offenses.
trial courts. From the decision of the courts, appeal will lie as in other criminal
cases."55
The
conduct
of
preliminary
investigation
is
not
required
in
In the case at bar, the COMELEC First Division and COMELEC En Banc correctly the
resolution
of
the
electoral
ruled that the petition filed by San Luis against Ejercito is not just for prosecution aspect of a disqualification case
of election offense but for disqualification as well. Indeed, the following are clear
indications:
Assuming, arguendo, that San Luis petition was properly instituted as an action
for disqualification, Ejercito asserts that the conduct of preliminary investigation
1. The title of San Luis petition shows that the case was brought under to determine whether the acts enumerated under Section 68 of the OEC were
Rule 25 of the COMELEC Rules of Procedure, as amended by COMELEC indeed committed is a requirement prior to actual disqualification. He posits that
Resolution No. 9523.56 This expresses the objective of the action since Section 5, Rule 25 of COMELEC Resolution No. 9523 is silent on the matter of
Rule 25 is the specific rule governing the disqualification of candidates.
preliminary investigation; hence, the clear import of this is that the necessity of
preliminary investigation provided for in COMELEC Resolution No. 2050 remains
2. The averments of San Luis petition rely on Section 68 (a) and (c) of undisturbed and continues to bein full force and effect.
the OEC as grounds for its causes of action. Section 68 of the OEC
precisely enumerates the grounds for the disqualification of a candidate We are not persuaded.
for elective position and provides, as penalty, that the candidate shall be
disqualified from continuing as such, or if he or she has been elected,
Section 5, Rule 25 of COMELEC Resolution No. 9523 states:
from holding the office.
3. Paragraph 2 of San Luis prayer in the petition states that "[in the
event that [Ejercito] will be ableto get a majority vote of the electorate of
the Province of Laguna on May 13, 2013, his proclamation be suspended
until further order of the Honorable Commission." San Luis reiterated this
plea when he later filed a Very Urgent Ex-Parte Motion toIssue
Suspension of Possible Proclamation of Respondent and Supplemental to
the Very Urgent Ex-Parte Motion to Issue Suspension of Possible
Proclamation of Respondent. The relief sought is actually pursuant to
Section 657 of R.A. No. 6646 and Section 5 Rule 25 58 of COMELEC
Resolution No. 9523, both of which pertain to the effect of a
disqualification case when the petition is unresolved by final judgment
come election day.
4. San Luis Memorandum emphasized that the case is a "Special Action
for Disqualification," praying that "[t]he Petition BE GRANTED [and] x x x
[Ejercito] BE DISQUALIFIED, and PREVENTED from further holding office
as Governor of Laguna."

Section 5. Effect of Petition if Unresolved Before Completion of Canvass. If a

Petition for Disqualification is unresolved by final judgment on the day of
elections, the petitioner may file a motion with the Division or Commission En
Banc where the case is pending, to suspend the proclamation of the candidate
concerned, provided that the evidence for the grounds to disqualify is strong. For
this purpose, atleast three (3) days prior to any election, the Clerk of the
Commission shall prepare a list of pending cases and furnish all Commissioners
copies of said the list.
In the event that a candidate with an existing and pending Petition to disqualify is
proclaimed winner, the Commission shall continue to resolve the said Petition.
It is expected that COMELEC Resolution No. 9523 is silent on the conduct of
preliminary investigation because it merely amended, among others, Rule 25 of
the COMELEC Rules of Procedure, which deals with disqualification of candidates.
In disqualification cases, the COMELEC may designate any of its officials, who are
members of the Philippine Bar, to hear the case and to receive evidence only in
cases involving barangay officials. 59 As aforementioned, the present rules of

Election Law |58

procedure in the investigation and prosecution of election offenses in the

COMELEC, which requires preliminary investigation, is governed by COMELEC
Resolution No. 9386. Under said Resolution, all lawyers in the COMELEC who are
Election Officers in the National Capital Region ("NCR"), Provincial Election
Supervisors, Regional Election Attorneys, Assistant Regional Election Directors,
Regional Election Directors and lawyers of the Law Department are authorized to
conduct preliminary investigation of complaints involving election offenses under
the election lawswhich may be filed directly with them, or which may be indorsed
to them by the COMELEC.60

[Law] Department of the Commission as the instrument of the latter in the

exercise of its exclusive power to conduct a preliminary investigation of all cases
involving criminal infractions of the election laws. Such recourse may be availed
of irrespective of whether the respondent has been elected orhas lost in the
election.

2. Any complaint for disqualification based on Section 68 of the Omnibus Election

Code in relation to Section 6 of Rep. Act No. 6646 filed after the election against
a candidate who has already been proclaimed as winner shall be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary
Similarly, Ejercitos reliance on COMELEC Resolution No. 2050 is misplaced. investigation to the Law Department of the Commission.
COMELEC Resolution No. 2050, which was adopted on November 3, 1988, reads:
Where a similar complaint is filed after election but before proclamation of the
respondent candidate, the complaint shall, nevertheless, be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary
investigation to the Law Department. If, before proclamation, the Law
Department makes a prima faciefinding of guilt and the corresponding
information has been filed with the appropriate trial court, the complainant may
WHEREAS, opinions of the members of the Commission on matters of procedure file a petition for suspension of the proclamation of the respondent with the court
in dealing with cases of this nature and the manner of disposing of the same have before which the criminal case is pending and the said court may order the
suspension of the proclamation ifthe evidence of guilt is strong.
not been uniform;
WHEREAS, there remain pending before the Commission, a number of cases of
disqualification filed by virtue of the provisions of Section 68 of the Omnibus
Election Codein relation to Section 6 of R.A. 6646, otherwise known as the
Electoral Reforms Law of 1987;

WHEREAS, in order to avoid conflicts of opinion in the disposition [of]

disqualification cases contemplated under Section 68 of the Omnibus Election
Code in relation to Section 6 of Rep. Act 6646, there is a strongly felt need to lay
down a definite policy in the disposition of this specific class of disqualification
cases;
NOW, THEREFORE, on motion duly seconded, the Commission en banc:

3. The Law Department shall terminate the preliminary investigation within

thirty(30) days from receipt of the referral and shall submit its study, report and
recommendation to the Commission en banc within five (5) days from the
conclusion of the preliminary investigation. If it makes a prima faciefinding of
guilt, it shall submit with such study the Information for filing with the
appropriate court.61
In Bagatsing v. COMELEC,62 the Court stated that the above-quoted resolution
covers two (2) different scenarios:

RESOLVED, as it hereby resolves, to formulate the following rules governing the

disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus
Election Code in relation to Section 6 of R.A. No. 6646, otherwise known as the First, as contemplated in paragraph 1, a complaint for disqualification filed before
the election which must be inquired into by the COMELEC for the purpose of
Electoral Reforms Law of 1987:
determining whether the acts complained of have in fact been committed. Where
the inquiry results in a finding before the election, the COMELEC shall order the
1. Any complaint for the disqualification of a duly registered candidate based candidate's disqualification. In case the complaint was not resolved before the
upon any of the grounds specifically enumerated under Section 68 of the election, the COMELEC may motu propioor on motion of any of the parties, refer
Omnibus Election Code, filed directly with the Commission before an election in the said complaint to the Law Department of the COMELEC for preliminary
which the respondent is a candidate, shall be inquired into by the Commission for investigation.
the purpose of determining whether the acts complained of have in fact been
committed. Where the inquiry by the Commission results in a finding before
election, that the respondent candidate did in factcommit the acts complained, Second, as laid down in paragraph 2, a complaint for disqualification filed after
the Commission shall order the disqualification of the respondent candidate from the election against a candidate (a) who has not yet been proclaimed as winner,
or (b) who has already been proclaimed as winner. In both cases, the complaint
continuing as such candidate.
shall be dismissed as a disqualification case but shall be referred to the Law
Department of the COMELEC for preliminary investigation. However, if before
In case such complaint was not resolved before the election, the Commission proclamation, the Law Department makes a prima facie finding of guilt and the
may motu proprio, or [on] motion of any of the parties, refer the complaint to the corresponding information has been filed with the appropriate trial court, the

Election Law |59

complainant may file a petition for suspension of the proclamation of the scenario is productive of more fraud which certainly is not the main intent and
respondent with the court before which the criminal case is pending and the said purpose of the law.64
court may order the suspension of the proclamation if the evidence of guilt is
strong.63
The "exclusive power [of the COMELEC] to conduct a preliminary investigation of
all cases involving criminal infractions of the election laws" stated in Par. 1 of
However, with respect to Paragraph 1 of COMELEC Resolution No. 2050, which is COMELEC Resolution No. 2050 pertains to the criminal aspect of a disqualification
the situation in this case, We held in Sunga:
case. It has been repeatedly underscored that an election offense has its criminal
and electoral aspects. While its criminal aspect to determine the guilt or
x x x Resolution No. 2050 as interpreted in Silvestre v. Duavitinfringes on Sec. 6 innocence of the accused cannot be the subject of summary hearing, its electoral
aspect to ascertain whether the offender should be disqualified from office can be
of RA No. 6646, which provides:
determined in an administrative proceeding that is summaryin character. This
Court said in Sunga:
SEC. 6.Effects of Disqualification Case. - Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final It is worth to note that an election offense has criminal as well as electoral
judgment before an election to be disqualified and he is voted for and receives aspects. Its criminal aspect involves the ascertainment of the guilt or innocence
the winning number of votes in such election, the Court or Commission shall of the accused candidate. Like in any other criminal case, it usually entails a fullcontinue with the trial and hearing of the action, inquiry or protestand, upon blown hearing and the quantum of proof required to secure a conviction is
motion of the complainant or any intervenor, may during the pendency thereof beyond reasonable doubt. Its electoral aspect, on the other hand, is a
order the suspension of the proclamation of such candidate whenever the determination of whether the offender should be disqualified from office. This is
done through an administrative proceeding which is summary in character and
evidence of his guilt is strong (italics supplied).
requires only a clear preponderance of evidence. Thus, under Sec. 4 of the
COMELEC Rules of Procedure, petitions for disqualification "shall be heard
Clearly, the legislative intentis that the COMELEC should continue the trial and summarily after due notice." It is the electoral aspect that we are more
hearing of the disqualification case to its conclusion, i.e.,until judgment is concerned with, under which an erring candidate may be disqualified even
rendered thereon. The word "shall" signifies that this requirement of the law is without prior criminal conviction.65
mandatory, operating to impose a positive duty which must be enforced. The
implication is that the COMELEC is left with no discretion but to proceed with the
disqualification case even after the election. Thus, in providing for the outright and equally in Lanot:
dismissal of the disqualification case which remains unresolved after the election,
Silvestre v. Duavitin effect disallows what RA No. 6646 imperatively requires. This x x x The electoral aspect of a disqualification case determines whether the
amounts to a quasi-judicial legislation by the COMELEC which cannot be offender should be disqualified from being a candidate or from holding office.
countenanced and is invalid for having been issued beyond the scope of its Proceedings are summary in character and require only clear preponderance of
authority. Interpretative rulings of quasi-judicial bodies or administrative agencies evidence. An erring candidate may be disqualified even without prior
must always be in perfect harmony with statutes and should be for the sole determination of probable cause in a preliminary investigation. The electoral
purpose of carrying their general provisions into effect. By such interpretative or aspect may proceed independently of the criminal aspect, and vice-versa.
administrative rulings, of course, the scope of the law itself cannot be limited.
Indeed, a quasi-judicial body or an administrative agency for that matter cannot The criminal aspect of a disqualification case determines whether there is
amend an act of Congress. Hence, in case of a discrepancy between the basic law probable cause to charge a candidate for an election offense. The prosecutor is
and an interpretative or administrative ruling, the basic law prevails.
the COMELEC, through its Law Department, which determines whether probable
Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A
candidate guilty of election offenses would be undeservedly rewarded, instead of
punished, by the dismissal of the disqualification case against him simply because
the investigating body was unable, for any reason caused upon it, to determine
before the election if the offenses were indeed committed by the candidate
sought to be disqualified. All that the erring aspirant would need to do is
toemploy delaying tactics so that the disqualification case based on the
commission of election offenses would not be decided before the election. This

cause exists. If there is probable cause, the COMELEC, through its Law
Department, files the criminal information before the proper court. Proceedings
before the proper court demand a full-blown hearing and require proof beyond
reasonable doubt to convict. A criminal conviction shall result in the
disqualification of the offender, which may even include disqualification from
holding a future public office.
The two aspects account for the variance of the rules on disposition and
resolution of disqualification cases filed before or after an election. When the
disqualification case is filed before the elections, the question of disqualification is

Election Law |60

raised before the voting public. If the candidate is disqualified after the election, resolution delegated to the COMELEC Field Officials the hearing and reception of
those who voted for him assume the risk that their votes may be declared stray evidence of the administrative aspect of disqualification cases in the May 10,
or invalid. There isno such risk if the petition is filed after the elections. x x x. 66
2004 National and Local Elections. In marked contrast, in the May 2013 elections,
it was only in cases involving barangay officials that the COMELEC may designate
We cannot accept Ejercitos argument that Lanot did not categorically pronounce any of its officials,67who are members of the Philippine Bar, to hear the case and to
that the conduct of a preliminary investigation exclusively pertains to the criminal receive evidence.
aspect of anaction for disqualification or that a factual finding by the authorized
legal officers of the COMELEC may be dispensed with in the proceedings for the
administrative aspect of a disqualification case. According to him,a close reading
of said case would reveal that upon filing of the petition for disqualification with
the COMELEC Division, the latter referred the matter to the Regional Election
Director for the purpose of preliminary investigation; therefore, Lanot
contemplates two referrals for the conduct of investigation first, to the Regional
Election Director, prior to the issuance of the COMELEC First Divisions resolution,
and second, to the Law Department, following the reversal by the COMELEC En
Banc.
For easy reference, the factual antecedents of Lanot are as follows:

The
COMELEC
properly
evidence
Contract dated May 8, 2013

considered
the

En

Banc
as
Advertising

Ejercito likewise asserts that the Advertising Contract dated May 8, 2013 should
not have been relied upon by the COMELEC. First, it was not formally offered in
evidence pursuant to Section 34, Rule 132 68 of the Rules and he was not even
furnished with a copy thereof, depriving him of the opportunity to examine its
authenticity and due execution and object to its admissibility. Second, even if
Section 34, Rule 132 does not apply, administrative bodies exercising quasijudicial functions are nonetheless proscribed from rendering judgment based on
evidence that was never presented and could not be controverted. There is a
need to balance the relaxation of the rules of procedure with the demands of
administrative due process, the tenets of which are laid down in the seminal case
of Ang Tibay v. Court of Industrial Relations. 69 And third,the presentation of the
advertising contracts, which are highly disputable and on which no hearing was
held for the purpose of taking judicial notice in accordance with Section 3, Rule
12970 of the Rules, cannot be dispensed with by COMELECs claim that it could
take judicial notice. Contrary to Ejercitos claim, Section 34, Rule 132 of the Rules
is inapplicable. Section 4, Rule 1 71 of the Rules of Court is clear enough in stating
that it shall not apply to election cases except by analogy or in a suppletory
character and whenever practicable and convenient. In fact, nowhere from
COMELEC Resolution No. 9523 requires that documentary evidence should be
formally offered in evidence.72 We remind again that the electoral aspect of a
disqualification case is done through an administrative proceeding which is
summary in character.

On March 19, 2004, a little less than two months before the May 10, 2004
elections, Henry P. Lanot, et al. filed a Petition for Disqualification under Sections
68 and 80 of the OEC against then incumbent Pasig City Mayor Vicente P.
Eusebio. National Capital Region Director Esmeralda Amora-Ladra conducted
hearings on the petition. On May 4, 2004, she recommended Eusebios
disqualification and the referral of the case to the COMELEC Law Department for
the conduct of a preliminary investigation on the possible violation of Section 261
(a) of the OEC. When the COMELEC First Division issued a resolution adopting
Director Ladras recommendations on May 5, 2004, then COMELEC Chairman
Benjamin S. Abalos informed the pertinent election officers through an Advisory
dated May 8, 2004. Eusebio filed a Motion for Reconsideration on May 9, 2004.
On election day, Chairman Abalos issued a memorandum to Director Ladra
enjoining her from implementing the May 5, 2004 COMELEC First Division
resolution. The petition for disqualification was not yet finally resolved at the time
of the elections. Eusebio's votes were counted and canvassed. After which,
Eusebio was proclaimed as the winning candidate for city mayor. On August 20,
2004, the COMELEC En Banc annulled the COMELEC First Division's order to Granting, for arguments sake, that Section 4, Rule 1 of the Rules of Court
disqualify Eusebio and referred the case to the COMELEC Law Department for applies, there have been instances when We suspended the strict application of
preliminary investigation.
the rule in the interest of substantial justice, fairness, and equity.73Since rules of
procedure are mere tools designed to facilitate the attainment of justice, it is well
When the issue was elevated to Us, the Court agreed with Lanot that the recognized that the Court is empowered to suspend its rules or to exempt a
application
COMELEC En Banc committed grave abuse of discretion when it ordered the particular case from the application of a general rule, when the rigid
74
thereof
tends
to
frustrate
rather
than
promote
the
ends
of
justice.
The
fact is,
dismissal of the disqualification case pending preliminary investigation of the
even
Sections
3
and
4,
Rule
1
of
the
COMELEC
Rules
of
Procedure
fittingly
COMELEC Law Department. Error was made when it ignored the electoral aspect
of the disqualification case by setting aside the COMELEC First Division's declare that "[the] rules shall be liberally construed in order to promote the
resolution and referring the entire case to the COMELEC Law Department for the effective and efficient implementation of the objectives of ensuring the holding of
criminal aspect. We noted that COMELEC Resolution No. 2050, upon which the free, orderly, honest, peaceful and credible elections and to achieve just,
COMELEC En Banc based its ruling, is procedurally inconsistent with COMELEC expeditious and inexpensive determination and disposition of every action and
Resolution No. 6452, which was the governing rule at the time. The latter proceeding brought before the Commission" and that "[in] the interest of justice
and in order to obtain speedy disposition ofall matters pending before the

Election Law |61

Commission, these rules or any portion thereof may be suspended by the

Commission." This Court said in Hayudini v. Commission on Elections: 75

e. Publish the digitized information gathered from the reports,

statements and contracts and make themavailable to the public;

Settled is the rule that the COMELEC Rules of Procedure are subject to liberal
construction. The COMELEC has the power to liberally interpret or even suspend
its rules of procedure in the interest of justice, including obtaining a speedy
disposition of all matters pending before it. This liberality is for the purpose of
promoting the effective and efficient implementation of its objectives ensuring
the holding of free, orderly, honest, peaceful, and credible elections, as well as
achieving just, expeditious, and inexpensive determination and disposition of
every action and proceeding brought before the COMELEC. Unlike an ordinary
civil action, an election contest is imbued with public interest. It involves not only
the adjudication of private and pecuniary interests of rival candidates, but also
the paramount need of dispelling the uncertainty which beclouds the real choice
of the electorate. And the tribunal has the corresponding duty to ascertain, by all
means withinits command, whom the people truly chose as their rightful leader.76

f. Develop a reportorial and monitoring system;

Further, Ejercitos dependence on Ang Tibay is weak. The essence of due process
is simply an opportunity to be heard, or, as applied to administrative proceedings,
an opportunity to explain one's side or an opportunity to seek for a
reconsideration of the action or ruling complained of.77 Any seeming defect in its
observance is cured by the filing of a motion for reconsideration and denial of due
process cannot be successfully invoked by a party who had the opportunity to be
heard thereon.78 In this case, it is undisputed that Ejercito filed a motion for
reconsideration before the COMELEC En Banc. Despite this, he did not rebut the
authenticity and due execution of the advertising contracts when he decided not
to discuss the factual findings of the COMELEC First Division on the alleged
ground that it may be construed as a waiver of the jurisdictional issues that he
raised.79

i. Perform other functions as ordered by the Commission.81

g. Audit all reports, statements and contracts and determine compliance

by the candidates, parties, contributors, and election contractors,
including the inspection of Books and records of candidates, parties and
mass media entities and issue subpoenas in relation thereto and submit
its findings to the Commission En Banc;
h. Coordinate with and/or assist other departments/offices of the
Commission receiving related reports on Campaign Finance including
prosecution of violators and collection of fines and/or imposition of
perpetual disqualification; and

The COMELEC may properly takeand act on the advertising contracts without
further proof from the parties herein. Aside from being considered as an
admission82 and presumed to be proper submissions from them, the COMELEC
already has knowledge of the contracts for being ascertainable from its very own
records. Said contracts are ought to be known by the COMELEC because of its
statutory function as the legal custodian of all advertising contracts promoting or
opposing any candidate during the campaign period. As what transpired in this
case, the COMELEC has the authority and discretion to compare the submitted
advertising contracts with the certified true copies of the broadcast logs,
certificates of performance or other analogous records which a broadcast station
or entity is required to submit for the review and verification of the frequency,
date, time and duration of advertisements aired.

We agree with San Luis and the Office of the Solicitor General that, pursuant to
Section 2, Rule 129,80 the COMELEC has the discretion to properly take judicial
notice of the Advertising Contract dated May 8, 2013. In accordance with R.A. To be precise, R.A. No. 9006 provides:
No. 9006, the COMELEC, through its Campaign Finance Unit, is empowered to:
a. Monitor fund raising and spending activities;

Sec. 4.Requirements for Published or Printed and Broadcast Election Propaganda.

b. Receive and keep reports and statements of candidates, parties, x x x x

contributors and election contractors, and advertising contracts of mass
media entities;
4.3 Print, broadcast or outdoor advertisements donated to the candidate or
political party shall not be printed, published, broadcast or exhibited without the
c. Compile and analyze the reports and statements as soon as they are written acceptance by the said candidate or political party. Such written
received and make an initial determination of compliance;
acceptance shall be attached to the advertising contract and shall be submitted to
the COMELEC as provided in Subsection 6.3 hereof.
d. Develop and manage a recording system for all reports, statements,
and contracts received by it and todigitize information contained therein;

Election Law |62

Sec. 6.Equal Access to Media Time and Space. All registered parties and bona
xxxx
fidecandidates shall have equal access to media time and space. The following
guidelines may be amplified on by the COMELEC:
It shall be the duty of the EID to formally inform media entities that the latters
failure to comply with the mandatory provisions of this Section shall be
xxxx
considered an election offense punishable pursuant to Section 13 of Republic Act
No. 9006. [RA 9006, Secs. 6.3 and 13] and in COMELEC Resolution No. 9615
6.2

SECTION 9.Requirements and/or Limitations on the Use of Election Propaganda

through Mass Media. All parties and bona fide candidates shall have equal
access to media time and space for their election propaganda during the
campaign period subject to the following requirements and/or limitations:

xxxx

(b.) Each bona fide candidate or registered political party for a locally elective
office shall be entitled to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by a. Broadcast Election Propaganda
purchase or donation.
xxx

For this purpose, the COMELEC shall require any broadcast station or entity to
submit to the COMELEC a copy of its broadcast logs and certificates of Provided, further, that a copy of the broadcast advertisement contract be
performance for the review and verification of the frequency, date, time and furnished to the Commission, thru the Education and Information Department,
duration of advertisements broadcast for any candidate or political party.
within five (5) days from contract signing.
6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts x x x
for advertising, promoting or opposing any political party or the candidacy of any
person for public office within five (5) days after its signing. x x x.
d. Common requirements/limitations:
The implementing guidelines of the above-quoted provisions are found in Rule 5
of COMELEC Resolution No. 9476
Section 2.Submission of Copies of Advertising Contracts. All media entities shall
submit a copy of its advertising and or broadcast contracts, media purchase
orders, booking orders, or other similar documents to the Commission through its
Campaign Finance Unit, accompanied by a summary report in the prescribed form
(Annex "E") together with official receipts issued for advertising, promoting or
opposing a party, or the candidacy of any person for public office, within five (5)
days after its signing, through:

xxx
(3) For the above purpose, each broadcast entity and website owner or
administrator shall submit to the Commission a certified true copy of its
broadcast logs, certificates of performance, or other analogous record, including
certificates of acceptance as required in Section 7(b) of these Guidelines,for the
review and verification of the frequency, date, time and duration of
advertisements aired for any candidate or party through:

For Broadcast Entities in the NCR The Education and Information Department
(EID) which in turn shall furnish copies thereof to the Campaign Finance Unit
a. For Media Entities in the NCR The Education and Information (CFU) of the Commission within five days from receipt thereof.
Department (EID), which shall furnish copies thereof to the
Campaign Finance Unit of the Commission.
For Broadcast Entities outside of the NCR The City/Municipal Election Officer
(EO) concerned, who in turn, shall furnish copies thereof to the Education and
b. For Media Entities outside of the NCR The City/Municipal Information Department (EID) of the Commission which in turn shall furnish
Election Officer (EO) concerned who shall furnish copies thereof copies thereof to the Campaign Finance Unit (CFU) of the Commission within five
to the Education and Information Department of the Commission (5) days from the receipt thereof.
within five (5) days after the campaign periods. The EID shall
furnish copies thereof to the Campaign Finance Unit of the
For website owners or administrators The City/Municipal Election Officer (EO)
Commission.
concerned, who in turn, shall furnish copies thereof to the Education and
Information Department (EID) of the Commission which in turn shall furnish

Election Law |63

copies thereof to the Campaign Finance Unit (CFU) of the Commission within five
(5) days from the receipt thereof.

the right to support a particular candidate in accordance with the free exercise of
his or her rights of speech and of expression, which is guaranteed in Section 4,
Article III of the 1987 Constitution. 84 He believes that an advertising contract paid
All broadcast entities shall preserve their broadcast logs for a period of five (5) for by a third party without the candidates knowledge and consent must be
years from the date of broadcast for submission to the Commission whenever considered a form of political speech that must prevail against the laws
suppressing it, whether by design or inadvertence. Further, Ejercito advances the
required.
view that COMELEC Resolution No. 947685 distinguishes between "contribution"
and "expenditure" and makes no proscription on the medium or amount of
Certified true copies of broadcast logs, certificates of performance, and contribution.86 He also stresses that it is clear from COMELEC Resolution No. 9615
certificates of acceptance, or other analogous record shall be submitted, as that the limit set by law applies only to election expenditures of candidates and
follows:
not to contributions made by third parties. For Ejercito, the fact that the
legislature imposes no legal limitation on campaign donations is presumably
because discussion of public issues and debate on the qualifications of candidates
are integral to the operation of the government.
Candidates for National 1st
3 weeks after start of March 4 - 11
Positions
Report
campaign period
We refuse to believe that the advertising contracts between ABS-CBN Corporation
2nd
and Scenema Concept International, Inc. were executed without Ejercitos
3 weeks after 1st filing week April 3 - 10
Report
knowledge and consent. As found by the COMELEC First Division, the advertising
contracts submitted in evidence by San Luis as well as those in legal custody of
3rd
1 week before election day
May 2 - 9
the COMELEC belie his hollow assertion. His express conformity to the advertising
Report
contracts is actually a must because non-compliance is consideredas an election
Last
Election week
May 14 - 17
offense.87
Report
Candidates
Positions

for

Local 1st
Report

1 week after
campaign period

start

of April 15 - 22

2nd
Report

1 week after 1st filing week

April 30
May 8

3rd
Report

Election week

May 9 - 15

Last
Report

1 week after election day

May 16 - 22

For subsequent elections, the schedule for the submission of reports shall be
prescribed by the Commission.
Ejercito
should
for
spending
campaign
an
of what is allowed by the OEC

be
in
amount

his

in

disqualified
election
excess

Ejercito claims that the advertising contracts between ABS-CBN Corporation and
Scenema Concept International, Inc. were executed by an identified supporter
without his knowledge and consent as, in fact, his signature thereon was
obviously forged. Even assuming that such contract benefited him, Ejercito
alleges that he should not be penalized for the conduct of third parties who acted
on their own without his consent. Citing Citizens United v. Federal Election
Commission83 decided by the US Supreme Court, he argues that every voter has

Notably, R.A. No. 9006 explicitly directs that broadcast advertisements donated
to the candidate shall not be broadcasted without the written acceptance of the
candidate, which shall be attached to the advertising contract and shall be
submitted to the COMELEC, and that, in every case, advertising contracts shall be
signed by the donor, the candidate concerned or by the duly-authorized
representative of the political party.88 Conformably with the mandate of the law,
COMELEC Resolution No. 9476 requires that election propaganda materials
donated toa candidate shall not be broadcasted unless it is accompanied by the
written acceptance of said candidate, which shall be in the form of an official
receipt in the name of the candidate and must specify the description of the
items donated, their quantity and value, and that, in every case, the advertising
contracts, media purchase orders or booking orders shall be signed by the
candidate concerned or by the duly authorized representative of the party and, in
case of a donation, should be accompanied by a written acceptance of the
candidate, party or their authorized representatives. 89 COMELEC Resolution No.
9615 also unambiguously states thatit shall be unlawful to broadcast any election
propaganda donated or given free of charge by any person or broadcast entity to
a candidate withoutthe written acceptance of the said candidate and unless they
bear and be identified by the words "airtime for this broadcast was provided free
of charge by" followed by the true and correct name and address of the donor.90
This Court cannot give weight to Ejercitos representation that his signature on
the advertising contracts was a forgery. The issue is a belated claim, raised only
for the first time in this petition for certiorari. It is a rudimentary principle of law
that matters neither alleged in the pleadings nor raised during the proceedings
below cannot be ventilated for the first time on appeal before the Supreme

Election Law |64

Court.91 It would be offensive to the basic rules of fair play and justice to allow
Ejercito to raise an issue that was not brought up before the COMELEC. 92 While it
is true that litigation is not a game of technicalities, it is equally truethat
elementary considerations of due process require that a party be duly apprised of
a claim against him before judgment may be rendered. 93

quantity of expression by restricting the number of issues discussed, the depth of

their exploration, and the size of the audience reached." Buckley v. Valeo, 424
U.S. 1, 19, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam).Were the Court
to uphold these restrictions, the Government could repress speech by silencing
certain voices at any of the various points in the speech process. See McConnell,
supra, at 251, 124 S. Ct. 619, 517 L. Ed. 2d 491 (opinion of Scalia, J.)
Likewise, whether the advertising contracts were executed without Ejercitos (Government could repress speech by "attacking all levels of the production and
knowledge and consent, and whether his signatures thereto were fraudulent, are dissemination of ideas," for "effective public communication requires the speaker
issues of fact. Any factual challenge has no place in a Rule 65 petition. This Court to make use of the services of others"). If 441 be applied to individuals, no one
is nota trier of facts and is not equipped to receive evidence and determine the would believe that it is merely a time, place, or manner restriction on speech. Its
purpose and effect are to silence entities whose voices the Government deems to
truth of factual allegations.94
be suspect.
Instead, the findings of fact made by the COMELEC, or by any other
administrative agency exercising expertise in its particular field of competence,
are binding on the Court. As enunciated in Juan v. Commission on Election: 95
Findings of facts of administrative bodies charged with their specific field of
expertise, are afforded great weight by the courts, and in the absence of
substantial showing that such findings are made from an erroneous estimation of
the evidence presented, they are conclusive, and in the interest of stability of the
governmental structure, should not be disturbed. The COMELEC, as an
administrative agency and a specialized constitutional body charged with the
enforcement and administration of all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum, and recall, has more than
enough expertise in its field that its findings orconclusions are generally
respected and even given finality. x x x.96
Having determined that the subject TV advertisements were done and
broadcasted with Ejercitos consent, it follows that Citizens United does not apply.
In said US case, a non-profit corporation sued the Federal Election Commission,
assailing, among others, the constitutionality of a ban on corporate independ
entexpenditures for electioneering communications under 2 U.S.C.S. 441b. The
corporation released a documentary film unfavorable of then-Senator Hillary
Clinton, who was a candidate for the Democratic Party's Presidential nomination.
It wanted to make the film available through video-on-demand withinthirty (30)
days of the primary elections, and it produced advertisements to promote the
film. However, federal law prohibits all corporations including non-profit
advocacy corporations from using their general treasury funds to make
independent
expenditures
for
speech
that
is
an
"electioneering
communication"97 or for speech that expressly advocates the election or defeat of
a candidate within thirty (30) days of a primary election and sixty (60) days of a
general election. The US Supreme Court held that the ban imposed under 441b
on corporate independent expenditures violated the First Amendment 98 because
the Government could not suppress political speech on the basis of the speaker's
identity as a non-profit or for-profit corporation. It was opined: Section 441b's
prohibition on corporate independent expenditures is thus a ban on speech. As a
"restriction on the amount of money a person or group can spend on political
communication during a campaign," that statute "necessarily reduces the

Speech is an essential mechanism of democracy, for it is the means to hold

officials accountable to the people. See Buckley, supra, at 14-15, 96 S. Ct. 612,
46 L. Ed. 2d 659 ("In a republic where the people are sovereign, the ability of the
citizenry to make informed choices among candidates for office is essential"). The
right of citizens to inquire, to hear, to speak, and to use information to reach
consensus is a precondition to enlightened self-government and a necessary
means to protect it. The First Amendment "'has its fullest and most urgent
application' to speech uttered during a campaign for political office." Eu v. San
Francisco County Democratic Central Comm., 489 U.S. 214, 223, 109 S. Ct.
1013, 103 L. Ed. 2d 271 (1989)(quoting Monitor Patriot Co. v. Roy, 401 U.S. 265,
272, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)); see Buckley, supra, at 14, 96 S. Ct.
612, 46 L. Ed. 2d 659 ("Discussion of public issues and debate on the
qualifications of candidates are integral to the operation of the system of
government established by our Constitution").
For these reasons, political speech must prevail against laws that would suppress
it, whether by design orinadvertence. Laws that burden political speech are
"subject to strict scrutiny," which requires the Government to prove that the
restriction "furthers a compelling interest and is narrowly tailored to achieve that
interest." WRTL, 551 U.S., at 464, 127 S. Ct. 2652, 168 L. Ed. 2d 329(opinion of
Roberts, C. J.). While it might be maintained that political speech simply cannot
be banned or restricted as a categorical matter, see Simon & Schuster, 502 U.S.,
at 124, 112 S. Ct. 501, 116 L. Ed. 2d 476(Kennedy, J., concurring in judgment),
the quoted language from WRTL provides a sufficient framework for protecting
the relevant First Amendment interests in this case. We shall employ it here.
Premised on mistrust of governmental power, the First Amendment stands
against attempts to disfavor certain subjects or viewpoints. See, e.g., United
States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S. Ct. 1878,
146 L. Ed. 2d 865 (2000) (striking down content based restriction). Prohibited,
too, are restrictions distinguishing among different speakers, allowing speech by
some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 784,
98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). As instruments to censor, these
categories are interrelated: Speech restrictions based on the identity of the
speaker are all too often simply a means to control content.

Election Law |65

Quite apart from the purpose or effect of regulating content, moreover, the
Government may commit a constitutional wrong when by law it identifies certain
preferred speakers. By taking the right to speak from some and giving it to
others, the Government deprives the disadvantaged person or class of the right
to use speech to strive to establish worth, standing, and respect for the speaker's
voice. The Government may not by these means deprive the public of the right
and privilege to determine for itself what speech and speakers are worthy of
consideration. The First Amendment protects speech and speaker, and the ideas
that flow from each.
The Court has upheld a narrow class of speech restrictions that operate to the
disadvantage of certain persons, but these rulings were based on an interest in
allowing governmental entities to perform their functions. See, e.g., Bethel
School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S. Ct. 3159, 92 L. Ed. 2d
549 (1986) (protecting the "function of public school education"); Jones v. North
Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S. Ct. 2532, 53 L.
Ed. 2d 629 (1977) (furthering "the legitimate penological objectives of the
corrections system" (internal quotation marks omitted)); Parker v. Levy, 417 U.S.
733, 759, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974)(ensuring "the capacity of the
Government to discharge its [military] responsibilities" (internal quotation marks
omitted)); Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 557, 93 S. Ct.
2880, 37 L. Ed. 2d 796 (1973)("[F]ederal service should depend upon
meritorious performance rather than political service"). The corporate
independent expenditures at issue in this case, however, would not interfere with
governmental functions, so these cases are inapposite. These precedents stand
only for the proposition that there are certain governmental functions that cannot
operate without some restrictions on particular kinds of speech. By contrast, it is
inherent in the nature of the political process that voters must be free to obtain
information from diverse sources in order to determine how to cast their votes. At
least before Austin, the Court had not allowed the exclusion of a class of speakers
from the general public dialogue.
We find no basis for the proposition that, in the context of political speech, the
Government may impose restrictions on certain disfavored speakers. Both history
and logic lead us to this conclusion.
The previous decisions of the US Supreme Court in Austin v. Michigan Chamber of
Commerce99 (which ruled that political speech may be banned based on the
speaker's corporate identity) and the relevant portion of McConnell v. Federal
Election Commission100 (which upheld the limits on electioneering communications
in a facial challenge) were, in effect, overruled by Citizens United.
Like Citizens Unitedis the 1976 case of Buckley v. Valeo. 101 In this much earlier
case, the US Supreme Court ruled, among other issues elevated to it for
resolution, on a provision of the Federal Election Campaign Act of 1971, as
amended, (FECA)102 which limits independent political expenditures by an
individual or group advocating the election or defeat of a clearly identified
candidate for federal office to $1,000 per year. Majority of the US Supreme Court

expressed the view that the challenged provision is unconstitutional as it

impermissibly burdens the right of free expression under the First Amendment,
and could not be sustained on the basis of governmental interests in preventing
the actuality or appearance of corruption or in equalizing the resources of
candidates.103
Even so, the rulings in Citizens United and Buckley find bearing only on matters
related to "independent expenditures," an election law concept which has no
application in this jurisdiction. In the US context, independent expenditures for or
against a particular candidate enjoy constitutional protection. They refer to those
expenses made by an individual, a group or a legal entity which are not
authorized or requested by the candidate, an authorized committee of the
candidate, oran agent of the candidate; they are expenditures that are not placed
in cooperation with or with the consent of a candidate, his agents, or an
authorized committee of the candidate. 104 In contrast, there is no similar
provision here in the Philippines. In fact, R.A. No. 9006105 and its implementing
rules and regulations106 specifically make it unlawful to print, publish, broadcast
or exhibit any print, broadcast or outdoor advertisements donated to the
candidate without the written acceptance of said candidate.
If at all, another portion of the Buckley decision is significant to this case. One of
the issues resolved therein is the validity of a provision of the FECA which
imposes $1,000 limitation on political contributions by individuals and groups to
candidates and authorized campaign committees. 107 Five justices of the ninemember US Supreme Court sustained the challenged provision on the grounds
that it does not violate First Amendment speech and association rights or
invidiously discriminate against non-incumbent candidates and minority party
candidates but is supported by substantial governmental interests in limiting
corruption and the appearance of corruption. It was held:
As the general discussion in Part I-A, supra, indicated, the primary First
Amendment problem raised by the Act's contribution limitations is their restriction
of one aspect of the contributor's freedom of political association. The Court's
decisions involving associational freedoms establish that the right of association is
a "basic constitutional freedom," Kusper v. Pontikes, 414 U.S. at 57, that is
"closely allied to freedom of speech and a right which, like free speech, lies at the
foundation of a free society." Shelton v. Tucker, 364 U.S. 479, 486 (1960). See,
e.g., Bates v. Little Rock, 361 U.S. 516, 522-523 (1960); NAACP v. Alabama,
supra at 460-461; NAACP v. Button, supra, at 452(Harlan, J., dissenting). In view
of the fundamental nature of the rightto associate, governmental "action which
may have the effect of curtailing the freedom to associate is subject to the
closest scrutiny." NAACP v. Alabama, supra, at 460-461. Yet, it is clear that
"[n]either the right to associate nor the right to participate in political activities is
absolute." CSC v. Letter Carriers, 413 U.S. 548, 567 (1973). Even a "significant
interference' with protected rights of political association" may be sustained if the
State demonstrates a sufficiently important interest and employs means closely
drawn to avoid unnecessary abridgment of associational freedoms. Cousins v.
Wigoda, supra, at 488; NAACP v. Button, supra, at 438; Shelton v. Tucker, supra,
at 488.

Election Law |66

Appellees argue that the Act's restrictions on large campaign contributions are
justified by three governmental interests. According to the parties and amici, the
primary interest served by the limitations and, indeed, by the Act as a whole, is
the prevention of corruption and the appearance of corruption spawned by the
real or imagined coercive influence of large financial contributions on candidates'
positions and on their actions if elected to office. Two "ancillary" interests
underlying the Act are also allegedly furthered by the $ 1,000 limits on
contributions. First, the limits serve to mute the voices of affluent persons and
groups in the election process and thereby to equalize the relative ability of all
citizens to affect the outcome of elections. Second, it is argued, the ceilings may
to some extent act as a brake on the skyrocketing cost of political campaigns and
thereby serve to open the political systemmore widely to candidates without
access to sources of large amounts of money.
It is unnecessary to look beyond the Act's primary purpose -- to limit the
actuality and appearance of corruption resulting from large individual financial
contributions -- in order to find a constitutionally sufficient justification for the $
1,000 contribution limitation. Under a system of private financing of elections, a
candidate lacking immense personal or family wealth must depend on financial
contributions from others to provide the resources necessary to conduct a
successful campaign. The increasing importance of the communications media
and sophisticated mass-mailing and polling operations to effective campaigning
make the raising of large sums of money an ever more essential ingredient of an
effective candidacy. To the extent that large contributions are given to secure
political quid pro quo's from current and potential office holders, the integrity of
our system of representative democracy is undermined. Although the scope of
such pernicious practices can never be reliably ascertained, the deeply disturbing
examples surfacing after the 1972 election demonstrate that the problem is not
an illusory one. Of almost equal concern as the danger of actual quid pro quo
arrangements is the impact of the appearance of corruption stemming from
public awareness of the opportunities for abuse inherent in a regime of large
individual financial contributions. In CSC v. Letter Carriers, supra, the Court found
that the danger to "fair and effective government" posed by partisan political
conduct on the part of federal employees charged with administering the law was
a sufficiently important concern to justify broad restrictions on the employees'
right of partisan political association. Here, as there, Congress could legitimately
conclude that the avoidance of the appearance of improper influence "is also
critical... if confidence in the system of representative Government is not to be
eroded to a disastrous extent." 413 U.S. at 565.

corruption inherent in a system permitting unlimited financial contributions, even

when the identities of the contributors and the amounts of their contributions are
fully disclosed.
The Act's $ 1,000 contribution limitation focuses precisely on the problem of large
campaign contributions-- the narrow aspect of political association where the
actuality and potential for corruption have been identified -- while leaving persons
free to engage in independent political expression, to associate actively through
volunteering their services, and to assist to a limited but nonetheless substantial
extent in supporting candidates and committees with financial resources.
Significantly, the Act's contribution limitations in themselves do not undermine to
any material degree the potential for robust and effective discussion of
candidates and campaign issues by individual citizens, associations, the
institutional press, candidates, and political parties.
We find that, under the rigorous standard of review established by our prior
decisions, the weighty interests served by restricting the size of financial
contributions to political candidates are sufficient to justify the limited effect upon
First Amendment freedoms caused by the $ 1,000 contribution ceiling. (Emphasis
supplied)
Until now, the US Supreme Court has not overturned the ruling that, with respect
to limiting political contributions by individuals and groups, the Governments
interest in preventing quid pro quo corruption or its appearance was "sufficiently
important" or "compelling" so that the interest would satisfy even strict
scrutiny.108
In any event, this Court should accentuate that resort to foreign jurisprudence
would be proper only if no law or jurisprudence is available locally to settle a
controversy and that even in the absence of local statute and case law, foreign
jurisprudence are merely persuasive authority at best since they furnish an
uncertain guide.109 We prompted in Republic of the Philippines v. Manila Electric
Company:110

x x x American decisions and authorities are not per se controlling in this

jurisdiction. At best, they are persuasive for no court holds a patent on correct
decisions.Our laws must be construed in accordance with the intention of our own
lawmakers and such intent may be deduced from the language of each law and
the context of other local legislation related thereto. More importantly, they must
Appellants contend that the contribution limitations must be invalidated because be construed to serve our own public interest which is the be-all and the end-all
bribery laws and narrowly drawn disclosure requirements constitute a less of all our laws. And it need not be stressed that our public interest is distinct and
restrictive means of dealing with "proven and suspected quid pro quo different from others.111
arrangements." But laws making criminal the giving and taking of bribes deal
withonly the most blatant and specific attempts of those with money to influence and once more in Central Bank Employees Assoc., Inc. v. Bangko Sentral Ng
governmental action. And while disclosure requirements serve the many salutary
Pilipinas:112
purposes discussed elsewhere in this opinion, Congress was surely entitled to
conclude that disclosure was only a partial measure,and that contribution ceilings
were a necessary legislative concomitant to deal with the reality or appearance of

Election Law |67

x x x [A]merican jurisprudence and authorities, much less the American

Constitution, are of dubious application for these are no longer controlling within
our jurisdiction and have only limited persuasive merit insofar as Philippine
constitutional law is concerned.... [I]n resolving constitutional disputes, [this
Court] should not be beguiled by foreign jurisprudence some of which are hardly
applicable because they have been dictated by different constitutional settings
and needs." Indeed, although the Philippine Constitution can trace its origins to
that of the United States, their paths of development have long since diverged. 113
Indeed, in Osmea v. COMELEC, 114 this Court, in reaffirming its ruling in National
Press Club v. Commission on Elections 115 that Section 11 (b) of R.A. No.
6646116 does not invade and violate the constitutional guarantees comprising
freedom of expression, remarked in response to the dissent of Justice Flerida
Ruth P. Romero:
On the other hand, the dissent of Justice Romero in the present case, in batting
for an "uninhibited market place of ideas," quotes the following from Buckley v.
Valeo:

No. 6646, in relation to 90 and 92 are part, be considered infringements on

freedom of speech? That the framers contemplated regulation of political
propaganda similar to 11(b) is clear from the following portion of the
sponsorship speech of Commissioner Vicente B. Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or
utilization of franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special
privileges or concessions granted by the Government, there is a provision that
during the election period, the Commission may regulate, among other things,
the rates, reasonable free space, and time allotments for public information
campaigns and forums among candidates for the purpose of ensuring free,
orderly, honest and peaceful elections. This has to do with the media of
communication or information.117 Proceeding from the above, the Court shall now
rule on Ejercitos proposition that the legislature imposes no legal limitation on
campaign donations. He vigorously asserts that COMELEC Resolution No. 9476
distinguishes between "contribution" and "expenditure" and makes no
proscription on the medium or amount of contribution madeby third parties in
favor of the candidates, while the limit set by law, as appearing in COMELEC
Resolution No. 9615, applies only to election expenditures of candidates.

[T]he concept that the government may restrict the speech of some elements in
our society in order to enhance the relative voice of the others is wholly foreign
to the First Amendment which was designed to "secure the widest possible We deny.
dissemination ofinformation from diverse and antagonistic sources" and "to
assure unfettered interchange of ideas for the bringing about of political and Section 13 of R.A. No. 7166 118 sets the current allowable limit on expenses of
social changes desired by the people."
candidates and political parties for election campaign, thus:

But do we really believe in that? That statement was made to justify striking SEC. 13.Authorized Expenses of Candidates and Political Parties. The aggregate
down a limit on campaign expenditure on the theory that money is speech. Do amount that a candidate or registered politicalparty may spend for election
those who endorse the view that government may not restrict the speech of campaign shall be as follows:
some in order to enhance the relative voice of others also think that the
campaign expenditure limitation found in our election laws is unconstitutional?
(a) For candidates Ten pesos (P10.00) for President and Vice President;
How about the principle of one person, one vote, is this not based on the political
and for other candidates, Three pesos (P3.00) for every voter currently
equality of voters? Voting after all is speech. We speak of it as the voiceof the
registered in the constituency where he filed his certificate of candidacy:
people even of God. The notion that the government may restrictthe speech of
Provided, That, a candidate without any political party and without
some in order to enhance the relative voice of othersmay be foreign to the
support from any political party may be allowed to spend Five pesos
American Constitution. It is not to the Philippine Constitution, being in fact an
(P5.00) for every such voter; and
animating principle of that document.
Indeed, Art. IX-C, 4 is not the only provision in the Constitution mandating
political equality. Art. XIII, 1 requires Congress to give the "highest priority" to
the enactment of measures designed to reduce political inequalities, while Art. II,
26 declaresas a fundamental principle of our government "equal access to
opportunities for public service." Access to public office will be deniedto poor
candidates if they cannot even have access to mass media in order to reach the
electorate. What fortress principle trumps or overrides these provisions for
political equality? Unless the idealism and hopes which fired the imagination of
those who framed the Constitution now appeardim to us, how can the electoral
reforms adopted by them to implement the Constitution, of which 11(b) of R.A.

(b) For political parties - Five pesos (P5.00) for every voter currently
registered in the constituency or constituencies where it has official
candidates.
Any provision of law to the contrary notwithstanding, any contribution in cash or
in kind to any candidate or political party or coalition of parties for campaign
purposes, duly reported to the Commission, shall not be subject to the payment
of any gift tax.119

Election Law |68

Sections 100, 101, and 103 of the OEC are not repealed by R.A. No. When the intent of the law is not apparent as worded, or when the application of
7166.120 These provisions, which are merely amended insofar as the allowable the law would lead to absurdity, impossibility or injustice, extrinsic aids of
amount is concerned, read:
statutory construction may be resorted to such as the legislative history of the
law for the purpose of solving doubt, and that courts may take judicial notice of
SECTION 100. Limitations upon expenses of candidates. No candidate shall the origin and history of the law, the deliberations during the enactment, as well
the same subject matter in order to ascertain the true intent or
spend for his election campaign an aggregate amount exceeding one peso and as prior laws on122
spirit
of
the
law.
fifty centavos for every voter currently registered in the constituency where he
filed his candidacy: Provided, That the expenses herein referred to shall include
those incurred or caused to be incurred by the candidate, whether in cash or in
kind, including the use, rental or hire of land, water or aircraft, equipment,
facilities, apparatus and paraphernalia used in the campaign: Provided, further,
That where the land, water or aircraft, equipment, facilities, apparatus and
paraphernalia used is owned by the candidate, his contributor or supporter, the
Commission is hereby empowered toassess the amount commensurate with the
expenses for the use thereof, based on the prevailing rates in the locality and
shall be included in the total expenses incurred by the candidate.

Looking back, it could be found that Sections 100, 101, and 103 of the OEC are
substantially lifted from P.D. No. 1296, 123 as amended. Sections 51, 52 and 54 of
which specifically provide:

Section 51.Limitations upon expenses of candidates. No candidate shall spend for

his election campaign an amount more than the salary or the equivalent of the
total emoluments for one year attached to the office for which he is a candidate:
Provided, That the expenses herein referred to shall include those incurred by the
candidate, his contributors and supporters,whether in cash or in kind, including
SECTION 101. Limitations upon expenses of political parties. A duly accredited the use, rental or hire of land, water or air craft, equipment, facilities, apparatus
political party may spend for the election of its candidates in the constituency or and paraphernalia used in the campaign: Provided, further,That, where the land,
constituencies where it has official candidates an aggregate amount not water or air craft, equipment, facilities, apparatus and paraphernalia used is
exceeding the equivalent of one peso and fifty centavos for every voter currently owned by the candidate, his contributor or supporter, the Commission is hereby
registered therein. Expenses incurred by branches, chapters, or committees of empowered to assess the amount commensurate with the expenses for the use
such political party shall be included in the computation of the total expenditures thereof, based on the prevailing rates in the locality and shall be included in the
of the political party.
total expenses incurred by the candidate.
Expenses incurred by other political parties shall be considered as expenses of In the case of candidates for the interim Batasang Pambansa, they shall not
their respective individual candidates and subject to limitation under Section 100 spend more than sixty thousand pesos for their election campaign.
of this Code.
Section 52. Limitation upon expenses of political parties, groups or
aggrupations.A political party, group or aggrupation may not spend for the
election of its candidates in the constituency or constituencies where it has official
candidates anaggregate amount more than the equivalent of fifty centavos for
every voter currently registered therein: Provided, That expenses incurred by
such political party, group or aggrupation not duly registered with the
Commission and/or not presenting or supporting a complete list of candidates
shall be considered as expenses of its candidates and subject to the limitation
The authority to incur expenditures shall be in writing, copy of which shall be under Section 51 of this Code. Expenses incurred by branches, chapters or
furnished the Commission signed by the candidate or the treasurer of the party committees of a political party, group or aggrupation shall be included in the
and showing the expenditures so authorized, and shall state the full name and computation of the total expenditures of the political party, group or aggrupation.
(Emphasis supplied)
exact address of the person so designated. (Emphasis supplied) 121
SECTION 103. Persons authorized to incur election expenditures. No person,
except the candidate, the treasurer of a political party or any person authorized
by such candidate or treasurer, shall make any expenditure in support of or in
opposition to any candidate or political party. Expenditures duly authorized by the
candidate or the treasurer of the party shall be considered as expenditures of
such candidate or political party.

The focal query is: How shall We interpret "the expenses herein referred to shall
include those incurred or caused to be incurred by the candidate"and "except the
candidate, the treasurer of a political party or any person authorized by such
candidate or treasurer"found in Sections 100 and 103, respectively, of the OEC?
Do these provisions exclude from the allowable election expenditures the
contributions of third parties made with the consent of the candidate? The Court
holds not.

Section 54. Persons authorized to incur election expenditures.No person, except

the candidate or any person authorized by him or the treasurer of a political
party, group or aggrupation, shall make any expenditure in support of, or in
opposition to any candidate or political party, group or aggrupation. Expenditures
duly authorized by the candidate of the treasurer of the party, group or
aggrupation shall be considered as expenditure of such candidate or political
party, group or aggrupation.

Election Law |69

The authority to incur expenditures shall be in writing, copy of which shall be

furnished the Commission, signed by the candidate or the treasurer of the party,
group or aggrupation and showing the expenditure so authorized, and shall state
the full nameand exact address of the person so designated. (Emphasis supplied)
Prior to P.D. No. 1296, R.A. No. 6388 (otherwise known as the "Election Code of
1971") was enacted.124 Sections 41 and 42 of which are relevant, to quote:

adequate to cover those expenses which are contributed or donated in the

candidates behalf. By virtue of the legal requirement that a contribution or
donation should bear the written conformity of the candidate, a
contributor/supporter/donor certainly qualifies as "any person authorized by such
candidate or treasurer." Ubi lex non distinguit, nec nos distinguere
debemus.126 (Where the law does not distinguish, neither should We.) There
should be no distinction in the application of a law where none is indicated.

Section 41. Limitation Upon Expenses of Candidates. No candidate shall spend The inclusion of the amount contributed by a donor to the candidates allowable
for his election campaign more than the total amount of salary for the full term limit of election expenses does not trample upon the free exercise of the voters
rights of speech and of expression under Section 4, Artticle III of the
attached to the office for which he is a candidate.
Constitution. As a content-neutral regulation, 127 the laws concern is not to curtail
the message or content of the advertisement promoting a particular candidate
Section 42. Limitation Upon Expenses of Political Parties and Other Nonpolitical but to ensure equality between and among aspirants with "deep pockets" and
Organizations. No political party as defined in this Code shall spend for the those with less financial resources. Any restriction on speech or expression is only
election of its candidates an aggregate amount more than the equivalent of one incidentaland is no more than necessary to achieve the substantial governmental
peso for every voter currently registered throughout the country in case of a interest of promoting equality of opportunity in political advertising. It bears a
regular election, orin the constituency in which the election shall be held in case clear and reasonable connection with the constitutional objectives set out in
of a special election which is not held in conjunction with a regular election. Any Section 26, Article II, Section 4, Article IX-C, and Section 1, Art. XIII of the
other organization not connected with any political party, campaigning for or Constitution.128
against a candidate, or for or against a political party shall not spend more than a
total amount of five thousand pesos. (Emphasis supplied)
Indeed, to rule otherwise would practically result in an unlimited expenditure for
political advertising, which skews the political process and subverts the essence
Much earlier, Section 12 (G) of R.A. No. 6132, 125 which implemented the of a truly democratic form of government.
resolution of both Houses ofCongress calling for a constitutional convention,
explicitly stated:
WHEREFORE, the Petition is DENIED. The May 21, 2014 Resolution of the
COMELEC En Banc in SPA No. 13-306 (DC), which upheld the September 26,
Section 12.Regulations of Election Spending and Propaganda. The following 2013 Resolution of the COMELEC First Division, granting the petition for
provisions shall govern election spending and propaganda in the election provided disqualification filed by private respondent Edgar "Egay" S. San Luis against
for in this Act:
petitioner Emilio Ramon "E.R." P. Ejercito, is hereby AFFIRMED.
xxx

SO ORDERED.

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

G.R. No. 147571

In tracing the legislative history of Sections 100, 101, and 103 of the OEC, it can
be said, therefore, that the intent of our lawmakers has been consistent through
the years: to regulate not just the election expenses of the candidate but also of
his or her contributor/supporter/donor as well as by including in the aggregate
limit of the formers election expenses those incurred by the latter.1awp++i1 The
phrase "those incurred or caused to be incurred by the candidate"is sufficiently

MENDOZA, J.:

May 5, 2001

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN

PUBLISHING CORPORATION, doing business as MANILA STANDARD,
petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit

social research institution conducting surveys in various fields, including
economics, politics, demography, and social development, and thereafter

Election Law |70

processing, analyzing, and publicly reporting the results thereof. On the other
hand, petitioner Kamahalan Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation, which features news- worthy items
of information including election surveys. 1wphi1.nt

or on newspapers or broadcast media from writing and publishing articles

concerning political issues up to the day of the election. Consequently, they
contend that there is no reason for ordinary voters to be denied access to the
results of election surveys, which are relatively objective. 1wphi1.nt

Petitioners brought this action for prohibition to enjoin the Commission on Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No.
Elections from enforcing 5.4 of RA. No.9006 (Fair Election Act), which provides:
9006 as necessary to prevent the manipulation and corruption of the electoral
process by unscrupulous and erroneous surveys just before the election. It
Surveys affecting national candidates shall not be published fifteen (15) contends that (1) the prohibition on the publication of election survey results
days before an election and surveys affecting local candidates shall not during the period proscribed by law bears a rational connection to the objective of
the law, i.e., the prevention of the debasement of the electoral process resulting
be published seven (7) days be- fore an election.
from manipulated surveys, bandwagon effect, and absence of reply; (2) it is
narrowly tailored to meet the "evils" sought to be prevented; and (3) the
The term "election surveys" is defined in 5.1 of the law as follows:
impairment of freedom of expression is minimal, the restriction being limited both
in duration, i.e., the last 15 days before the national election and the last 7 days
Election surveys refer to the measurement of opinions and perceptions of
before a local election, and in scope as it does not prohibit election survey results
the voters as regards a candidate's popularity, qualifications, platforms or
but only require timeliness. Respondent claims that in National Press Club v.
a matter of public discussion in relation to the election, including voters
COMELEC,1 a total ban on political advertisements, with candidates being merely
preference for candidates or publicly discussed issues during the
allocated broadcast time during the so-called COMELEC space or COMELEC hour,
campaign period (hereafter referred to as "Survey").
was upheld by this Court. In contrast, according to respondent, it states that the
prohibition in 5.4 of RA. No. 9006 is much more limited.
The implement 5.4, Resolution 3636, 24(h), dated March I, 2001, of the
COMELEC enjoins
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and the press.
Surveys affecting national candidates shall not be published fifteen (15)
days before an election and surveys affecting local candidates shall not
To be sure, 5.4Iays a prior restraint on freedom of speech, expression, and the
be published seven (7) days be- fore an election.
press prohibiting the publication of election survey results affecting candidates
within the prescribed periods of fifteen (15) days immediately preceding a
Petitioner SWS states that it wishes to conduct an election survey throughout the national election seven (7) days before a local election. Because of tile preferred
period of the elections both at the national and local levels and release to the status of tile constitutional rights of speech, expression, and he press, such a
media the results of such survey as well as publish them directly. Petitioner measure is vitiated by a weighty presumption of invalidity.2 Indeed, any system
Kamahalan Publishing Corporation, on the other hand, states that it intends to of prior restraints of expression comes to this Court bearing a heavy Presumption
publish election survey results up to the last day of the elections on May 14,2001. against its constitutional validity. ...The Government thus carries a heavy burden
of showing justification for in enforcement of such restraint. "' 3 There, thus a
Petitioners argue that the restriction on the publication of election survey results reversal of the normal presumption of validity that inheres in every legislation.
constitutes a prior restraint on the exercise of freedom of speech without any
clear and present danger to justify such restraint. They claim that SWS and other Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which
pollsters conducted and published the results of surveys prior to the 1992, 1995, gives the COMELEC supervisory power to regulate the enjoyment or utilization of
and 1998 elections up to as close as two days before the election day without franchise for the operation of media of communication, no presumption of
causing confusion among the voters and that there is neither empirical nor invalidity attaches to a measure like 5.4. For as we have pointed out in
historical evidence to support the conclusion that there is an immediate and sustaining tile ban on media political advertisements, the grant of power to the
inevitable danger to tile voting process posed by election surveys. They point out COMELEC under Art. IX-C, 4 is limited to ensuring "equal opportunity, time,
that no similar restriction is imposed on politicians from explaining their opinion space, and the right to reply" as well as uniform and reasonable rates of charges

Election Law |71

for the use of such media facilities "public information campaigns and forums equal opportunity, time, and space and the right of reply, including reasonable,
among candidates."4 This Court stated:
equal rates therefor for public information campaigns and forums among
candidates. "Hence the validity of the ban on media advertising. It is noteworthy
The technical effect of Article IX (C) (4) of the Constitution may be seen that R.A. No. 9006, 14 has lifted the ban and now allows candidates to
to be that no presumption of invalidity arises in respect of exercises of advertise their candidacies in print and broadcast media. Indeed, to sustain the
supervisory or regulatory authority on the part of the Comelec for the ban on the publication of survey results would sanction the censorship of all
Purpose of securing equal opportunity among candidates for political speaking by candidates in an election on the ground that the usual bombasts and
office, although such supervision or regulation may result in some hyperbolic claims made during the campaigns can confuse voters and thus
debase the electoral process.
limitation of the rights of free speech and free press. 5
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and
present danger for determining the validity of 5.4. Indeed, as has been pointed
out in Osmea v. COMELEC,6 this test was originally formulated for the criminal
law and only later appropriated for free speech cases. Hence, while it may be
useful for determining the validity of laws dealing with inciting to sedition or
incendiary speech, it may not be adequate for such regulations as the one in
question. For such a test is concerned with questions of the gravity and
imminence of the danger as basis for curtailing free speech, which is not the case
of 5.4 and similar regulations.

In sum, the dissent has engaged only in a balancing at the margin. This form of
ad hoc balancing predictably results in sustaining the challenged legislation and
leaves freedom of speech, expression, and the press with little protection. For
anyone who can bring a plausible justification forward can easily show a rational
connection between the statute and a legitimate governmental purpose. In
contrast, the balancing of interest undertaken by then Justice Castro
in Gonzales v. COMELEC,7 from which the dissent in this case takes its cue, was a
strong one resulting in his conclusion that , 50-B of R.A. No. 4880, which limited
the period of election campaign and partisan political activity, was an
unconstitutional abridgment of freedom of expression.

Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by

"weighing and balancing the circumstances to determine whether public interest
[in free, orderly, honest, peaceful and credible elections] is served by the
regulation of the free enjoyment of the rights" (page 7). After canvassing the
reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the
creation of bandwagon effect to favor candidates, misinformation, the junking" of
weak and "losing" candidates by their parties, and the form of election cheating
called "dagdag-bawas" and invoking the State's power to supervise media of
information during the election period (pages 11-16), the dissenting opinion
simply concludes:

Nor can the ban on election surveys be justified on the ground that there are
other countries - 78, according to the Solicitor General, while the dissent cites 28
- which similarly impose restrictions on the publication of election surveys. At
best this survey is inconclusive. It is note worthy that in the United States no
restriction on the publication of election survey results exists. It cannot be argued
that this is because the United States is a mature democracy. Neither are there
laws imposing an embargo on survey results, even for a limited period, in other
countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium,
Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the
Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more
Viewed in the light of the legitimate and significant objectives of Section mature than the Philippines in political development, do not restrict the
5.4, It may be seen that its limitingimpact on the rights of free speech publication of election survey results.
and of the press is not unduly repressive or unreasonable. In Indeed, it is
a mere restriction, not an absolute prohibition, on the publication of What test should then be employed to determine the constitutional validity of
election surveys. It is limited in duration; it applies only during the period 5.4? The United States Supreme Court, through Chief Justice Warren, held
when the voters are presumably contemplating whom they should elect in United States v. O 'Brien:
and when they are most susceptible to such unwarranted persuasion.
These surveys may be published thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations
should outweigh the value of freedom of expression. Instead, reliance is placed
on Art. IX-C, 4.As already stated, the purpose of Art. IX-C, 4 is to "ensure

[A] Government regulation is sufficiently justified [1] if it is within the

constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is
unrelated to the suppression of free expression; and [4] if the incidental
restriction on alleged First Amendment freedoms [of speech, expression

Election Law |72

and press] is no greater than is essential to the furtherance of that

interest.8

Nor is there justification for the prior restraint which 5.4Iays on protected
speech. Near v. Minnesota,13 it was held:

This is so far the most influential test for distinguishing content-based from
content neutral regulations and is said to have "become canonical in the review of
such laws."9 is noteworthy that the O 'Brien test has been applied by this Court in
at least two cases.10

[The] protection even as to previous restraint is not absolutely unlimited.

But the limitation has been recognized only in exceptional cases. No
one would question but that a government might prevent actual
obstruction to its recruiting service or the publication of the sailing dates
transports or the number and location of troops. On similar grounds, the
primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected against
incitements to acts of violence and overthrow by force of orderly
government

Under this test, even if a law furthers an important or substantial governmental

interest, it should be invalidated if such governmental interest is "not unrelated to
the Expression of free expression." Moreover, even if the purpose is unrelated to
the suppression of free speech, the law should nevertheless be invalidated if the
restriction on freedom of expression is greater than is necessary to achieve the
governmental purpose in question.
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by
5.4 cannot be justified on the ground that it is only for a limited period and is
Our inquiry should accordingly focus on these two considerations as applied to only incidental. The prohibition may be for a limited time, but the curtailment of
the right of expression is direct, absolute, and substantial. It constitutes a total
5.4.
suppression of a category of speech and is not made less so because it is only for
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal a period of fifteen (15) days immediately before a national election and seven (7)
connection of expression to the asserted governmental interest makes such days immediately before a local election. ..
interest "not related to the suppression of free expression." By prohibiting the
publication of election survey results because of the possibility that such
publication might undermine the integrity of the election, 5.4 actually
suppresses a whole class of expression, while allowing the expression of opinion
concerning the same subject matter by newspaper columnists, radio and TV
commentators, armchair theorists, and other opinion takers. In effect, 5.4
shows a bias for a particular subject matter, if not viewpoint, by referring
personal opinion to statistical results. The constitutional guarantee of freedom of
expression means that "the government has no power to restrict expression
because of its message, its ideas, its subject matter, or its content." 11 The
inhibition of speech should be upheld only if the expression falls within one of the
few unprotected categories dealt with in Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise
any Constitutional problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or 'fighting' words - those which
by their very utterance inflict injury or tend to incite an immediate
breach of the peace. [S]uch utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality

This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court
found to be valid in National Press Club v. COMELEC, 14 and Osmea v.
COMELEC.15 For the ban imposed by R.A. No. 6646, 11(b) is not only authorized
by a specific constitutional provision,16 but it also provided an alternative so that,
as this Court pointed out in Osmea, there was actually no ban but only a
substitution of media advertisements by the COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to
the suppression of speech and the resulting restriction of free expression is only
incidental, 5.4 nonetheless fails to meet criterion [4] of the O'Brien test, namely,
that the restriction be not greater than is necessary to further the governmental
interest. As already stated, 5.4 aims at the prevention of last-minute pressure
on voters, the creation of bandwagon effect, "junking" of weak or "losing"
candidates, and resort to the form of election cheating called "dagdag-bawas."
Praiseworthy as these aims of the regulation might be, they cannot be attained at
the sacrifice of the fundamental right of expression, when such aim can be more
narrowly pursued by punishing unlawful acts, rather than speechbecause of
apprehension that such speech creates the danger of such evils. Thus, under the
Administrative Code of 1987,17 the COMELEC is given the power:

Election Law |73

To stop any illegal activity, or confiscate, tear down, and stop

any unlawful, libelous, misleading or false election propaganda, after due
notice and hearing.
This is surely a less restrictive means than the prohibition contained in 5.4.
Pursuant to this power of the COMELEC, it can confiscate bogus survey results
calculated to mislead voters. Candidates can have their own surveys conducted.
No right of reply can be invoked by others. No principle of equality is involved. It
is a free market to which each candidate brings his ideas. As for the purpose of
the law to prevent bandwagon effects, it is doubtful whether the Government can
deal with this natural-enough tendency of some voters. Some voters want to be
identified with the "winners." Some are susceptible to the herd mentality. Can
these be legitimately prohibited by suppressing the publication of survey results,
which are a form of expression? It has been held that "[mere] legislative
preferences or beliefs respecting matters of public convenience may well support
regulation directed at other personal activities, but be insufficient to justify such
as diminishes the exercise of rights so vital to the maintenance of democratic
institutions."18
To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior
restraint on the freedom of expression, (2) it is a direct and total suppression of a
category of expression even though such suppression is only for a limited period,
and (3) the governmental interest sought to be promoted can be achieved by
means other than suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the
Constitution, its decisions, orders, or resolution may be reviewed by this Court
only certiorari. The flaws in this argument is that it assumes that its Resolution
3636, March 1, 2001 is a "decision, order, or resolution" within the meaning of
Art. IX-A, 7. Indeed, counsel for COMELEC maintain that Resolution 3636 was
"rendered" by the Commission. However, the Resolution does not purport to
adjudicate the right of any party. It is not an exercise by the COMELEC of its
adjudicatory power to settle the claims of parties. To the contrary, Resolution
3636 clearly states that it is promulgated to implement the provisions of R.A. No.
9006. Hence, there is no basis for COMELEC's claim that this petition for
prohibition is inappropriate. Prohibition has been fund appropriate for testing the
constitutionality of various election laws, rules, and regulations. 19
WHEREFORE, the petition for prohibited GRANTED and 5.4 of R.A. No. 9006
24(h) of COMELEC Resolution 3636, March 1, 2001, are declared
unconstitutional. 1wphi1.nt
SO ORDERED.

Election Law |74

The facts are as follows:

Petitioner William P. Ong and respondent Isagani B. Rizon were candidates for the
position of mayor of the municipality of Baroy, Lanao del Norte during the May
11, 1998 local elections. On May 13, 1998, the municipal board of canvassers
proclaimed William P. Ong as the winner with a margin of fifty-one (51) votes, as
follows:
WILLIAM P. ONG - 4,472 votes
ISAGANI B. RIZON - 4,421 votes
On May 22, 1998, respondent filed with the Regional Trial Court, Lanao del Norte
an election protest4 contesting petitioners votes in five (5) clustered
precincts.5 Only the ballot boxes for two (2) precincts, namely: Precincts 8A and
28A/28A1 were opened since respondent waived the revision of the ballots in the
other precincts.
On March 25, 1999, the trial court rendered a decision annulling forty-five (45)
votes for petitioner while invalidating two (2) votes for respondent. Petitioners
lead was reduced to eight (8) votes over that of respondent, to wit:
WILLIAM P. ONG - 4,427 votes
ISAGANI B. RIZON - 4,419 votes6
G.R. No. 144197

December 13, 2000

WILLIAM
P.
ONG, petitioner,
vs.
COMMISSION ON ELECTIONS and ISAGANI B. RIZON, respondents.
DECISION

In time, respondent appealed the trial courts decision to the Comelec. 7 On

February 1, 2000, the Comelec, Second Division 8 , promulgated a resolution
declaring that the trial court committed serious reversible errors in its
appreciation of the contested ballots and invalidated sixty-three (63) votes for
petitioner and eight (8) votes for respondent. The final result of its examination
of the ballots showed that respondent led by a margin of four (4) votes, as
follows:

PARDO, J.:
WILLIAM P. ONG - 4,409 votes
The case before us is a petition for certiorari and prohibition with preliminary
9
injunction, temporary restraining order or status quo ante order1 assailing the ISAGANI B. RIZON - 4,413 votes
resolution of the Commission on Elections (Comelec) en bancpromulgated on
August 15, 2000, reversing the decision of the Regional Trial Court, Lanao del On February 7, 2000, petitioner moved for reconsideration of the above
Norte,2 declaring protestee (herein petitioner) as the duly elected mayor of the resolution.10
municipality of Baroy, Lanao del Norte.3

Election Law |75

On August 15, 2000, the Comelec en banc11 promulgated a resolution affirming The rule is in favor of the validity of the ballot, not otherwise. The term " unless"
the Second Divisions resolution but reduced by one (1) vote the lead of imports an exception rather than the general rule. This was enunciated
respondent over petitioner. The final result showed that:
in Tajanlangit vs. Cazenas,15 where we ruled that:
WILLIAM P. ONG - 4,411 votes
ISAGANI B. RIZON - 4,414 votes12
Hence, this petition.13

"x x x. The use of two kinds of writing appearing in this ballot is a good example
of the exception provided for in paragraph 18, section 149 of the Revised Election
Code, which provides that unless it should clearly appear that it has been
deliberately put by the voter to serve as identification mark, the use of two or
more kinds of writing shall be considered innocent and shall not invalidate the
ballot." (Underlining ours)

Petitioner contends that the Comelec en banc resolution, aside from being
patently illegal, was issued with grave abuse of discretion amounting to lack or The printed name "NIKKI" does not show any intention on the part of the voters
excess of jurisdiction. On the whole, the petition disputed the sixty one (61) to identify or distinguish themselves. Therefore, the ballots are not considered
marked. The name "NIKKI" only showed that it was the voters intention to
invalidated ballots of petitioner and seven (7) ballots of respondent.
emphasize and stress their adulation for a senator with the name "NIKKI", rather
than to identify themselves. The votes are stray for the senatorial candidates but
A thorough evaluation and visual examination of the contested ballots reveal the
will not invalidate the entire ballot.
following findings:
In the same manner, the appearance of print and script writings in a single ballot
In Exhibits "A", "C", "N" and "OO" of Precinct 8A, slot No. 1 for senators
does not necessarily imply that two persons wrote the ballot. The strokes of print
contained the name "NIKKI" and all the other spaces for senators were left blank.
and script handwriting would naturally differ but would not automatically mean
The name "NIKKI" was written in print and the rest were written in script.
that two persons prepared the same. A visual examination of the ballots belies
the claim that these ballots were prepared by two persons. In the absence of any
In the same manner, in Exhibit "C" and "II", the name "NORMAN" was written on deliberate intention to put an identification mark, the ballots must not be
slot No. 1 for senators. In Exhibit "UU" of Precinct 28A/28A1 contained the name rejected. We held that:
"SINA" was written on the slot No. 1 for senators. In Exhibit "B", the vote for Ong
was in bold letters while the rests were written in different strokes.
"Ballot Exhibit N.This ballot was rejected by the Court of Appeals as marked
because the names of the candidates from the second space for members of the
Comelec invalidated all the above described ballots for being marked and written provincial board down to the 7th place for councilors were written in capital
by two persons.
letters while those of other candidates were written in small letters, the court
concluding that the use of two forms of writing can only mean an intent to
We find that Comelec grievously erred ousting itself of jurisdiction for grave identify the voter. We disagree with this conclusion. Under Section 149,
abuse of discretion in invalidating the ballots, including the votes for Ong.
paragraph 18, of the Revised Election Code, the use of two or more kinds of
writing cannot have the effect of invalidating the ballot unless it clearly appears
that they had been deliberately put by the voter to serve as identification mark.
The law is clear:
Here such intent does not appear. The case in point in Hilao vs. Bernardo, G. R.
"Unless it should clearly appear that they have been deliberately put by the voter No.L-7704, December 14, 1954, wherein it was held that the use of ordinary and
to serve as identification marks, comma, dots, lines, or hyphens between the first printed forms of writing in a ballot is but a mere variation which does not
16
name and surname of a candidate, or in other parts of the ballot, traces of the invalidate the ballot. This ballot should, therefore, be counted for Ferrer."
letter "T", "J", and other similar ones, the first letters or syllables of names which
the voter does not continue, the use of two or more kinds of writing and In Exhibits "B", "P", "Z", "JJ" and "KK" of Precinct 8A, "Big J" was written before
unintentional or accidental flourishes, strokes or strains, shall not invalidate the the names of senatorial candidates Legarda, Cayetano, Barbers and before the
name of William Ong in the space for mayor.
ballot."14

Election Law |76

In Exhibits "M", "R", "T", "X", "AA" and "EE" of Precinct 8A, letters "FPJ" were
written.

There are in the above ballots distinct initials and words such as "DLR",
"DOLLIN", DOLLINS", "GINA", "EVA", "SOSANG TORIS", "SABANG BULAC",
"CORY", "GREECE", "GRACES", "LOS", "LUZ", "BONG", "ELIN", "ROSE", "ALONG
In Exhibits "JJJ" and "SSS" of Precinct 28A/28A1, the letters "RJ" were written on RARO", "BONOO", "ALONG" "PONBI", "ROVEN GATA", "NORMAN", "RIC", "VIA",
"AMEN", "NANIG", "SABAS", "MIMIG" and "LOLOY TORRES" written on spaces for
the first slot for senators.
different positions. These writings can only be construed as an intention to mark
other
In Exhibit "TTT" of Precinct 28A/28A1, the word "SENATORS" was written on the and identify the ballots since these words were repeatedly written and in
17
instances,
two
or
three
of
these
words
were
written
on
a
single
ballot.
These
first slot for senators.
words are impertinent, irrelevant, unnecessary and clearly show the voters
purpose to identify the ballots or voters. As held in Gadon vs. Gadon18 ,the
In Exhibit "WWWW" of Precinct 28A/28A1, the name "KRIS" was written on the
unexplained presence of prominent letters and words written with remarkably
senatorial slot.
good hand marked the ballots and must be considered invalid.
The above ballots must be appreciated in favor of Ong. There is no showing that
the words/letters/names written therein have been intentionally placed to identify
the voters. Notice that these markings are appellations or nicknames of famous
showbiz personalities who might have been mistaken as candidates. At most,
these may be considered as stray votes for the position where they were written,
as provided in Sec. 211 (19), Omnibus Election Code, to wit:
"19. Any vote in favor of a person who has not filed a certificate of candidacy or
in favor of a candidate for an office for which he did not present himself shall be
considered as a stray vote but it shall not invalidate the whole ballot."

Comelec also correctly ruled that Exhibits "Q", "GGG", "OO", "PP" and "WW" of
Precinct 28A, 28A1 are valid votes for Ong. "LIM", "APEC" and "DAYO" are names
of candidates which were written on spaces where they should not be written as
they were not candidates for said position. For instance, "APEC" is a party list
candidate but was written on the space intended for senatorial candidates. As
such, the same shall be considered as stray vote but shall not invalidate the
whole ballot.
Section 211 (19) of the Omnibus Election Code provides that:

"19. Any vote in favor of a person who has not filed a certificate of candidacy
The primordial principle in the appreciation of the ballots is to respect, not to
or in favor of a candidate for an office for which he did not present himself shall
frustrate the will of the electorate.
be considered as a stray vote but it shall not invalidate the whole
ballot." (Underlining supplied)
With regard to Exhibits "D" to "L", "O", "Q", "S", "Y", "U", "V", "W", "BB", "CC",
"DD", "GG", "HH", "II", "LL", "MM" and "NN" of Precinct 8A and Exhibits "A", "E"
Thus, the finding of the Comelec that these ballots are valid for Ong is affirmed.
to "I", "L", "N", "O", "EEEE", "P", "Z", "DD", "KK", "LL", "QQ", "VV", "YY", "AAA",
"BBB", "EEE", "HHH", "III", "KKK", "LLL", "QQQ", "WWW", "BBBB", "DDDD",
"GGGG", "HHHH", "KKKK", "MMMM", "NNNN", "RRRR" and "UUUU" of Precinct In the same manner, Exhibits "R, "S", "T", "V" and "X" of Precinct 28A, 28A1
28A/28A1 the ballots have no defect and are hereby declared valid. A close were correctly held to be valid votes for Ong under the Neighborhood Rule since
examination of the ballots reveals that the ballots are clean and valid in favor of the space for mayor remained unaccomplished or not filled up.
candidate Ong.
However, the Court is constrained to reverse the Comelec finding that Exhibits "Y"
Findings of the Comelec in Exhibits "FF" of Precinct 8A and Exhibits "D", "GG", and "XX" of Precinct 28A, 28A1 were valid for Ong. Considering that there was no
"HH", "IIII", "J", "XXX", "K", "U", "FFF", "M", "W", "AA", "AAAA", "CC", "MM", candidate for senator with the name "PACETE" or "PACITE", such writings served
"RR", "NNN", "EE", "TT", "FF" "JJ", "SSSS", "NN", "SS", "ZZ", "PPPP", "CCC", to identify the ballots. The ballots are, therefore, invalid for Ong.
"DDD", "PPP", "UUU", "CCCC", "XXXX, "YYYY", "QQQQ" and "VVVV" of Precinct
28A/28A1 are correct and the ballots are invalidated for being marked.

In Exhibit "BB" of Precinct 28A, 28A1, the term "None that I know" written on the
space for party list does not render the ballot marked. The term simply implies
that the voter did not know any candidate or did not wish to vote for any

Election Law |77

candidate to the position. Thus, the Comelec correctly ruled that the ballot is
valid for Ong.

Contrary to the finding that Exhibits "12", "24" and "28" of Precinct 8A were
marked with the appearance of the letters "D", "L", "R", a physical examination of
the same belies the finding. The same do not contain the letters "D", "L", "R" and
are without defect and should be adjudicated in favor of Rizon.

Exhibits "MMM" and "OOOO" of Precinct 28A, 28A1 wherein the words "ANG
TINGOG NG BARANGAY" and "PARE KO", respectively, were written, are valid.
The phrases were mere appellations of affection and friendship that do not The same is true with Exhibit "20" of Precinct 8A. There is no sticker "VFP" pasted
invalidate the whole ballot.
on the ballot. The same should be credited in favor of candidate Rizon.
Exhibit "OOO" of Precinct 28A, 28A1 where the names of the candidates for
councilors were repeated in the first four lines for Senators do not render the
ballot marked. The Comelec was correct in upholding the validity of the ballot
since it was obviously shown by the penmanship that the voter was unlettered
and that there was no intention to identify the ballot.

Exhibit "30" of Precinct 8A, where the name "LITO" in big bold letters occupies all
the spaces for councilor should be invalidated inasmuch as there is evident intent
to mark the ballot.

"Exhibit "3" of Precinct 28A, 28A1 where "TIRBOG" is written on the space for
governor is not a marked ballot. Absent any showing that the word/name
Under the rule of IDEM SONANS, Exhibits "RRR", "TTTT" and "VVV" of Precinct "TIRBOG" meant to identify the ballot or the voter, the ballot remains valid. The
28A, 28A1 may not be invalidated. "LORNA" and "RECADO" sound similar to the same can be said for Exhibits "27" and "32" of Precinct 28A, 28A1 where
names of senatorial candidates such as Loren Legarda and Ricardo Gloria. 19
numbers were written after the names of some candidates and the word "CRIS"
appears on the first slot for senators, respectively. The voter obviously did not
The erasures in Exhibits "YYY" and "JJJJ" of Precinct 28A, 28A1 would not have the intention to mark the ballot. These ballots should be counted in favor of
invalidate the ballot absent any showing that another person wrote the name of candidate Rizon.
Ong after the erasure was made. In fact, the rules on appreciation of ballots
provide that:
Exhibit "12" of Precinct 28A, 28A1 with initial "DLR" on it is invalid. The initial
"DLR" serves no other purpose than to mark the ballot as it is unnecessary,
"When in a space in the ballot there appears a name of candidate that is erased impertinent and irrelevant. This is different from Exhibits "12", "24" and "28" of
P-8A.
and another clearly written, the vote is valid for the latter." 20
Incorrect spelling of a candidates name does not invalidate the ballot. The Hereunder is a summary of the findings.
Comelec was not correct when it ruled that Exhibit "ZZZ" of Precinct 28A, 28A1
was invalid considering that the voter "appeared to be literate." Even the most Prec. 8A SUMMARY OF F I N D I N G S ONG
literate person is bound to commit a mistake in spelling.
1. Exhibits "A", "C", "N" and "OO" (4 ballots) 4
Exhibit "FFFF" of Precinct 28A, 28A1 where "X-MEN" was written on the space for
party-list representative would not invalidate the whole ballot. The word "X-MEN" Writings partly in script and in print do not invalidate the ballot. Printed name
invalidates the vote for the party list representative but the ballot itself is valid. "NIKKI" was used to emphasize the voters adulation for a senator with that
Hence, the vote for Ong on the ballot must be credited in his favor.
name. VALID FOR ONG
The Comelec found no defect in Exhibits "1" to "11", "13" to "19", "21", "22", 2. Exhibits "B", "P", "Z", "JJ" and "KK"
"23", "25", "26", "27", "29" and "31" to "37" of Precinct 8A and Exhibits "1", "2",
"4" to "11", "13" to "26", "28" to "31" and "33" to "40" of Precinct 28A, 28A1. A (5 ballots) 5
careful examination of the ballots confirms the finding that they have no defects.
Therefore, the finding is hereby affirmed and the ballots are declared valid for
Rizon.

Election Law |78

"Big J" appearing before the names of senatorial candidates Legarda, Cayetano
and Barbers and before the name of Ong does not invalidate the ballot. It was
not used to identify the voter. VALID FOR ONG

And "NN" (6)*

3. Exhibits "D", "E", "F", "G", "H", "I", "J", "K"

Comelec finding that the ballots have no defect and thus valid for Ong is affirmed.
VALID FOR ONG

(6 ballots)

and "L" (9 ballots) 9*

Prec.28A28A-1 SUMMARY OF F I N D I N G S ONG
Comelec finding that the ballots have no defect and thus valid for Ong is affirmed.
VALID FOR ONG
1. Exhibit "A" (1 ballot)Comelec finding that the (1)*
4. Exhibits "M", "R", "T", "X", "AA" and "EE" (6 ballots) Ballots which contain the
three
letters 6
F.P.J. are not marked ballots. VALID FOR ONG
5. Exhibits "O" and "Q" (2 ballots)Comelec

ballot has no defect and thus valid for Ong is affirmed. VALID FOR ONG
2. Exhibit "B"(1 ballot)The ballot is not a marked 1
ballot and not written by two persons. VALID FOR ONG
3. Exhibits "C" and "II"(2 ballots)Comelec finding (-2)*

finding that the ballots have no defect and thus (2)*

that the ballots were marked ballots and written by two persons is affirmed.
INVALID FOR ONG

valid for Ong is affirmed. VALID FOR ONG

4. Exhibits "D", "GG", "HH" and "IIII" (-4)

6. Exhibits "S" and "Y" (2 ballots)Comelec (2)*

finding that the ballots have no Defect and thus valid for Ong is affirmed. VALID
FOR ONG

(4 ballots)Words "DOLLIN" and "DOLLINS" written on the first senatorial slot are
irrelevant, unnecessary and impertinent words meant to identify the voters.
Comelec finding that the same were invalid for Ong is affirmed. INVALID FOR
ONG

7. Exhibits "U", "V", "W", "BB", "CC" and (6)*

5. Exhibits "E", "F", "G", "H" and "I"

"DD" (6 ballots)Comelec finding that the ballots have no defect and thus valid for (5 ballots) (5)*
Ong is affirmed. VALID FOR ONG
8. Exhibit "FF"(1 ballot)Comelec finding that the (-1)*

Comelec finding that the ballots have no defect and thus valid for Ong is affirmed.
VALID FOR ONG

ballot was defective and thus invalid for Ong is affirmed. INVALID FOR ONG

6. Exhibits "J" and "XXX"(2 ballots)The word (-2)*

9. Exhibit "GG", "HH", "II", "LL", "MM"

"GINA" written on the senatorial slot is unnecessary, irrelevant and impertinent.

Election Law |79

Comelec finding is affirmed. INVALID FOR ONG

15. Exhibits "AA" and "AAAA"(2 ballots)Comelec (-2)*

7. Exhibits "K", "U" and "FF"(3 ballots)The words

finding that the ballots were defective is affirmed. INVALID FOR ONG

"EVA". "SOSANG TORIS" and "SABANG BULAC" served to identify the voter. 16. Exhibit "BB"(1 ballot)Comelec finding that the (1)*
Comelec finding that the ballots were marked is affirmed. INVALID FOR ONG
8. Exhibits "L", "N", "O" and "EEEE" (4)*
(4 ballots)Comelec finding that the ballots have no defects and thus valid for Ong
is affirmed. VALID FOR ONG
9. Exhibits "M" and "W"(2 ballots)Comelec finding (-2)*

words "None that I know" on the space for party list did not mark the ballot is
affirmed. VALID FOR ONG
17. Exhibits "CC", "MM", "RR" and "NNN" (-4)*
(4 ballots)The words "LOS" and "LUZ" written on different slots marked the
ballots. Comelec finding that the ballots were marked is affirmed. INVALID FOR
ONG

that the ballots have defects and thus invalid for Ong is affirmed. INVALID FOR
ONG
18. Exhibit "DD"(1 ballot)Comelec finding that the ballot (1)*
10. Exhibit "P"(1 ballot)Comelec finding that the ballot (1)*

has no defect is affirmed. VALID FOR ONG

has no defect is affirmed. VALID FOR ONG.

19. Exhibits "EE" and "TT"(2 ballots) (-2)*

11. Exhibits "Q" and "GGG"(2 ballots)Comelec

findingthat the word "LIM" written on the senatorial (2)*

The name "BONG" written on the no. 1 space for senators served to identify the
voters. Comelec finding that the ballots were marked is affirmed. INVALID FOR
ONG

slot should be treated merely as a stray vote is affirmed. VALID FOR ONG

20. Exhibit "FF"(1 ballot)The words "ELIN" and two

12. Exhibits "R", "S", "T", "V" and "X" (5)*

names of vice-presidential candidates written on the (-2)*

(5 ballots)Applying the Neighborhood Rule, Comelec finding that the ballots were senatorial slots marked the ballots. Comelec finding that the ballots were marked
is affirmed. INVALID FOR ONG
without defects is affirmed. VALID FOR ONG
13. Exhibits "Y" and "XX"(2 ballots)The words -2

21. Exhibits "KK and "LL"(2 ballots)Comelec (2)*

"PACITE" and "PACETE" written on the first senatorial slot are markings that
invalidated the ballot. Comelec finding is reversed. INVALID FOR ONG

finding that the ballots have no defect is affirmed. VALID FOR ONG
22. Exhibits "JJ" and "SSSS"(2 ballots)The name

14 Exhibit "Z"( 1 ballot)Comelec finding that the ballot (1)*

"ROSE" on the first line intended for senators (-2)*
has no defect is affirmed. VALID FOR ONG

Election Law |80

marked the ballots. Comelec finding is affirmed. INVALID FOR ONG

ballot has no defect is affirmed. VALID FOR ONG

24. Exhibit "NN"(1 ballot)The names of non-candidates (-1)*

32. Exhibits "ZZ" and "PPPP"(2 ballots)Comelec (-2)*

written on the ballot marked the ballot. Comelec

33. finding that the name "RIC" written after the name William Ong and after the
name of candidate Ruben Gayta marked the ballot is affirmed. INVALID FOR ONG

finding is affirmed. INVALID FOR ONG

33. Exhibits "AAA" AND "BBB"(2 ballots)Comelec (2)*
25. Exhibits "OO" and "PP"(2 ballots)The word "APEC"
finding that the ballots have no defect is affirmed. VALID FOR ONG
is a stray vote but does not invalidate the vote for (2)*
34. Exhibits "CCC", "DDD" and "PPP"(3 ballots) (-3)*
Ong. Comelec finding is affirmed. VALID FOR ONG
26. Exhibit "QQ"(1 ballot)Comelec finding that the (1)*

The word or name "VIA" is irrelevant, unnecessary and impertinent. Comelec

finding that the ballots were marked is affirmed. INVALID FOR ONG

ballot has no defect is affirmed. VALID FOR ONG

35. Exhibits "EEE", "HHH" and "III"

27. Exhibit "SS"

(3 ballots) (3)*

(1 ballot) (-1)*

Comelec finding that the ballots have no defect is affirmed. VALID FOR ONG

Comelec finding that the ballot is defective because of the name "NORMAN" which 36. Exhibits "JJJ" and "SSS"
was written twice on the same slot is affirmed. INVALID FOR ONG
(2 ballots)The letters "RJ" on the first slot for (2)*
28. Exhibit "UU" 1
(1 ballot)The ballot is not marked and not written by two persons. VALID FOR
ONG

senators did not render the ballots as marked ballots. Comelec finding is
affirmed. VALID FOR ONG
37. Exhibits "KKK" and "LLL"(2 ballots)Comelec (2)*

29. Exhibit "VV"(1 ballot)Comelec finding that the (1)*

finding that the ballots are not defective is affirmed. VALID FOR ONG
ballot has no defect is affirmed. VALID FOR ONG
38. Exhibit "MMM"(1 ballot)The statement (1)*
30. Exhibit "WW"(1 ballot)Comelec finding that (1)*
the name "DAYO" is a stray vote is affirmed. VALID FOR ONG

"ANG TINGOG NG BARANGAY" written below the name of Ong is merely an

appellation of affection. Comelec findings is affirmed. VALID FOR ONG

31. Exhibit "YY"(1 ballot)Comelec finding that the (1)*

39. Exhibit "OOO"(1 ballot)The repetition of the (1)*

Election Law |81

name of a candidate for councilor in the first four lines for senators does not
invalidate the ballot. Comelec findings is affirmed. VALID FOR ONG

47. Exhibit "ZZZ"(1 ballot)The name "VECINTE" was merely a wrong spelling
which does not

40. Exhibit "QQQ"(1 ballot)Comelec finding that the

invalidate the ballot. VALID FOR ONG 1

ballot has no defect is affirmed. VALID FOR ONG (1)*

48. Exhibit "BBBB"(1 ballot)

41. Exhibits "RRR" and "TTTT"(2 ballots)Under the rule of IDEM SONANS, the Comelec finding that the ballot has no defect is
name "LORNA" written on the senatorial slot does not invalidate the ballots.
Comelec finding is affirmed. VALID FOR
affirmed. VALID FOR ONG (1)*
ONG (2)*

49. Exhibits "CCCC", "XXXX" and "YYYY" (-3)*

42. Exhibit "TTT"(1 ballot)

(3 ballots)The writing "AMEN" on the first slot for senators is impertinent,

irrelevant and unnecessary. Comelec finding is affirmed. INVALID FOR ONG

The word SENATORS" written on the first slot of senator does not mark the
ballot. VALID FOR

50. Exhibit "DDDD"(1 ballot)Comelec finding that the ballot has no defect is
affirmed. VALID

ONG (1)
FOR ONG (1)*
43. Exhibit "UUU"(1 ballot)The words or names "NOEL", "ALONG RARO",
"ENCARNACION JUP", "NARDO HOYOHOY" AND "LANE LARGO" are impertinent, 51. Exhibit "FFFF"(1 ballot)"X-MEN" written on 1
unnecessary and irrelevant. Comelec finding is affirmed. INVALID
FOR ONG (-1)*

the space for party list representative does not invalidate the ballot. VALID FOR
ONG

44. Exhibit "VVV"(1 ballot)Comelec finding that "RECADO" under the rule IDEM
SONANS does not invalidate the vote is affirmed. VALID FOR

52. Exhibits "GGGG" and "HHHH"(2 ballots)Comelec finding that the ballots have
no

ONG (1)*

defect is affirmed. VALID FOR ONG (2)*

45. Exhibit "WWW"(1 ballot)Comelec finding that the ballot has no defect is
affirmed. VALID FOR

53. Exhibit "JJJJ"

ONG (1)*
46. Exhibit "YYY"(1 ballot)There is no clear evidence that another person wrote
the name of Ong. Erasures do not invalidate the ballot. VALID
FOR ONG 1

(1 ballot)
Comelec finding that erasures must not be taken as identification is affirmed.
VALID FOR
ONG (1)*

Election Law |82

54. Exhibit "KKKK"(1 ballot)Comelec finding that the ballot has no defect is
affirmed.

61. Exhibit "WWWW"(1 ballot)The name "KRIS"in the senatorial does not mark
the ballot. VALID

VALID FOR ONG (1)*

FOR ONG 1

55. Exhibit "LLLL"

Number of votes to be credited to ONG = 22

(1 ballot)

Number of votes to be deducted from ONG = 2

Comelec finding that the ballot was written by two persons is affirmed. INVALID
FOR

Prec.8A SUMMARY OF F I N D I N G S RIZON

1. Exhibits "1", "2", "3", "4", "5", "6", "7", "8", "9", "10" and "11"

ONG (-1)*
(11 ballots) (11)*
56. Exhibits "MMMM" and "NNNN" (2)*
(2 ballots)Comelec finding that the ballots have no defect is affirmed. VALID FOR
ONG

Comelec finding that the ballots have no defect and thus valid for Rizon is
affirmed. VALID FOR RIZON

2. Exhibits "12", "24" and "28"(3 ballots)The 3

57. Exhibit "OOOO"(1 ballot)Comelec finding that the words PARE KO" are words
of appellation is
ballots do not contain the letters DLR. VALID FOR RIZON
affirmed. VALID FOR ONG (1)*

3. Exhibits "13", "14", "15, "16", "17", "18" and "19" (7)*

58. Exhibit "QQQQ"(1 ballot)Comelec finding that the words or names "NANIG",
"SABAS" and "MIMIG" which are non-candidates marked the

(7 ballots)Comelec finding that the ballots have no defect and thus valid for Rizon
is affirmed. VALID FOR RIZON

ballot is affirmed. INVALID FOR ONG (-1)*

4. Exhibit "20"(1 ballot)There is no marking on the 1

59. Exhibits "RRRR" and "UUUU"(2 ballots)Comelec finding that the ballots have ballot. VALID FOR RIZON
no
defect is affirmed. VALID FOR ONG (2)*

5. Exhibits "21", "22", "23", "25", "26", "27", "29", "31", "32", "33", "34", "35",
"36" and

60. Exhibit "VVVV"

"37" (14 ballots)Comelec findings that the (14)*

(1 ballot) (-1)*

ballots have no defect and thus valid is affirmed. VALID FOR RIZON

Comelec finding that the names "ALONG" and "LOLOY TORRES" who were non- 6. Exhibit "30"(1 ballot)The name "LITO" written
candidates marked the ballot is affirmed. INVALID FOR ONG

Election Law |83

in big bold letters occupying all the spaces for -1

8. Exhibit "32"(1 ballot)There are no markings in 1

councilor marked the ballot. INVALID FOR RIZON

the ballot. No name "Cris" appearing in the ballot. VALID FOR RIZON

Prec.28A28A-1 SUMMARY OF F I N D I N G S RIZON

9. Exhibits "33" to "40"(8 ballots)Comelec finding (8)*

1. Exhibits "1" and "2"(2 ballots)Comelec finding (2)*

that the ballots have no defect and thus valid for Rizon is affirmed. VALID FOR
RIZON

that the ballots have no defect and thus valid is affirmed. VALID FOR RIZON
Number of votes to be credited to RIZON = 7
2. Exhibit "3"(1 ballot)The ballot has no marking. -1
Number of votes to be deducted from RIZON = 2
VALID FOR RIZON
From a total of 4,411 votes of Ong per Comelec findings, a total of another
23
3. Exhibits "4" to "11"(8 ballots)Comelec finding that the ballots have no defect twenty (20) shall be added as per above findings which gives him a total of
4,431 votes.
and thus valid is
affirmed. VALID FOR RIZON (11)*

From a total of 4,414 votes of Rizon per Comelec findings, a total of five (5) votes
shall be added24 as per above findings which gives him a total of 4,419.

4. Exhibit "12"(1 ballot) The ballot contains initials "DLR." Comelec finding that
the ballot has no

Consequently, candidate William P. Ong won by a margin of twelve (12) votes.

defect is reversed. INVALID FOR RIZON -1

5. Exhibit "12" to "26"(15 ballots)Comelec finding that the ballots have no Defect
is affirmed.
VALID FOR RIZON (14)*
6. Exhibit "27"
(1 ballot) 1
There are no markings found in the ballot. VALID FOR RIZON
7. Exhibits "28" to "31"(4 ballots)Comelec finding (4)*
that the ballots have no defect and thus valid for Rizon is affirmed. VALID FOR
RIZON

WHEREFORE, the Court hereby REVERSES and SETS ASIDE the Resolution
dated August 15, 2000 of the Commission on Elections en banc declaring
respondent Isagani B. Rizon as the winner in the May 11, 1998 elections.
In lieu thereof, Court hereby PROCLAIMS petitioner William P. Ong as the duly
elected mayor of the municipality of Baroy, Lanao del Norte in the May 11, 1998
elections, with a margin of twelve (12) votes.
The status quo order issued on August 29, 2000, is made permanent.
No costs.
SO ORDERED.

Election Law |84

On November 7, 2007, Bataller filed an election protest, 4 docketed as Election

Case No. B-2007-2, before the MCTC in Bacacay, Albay against Batalla and six
members of the Board of Election Tellers in Precincts 107-A and 108-A for
Barangay Mapulang Daga. Bataller claimed misappreciation of seven ballots.
During the revision on December 7, 2007, Batalla did not protest any ballots.
The Ruling of the MCTC
On February 12, 2008, the trial court rendered its Decision finding that Batalla
and Bataller had garnered an equal number of votes. The fallo reads:
WHEREFORE, premises considered, judgment is hereby rendered:
G.R. No. 184268

September 15, 2009

ERNESTO
BATALLA, Petitioner,
vs.
COMMISSION ON ELECTIONS and TEODORO BATALLER, Respondents.
DECISION
VELASCO, JR., J.:
The Case
In a Petition for Certiorari under Rules 65 in Relation to Rule 64 of the Rules of
Court, petitioner assails the Order1 of the Commission on Elections (Comelec)
First Division dated April 3, 2008 dismissing his appeal from the February 12,
2008 Decision2 of the Municipal Circuit Trial Court (MCTC), Bacacay, Albay, in
Election Case No. B-2007-2, and the Order 3 of the Comelec En Banc dated August
5, 2008 denying his motion for reconsideration.
The Facts

1. Declaring that the protestant [Bataller] and the protestee [Batalla] have
received equal number of votes for the position of Punong Barangay of Mapulang
Daga, Bacacay, Albay, in the October 29, 2007 barangay election, and the
winning candidate between the two shall be proclaimed as elected in accordance
with Section 240, Article XIX of the Omnibus Election Code.
SO ORDERED.5
Section 2406 of Batas Pambansa Bilang 881, as amended, otherwise known as
the Omnibus Election Code, provides for the drawing of lots in case of a tie of two
or more electoral candidates garnering the same or equal highest number of
votes, with the proclamation as winner of the candidate favored by luck.
Of the seven ballots protested, the trial court appreciated five of them in favor of
Bataller by applying the neighborhood and intent rules as enunciated in Ferrer v.
Comelec7 and Velasco v. Commission on Elections,8and the application of the
doctrine of idem sonans. Consequently, the MCTC found both Batalla and Bataller
garnering an equal number of 113 votes each.
Aggrieved, Batalla timely filed his Notice of Appeal 9 of the trial courts decision
elevating the election protest before the Comelec, docketed as EAC (BRGY.) No.
89-2008.

Petitioner Ernesto Batalla (Batalla), who was a former Punong Barangay, and
private respondent Teodoro Bataller (Bataller), then incumbent Punong Barangay,
were candidates for the position of Punong Barangay or Barangay Chairperson in The Ruling of the Comelec First Division
Barangay Mapulang Daga, Bacacay, Albay during the October 29, 2007 barangay
elections. During the count, Batalla garnered 113 votes while Bataller garnered
On April 3, 2008, the Comelec First Division issued the first assailed Order
108 votes. Consequently, Batalla was proclaimed the Punong Barangay winner in
dismissing Batallas appeal in this wise:
Barangay Mapulang Daga, Bacacay, Albay.

Election Law |85

Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which

provide for the payment of appeal fee in the amount of [P3,000.00] within the
period to file the notice of appeal, and Section 9 (a), Rule 22 of the same Rules
which provides that failure to pay the correct appeal fee is a ground for the
dismissal of the appeal, the Commission (First Division) RESOLVED as it here
RESOLVES to DISMISS the instant case for Protestee-Appellants [Batalla] failure
to pay the appeal fee as prescribed by the Comelec Rules of Procedure within the
five-(5)-day reglementary period.

Section 3. Form and Contents of Motion for Reconsideration The motion shall be
verified x x x"

SO ORDERED.

xxxx

Aggrieved further, Batalla elevated before the Comelec En Banc the above Order
of the Comelec First Division by filing on April 11, 2008 his Motion for
Reconsideration10 followed by a Supplemental Motion for Reconsideration 11on April
30, 2008.

(c) Unless a motion is seasonably filed, a decision or resolution of a Division shall

become final and executory after the lapse of five (5) days in Special Actions and
Special Cases and after fifteen (15) days in all other actions or proceedings
following its promulgation."

2. Declare the Order of April 3, 2008 to have become final and executory as of
April 25, 2008, there being no motion for reconsideration to speak of, pursuant to
Section 13 (c), Rule 18 of the Comelec Rules of Procedure, to wit:
"Section 13.Finality of Decisions or Resolutions.

The Ruling of the Comelec En Banc

ACCORDINGLY, the Clerk of the Commission, Electoral Contests Adjudication

Department, is hereby directed to immediately issue an Entry of Judgment and
On August 5, 2008, the Comelec En Banc issued the second assailed Order the Chief, Judicial Records Division of the same department, to remand the
affirming the Comelec First Divisions earlier Order dismissing the appeal for records of the case to the lower court for its proper disposition.
Batallas failure to pay the appeal fee and, moreover, denying his motion for
reconsideration for his failure to verify the motion. The second assailed Order, in Let copies of this Order and the Order of April 3, 2008 be furnished to Her
its entirety, reads:
Excellency, President Gloria Macapagal-Arroyo, the Secretary, Department of the
Acting on the Motion for Reconsideration filed via registered mail on April 11,
2008 by protestee-appellant [Batalla], through counsel, seeking reconsideration
of the Order issued by the Commission (First Division) on April 3, 2008 dismissing
the herein appeal for protestee-appellants [Batalla] failure to pay the appeal fee
as prescribed by the Comelec Rules of Procedure within the five-day
reglementary period and the Manifestation filed via registered mail on April 23,
2008 by protestant-appellee [Bataller], through counsel, stating that the Motion
for Reconsideration was not verified and therefore inadmissible on record and
must be expunged therefrom, and praying that the Order of April 3, 2008 be
declared as final, the Commission En Banc resolved to:

Interior and Local Government, the Chairman, Commission on Audit and the
Secretary, Sangguniang Barangay of Barangay Mapulang Daga, Bacacay, Albay,
pursuant to Section 11 (b), Rule 18 of the Comelec Rules of Procedure.
SO ORDERED.
Consequently, on August 11, 2008, the Comelec Electoral Contests Adjudication
Department issued an Entry of Judgment12 in EAC No. 89-2008.
The Issues

1. DENY the Motion for Reconsideration for movants [Batalla] failure to VERIFY Thus the instant petition, with Batalla raising the following issues for our
the same in accordance with Section 3, Rule 19 of the Comelec Rules of consideration:
Procedure, which states:
A. WHETHER OR NOT THE RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT
"Rule 19 Motions for Reconsideration.
ISSUED THE ASSAILED RESOLUTION DISMISSING THE APPEAL ON TWO
GROUNDS OF TECHNICALITIES: A) FOR FAILURE ON THE PART OF THE

Election Law |86

PETITIONER TO PAY THE APPEAL FEE ON TIME; AND B) FAILURE TO VERIFY THE Be it noted that while the Office of the Solicitor General (OSG) on behalf of public
MOTION FOR RECONSIDERATION.
respondent Comelec filed its Comment 18 on the instant petition, respondent
Bataller, despite notice,19 failed to register his comment. Thereafter, Bataller was
20
B. WHETHER OR NOT THE FIVE CONTESTED VOTES BE DECLARED VOID AND sent notice requiring him to show cause and to comply with the earlier notice to
THE HEREIN PETITIONER BE DECLARED AS THE WINNER IN THE BARANGAY file his comment. To date, Bataller has neither filed his comment nor complied
with the show-cause order. Thus, his opportunity to submit his comment is
ELECTION LAST OCTOBER 29, 2007.13
dispensed with.
The foregoing issues can be summarized into two: first, the procedural issue of
whether Batallas appeal ought to be given due course despite the procedural
infirmities of belated payment of the appeal fee and the non-verification of his
motion for reconsideration; and second, the corollary substantive issueif the
appeal is given due courseof whether the appeal is meritorious.
The Courts Ruling
The petition is meritorious.
Procedural Issue: Appeal Already Perfected

The OSG argues that the instant petition is bereft of merit, since the Comelec did
not gravely abuse its discretion in dismissing Batallas appeal. The Comelec
cannot be faulted for issuing the assailed orders, applying the clear provisions of
the Comelec Rules of Procedure, specifically Sec. 9(a) of Rule 22. Moreover, the
OSG reasons out that Batallas late payment of the additional appeal fee to the
Comelec is fatal, since his appeal was never perfected. The mere filing of a notice
of appeal is not enough, for the timely payment of the full appeal fee is an
essential requirement for the perfection of an appeal, based on Rodillas v.
Comelec.21 And finally, the OSG citesLoyola v. Commission on Election22 and other
cases,23 which consistently emphasized that non-payment of filing fees in election
cases is no longer excusable.

Respondent Comelec grievously erred and gravely abused its discretion when it The general rule is that payment of appellate docket fees within the prescribed
dismissed and denied petitioners appeal.
reglementary period for filing an appeal is mandatory for the perfection of an
appeal. Secs. 324 and 425 of Rule 40 of the Comelec Rules of Procedure provide for
The records show that Batalla received the February 12, 2008 MCTC Decision on the payment of an additional appeal fee in the amount of PhP 3,200 within the
February 20, 2008. He timely filed his Notice of Appeal on February 22, 2008 with period to file the notice of appeal, i.e., within five days from receipt of the
the MCTC and paid the PhP 1,000 appeal fee pursuant to A.M. No. 07-4-15- assailed decision of the trial court. 26 And an appellants failure to pay the said
SC.14 He admits paying to the Comelec the additional appeal docket fee of PhP appeal fee is a ground for the dismissal of the appeal by the Comelec under the
3,20015 only on March 5, 2008 or 11 days after he received a copy of the MCTC succeeding Sec. 9(a) of Rule 22.27
Decision on February 20, 2008, way beyond the five-day reglementary period to
file the appeal under Secs. 3 and 4, Rule 40 of the Comelec Rules of Procedure. Payment of the two appeal fees perfects the appeal
Batalla, however, postulates that the delay in the payment of the appeal fee in
the Comelec was caused by his difficulty in getting to Manila from Barangay
In the instant case, however, we find that Batalla already perfected his appeal by
Mapulang Daga which is located in an island off the poblacion of Bacacay, Albay
filing his Notice of Appeal and by paying the PhP 1,000 appeal fee, pursuant to
due to the massive floods that inundated the Bicol area in the months of February
A.M. No. 07-4-15-SC, within the five-day reglementary period, to the MCTC; and
and March 2008, aside from the difficulty in getting a bus ride from Bacacay,
by paying the additional appeal fee of PhP 3,200 to the Comelec Cash Division on
Albay to Manila.
March 5, 2008. Consequently, the Comelec First Division committed grave abuse
of discretion in dismissing Batallas appeal and, likewise, so did the Comelec En
While Batalla concedes that his motion for reconsideration of the April 3, 2008 Banc in not correcting this error by denying Batallas motion for reconsideration.
Order of the Comelec First Division was not verified, he submits that he cured the
omission by attaching to the instant petition his Verification 16 as compliance for
The issue of the correct appeal fee to be paid for the perfection of an appeal from
his motion. He begs our indulgence in light of the Courts ruling in Buenaflor v.
the decision of the trial court in electoral cases was clarified in very recent
Court of Appeals,17which reiterated the liberal application of the rules in the
casesAguilar v. Commission on Elections28 and Divinagracia v. Commission on
perfection of an appeal upon substantial justice and equity considerations.
Elections.29 In both cases, the Court clarified that the appellant in an electoral

Election Law |87

protest case decided by the trial court must file his notice of appeal and pay the the case was nonetheless elevated to the Comelec, no appeal was
PhP 1,000 appeal fee to the trial court that rendered the decision, and must pay perfected and it should be dismissed outright pursuant to Sec. 9 (a) of
to the Comelec Cash Division the required additional PhP 3,200 appeal fee.
Rule 22.
In Aguilar, the earlier case decided on June 30, 2009, the Court ruled that the
issuance of A.M. No. 07-4-15-SC on April 24, 2007, which became effective on
May 15, 2007, had superseded Secs. 3 and 4, Rule 40 of the Comelec Rules of
Procedure (which provided for the payment of the additional PhP 3,200 appeal
fee to the Comelec Cash Division within the same five-day reglementary period
for filing the notice of appeal) in that the payment of the PhP 1,000 appeal fee to
the trial court already perfected the appeal of appellant. The Court added that the
nonpayment or the insufficient payment of said additional appeal fee to the
Comelec Cash Division does not affect the perfection of the appeal or result in the
outright or ipso facto dismissal of the appeal; and that the Comelec is merely
given the discretion to dismiss the appeal or not, following Sec. 9 (a), Rule 22 of
the Comelec Rules, or the Comelec may refuse to take action thereon until the
appeal fees are paid pursuant to Sec. 18, Rule 40 of the Comelec Rules. This
ruling, however, has been abandoned in Divinagracia.

Thus, in holding that Aguilar had not diluted the force of Comelec Resolution No.
8486, the Court in Divinagraciacategorically ruled that for an appeal to be
perfected in an election case from the trial court, the appellant must: (1) file his
Notice of Appeal and pay the PhP 1,000 appeal fee within the five-day
reglementary period to the trial court that rendered the assailed decision,
pursuant to A.M. No. 07-4-15-SC; and (2) pay to the Comelec Cash Division the
additional PhP 3,200 appeal fee within 15 days from the time of the filing of the
Notice of Appeal with the lower court pursuant to Comelec Resolution No. 8486.
Thus, any error in the matter of nonpayment or incomplete payment of the two
appeal fees in election cases is no longer excusable and is a cause for the
outright dismissal of the appeal.

We, however, note that under the present Comelec Rules of Procedure, Sec. 3,
Rule 40 provides for the payment of the additional PhP 3,200 appeal fee to the
Comelec Cash Division. The period in which to pay such additional appeal fee is
In Divinagracia, decided on July 27, 2009, the Court took a second look at the provided under Sec. 4, Rule 40, thus:
issue of an appellants compliance with the payment of the required appeal fees
(both to the trial court and to the Comelec) in the backdrop of Comelec Sec. 4.Where and When to Pay. - The fees prescribed in Sections 1, 2 and 3
Resolution No. 8486 in relation to A.M. No. 07-4-15-SC. The Court ruled, thus:
hereof shall be paid to, and deposited with, the Cash Division of the
Commission within a period to file 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 notice 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.
Comelec Resolution No. 8486,30 issued on July 15, 2008, clarified the procedural
rules on the payment of appeal fees. In said resolution, the Comelec clarified
that: (a) if the appellant had paid the PhP 1,000 appeal fee to the trial
court within the five-day reglementary period pursuant to A.M. No. 07-415-SC and his appeal was given due course by the trial court, said
appellant was required to pay the additional appeal fee of P3,200.00 to
the Commissions Cash Division within a period of fifteen (15) days from
the time of the filing of the Notice of Appeal with the lower court, or else
the appeal would be dismissible under Sec. 9 (a) of Rule 22; and (b) if
the appellant had failed to pay the PhP 1,000 appeal fee to the trial court
within the five (5) day period as required under A.M. No. 07-4-15-SC, but

And the period to file the notice of appeal is provided under Sec. 3 of Rule 22,
thus:
Sec. 3.Notice of Appeal. - Within five (5) days after promulgation of the
decision of the court, the aggrieved party may file with said court a notice of
appeal, and serve a copy thereof upon the attorney of record of the adverse
party.
The promulgation of the decision is understood to mean the receipt by a party of
a copy of the decision. Thus, to recapitulate, under Sec. 4, Rule 40 in relation to
Sec. 3, Rule 22 of the Comelec Rules of Procedure, an appellant from a decision
of a trial court in an election protest case is given a reglementary period of five
days from the receipt of a copy of the decision within which to pay the PhP 3,200
additional appeal fee to the Comelec Cash Division.
Considering that the Comelec En Banc issued on July 15, 2008 Comelec
Resolution No. 8486, which allowed the payment of the additional appeal fee of

Election Law |88

PhP 3,200 to the Comelec Cash Division within 15 days from the filing of the
notice of appeal, said Resolution, however, has effectively amended Sec. 4,
Rule 40 of the Comelec Rules of Procedure. Thus, the Comelec is advised to
reflect such amendment in their rules for the proper guidance of the Bench, the
Bar, and litigants.

was not complied with, but such procedural lapse pales in the face of the
manifest error in the dismissal of Batallas appeal by the Comelec First Division
when the Comelec En Banc had already issued Resolution No. 8486, granting an
appellantin this case, Batalla15 days within which to pay the additional fee of
PhP 3,200, with which he had already complied.

In the instant case, it is undisputed that Batalla had already perfected his appeal
by paying the required appeal fees. He paid the PhP 1,000 appeal fee to the trial
court on February 22, 2008 within the five-day period from receipt of the decision
and the additional PhP 3,200 appeal fee to the Comelec Cash Division on March
5, 2008 or within 15 days from the filing of his notice of appeal. It is, thus, clear
that Batalla had perfected his appeal by complying with the appeal requirements.

Perforce, then, the assailed Orders must be reversed and set aside for having
been issued with grave abuse of discretion. Accordingly, the appeal of Batalla
must be given due course.

It must be noted that the required payment of separate and distinct appeal fees
to the trial court under A.M. No. 07-4-15-SC and to the Comelec under its Rules
of Procedure has caused much confusion to litigants. In fact, it became necessary
for the Comelec to clarify the procedural rules on the payment of these appeal
fees, and for this purpose issued Comelec Resolution No. 8486 on July 15, 2008.

Substantive Issue: Petitioner Won in the Protested Election

In the interest of expeditious dispensation of justice, the Court will no longer
remand Batallas appeal to the Comelec and instead rule on the merits of the
appeal in this petition. The core issue is whether the five protested ballots were
correctly appreciated by the MCTC as votes for Bataller, resulting into a tie
between the contenders.

Batallas arguments
While it seems that the Comelec First Division may not be faulted for following
the then prevailing Comelec Rules of Procedure, still, it cannot close its eyes to Batalla vehemently disagrees with the findings of the trial court in appreciating
the fact of the confusion in the payment of distinct appeal fees, which many the five protested ballots in favor of Bataller, specifically arguing that:
litigantslike petitioner Batallawent through. It must be noted that Batalla
complied in good faith with the required payment of the additional appeal fee as
(a) Ballot 1: Exhibit "A" 31 shows, contrary to the finding of the MCTC, the
soon as he was able.
contested name written on the line for Punong Barangay, but the
surname is not discernable as it was written in a way susceptible to
But what was worse was the Comelec En Bancs denial of Batallas motion for
different interpretations, i.e., it can be read either as Batalla or Bataller.
reconsideration on mere procedural grounds, through the second assailed Order
Batalla thus contends that this is a case of writing the first name of a
of August 5, 2008, after it had already issued clarificatory Resolution No. 8486 on
candidate and the surname of the opposing candidate, in which case the
July 15, 2008. Having issued said clarificatory resolution a scant 16 days before it
ballot ought to be considered a stray ballot under Sec. 211(6) 32 of the
issued the second assailed Order, the Comelec En Banc was duty-bound to
Omnibus Election Code.
recognize the timeliness and the compliance of Batallas appeal. Procedural rules
are applied retroactively when no vested rights are prejudiced. Such was the case
(b) Ballot 2: Exhibit "B"33 shows that while the space for Punong
with Batallas appeal. He had paid the PhP 1,000 appeal fee to the MCTC within
Barangay is left blank, the first of the names for kagawad is unreadable
the five-day reglementary period under Sec. 4 of Rule 40 of the Comelec Rules of
and does not sufficiently identify Bataller, since the name written seems
Procedure. And he paid the additional PhP 3,200 appeal fee to the Comelec Cash
to be "tododer" and as such cannot be equated to Teodoro (Bataller),
Division within the 15-day period granted under Resolution No. 8486. Clearly, he
much less, credited to him pursuant to Sec. 211(14) 34 of the Omnibus
had complied with the procedural appeal requirements of the Comelec.
Election Code, for there is no way of determining the intention of the
voter as held in Bautista v. Comelec.35 Moreover, Batalla maintains that
Fairness and prudence dictate that the Comelec En Banc should have recognized
"tododer" cannot also be appreciated under the doctrine of idem
Batallas compliance with clarificatory Resolution No. 8486 when it resolved his
sonans in favor of his opponent, as the MCTC erroneously held, for
motion for reconsideration and should not have merely denied it on the
Bataller did not indicate or apply for "tododer" to be recognized as one of
procedural ground of non-verification. It is true that the verification requirement

Election Law |89

the names for which he can be voted, and neither has it been shown that
Bataller is known in the barangay as such.
(c) Ballot 3: Exhibit "C,"36 similar to Exhibit "B," should be deemed a
stray ballot, for the real intention of the voter cannot be determined.
(d) Ballot 4: Exhibit "E"37 shows the name of Teodoro Bataller written on
the space for the candidates for kagawad, with that for Punong Barangay
left blank, and should be considered a stray vote pursuant to Sec.
211(8)38 of the Omnibus Election Code.

certainty. Hence, the intention of the voter to vote for Bataller is

unequivocal from the face of the Exhibit "A" ballot. The ballot in question
should be liberally appreciated to effectuate the voters choice of Bataller.
(2) The ballot marked as Exhibit "E" above was properly credited in
Batallers name under the neighborhood rule as applied in Ferrer40 and,
more recently, in Abad v. Co41 where the Court applied the same rule and
credited to the candidates for Punong Barangay the votes written on the
first line for kagawad with the spaces for Punong Barangay left vacant.

The neighborhood rule is a settled rule stating that where the name of a
(e) Ballot 5: Exhibit "G" is not legible and does not sufficiently identify candidate is not written in the proper space in the ballot, but is preceded by the
the candidate, and to consider it a vote for Bataller is highly speculative name of the office for which he is a candidate, the vote should be counted as
valid for said candidate.42 Such rule is usually applied in consonance with the
and conjectural.
intent rule which stems from the principle that in the appreciation of the ballot,
the object should be to ascertain and carry into effect the intention of the voter, if
Only three ballots to be credited to Bataller
it could be determined with reasonable certainty.
39

After a scrutiny of the five (5) contested ballots subject of Batallas instant
position, we rule that three (3) ballots marked as Exhibits "A," "E," and "G" were
properly appreciated and credited in favor of Bataller under the neighborhood
rule and intent rule. On the other hand, the ballots marked as Exhibits "B" and
"C" are stray ballots.

In Velasco, the Court explained the neighborhood rule and its application in this
wise:

The votes contested in this appeal are all misplaced votes, i.e., votes cast for a
candidate for the wrong or, in this case, inexistent office. In appreciating such
votes, the COMELEC applied the "neighborhood rule." As used by the Court, this
We explain our ruling this way:
nomenclature, loosely based on a rule of the same name devised by the House of
Representatives Electoral Tribunal (HRET), refers to an exception to the rule on
(1) The above Exhibit "A" ballot clearly shows the first name "Teodoro,"
appreciation of misplaced votes under Section 211(19) of Batas Pambansa Blg.
while the surname written is a bit confusing; still, it certainly cannot be
881 (Omnibus Election Code) which provides:
read as "Batalla" since the way it is written clearly indicates eight
characters. The first six characters clearly make out "Batall," and the last
two characters are the ones that are quite illegible. The name "Batalla" Any vote in favor of a person who has not filed a certificate of candidacy
consists of only seven characters, while "Bataller" consists of eight or in favor of a candidate for an office for which he did not present himself shall
characters. Thus, with the eight characters of the surname and the first be considered as a stray vote but it shall not invalidate the whole ballot.
name properly made out as "Teodoro," the benefit of the doubt tilts in (Emphasis supplied.)
favor of Bataller. More so, if the first name alone of a candidate (where
no other candidate has a similar name)in this case, for example, Section 211(19) is meant to avoid confusion in the minds of the election officials
Teodoro or Ernestois sufficient to appreciate the vote for that as to the candidates actually voted for and to stave off any scheming design to
candidate, with more reason should the first name of Teodoro and the identify the vote of the elector, thus defeating the secrecy of the ballot which is a
surname making out "Bataller" be appreciated in his favor. Evidently, the cardinal feature of our election laws. Section 211(19) also enforces Section 195
voter wanted to cast his ballot in favor of Bataller as Punong Barangay. of the Omnibus Election Code which provides that in preparing the ballot, each
The intent rule is well settled in this jurisdiction that in the appreciation voter must "fill his ballot by writing in the proper place for each office the name
of the ballot, the objective should be to ascertain and carry into effect of the individual candidate for whom he desires to vote."
the intention of the voter, if it could be determined with reasonable

Election Law |90

Excepted from Section 211(19) are ballots with (1) a general misplacement of an
entire series of names intended to be voted for the successive offices appearing
in the ballot; (2) a single or double misplacement of names where such names
were preceded or followed by the title of the contested office or where the voter
wrote after the candidates name a directional symbol indicating the correct office
for which the misplaced name was intended; and (3) a single misplacement of a
name written (a) off-center from the designated space, (b) slightly underneath
the line for the contested office, (c) immediately above the title for the contested
office, or (d) in the space for an office immediately following that for which the
candidate presented himself. In these instances, the misplaced votes are
nevertheless credited to the candidates for the office for which they presented
themselves because the voters intention to so vote is clear from the face of the
ballots. This is in consonance with the settled doctrine that ballots should be
appreciated with liberality to give effect to the voters will. 43

rule of law states that the occurrence in a document of a spelling of a

material word that is wrong but has the sound of the word intended does
not vitiate the instrument.46 Neither was it shown that Bataller is known
by that name in Barangay Mapulang Daga in Bacacay, Albay. Third, while
it is paramount to give full expression to the voters will under the intent
rule as indicated in the ballotsthus, the liberality in ballot
appreciationit is necessary that the voters intention be at least
discernable with certainty. It has not been satisfactorily shown that
"tododer" is used as a name of a person or the nickname of a candidate.
Absent any indication of such discernable intent, we cannot appreciate
this particular ballot in favor of Bataller. Thus, the MCTC erroneously
credited this ballot to Bataller.
(5) Exhibit "C" ballot above is also a stray vote, for Batallers name is not
found on or near any of the lines corresponding to the offices of Punong
Barangay and kagawads, and, thus, does not relate to any office. The
name of Bataller was written in the upper portion of the ballot, above the
instructions to the voter, but below the words "Bacacay, Albay," while the
lines provided for the kagawads were properly filled up.

The House of Representatives Electoral Tribunal (HRET) first laid down the
particulars of the above "neighborhood rule" in Nograles v. Dureza. 44 Nograles
and subsequent related rulings were later codified in its "Rules and Rulings on
Appreciation of Ballots" (HRET Rules). We note that the HRET Rules 45 provided for
the "neighborhood rule" and the "intent rule," and that the Senate Electoral
Tribunals Rules on Appreciation of Ballots has adopted the HRETs "neighborhood In Velasco,47 a similar factual situation transpired in two protested ballots during
rule."
the 2002 barangay elections. A particular ballot marked as Exhibit "13" showed
that the lines for kagawad were properly filled up, but the line for Punong
Thus, the MCTC is correct in appreciating name of Teodoro Bataller in the Exhibit Barangay was left vacant and therein private respondents name written above
"E" ballot as a vote for Bataller although written on the space for Kagawad the instructions to the voter and below the words "San Pablo City." On the other
pursuant to the neighborhood and intent doctrines.
hand, the ballot marked as Exhibit "9" similarly had the lines for kagawad
properly filled up, but therein private respondents name was written in the left
(3) The ballot marked as Exhibit "G" above was likewise properly credited uppermost part of the ballot. The Court ruled that the votes in the ballots marked
in Batallers name under the neighborhood rule and the intent rule, being as Exhibits "9" and "13" for therein private respondent were stray votes, for they
similarly situated as the ballot marked as Exhibit "E." Moreover, contrary did not relate to any office, and ratiocinated thus:
to Batallas contention, the name of Bataller, written in this ballot on the
first line for kawagad, is quite distinct and legible.
x x x Section 211(19), which treats misplaced votes as stray, speaks of a vote for
a candidate "for an office for which he did not present himself." Thus, there is
(4) The Exhibit "B" ballot above is a stray ballot and cannot be credited more reason to apply this rule here as the votes in Exhibits "9" and "13" do not
to Bataller. We agree with Batalla that neither the neighborhood rule nor even relate to any office.
the doctrine of idem sonans apply to this instance. First, the
neighborhood rule applies when the name for Punong Barangay is left
vacant, while the name of a candidate for Punong Barangay is clearly
legible or discernable. This particular ballot does not clearly show the
name of the candidate written on the first space for kagawad. Second,
the word "tododer" written on the first line for kagawad does not
necessarily refer to Teodoro Bataller. The word "tododer" does not sound
like Teodoro under the idem sonans (having the same sound) rule. Said

Nor do the votes in question fall under any of the exceptions to Section 211(19)
enumerated above. x x x Exhibits "9" and "13" present an unusual case of
extremeswhile respondents name was written way off its proper place, the
names of persons who were presumably candidates for Sangguniang Barangay
Kagawad were properly placed, without the slightest deviation, in the first of the
seven lines for that office.1avvphi1

Election Law |91

This gives only two possible impressions. First, that the voters in these two
ballots knew in fact where to write the candidates names, in which case the
votes for respondent written way off its proper place become stray votes.Second,
the voters manner of voting was a devise to identify the ballots, which renders
the ballots invalid. We adopt the more liberal viewthat the misplaced votes in
Exhibits "9" and "13" are stray votes under Section 211(19), thus, leaving the
ballots valid.
Considering that the vote for Teodoro in Exhibit "C" ballot does not even relate to
any office, then said misplaced vote is treated as stray.
Thus, to recapitulate, of the five protested ballots, three are properly credited in
favor of Bataller while the other two ballots are declared stray votes for Punong
Barangay. Consequently, Batalla having garnered a total of 113 votes prevailed
by two votes over Bataller, who only garnered an adjusted total of 111 votes (less
the two ballots with stray votes, i.e., ballots marked as Exhibits "B" and "C").
WHEREFORE, the petition for certiorari is hereby GRANTED. The assailed Orders
of the Comelec First Division and Comelec En Banc, dated April 3, 2008 and
August 5, 2008, respectively, are REVERSED and SET ASIDE. The appeal of
Ernesto Batalla is given DUE COURSE and the Decision of the MCTC in Bacacay,
Albay dated February 12, 2008 is accordingly REVERSED and SET ASIDE. Ernesto
Batalla is hereby DECLARED the WINNER for the position of Punong Barangay or
Barangay Chairperson of Mapulang Daga, Municipality of Bacacay, Albay during
the Barangay Elections held on October 29, 2007.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 107847 June 2, 1994

IRMA
C.
ALFONSO, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE CITY BOARD OF CANVASSERS OF
THE CITY OF MANILA, and ALBERTO A. DOMINGO, respondents.

QUIASON, J.:

Election Law |92

This is a petition for certiorari, assailing the Resolution of the Commission on

Elections (COMELEC) dated November 6, 1992, which denied petitioners demand
for a recount of the ballots under Article 234 of the Omnibus Election Code and
the Resolution dated November 13, 1992, which denied her motion for
reconsideration.

1) To GRANT the petition and to DECLARE all votes cast in favor

of Pedro Alfonso as stray votes;

We dismiss the petition.

3) To DIRECT the City Board of Canvassers for the First District

of Manila, to reconvene the canvass and proclaim the winning
candidate/s for the position of city councilors for the First District
of Manila (Rollo, p. 46).

I
In the May 11, 1992 elections, Pedro Alfonso ran for councilor in the First District
of Manila, which is entitled to elect six councilors.

2) To CREDIT in favor of respondent Irma Alfonso only those

votes cast with the name "ALFONSO" or IRMA ALFONSO; and

Petitioner thereby questioned said resolution before this Court in G.R. No.
105577, entitled "Irma Alfonso, as a substitute of candidate Pedro Alfonso v.
COMELEC."

On the eve of the elections, Pedro Alfonso died. At about 2:45 A.M. of May 11,
1992, his daughter Irma Alfonso, petitioner herein, filed her certificate of
candidacy in substitution for her deceased father.
On June 16, 1992, the Court dismissed the aforesaid petition in a minute
resolution, after finding no grave abuse of discretion on the part of the COMELEC.
After the canvassing of the election returns by respondent City Board of
Canvassers, the results of the elections for councilors for the First District of Similarly, respondent City Board of Canvassers filed a Motion for Clarification to
Manila were announced as follows:
the COMELEC en banc, asking that:
1)
Nieva,
2)
Gonzales,
3)
Lopez,
4)
Alfonso,
5)
Cailian,
6)
Ocampo,
7)
Domingo,
(Rollo, p. 6).

Ernesto
Gonzalo
Honorio
Pedro
Avelino
Roberto
Alberto

60,101
44,744
35,803
34,648
32,462
31,264
28,715

xxx xxx xxx

1) it should clarify its resolution of June 3, 1992 by stating
whether the City Board of Canvassers and/or the Board of
Election Inspectors shall conduct a recount of the ballots or not;
2) the Honorable Commission should instruct the City Board of
Canvassers on how to implement par. 2 of the dispositive portion
of the resolution of June 3, 1992 (Rollo, p. 53).

Apparently, the respondent City Board of Canvassers added the votes of Pedro
Alfonso to those of petitioners thereby placing her in the fourth slot. COMELEC then clarified its resolution in an Order dated November 4, 1992, to
Consequently, private respondent questioned such action in a petition filed on wit:
May 29, 1992. He prayed that the votes cast for Pedro Alfonso be declared as
stray votes and that, accordingly, he be proclaimed as the sixth winner for
xxx xxx xxx
councilor in the First District of Manila.
On June 3, 1992, the COMELEC resolved private respondents petition as follows:
xxx xxx xxx

RESOLVED to clarify the Resolution of the Commission of June 3,

1992 as follows;
1. To grant the petition and to declare all votes cast in favor of
Pedro Alfonso as stray votes;

Election Law |93

2) To credit in favor of respondent Irma Alfonso only those votes

cast with the name "Alfonso" or Irma Alfonso;
3) To direct the City Board of Canvassers for the First District of
Manila, to reconvene, canvass the election returns submitted by
the board of election inspectors, without opening any ballot box
containing the official ballots and proclaim the winning candidate
for the sixth position of city councilor in the First District of the
City of Manila; and
4) Let the Law Department implement this resolution (Rollo, p.
20).
Petitioner moved for a partial reconsideration of the said order, invoking Section
234 of the Omnibus Election Code and asking that all votes cast in favor of Pedro
Alfonso be credited as the votes of Irma "Pete" Alfonso.

IN VIEW OF THE FOREGOING, the Board, conformably with the

provisions of the second paragraph of Section 233 of the
Omnibus Election Code, in relation to Sec. 27, paragraph (h) of
Comelec Resolution No. 2413 dated April 15, 1992 and acting
pursuant to Resolutions, respectively dated November 4, 1992
and November 23, 1992, hereby finds that candidate ALBERTO
DOMINGO appears to be the winning candidate for the Sixth
position of City Councilor in the First District of the City of
Manila.
ACCORDINGLY, let the proclamation of candidate-elect ALBERTO
DOMINGO be held on DECEMBER 14, 1992 at 10:00 A.M. at
Office of the Election Officer, Philippine Geriatrics Foundation
Bldg., I, Lions Road, Arroceros Street, Manila (pp. 3-4, ibid)
(Rollo, p. 165).
On the same date, petitioner filed a notice of appeal to the COMELEC.

On November 23, 1992, COMELEC denied petitioners motion for partial

reconsideration and directed respondent City Board of Canvassers to implement Considering that a temporary restraining order was issued by this Court on
December 10, 1992 in the instant petition, petitioner did not pursue her appeal to
the Order dated November 4, 1992.
the COMELEC.
On December 1, 1992, petitioner instituted the present action, questioning the
denial of her motion for a recount of the ballots pursuant to Section 234 of the Petitioner submits for our resolution, the following issues:
Omnibus Election Code. On December 10, 1992, we issued a temporary
restraining order.
1
Meanwhile, respondent City Board of Canvassers reconvened to implement the
COMELECs Order, obtaining the following results:
ALFONSO,
IRMA

ALFONSO,
PEDRO

DOMINGO, ALBERTO 25,825

7,588
23,644

In the course of the canvass, petitioner sought to exclude or set aside 740
election returns on the grounds that her name and votes were omitted therein.
On December 8, 1992, respondent City Board of Canvassers issued a resolution,
denying the motion and resolving that:
xxx xxx xxx

WHETHER OR NOT PETITIONER MAY STILL QUESTION

RESPONDENT COMELECS RULING THAT THE VOTES CAST IN
FAVOR OF DECEASED PEDRO ALFONSO SHOULD BE
CONSIDERED STRAY VOTES.
2
WHETHER OR NOT RESPONDENT COMELEC ACTED WITH GRAVE
ABUSE OF DISCRETION IN DENYING PETITIONERS MOTION FOR
A RECOUNT OF THE BALLOTS.
3
WHETHER OR NOT THE ISSUES RAISED ARE RIPE FOR JUDICIAL
DETERMINATION.

Election Law |94

The instant petition must fail.

II
Anent the first issue, there is no question that the votes in favor of Pedro Alfonso
shall be declared as stray votes and only those votes cast with the name
"Alfonso" or "Irma" shall be counted in favor of petitioner as ruled by the
COMELEC in its Resolution dated June 3, 1992. This was the holding of this Court
in the Resolution issued on June 16, 1992 in G.R. No. 105577 entitled "Irma
Alfonso, as a substitute candidate of Pedro Alfonso v. Comelec." Finding no grave
abuse of discretion on the part of the COMELEC in issuing its resolution dated
June 3, 1992, the Court thereby dismissed the petition. This issue can not be
raised anew in the present petition. There is, therefore, no merit with the
assertion that the votes cast in favor of Pedro Alfonso must be counted in favor of
petitioner.
Invoking Section 234 of the Omnibus Election Code, petitioner claims that a
recount or reopening of the ballots boxes is necessary, considering that in some
election returns, her name was omitted and that of her father was not deleted.
She argues that it would be difficult to determine which votes should be credited
in her favor by a mere re-canvass.
At the outset, petitioners prayer for a reopening of the ballots is not a proper
issue for a pre-proclamation controversy. The issues raised by petitioner should
be threshed out in election protest. The case of Chavez v. Comelec, 211 SCRA
315 (1992), citing Sanchez v. Comelec, 153 SCRA 67 (1987) is quite instructive
on the matter. In said case, we held:
xxx xxx xxx
Sanchez anchors his petition for recount and/or reappreciation
on Section 243, paragraph (b) of the Omnibus Election Code in
relation to Section 234 thereof with regard to material defects in
canvassed election returns. He contends that the canvassed
returns discarding Sanchez votes as stray were incomplete and
therefore warrant a recount or reappreciation of the ballots
under Section 234.
xxx xxx xxx
. . . The fact that some votes written solely as "Sanchez" were
declared stray votes because of the inspectors erroneous belief

that Gil Sanchez had not been disqualified as a candidate,

involves an erroneous appreciation of the ballots. It is
established by the law as well as jurisprudence . . . that errors in
the appreciation of ballots by the board of inspectors are proper
subject for election protest and not for recount or reappreciation
of ballots.
2. The appreciation of the ballots cast in the precincts is not a
"proceeding of the board of canvassers" for purposes of preproclamation proceedings under Section 241, Omnibus Election
Code, but of the boards of election inspectors who are called
upon to count and appreciate the votes in accordance with the
rules of appreciation provided in Section 211, Omnibus Election
Code. Otherwise stated, the appreciation of ballots is not part of
the proceedings of the board of canvassers. The function of
ballots appreciation is performed by the boards of election
inspectors at the precinct level.
3. The scope of pre-proclamation controversy is limited to the
issues enumerated under Sec. 243 of the Omnibus Election
Code. The enumeration therein of the issues that may be raised
in pre-proclamation controversy is restrictive and exclusive. In
the absence of any clear showing or proof that the election
returns canvassed are incomplete or contain material defects
(sec. 234), appear to have been tampered with, falsified or
prepared under duress (sec. 235) and/or contain discrepancies
in the votes credited to any candidate, the difference of which
affects the result of the election (sec. 236), which are the only
instances where a pre-proclamation recount may be resorted to,
granted the preservation of the integrity of the ballot box and its
contents, Sanchez petition must fail. The complete election
returns whose authenticity is not in question, must be prima
facie considered valid for the purpose of canvassing the same
and proclamation of the winning candidates.
xxx xxx xxx
7. The ground for recount relied upon by Sanchez is clearly not
among the issues that may be raised in pre-proclamation
controversy. His allegation of invalidation of Sanchez' votes
intended for him bear no relation to the correctness and
authenticity of the election returns canvassed. Neither the
Constitution nor statute has granted the Comelec or the board of

Election Law |95

canvassers the power in the canvass of election returns to look

beyond the face thereof, once satisfied of their authenticity
(Abes v. Comelec, 21 SCRA 1252, 1256).
xxx xxx xxx
We can not over-emphasize the public policy involved in the rule that preproclamation controversies shall be resolved in summary proceedings. The public
interest requires that:
xxx xxx xxx
. . . that the position for the filing of which the election was held
should be filled as promptly as possible, even if the proclamation
of the winning candidates be provisional in nature, in the sense
that such would be subject to the results of the election protest
or protests that may be expected to be filed. The Court is bound
by high duty and responsibility to give effect to this public policy
which is enshrined in statutory norms (infra). Petitioners
principal remedy is to file election protests before the
appropriate agency of government-i.e., the Comelec (Article
IX[C][2][2], 1987 Constitution) and there to litigate all the
issues raised by them in as much detail as they might deem
necessary or appropriate . . ." (Dimaporo v. Comelec, 186 SCRA
769 [1990]).
WHEREFORE, the petition is DISMISSED for lack of merit. The Temporary
Restraining Order issued on December 8, 1992 is LIFTED.
SO ORDERED.

Election Law |96

It appears that on March 27, 1998, petitioner Francisco R.

Reyes, Jr., filed his certificate of candidacy (Annex A, Petition) as
the official candidate (for vice-mayor of the municipality of
Mainit, Surigao Del Norte) of the political party LAKAS NUCDUMDP. His nomination by said political party is evidence by the
certificate of nomination and acceptance dated March 27, 1998
signed by Fidel V. Ramos and Jose de Venecia, National
Chairman and Secretary General, respectively, of said political
party. This certificate of nomination and acceptance is
petitioner's Annex A-1.
However, on April 2, 1998, another person, respondent Kaiser B.
Recabo, Jr., claiming to be the official candidate of LAKAS NUCDUMDP as vice-mayor of the municipality of Mainit, Surigao del
Norte also filed his certificate of candidacy (Annex E, Petition).
Petitioner submitted to this Commission a copy of the certificate
of nomination and acceptance in favor of Kaiser B. Recabo, Jr.,
dated March 30, 1998 (Annex F) signed only by one
representative of LAKAS NUCD-UMDP. Francisco T. Matugas. The
space of the other representative (Robert Z. Barbers) is blank.
Petitioner in par. II-2 of the petition alleges:
G.R. No. 134293 June 21, 1999
KAISER
B.
vs.
THE COMMISSION ON
JR., respondents.

RECABO,
ELECTIONS

and

JR., petitioner,
FRANCISCO

R.

REYES,

GONZAGA-REYES, J.:
This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure
seeking to annul the resolution dated May 8, 1998 of the First Division of the
Commission on Elections 1 ("the Commission"), cancelling the certificate of
candidacy of petitioner Kaiser B. Recabo, Jr., and the resolution dated July 1,
1998 of the Commission en banc, denying petitioner's motion for reconsideration.
The antecedents as found by the Commission in the resolution dated May 8, 1998
are:

II-2. The respondent KAISER B. RECABO, JR., is

a SUBSTITUTE candidate for the office of VICEMAYOR of the Municipality of Mainit, Surigao del
Norte. He filed his Certificate of Candidacy on
April 02, 1998. He claims to be a substitute of
MRS. CANDELARIA B. RECABO who filed her
Certificate of Candidacy for the position of
VICE-MAYOR of Mainit, Surigao del Norte on
March 25, 1998.
The allegations in this paragraph are admitted by respondent as
he has not specifically denied the same. Further, respondent
emphasizes that he admits this in par. 1 of his Answer where he
states:
1.
Except
those
that
may
be
specifically
denied in the

Election Law |97

following
paragraphs of
this
answer,
he admits the
material
allegations of
the petition.

1. The certificate of candidacy of petitioner and that of his

mother whom he substituted as candidate for Vice Mayor
substantially complied with the requirements of being official
candidate of the LAKAS NUCD-UMDP party.
2. The people of Mainit, Surigao del Norte have spoken loud and
clear in favor of petitioner by giving him a resounding majority
of 1,102 votes or 12% of the votes cast for both of them.

Petitioner submits the theory that since the certificate of

nomination and acceptance (Annex C) in favor of Candelaria B.
3. By canceling the certificate of candidacy of petitioner, public
Recabo is not signed by Robert Barbers, there is no valid
respondent acted without or in excess of jurisdiction or with
nomination by LAKAS NUCD-UMDP in favor of Candelaria
grave abuse of discretion, and there is no appeal or any plain,
Recabo. Therefore, Candelaria B. Recabo not having been validly
speedy and adequate remedy in the ordinary course of law
nominated, should be deemed an independent candidate only.
available to petitioner, except this present petition. 3
And since Candelaria B. Recabo is an independent candidate, she
cannot be validly substituted because under Sec. 11 of Comelec The respondent Commission rationalized the cancellation petitioner's certificate of
Res. No. 2977 promulgated on January 15, 1998, "no candidacy thus:
substitution shall be allowed for an independent candidate."
On the other hand, respondent argues that the certificate of
nomination and acceptance signed only by representative
Matugas (and without the joint signature of representative
Barbers) substantially complied with the party requirements and
are, therefore, valid as far as the party is concerned. Respondent
maintains that his nomination is valid. Respondent further
argues that the Commission has no jurisdiction to rule on who
between petitioner and respondent has a valid certificate of
candidacy.1wphi1.nt
Respondent likewise claims that the certificate of nomination in
favor petitioner (Annex A-1) is falsified because it was notarized
in Mainit, Surigao del Norte at a time when the signatories
therein (Fidel Ramos and Jose de Venecia, Jr.,) were not in said
place. Respondent however has not presented any evidence to
this effect. 2
Based on the foregoing, the respondent Commission cancelled the certificate of
candidacy of petitioner Kaiser B. Recabo, Jr. On May 14, 1998, petitioner Recabo,
Jr., filed a motion for reconsideration and a supplement thereto on May 22, 1998.
Francisco R. Reyes, Jr. filed his opposition. On July 1, 1998, the Commission en
banc issued a resolution denying the motion for reconsideration for lack of merit.
Hence, the instant petition on the following grounds:

It appears from the very wording of the certificate of nomination

and acceptance of LAKAS NUCD-UMDP that joint signing of the
certificate is required for validity. The body of the certificate
begins by . . . "WE, GOV. FRANCISCO T. MATUGAS and ROBERTO
Z. BARBERS . . . as its Provincial Chairman and District
Chairman, respectively, hereby nominate.
The certificate continues . . ." WITNESS OUR HANDS this 18th
day of March 1998" etc.
From the way the document is worded, the intent is that there
should be two complete signatures on the certificate for the
certificate to be valid.
The mischief in respondent's assertion to the effect that this
Commission has no jurisdiction to rule on whose certificate of
candidacy should be given due course is that if such a position is
taken, it would give rise to scenario whereby one single political
party may make multiple nominations for a single elective
position. Such is not a situation the intent of the rules and
regulations issued by this Commission.
We, therefore, rule that petitioner's certificate of candidacy be
given due course and that respondent's certificate of candidacy

Election Law |98

be denied due course. First, because petitioner filed it much

other anomaly committed in the election returns concerned,
earlier than respondent and second, because the certificate of
when duly authenticated . . ." A certificate of votes does not
nomination and acceptance upon which respondent's certificate
constitutes sufficient evidence of the true and genuine results of
of candidacy is premised appears to be invalid. We find the
the election; only election returns are, pursuant to Sections 231,
theory of petitioner, that at best Candelaria Recabo is only an
233-236, and 238 of B.P. Blg. 881. 10
independent candidate, logical and valid. Consequently, she
cannot be substitute by respondent. (Sec. 11, Comelec Res. In like manner, neither is the certified list of winning candidates signed by the
2977).
said Election Officer II and OIC sufficient evidence of the real results of the
election. Moreover, we final that the certificate of votes does not conform with
Furthermore, under Sec. 69 of the Omnibus Election Code, the Section 16 of R.A. 6646 which reads:
Commission may motu proprio, or upon valid petition, refuse to
give due course to or cancel a certificate of candidacy if it is
Sec. 16.Certificate of Votes. After the counting of the votes
shown that said certificate has been filed to put the election
cast in the precinct and announcement of the results of the
process in mockery or disrepute or by other circumstances or
election, and before leaving the polling place, the board of
acts which clearly demonstrate that the candidate has no bona
election inspectors shall issue a certificate of votes upon request
fide intention to run for office for which the certificate of
of the duly accredited watchers. The certificate shall contain the
candidacy has been filed and thus prevent a faithful
number of votes obtained by each candidates written in words
determination of the true will of the electorate. To allow
and figures, the number of the precinct, the name of the city of
respondent to run under the circumstances adverted to herein
municipality, province, the total number of voters who voted in
would put the election process in mockery or disrepute for we
the precinct and the date and time issued, and shall be signed
would in effect be allowing an anomalous situation where a
and thumbmarked by each member of the board.
single political party may field-in multiple candidates for a single
elective position. 4
The certificate of votes submitted by petitioner does not state the number of
To put matters in the proper perspective, we shall resolve the second issue first
that the "electorate has spoken loud and clear in favor of petitioner by giving him
a resounding majority of 1,102 votes or 12% of the votes cast for both of them".
Petitioner, in effect, argues that the "popular will as clearly expressed in votes
cast and counted should prevail, such that the election of a candidate cannot be
annulled because of formula defects in his certificate." 5 Petitioner cites a number
of cases to advance this position. 6
According to petitioner, on May 11, 1998, election day, he garnered 4,835 votes
as against private respondent's votes of 3,733. As proof, petitioner Recabo, Jr.
submitted a "Certified List of Candidates with their Votes Obtained dated May 14,
1998 and an undated "Certified List of Winning Candidates" both signed by a
certain Lydia P. Mahinay as Acting Election Officer, and Election Officer-OIC,
respectively. 7

votes obtained in words; it does not state the number of the precinct, the total
number of votes who voted in the precinct and the time issued. Most importantly,
it was merely certified true and correct by a certain Lydia P. Mahinay as acting
election officer. As aforequoted, Section 16 of R.A. 6646 requires that the
certificate of votes be signed and thumbmarked by each member of the board of
election inspectors.
Thus, the doctrine that a mere technicality cannot be used to frustrate the
people's will find no application in the case at bar considering that the results of
the election have not been duly established.

This brings us to the first issue of whether "the certificate of candidacy of

petitioner and that of his mother who he substituted as candidate for Vice Mayor
substantially complied with the requirements of being official candidates of LAKAS
NUCD-UMDP Party." The issue boils down to the validly of the certificate of
nomination of petitioner by LAKAS NUCD-UMDP which is required to be attached
In Garay vs. Commission on Elections 8 we had occasion to rule that:
and filed with the certificate of candidacy, for apparently, petitioner possesses all
the qualifications and none of the disqualifications provided by law and the
. . . According to Section 17, 9 a certificate of votes can only be contents of petitioner's certificate of candidacy are otherwise in order.
"evidence to prove tampering, alteration, falsification or any

Election Law |99

Preliminary, it must be stated that in special civil actions for certiorari, the main
issue is one of jurisdiction lack of jurisdiction or grave abuse discretion
amounting to excess of jurisdiction. 11 In the case at bar, we find that the findings
and conclusions reached by the respondent Commission were not whimsical nor
capricious. The respondent Commission acted within its powers and jurisdiction in
canceling the certificate of candidacy of petitioner and there is no justification for
this Court to interfere with the actions taken by the Comelec. The findings of the
respondent Commission are supported by documentary evidence.

allowing an anomalous situation where a single political party may field-in

multiple candidates for a single position."
It will be recalled that the mother of herein petitioner filed her certificate of
candidacy on March 25, 1998 and later withdrew the same on March 31, 1998. In
the meantime, private respondent Reyes, Jr. filed his certificate of candidacy on
March 27, 1998. Thereafter, herein petitioner Recabo, Jr. filed his certificate of
candidacy of April 2, 1998, in substitution of his mother who had withdrawn
earlier.

COMELEC Resolution No. 2977 which prescribed the rules and regulations
governing the filing of certificates of candidacy in connection with the May 11, Assuming all three candidates were fielded-in by the same political party, at the
1998 election provides under Section 5 thereof:
petitioner Recabo, Jr. filed his certificate of candidacy there was no more void to
fill in as respondent Reyes, Jr. has already filed his certificate of candidacy as
Sec. 5.Certificate of nomination of official candidates by political official candidate of LAKAS NUCD-UMDP. Verily, there was no more vacancy to be
party. . . . The certificate of nomination by registered political substituted for. Disunity and discord amongst members of a political party should
parties, organizations or coalitions of their official candidates not be allowed to create a mockery of our electoral process, which envisions one
shall be filed with the certificates of candidacy not lather than candidate from a political party for each position.
the last day for filing of certificates of candidacy as specified in
Section 4 hereof, duly signed and attested under oath by the This issue was not raised in this petition, nevertheless, we deem it necessary to
party president, chairman, secretary-general or any other party clarify respondent Commissioner's declaration that petitioner's mother is an
officer duly authorized in writing to do so.
independent candidate on account of the invalidity of her certificate of nomination
xxx xxx xxx
Pursuant to said resolution, the political party of LAKAS NUCD-UMDP issued an
"Authorization designating two (2) Party officers to nominate, sign, attest under
oath and issue the Official Certificates of Nomination, namely, Francisco T.
Matugas and Robert Ace S. Barbers. Consistent with the foregoing, the certificate
of nomination and acceptance, as pointed out by the respondent Commission,
requires the joint signing of the two party officers. The fact that only Francisco T.
Matugas signed the certificate of nomination of petitioner Recabo, Jr. leaves the
same open to question. On the other hand, the certificate of nomination of
private respondent Reyes, Jr. was signed by no less than Fidel V. Ramos and Jose
De Venecia, Jr. as the National Chairman and Secretary General, respectively of
the LAKAS NUCD-UMDP party. By and large, the best authority to interpret a rule
is the source itself of the rule, in this case the COMELEC. 12

and acceptance to forestall any confusion that may arise on account of the said
declaration. For the same reason, that his certificate of nomination was invalid
because it was signed only by one authorized party officer, may petitioner be
likewise deemed an independent candidate and pave the way for his candidacy in
the said elections? The answer still be in the negative. Were we to treat him as
an independent candidate, his certificate of candidacy would still be cancelled and
denied due course on the ground that it was filed out of time. It is well-settled
that a certified filed beyond the deadline is not valid. 14

Petitioner filed his certificate of candidacy on April 2, 1998, well within the
prescriptive period for filing a substitute certificate of candidacy, but way beyond
the period for filing an independent certificate of candidacy. Section 4 of
COMELEC Resolution No. 2977 requires that "the certificate of candidacy for
municipal positions in areas other than the ARMM should be filed starting January
11, 1998 to midnight of March 27, 1998. 15 On the other hand, Section 11 thereof
provides that "the substitute candidate nominated by the political party
Moreover, the chronology of events would still call for the cancellation of concerned may file his certificate of candidacy as herein provided for the office
16
petitioner's certificate of candidacy to curb the evil that the respondent affected not lather than mid-day of the day of the election.
Commission sought to abate pursuant to its mandate to hold free, orderly,
honest, peaceful and credible elections. 13 As the respondent Commission stated, Finally, private respondent Reyes, Jr. has filed a motion in this Court to the effect
"to allow respondent to run under the circumstances adverted to herein would that in the event this Court affirms the non-qualification of petitioner Recabo Jr.,
put the election process in mockery and disrepute for we would in effect be he should be proclaimed the winner and assume the position of vice mayor of the

Election Law |100

municipality of Mainit, Surigao del Norte. Apparently, respondent Reyes, Jr. is

counting on the certificate of votes to establish that he is the second highest
winning candidate. As we have pointed out earlier, a certificate of votes is not
sufficient to establish the true and genuine results of the election. A certificate of
canvass issued on the basis of the election returns is required to proclaim the
elected candidate. 17 Moreover, it is settled that the disqualification or nonqualification of the winner in a vice mayoralty race does not justify the
proclamation of the defeated candidate who obtained the second highest number
of votes. Thus, in the recent case of Reyes vs. Commission on Elections, 18 it was
stated:

WHEREFORE, the instant petition for certiorari is hereby DISMISSED for lack of
merit. The assailed resolutions respondent Commission dated May 8, 1998 and
July 1, 1998 are hereby AFFIRMED.
SO ORDERED.

That the candidate who obtains the second highest number of

votes may not be proclaimed winner in case the winning
candidate is disqualified is now settled. The doctrinal instability
caused by see-sawing rulings has since been removed. In the
latest ruling on the question, this Court said:
To simplistically assume that the second would
have received the other votes would be to
substitute our judgment for the mind of the
voter. The second placer is just that, a second
placer. He lost the elections. He was repudiated
by either a majority or plurality of voters. He
could not be considered the first among
qualified candidates because in a field which
excludes
the disqualified candidate,
the
conditions would have substantially changed.
We are not prepared to extrapolate the result
under the circumstances. (at p. 529.)
Hence, in the event that herein petitioner Kaiser Recabo, Jr. obtained the plurality
of votes in the May 11, 1998 elections for Vice Mayor of the Municipality of
Mainit, Surigao del Norte, the vacancy due to the ineligibility of herein petitioner
should be filled up in accordance with Section 44 of the Local Government Code
of 1991 19which provides that the highest ranking sanggunian member shall
become the vice-mayor.

G.R. No. 178413

March 13, 2008

AQUILINO
L.
PIMENTEL
III, petitioner,
vs.
THE COMMISSION ON ELECTIONS EN BANC SITTING AS THE NATIONAL
BOARD OF CANVASSERS, THE SPECIAL PROVINCIAL BOARD OF
CANVASSERS FOR MAGUINDANAO CHAIRED BY ATTY. EMILIO S.
SANTOS, and JUAN MIGUEL F. ZUBIRI, respondents.
DECISION
CHICO-NAZARIO, J.:
On 4 July 2007, petitioner Aquilino L. Pimentel III (Pimentel) filed the present
Petition for Certiorari andMandamus (with Urgent Prayer for Temporary
Restraining Order and/or Status Quo Ante Order).1

The Petition stemmed from the 14 May 2007 national elections for 12 senatorial
posts. At the time of filing of the Petition, around two months after the said
elections, the 11 candidates with the highest number of votes had already been
In the sum, we find that the respondent Commission did not act without
officially proclaimed and had taken their oaths of office as Senators. With other
jurisdiction or with grave abuse of discretion in cancelling and denying due course
candidates conceding, the only remaining contenders for the twelfth and final
to petitioner Recabo, Jr.'s certificate of candidacy.
senatorial post were Pimentel and private respondent Juan Miguel F. Zubiri
(Zubiri). Public respondent Commission on Elections (COMELEC) en banc, acting
as the National Board of Canvassers (NBC), continued to conduct canvass

Election Law |101

proceedings so as to determine the twelfth and last Senator-elect in the 14 May

2007 elections.
Pimentel assailed the proceedings before the NBC and its constituted Special
Provincial Board of Canvassers for Maguindanao (SPBOC-Maguindanao) in which
the Provincial and Municipal Certificates of Canvass (PCOC and MCOCs) from the
province of Maguindanao were respectively canvassed.
The SPBOC-Maguindanao was created because the canvass proceedings held
before the original Provincial Board of Canvassers for Maguindanao (PBOCMaguindanao), chaired by Provincial Election Supervisor (PES) Lintang Bedol,
were marred by irregularities, and the PCOC (Bedol PCOC) and other electoral
documents submitted by the said PBOC-Maguindanao were tainted with fraud and
statistical improbabilities. Hence, the Bedol PCOC was excluded from the national
canvass then being conducted by the NBC.
Task Force Maguindanao, headed by COMELEC Chairman Benjamin S. Abalos, Sr.
and Commissioner Nicodemo T. Ferrer, retrieved and collected 21 MCOCs from
the municipalities of Maguindanao, mostly copy 2, or the copy intended to be
posted on the wall. The SPBOC-Maguindanao was then tasked to re-canvass the
MCOCs submitted by Task Force Maguindanao. The re-canvassing of the
Maguindanao MCOCs was conducted by the SPBOC-Maguindanao from 25 to 26
June 2007 at Shariff Aguak, Maguindanao. Although PES Bedol and the
Chairpersons of the Municipal Boards of Canvassers of Maguindanao (MBOCsMaguindanao) were present during the canvass proceedings before the SPBOCMaguindanao, the candidates legal counsels were not allowed to ask them any
questions. Due to the consistent denial by the SPBOC-Maguindanao of the
repeated and persistent motions made by Pimentels counsel to propound
questions to PES Bedol and the Chairpersons of the MBOCs-Maguindanao
regarding the due execution and authenticity of the Maguindanao MCOCs,
Pimentels counsel manifested her continuing objection to the canvassing of the
said MCOCs. In particular, Pimentels counsel objected to the Maguindanao
MCOCs because:
a) the proceedings were illegal;
b) the MCOCs were palpably manufactured;
c) the results reflected in the MCOCs were statistically improbable;
d) there is no basis for saying the MCOCs were authentic because there
were no other available copies for comparison purposes;

e) in most of the MCOCs[,] no watcher signed;

f) there was no evidence or indication that the copy 2 MCOCs had been
posted as intended by law;
g) the serial numbers of the MCOCs are not clearly stamped;
h) copy 2 of the MCOCs cannot be used for canvass;
i) that the MCOCs are therefore, improper, unworthy and unfit for
canvass;
j) that the manner the "re-canvassing" which was being done where the
parties are not allowed to ask questions was patently illegal; and
k) that it has not been established that the other copies of the MCOCs
have been lost.2
All of the foregoing observations, manifestations, and objections made by
Pimentels counsel, as well as those made by the other candidates counsels,
were simply noted by the SPBOC-Maguindanao without specific action thereon.
On 29 June 2007, the SPBOC-Maguindanao submitted to the NBC the second
PCOC for Maguindanao. In the proceedings before the NBC, Pimentels counsel
reiterated her request to propound questions to PES Bedol and the Chairpersons
of the MBOCs-Maguindanao and the SPBOC-Maguindanao. The NBC, however,
refused to grant her request. Pimentels counsel thereafter moved for the
exclusion of the second Maguindanao PCOC from the canvass, maintaining that
the said PCOC did not reflect the true results of the elections because it was
based on the manufactured Maguindanao MCOCs, the authenticity and due
execution of which had not been duly established. The motion to exclude made
by Pimentels counsel was once again denied by the NBC, and she was ordered to
sit down or she would be forcibly evicted from the session hall. The second
Maguindanao PCOC was thus included in the canvass proceedings conducted by
the NBC and, resultantly, Pimentels lead over Zubiri was significantly reduced
from 133,000 votes to only 4,000 votes.
Pimentel averred that said canvass proceedings were conducted by the NBC and
SPBOC-Maguindanao in violation of his constitutional rights to substantive and
procedural due process and equal protection of the laws, and in obvious partiality
to Zubiri. Pimentel thus filed the Petition at bar on 4 July 2007, anchored on the
following grounds:

Election Law |102

I. The petitioner [Pimentel] was denied his right to due process of law
when the respondent SPBOC and the respondent NBC adopted an
unconstitutional procedure which disallowed the petitioner [Pimentel] the
opportunity to raise questions on the COCs subject of the canvass.
II. The petitioner [Pimentel] was denied his right to equal protection of
the law when the respondent SPBOC and the respondent NBC
unconstitutionally adopted a procedure of "no questions" in the canvass
of COCs from Maguindanao, different from the procedure adopted in the
canvass of COCs from other provinces/areas.

Provincial Board of Canvassers for Maguindanao ("SPBOC") in canvassing

or "re-canvassing" the collected MCOCs, on June 25, 26 and 27, 2007,
leading to the preparation of the new/second PCOC for Maguindanao, and
(b) COMPELLING or ORDERING respondent NBC and its deputy, the
SPBOC, to perform their ministerial constitutional duty of fully
determining the due execution and authenticity of the MCOCs, including,
but not limited to, allowing petitioner [Pimentel] to substantiate his claim
of manufactured results and propound questions to the officers
concerned, primarily, the Chairpersons of the former PBOC and SPBOC of
Maguindanao and the Chairpersons of the Municipal Boards of
Canvassers of Maguindanao.

III. The respondent NBC acted with manifest grave abuse of discretion
Petitioner [Pimentel] also prays for other reliefs, just and equitable,
when it refused to exercise its broad, plenary powers in fully or
under the premises.4
accurately ascertaining due execution, authenticity and fitness for the
canvass of the MCOCs collected by the Comelec in the exercise of such
broad plenary powers. It violated its own rules when it deprived Pursuant to the Resolution5 dated 10 July 2007 issued by this Court, Zubiri filed
petitioner [Pimentel] of the right to ventilate and prove his objections to his Comment6 on the Petition at bar on 12 July 2007; while the NBC and SPBOCthe Maguindanao COCs.3
Maguindano, chaired by Atty. Emilio S. Santos, filed their joint Comment 7 on even
date. The respondents Zubiri, NBC, and SPBOC-Maguindanao collectively sought
the denial of Pimentels application for Temporary Restraining Order (TRO)
Pimentel seeks from this Court the following remedies:
and/or Status Quo Ante Order and the dismissal of the instant Petition.
1. Forthwith ISSUE A TEMPORARY RESTRAINING ORDER enjoining
the respondent Commission on Elections en banc sitting as the National
Board of Canvassers for Senators for the May 14, 2007 elections ("NBC")
from proceeding with any proclamation (of the twelfth and last winner of
the May 14, 2007 Elections for Senators) based on the on-going
senatorial canvass which includes the new/second Provincial Certificate of
Canvass of Maguindanao, until further orders from this Court, or, in the
alternative, in the event that the proclamation of Respondent Zubiri is
made before the application for a TRO is acted upon,ISSUE A STATUS
QUO ANTE ORDER requiring the parties to observe the status quo at
the time of the filing of the Petition, in order to maintain and preserve
the situation of the parties at the time of the filing of this Petition, so as
not to render the issues raised in this Petition moot and academic;
2. After proper proceedings, RENDER JUDGMENT: (a) ANNULLING
AND SETTING ASIDE for being unconstitutional and illegal the
proceedings and acts of respondent Commission on Elections en banc
sitting as the National Board of Canvassers for Senators for the May 14,
2007 elections ("NBC") of including, on June 29, 2007, in the national
canvass of votes for Senators the results from the Province of
Maguindanao as reflected in its new/second Provincial Certificate of
Canvass as well as the proceedings and acts of the respondent Special

Pimentels prayer for the issuance of a TRO and/or Status Quo Ante Order was set
for oral arguments on 13 July 2007. After hearing the parties oral arguments,
the Court voted seven for the grant and seven for the denial of Pimentels prayer
for the issuance of a TRO and/or Status Quo Ante Order; thus, said prayer was
deemed denied for failure to garner the required majority vote. The parties were
then directed to submit their respective Memoranda, after which, the case would
be deemed submitted for resolution.8 All the parties complied, with Zubiri
submitting his Memorandum9 on 31 July 2007; Pimentel,10 on 1 August 2007; and
the NBC and SPBOC-Maguindanao,11 on 10 August 2007.
In the meantime, without any TRO and/or Status Quo Ante Order from the Court,
the canvass proceedings before the NBC continued, and by 14 July 2007, Zubiri
(with 11,004,099 votes) and Pimentel (with 10,984,807 votes) were respectively
ranked as the twelfth and thirteenth Senatorial candidates with the highest
number of votes in the 14 May 2007 elections. Since the NBC found that the
remaining uncanvassed certificates of canvass would no longer materially affect
Zubiris lead of 19,292 votes over Pimentel, it issued Resolution No. NBC 0767,12 dated 14 July 2007, proclaiming Zubiri as the twelfth duly elected Senator
of the Philippines in the 14 May 2007 elections, to serve for a term of six years
beginning 30 June 2007 in accordance with the provisions of the Constitution.

Election Law |103

On 19 July 2007, Zubiri filed with this Court a Manifestation with Motion to
Dismiss.13 Zubiri sought the dismissal of the Petition at bar arguing that, in
consideration of his proclamation pursuant to Resolution No. NBC 07-67 and his
formal assumption of office on 16 July 2007, controversies involving his election
and qualification as a Senator are now within the exclusive jurisdiction of the
Senate Electoral Tribunal (SET).
Zubiri further informed the Court through a Manifestation, 14 dated 16 August
2007, that Pimentel filed an Election Protest (Ex Abudante Ad Cautelam) before
the SET on 30 July 2007, docketed as SET Case No. 001-07, to which Zubiri filed
his Answer Ad Cautelam (With Special Affirmative Defenses, Counter-Protest and
Petition for a Preliminary Hearing on the Affirmative Defenses) on 13 August
2007. In his election protest, Pimentel prays, among other remedies, for the
annulment of Zubiris proclamation as the twelfth winning Senator in the 14 May
2007 elections. Zubiri called the attention of the Court to the "glaring reality" that
with G.R. No. 178413 before this Court and SET Case No. 001-07 before the SET,
"there are now two cases involving the same parties with practically the same
issues and similar remedies sought filed before the two (2) separate
courts/tribunals." Zubiri also pointed out Pimentels ostensible failure to inform
this Court of his institution of SET Case No. 001-07 and the subsequent
developments therein.

After a close scrutiny of the allegations, arguments, and evidence presented by

all the parties before this Court, this Court rules to dismiss the present Petition.
Pre-proclamation controversy/case
A pre-proclamation controversy has been defined by Batas Pambansa Blg. 881,
otherwise known as the Omnibus Election Code of the Philippines, as follows:
SEC. 241. Definition. A pre-proclamation controversy is any question
pertaining to or affecting the proceeding of the board of canvassers
which may be raised by any candidate or by any registered political party
or coalition of political parties before the board or directly with the
Commission, or any matter raised under Sections 233, 234, 235 and 236
in relation to the preparation, transmission, receipt, custody and
appearance of the election returns.
Under Republic Act No. 7166, providing for synchronized national and local
elections, pre-proclamation controversies refer to matters relating to the
preparation, transmission, receipt, custody and appearance of election
returns and certificates of canvass.19

Essentially reiterating Section 243 of the Omnibus Election Code, but adding the
On 23 August 2007, Pimentel filed before this Court his Comment/Opposition (to
reference to the certificates of canvass, COMELEC Resolution No. 7859, dated 17
Private Respondents Manifestation with Motion to Dismiss). 15 Pimentel alleged
April 2007, identified the issues that may be subject of a pre-proclamation
that Zubiris Motion to Dismiss solely relied on Aggabao v. Commission on
controversy, to wit:
Elections.16 However, Pimentel argued that Aggabao cannot be applied to the
instant Petition because of the difference in the factual backgrounds of the two
SEC. 37. Issues that may be raised in pre-proclamation controversy.
cases. In Aggabao, therein petitioner Aggabao filed his Petition before this Court
The following shall be proper issues that may be raised in a preafter the proclamation of therein private respondent Miranda as Congressman for
proclamation controversy:
the Fourth District of Isabela; while in the present case, Pimentel already filed his
Petition before this Court prior to the proclamation of Zubiri as Senator. Moreover,
1) Illegal composition or proceedings of the Board of Canvassers;
Pimentel asserted that his Petition questioned not Zubiris proclamation, but the
conduct of the canvass proceedings before the NBC and SPBOC-Maguindanao. He
maintained that his case was one of first impression and no existing
2) The canvassed election returns/certificates of canvass are incomplete,
jurisprudence could be used as precedent for its summary dismissal. Pimentel
contain material defects, appear to be tampered with or falsified, or
then reiterated his arguments in his Memorandum that Sections 37 and 38 of
contain discrepancies in the same returns/certificates or in the other
Republic Act No. 9369,17 amending Sections 30 and 15 of Republic Act No.
authentic copies thereof as mentioned in Sections 233, 234, 235 and 236
7166,18 respectively, significantly affected and changed the nature of canvass
of the Omnibus Election Code;
proceedings, the nature of the duty of canvassing boards, and the extent of
allowable pre-proclamation controversies in Senatorial elections. Based on the
3) The election returns/certificates of canvass were prepared under
foregoing, Pimentel prayed for the denial of Zubiris Motion to Dismiss.
duress, threats, coercion, or intimidation, or they are obviously
manufactured or not authentic; and

Election Law |104

4) When substitute or fraudulent election return/certificates of canvass

were canvassed, the results of which materially affected the standing of
the aggrieved candidate or candidates.

authority of the appropriate canvassing body motu propio or upon

written complaint of an interested person to correct manifest errors in
the certificate of canvass or election returns before it.

Pre-proclamation cases to resolve pre-proclamation controversies are allowed in

local elections. According to Section 16 of Republic Act No. 7166:

Questions affecting the composition or proceedings of the board of

canvassers may be initiated in the board or directly with the Commission
in accordance with Section 19 hereof.

SEC. 16. Pre-proclamation Cases Involving Provincial, City and Municipal

Offices. Pre-proclamation cases involving provincial, city and municipal
officer shall be allowed and shall be governed by Sections 17, 18, 19, 20,
21 and 22 hereof.
All pre-proclamation cases pending before the Commission shall be
deemed terminated at the beginning of the term of the office involved
and the rulings of the boards of canvassers concerned shall be deemed
affirmed, without prejudice to the filing of a regular election protest by
the aggrieved party. However, proceedings may continue when on the
basis of the evidence thus far presented, the Commission determines
that the petition appears meritorious and accordingly issues an order for
the proceeding to continue or when an appropriate order has been issued
by the Supreme Court in a petition for certiorari.

Any objection on the election returns before the city or municipal board
of canvassers, or on the municipal certificates of canvass before the
provincial board of canvassers or district boards of canvassers in Metro
Manila Area, shall be specifically noted in the minutes of their respective
proceedings.

As Section 15 of Republic Act No. 7166 was then worded, it would appear
that any pre-proclamation case relating to the preparation, transmission, receipt,
custody and appreciation of election returns or certificates of canvass, was
prohibited in elections for President, Vice-President, Senators and Members of the
House of Representatives. The prohibition aims to avoid delay in the proclamation
of the winner in the election, which delay might result in a vacuum in these
sensitive posts. Proceedings which may delay the proclamation of the winning
candidate beyond the date20 set for the beginning of his term of office must be
SEC. 17. Pre-proclamation Controversies: How Commenced. Questions avoided, considering that the effect of said delay is, in the case of national offices
21
affecting the composition or proceedings of the board of canvassers may for which there is no hold over, to leave the office without any incumbent.
be initiated in the board or directly with the Commission. However,
matters raised under Sections 233, 234, 235 and 236 of the Omnibus The law, nonetheless, recognizes an exception and allows the canvassing
Election Code in relation to the preparation, transmission, receipt, body motu proprio or an interested person to file a written complaint for the
custody and appreciation of the election returns, and the certificates of correction of manifest errors in the election returns or certificates of canvass even
canvass shall be brought in the first instance before the board of in elections for President, Vice-President, Senators and Members of the House of
canvassers only.
Representatives, for the simple reason that the correction of manifest error will
not prolong the process of canvassing nor delay the proclamation of the winner in
22
However, as to elections for President, Vice-President, Senators, and Members of the election. To be manifest, the errors must appear on the face of the
the House of Representatives, pre-proclamation cases are prohibited. Section 15 certificates of canvass or election returns sought to be corrected and/or
objections thereto must have been made before the board of canvassers and
of Republic Act No. 7166, prior to its amendment, read:
specifically noted in the minutes of their respective proceedings. 23 The law
SEC. 15. Pre-proclamation Cases Not Allowed in Elections for President, likewise permits pre-proclamation cases in elections for President, Vice-President,
Vice-President, Senator, and Member of the House of Representatives. Senators and Members of the House of Representatives, when these cases
For purposes of the elections for President, Vice-President, Senator, and question the composition or proceedings of the board of canvassers before the
Member of the House of Representatives, no pre-proclamation cases shall board itself or the COMELEC, since such cases do not directly relate to the
be allowed on matters relating to the preparation, transmission, receipt, certificate of canvass or election returns.
custody and appreciation of the election returns or the certificates of
canvass, as the case may be. However, this does not preclude the Section 15 of Republic Act No. 7166, after the amendment introduced by Republic
Act No. 9369, now reads:

Election Law |105

SEC. 15. Pre-proclamation Cases in Elections for President, VicePresident, Senator, and Member of the House of Representatives. For
purposes of the elections for president, vice-president, senator, and
member of the House of Representatives, no pre-proclamation cases
shall be allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of election returns or the certificates of
canvass, as the case may be, except as provided for in Section 30
hereof. However, this does not preclude the authority of the appropriate
canvassing body motu propio or upon written complaint of an interested
person to correct manifest errors in the certificate of canvass or election
returns before it.
Questions affecting the composition or proceedings of the board of
canvassers may be initiated in the board or directly with the Commission
in accordance with Section 19 hereof.
Any objection on the election returns before the
of canvassers, or on the municipal certificates
provincial board of canvassers or district board
Manila Area, shall be specifically noticed in
respective proceedings. (Emphasis supplied.)

city or municipal board

of canvass before the
of canvassers in Metro
the minutes of their

Republic Act No. 9369 significantly amended Section 15 of Republic Act No. 7166
by adding an excepting phrase to the general prohibition against preproclamation controversies in elections for President, Vice-President, Senators
and Members of the House of Representatives. According to the amended Section
15, no pre-proclamation cases on matters relating to the preparation,
transmission, receipt, custody and appreciation of election returns or the
certificates of canvass shall be allowed in elections for President, Vice-President,
Senators and Members of the House of Representatives, except as provided by
Section 30 of the same statute.
Section 30 of Republic Act No. 7166, which was likewise amended by Republic Act
No. 9369, provides:
SEC. 30. Congress as the National Board of Canvassers for the Election
of President and Vice President:The Commission en banc as the
National
Board
of
Canvassers
for
the
election
of
senators:Determination of Authenticity and Due Execution of
Certificates of Canvass. Congress and the Commission en banc shall
determine the authenticity and due execution of the certificate of canvass
for president and vice-president and senators, respectively, as
accomplished and transmitted to it by the local board of canvassers, on a

showing that: (1) each certificate of canvass was executed, signed and
thumbmarked by the chairman and members of the board of canvassers
and transmitted or caused to be transmitted to Congress by them; (2)
each certificate of canvass contains the names of all of the candidates for
president and vice-president or senator, as the case may be, and their
corresponding votes in words and figures; (3) there exists no
discrepancy in other authentic copies of the certificates of canvass or in
any of its supporting documents such as statement of votes by
city/municipality/by precinct or discrepancy in the votes of any
candidate in words and figures in the certificate; and (4) there exists
no discrepancy in the votes of any candidate in words and figures
in the certificate of canvass against the aggregate number of
votes appearing in the election returns of precincts covered by
the certificate of canvass: Provided, That certified print copies of
election returns or certificates of canvass may be used for the
purpose of verifying the existence of the discrepancy.
When the certificate of canvass, duly certified by the board of canvassers
of each province, city or district, appears to be incomplete the Senate
President or the Chairman of the Commission, as the case may
be shall require the board of canvassers concerned to transmit by
personal delivery the election returns from polling places that were not
included in the certificate of canvass and supporting statements. Said
election returns shall be submitted by personal delivery within two (2)
days from receipt of notice.
When it appears that any certificate of canvass or supporting statement
of votes by city/municipality or by precinct bears erasures or
alterations which may cast doubt as to the veracity of the number of
votes stated herein and may affect the result of the election, upon
request
of
the
presidential,
vice-presidential or
senatorial
candidate concerned or his party, Congress or the Commission en
banc, as the case may be, shall, for the sole purpose of verifying the
actual number of votes cast for President and Vice-Presidentor senator,
count the votes as they appear in the copies of the election returns
submitted to it.
In case of any discrepancy, incompleteness, erasure or alteration
as mentioned above, the procedure on pre-proclamation
controversies shall be adopted and applied as provided in
Sections 17, 18, 19 and 20.

Election Law |106

Any person who presents in evidence a simulated copy of an

election return, certificate of canvass or statement of votes, or a
printed copy of an election return, certificate of canvass or
statement of votes bearing a simulated certification or a
simulated image, shall be guilty of an election offense and shall
be penalized in accordance with Batas Pambansa Blg.
881. (Emphasis supplied.)

with other general rules, there are recognized exceptions to the prohibition,
namely: (1) correction of manifest errors; (2) questions affecting the composition
or proceedings of the board of canvassers; and (3) determination of the
authenticity and due execution of certificates of canvass as provided in Section 30
of Republic Act No. 7166, as amended by Republic Act No. 9369.

The highlighted portions in the afore-quoted section identify the amendments

introduced by Republic Act No. 9369, specifically: (1) the duty to determine the
authenticity and due execution of certificates of canvass is now imposed, not only
on Congress acting as the NBC for the election for President and Vice-President,
but also on COMELEC en banc acting as the NBC for the election for Senators; (2)
the third criterion for the determination of the authenticity and due execution of
the certificates of canvass requires the absence of discrepancy in comparison not
only with other authentic copies of the said certificates, but also with the
supporting documents, such as the statements of votes; (3) a fourth criterion for
the determination of the authenticity and due execution of the certificates of
canvass was added, mandating the absence of discrepancy between the number
of votes of a candidate in a certificate when compared with the aggregate
number of votes appearing in the election returns of the precincts covered by the
same certificate; (4) pursuant to the exception now provided in Section 15 of
Republic Act No. 7166, as amended by Republic Act No. 9369, permissible preproclamation cases shall adopt and apply the procedure provided in Sections 17
to 20 of the same statute; and (5) the use of a simulated copy of an election
return, certificate of canvass, or statement of vote, or a printed copy of said
election documents bearing a simulated certification or image shall be penalized
as an election offense.

Pimentels objections to the Maguindanao MCOCs delve into "matters relating to

the preparation, transmission, receipt, custody and appreciation" of the said
MCOCs by the SPBOC-Maguindanao. He suspects the authenticity and due
execution of the Maguindanao MCOCs used by the SPBOC-Maguindanao in its
canvass, which were mostly copy 2 or the copy for the wall, 28 because of the
supposed mysterious circumstances surrounding the loss or unavailability of any
other copy of the said MCOCs. He decries the denial by the SPBOC-Maguindanao
and the NBC of the opportunity to question PES Bedol and the Chairpersons of
the MBOCs-Maguindanao on "where did that copy 2 come from, what was the
basis, when was it accomplished, how was it posted x x x"; 29 and to substantiate
his claim that the Maguindanao MCOCs are palpably manufactured and are not fit
for canvass.30 He is raising issues related to the tampering with, falsification of, or
discrepancies in the Maguindanao MCOCs, which are properly the subject of a
pre-proclamation controversy.31

Indeed, this Court recognizes that by virtue of the amendments introduced by

Republic Act No. 9369 to Sections 15 and 30 of Republic Act No. 7166, preproclamation cases involving the authenticity and due execution of certificates of
canvass are now allowed in elections for President, Vice-President, and Senators.
The intention of Congress to treat a case falling under Section 30 of Republic Act
No. 7166, as amended by Republic Act No. 9369, as a pre-proclamation case is
apparent in the fourth paragraph of the said provision which adopts and applies
to such a case the same procedure provided under Sections 17, 24 18,25 1926 and
2027 of Republic Act No. 7166 on pre-proclamation controversies.

Respondents contend that Pimentel cannot initiate and pursue a pre-proclamation

case before the SPBOC-Maguindanao or the NBC, since such a case is prohibited
in elections for Senators. Pimentel, however, argues that his pre-proclamation
case is an exception to the prohibition pursuant to Section 30, in relation to
Section 15, of Republic Act No. 7166, as amended by Republic Act No. 9369.

The Petition at bar

Pimentel insists that the SPBOC-Maguindanao and the NBC should hear his
observations, accept his evidence, and rule on his objections to the Maguindanao
MCOCs in what would undeniably be a pre-proclamation case. Ultimately, what
Pimentel seeks is that his pre-proclamation case be given due course by the
boards of canvassers.

This Court rules for the respondents.

Proceedings before the SPBOC-Maguindanao

In sum, in elections for President, Vice-President, Senators and Members of the

House of Representatives, the general rule still is that pre-proclamation cases on The SPBOC-Maguindanao, in the conduct of its canvass proceedings, properly
matters relating to the preparation, transmission, receipt, custody and refused to allow Pimentel to contest the Maguindanao MCOCs at that stage by
appreciation of election returns or certificates of canvass are still prohibited. As questioning PES Bedol and the Chairpersons of the MBOCs-Maguindanao and

Election Law |107

presenting evidence to prove the alleged manufactured nature of the said

MCOCs, for such would be tantamount to a pre-proclamation case still prohibited
by Section 15 of Republic Act No. 7166, even after its amendment by Republic
Act No. 9369.
The SPBOC-Maguindanao, as its name suggests, was constituted to be of the
same stature and to perform the same function as the PBOC-Maguindano: to
canvass the Maguindanao MCOCs and prepare the Maguindanao PCOC to be
submitted to the NBC. Undeniably, the SPBOC-Maguindanao is not
Congress nor COMELEC en banc acting as the NBC, specifically charged
by Section 30 of Republic Act No. 7166, as amended by Republic Act No.
9369, with the duty to determine the authenticity and due execution of
the certificates of canvass submitted to it in accordance with the four
given criteria. There is no ambiguity in the said provision, at least, as to whom
it imposes the duty, namely: (1) Congress as the NBC for the election for
President and Vice-President; and (2) COMELEC en banc as the NBC for the
election for Senators. This is a case where the law is clear. It speaks in a
language that is categorical. It is quite explicit; it is too plain to be misread. No
interpretation is needed. All that is called for is to apply the statutory command. 32
Even if there is still a need for this Court to construe Section 30 of Republic Act
No. 7166, as amended by Republic Act No. 9369, it still cannot extend the scope
of said provision to local boards of canvassers. A pre-proclamation case under
Section 30 is allowed only as an exception to the prohibition under Section 15 of
Republic Act No. 7166, as amended by Republic Act No. 9369. According to the
rules of statutory construction, exceptions, as a general rule, are strictly, but
reasonably construed; they extend only so far as their language fairly warrants,
and all doubts should be resolved in favor of the general provisions rather than
the exception. Where a general rule is established by statute with exceptions, the
court will not curtail the former nor add to the latter by implication. 33 A maxim of
recognized practicality is the rule that the expressed exception or exemption
excludes others. Exceptio firmat regulim in casibus non exceptis. The express
mention of exceptions operates to exclude other exceptions; conversely, those
which are not within the enumerated exceptions are deemed included in the
general rule.34 And, in this case, the exception applies only to Congress or
the COMELEC en banc acting as the NBC, and not to local boards of
canvassers who must still be deemed covered by the prohibition on preproclamation controversies.

only to elections forPresident, Vice-President and Senators. The intent of the

Legislature to confine the application of Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, only to Congress or the COMELEC en
banc acting as the NBC thus becomes even more evident, considering that the
said provision does not apply to elections for Members of the House of
Representatives. It must be borne in mind that only the votes for national
elective positions such as the President, Vice-President, and Senators are
canvassed by the NBC. The canvassing of votes for local elective positions,
including those for Members of the House of Representatives, end with the local
boards of canvassers. Therefore, it would be contrary to the legislative intent to
extend Section 30 of Republic Act No. 7166, as amended by Republic Act No.
9369, even to the canvass proceedings before local boards of canvassers.
This Court can only conclude that the canvass proceedings before local boards of
canvassers in elections for Senators are unaffected by the amendment of
Republic Act No. 7166 by Republic Act No. 9369. They still remain administrative
and summary in nature, so as to guard against the paralyzation of canvassing
and proclamation proceedings that would lead to a vacuum in so important and
sensitive office as that of Senator of the Republic.35
For the same reasons stated in the preceding paragraphs, the four criteria
enumerated by Section 30 of Republic Act No. 7166, as amended by Republic Act
No. 9369, are not mandatory on local boards of canvassers in their determination
of authenticity and due execution of the certificates of canvass submitted to
them. It is already well-settled that the local boards of canvassers, as well as the
SPBOC-Maguindanao in this case, may proceed with the canvassing of the
election returns or certificates of canvass for as long as they appear to be
authentic and duly accomplished on their face.36

Boards of canvassers are ad hoc bodies that exist only for the interim task of
canvassing election returns. They do not have the facilities, the time and even
the competence to hear, examine and decide on alleged election irregularities,
unlike regular courts or the COMELEC itself or the electoral tribunals (Presidential,
Senate, and House), which are regular agencies of government tasked and
equipped for the purpose. While this Court has time and again expressed its
abhorrence of the nefarious "grab the proclamation and prolong the protest"
strategy of some candidates, nonetheless, it recognizes the very limited
jurisdiction of MBOCs and PBOCs. Unless Pimentel is able to show cogently and
clearly his entitlement to the summary exclusion of clearly unacceptable
It is also significant to note that Section 15 of Republic Act No. 7166, as certificates of canvass, this Court must uphold the constitutional and legal
amended by Republic Act No. 9369, prohibits pre-proclamation cases in elections presumption of regularity in the performance of official functions and authenticity
for President, Vice-President, Senators, and Members of the House of of official documents.37
Representatives; while Section 30 of the same statute, as amended, refers

Election Law |108

The burden is upon Pimentel to establish that the Maguindanao MCOCs are
manufactured, and that it is evident on the face thereof. Pimentels insistence on
being allowed to propound questions to PES Bedol and the Chairpersons of the
MBOCs-Maguindanao and SPBOC-Maguindanao reveals that, although he has his
suspicions, he has yet no actual evidence that the Maguindanao MCOCs were
indeed manufactured.
Moreover, Pimentels main objection to the Maguindanao MCOCs used in the
canvass by the SPBOC-Maguindanao is that they are mostly copy 2 or the copy
intended to be posted on the wall. According to Section 43 of COMELEC
Resolution No. 7859, dated 17 April 2007, the MBOCs must transmit copy 1 of
the MCOCs to the PBOC for use in the provincial canvassing of votes. The SPBOCMaguindanao was compelled to use copy 2 of the Maguindanao MCOCs in the
absence of copy 1 thereof. The fact that copy 2 of the Maguindanao MCOCs was
not the copy meant for the PBOC-Maguindanao does not necessarily mean that
copy 2 of the said MCOCs was manufactured, falsified or tampered with. All the
seven copies of the MCOCs required to be prepared by the MBOCs should be
considered duplicate originals.38 Just like copy 1 of the MCOCs, copy 2 should be
afforded the presumption of authenticity as an official document prepared by the
MBOCs-Maguindanao in the regular performance of their official functions. Copy 2
is no less authentic than all the other copies of the MCOCs although it may be
more susceptible to manufacture, falsification, or tampering. If the manufacture,
falsification, or tampering of copy 2 of the MCOCs is not apparent on its face, the
burden to prove the same falls on the candidate making the allegation in a
regular election protest. At least as far as the proceedings before the local boards
of canvassers are concerned, this Courts ruling in Pangarungan v. Commission
on Elections39 still holds true: it is not required that all the other copies of the
election returns or certificates of canvass be taken into account and compared
with one another before one of them, determined to be authentic, may be used
or included in the canvass.
The SPBOC-Maguindanao determined that copy 2 of the Maguindanao MCOCs is
authentic and duly executed on its face, while Pimentel insists otherwise. This
issue involves the appreciation of copy 2 of the Maguindanao MCOCs by the
SPBOC-Maguindanao, the proper subject of a pre-proclamation controversy,
which, as this Court already declared, is still prohibited in proceedings before
local boards of canvassers for elections for Senators.
The resolution of the issues raised by Pimentel as to the irregularities and
suspicious circumstances surrounding the Maguindanao MCOCs, which
appear prima facie regular on their face, compels or necessitates the piercing of
the veil of the said MCOCs. These issues, however, are more appropriate in a
regular election protest, wherein the parties may litigate all the legal and factual

issues raised by them in as much detail as they may deem necessary or

appropriate.40
Proceedings before the COMELEC en banc acting as the NBC for elections
for Senators
Similarly, the COMELEC en banc acting as the NBC for the election for Senators,
did not violate Section 30 of Republic Act No. 7166, as amended by Republic Act
No. 9369, when it denied Pimentels request to question PES Bedol and the
Chairpersons of the MBOCs-Maguindanao and SPBOC-Maguindanao, and his
subsequent motion to exclude the second Maguindanao PCOC.
As already declared by this Court, the NBC has the duty to determine the
authenticity and due execution of the certificates of canvass submitted to it in
accordance with the four criteria enumerated in Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369. It has not been established to the
satisfaction of this Court that the NBC failed to comply with its duty under said
provision.
Pimentel asserts that in the absence of all the other copies of the Maguindanao
MCOCs, except copy 2, there is no way to apply the third criterion under Section
30 of Republic Act No. 7166, as amended by Republic Act No. 9369. According to
this criterion for authenticity and due execution of a certificate of canvass, there
must exist no discrepancy in other authentic copies of the certificate or in any of
its
supporting
documents
such
as
the
statement
of
votes
by
city/municipality/precinct and no discrepancy in the votes of any candidate in
words and figures in the certificate. Pimentel posits that without any other copies
available for comparison, then copy 2 of the Maguindanao MCOCs cannot be
deemed authentic and duly executed.
While it is true that having only one copy of the certificate of canvass may raise
problems as to the determination by the NBC of its authenticity and due
execution since there are no other copies to compare it with, such is not the
situation in the Petition at bar.
According to Section 30 of Republic Act No. 7166, as amended by Republic Act
No. 9369, Congress and the COMELEC en banc, acting as the NBC, shall
determine the authenticity and due execution of the certificates of canvass for
President, Vice-President and Senators, respectively, as accomplished and
transmitted to them by the local boards of canvassers. For the province of
Maguindanao, it is the PBOC which transmits the PCOC to the NBC. For the 14
May 2007 senatorial elections, the NBC excluded from the national canvass the

Election Law |109

Bedol PCOC submitted by the PBOC-Maguindanao after it found the same to be In City of Manila v. Hon. Laguio, Jr.,41 this Court already provided a discourse on
tainted by irregularities and statistical improbabilities. Thereafter, the SPBOC- due process, to wit:
Maguindanao was created, which re-canvassed the Maguindanao MCOCs and
prepared and submitted to the NBC the second Maguindanao PCOC.
The constitutional safeguard of due process is embodied in the fiat "(N)o
Hence, the four criteria enumerated in Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, must be applied by the NBC to the second
Maguindanao PCOC. The authenticity and due execution of the Maguindanao
MCOCs, which had already been determined by the SPBOC-Maguindanao, are no
longer in issue before the NBC. To allow Pimentel to revive again before the NBC
the issue of authenticity and due execution of the Maguindanao MCOCs after a
determination thereof by the SPBOC-Maguindanao is like granting him an appeal,
a remedy which is without any statutory or regulatory basis.
The SPBOC-Maguindanao prepared all seven copies of the second Maguindanao
PCOC. It properly submitted the first copy to the NBC for national canvassing of
the votes for Senators. All the six other copies are in existence and have been
distributed to the intended recipients. There is no allegation or proof that there is
a discrepancy among the seven authentic copies of the second Maguindanao
PCOC. Neither is it shown that the second Maguindanao PCOC contains any
discrepancy when compared with its supporting documents. It would thus appear
to this Court that the second Maguindanao PCOC passed the third criterion for its
authenticity and due execution as provided in Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369. As for the three other criteria, there
is no sufficient allegation, much less proof, that the NBC did not apply them to
the second Maguindanao PCOC or that the second Maguindanao PCOC actually
failed to meet any of them.
Given the foregoing, there is indeed no merit in Pimentels request before the
NBC to still question PES Bedol and the Chairpersons of the MBOCs-Maguindanao
and SPBOC-Maguindanao regarding the Maguindanao MCOCs. There is also no
reason to exclude the second Maguindanao PCOC from the national canvass of
votes for Senators after its authenticity and due execution had been determined
by the NBC in accordance with the criteria provided by the law.

person shall be deprived of life, liberty or property without due process of

law x x x."
There is no controlling and precise definition of due process. It furnishes
though a standard to which governmental action should conform in order
that deprivation of life, liberty or property, in each appropriate case, be
valid. This standard is aptly described as a responsiveness to the
supremacy of reason, obedience to the dictates of justice, and as such it
is a limitation upon the exercise of the police power.
The purpose of the guaranty is to prevent governmental encroachment
against the life, liberty and property of individuals; to secure the
individual from the arbitrary exercise of the powers of the government,
unrestrained by the established principles of private rights and
distributive justice; to protect property from confiscation by legislative
enactments, from seizure, forfeiture, and destruction without a trial and
conviction by the ordinary mode of judicial procedure; and to secure to
all persons equal and impartial justice and the benefit of the general law.
The guaranty serves as a protection against arbitrary regulation, and
private corporations and partnerships are "persons" within the scope of
the guaranty insofar as their property is concerned.
This clause has been interpreted as imposing two separate limits on
government, usually called "procedural due process" and "substantive
due process."

Due process and equal protection of the law

Procedural due process, as the phrase implies, refers to the procedures

that the government must follow before it deprives a person of life,
liberty, or property. Classic procedural due process issues are concerned
with what kind of notice and what form of hearing the government must
provide when it takes a particular action.

Pimentel alleges that the proceedings before the NBC and the SPBOCMaguindanao disallowing him from asking certain election officials, such as PES
Bedol and the Chairpersons of the MBOCs-Maguindanao and SPBOCMaguindanao, questions regarding the Maguindanao PCOC and MCOCs, deprived
him of his right to due process.

Substantive due process, as that phrase connotes, asks whether the

government has an adequate reason for taking away a persons life,
liberty, or property. In other words, substantive due process looks to
whether there is a sufficient justification for the governments action.
Case law in the United States (U.S.) tells us that whether there is such a

Election Law |110

justification depends very much on the level of scrutiny used. For

example, if a law is in an area where only rational basis review is applied,
substantive due process is met so long as the law is rationally related to
a legitimate government purpose. But if it is an area where strict scrutiny
is used, such as for protecting fundamental rights, then the government
will meet substantive due process only if it can prove that the law is
necessary to achieve a compelling government purpose.

canvass. In the event that the NBC or local board of canvassers shall determine
that there is a proper case for the objection, manifestation, or contest submitted,
it shall automatically defer the canvass of the assailed election return or
certificate of canvass. Within 24 hours from the submission of the objection,
manifestation, or contest, the party concerned shall submit his evidence which
shall be attached to his written objection, manifestation, or contest. Within the
same 24-hour period, any party may file a written and verified opposition to the
objection, manifestation, or contest. Upon receipt of the evidence, the NBC or the
This Court finds Pimentels argument of deprivation of due process problematic local board of canvassers shall take up the assailed election return or certificate
since he has not established what he is being deprived of: life, liberty, or of canvass, and after considering the objection, manifestation or contest,
property. He was a candidate in the senatorial elections. At the time he filed the together with the opposition thereto and the evidences submitted, shall
42
instant Petition, he might have been leading in the canvassing of votes, yet the summarily and immediately rule thereon.
canvass proceedings were still ongoing, and no winner for the twelfth and last
senatorial post had been proclaimed. May he already claim a right to the elective The afore-described procedure does not provide any party the opportunity to
post prior to the termination of the canvass proceedings and his proclamation as question and confront election officials and other witnesses. It may have been
winner, and may such a right be considered a property right which he cannot be allowed on occasion by the boards of canvassers, but it does not necessarily ripen
deprived of without due process? These were clearly substantial and weighty into a legally demandable right. Again, canvass proceedings are administrative
issues which Pimentel did not address. Unfortunately, this Court cannot argue and and summary in nature. As for local boards of canvassers, in elections for
settle them for him.
Senators, they only need to determine the authenticity and due execution of the
election returns or certificates of canvass on the face thereof. As for the COMELEC
Pimentel only made a sweeping claim that in the canvass proceedings of the en banc, acting as the NBC, the determination of the authenticity and due
Maguindanao votes before the NBC and the SPBOC-Maguindanao, he was execution of the certificates of canvass shall be limited only to those submitted
deprived of his constitutional right to due process, both procedural and before it by the local boards of canvassers and in accordance with the criteria
substantive. After going over his allegations, however, and the definition of provided in Section 30 of Republic Act No. 7166, as amended by Republic Act No.
substantive due process, this Court finds that Pimentel cannot invoke denial of 9369. The limitations on the powers and duties of the boards of canvassers are
substantive due process because he is not assailing any law, which, arbitrarily or meant to avoid any delay in the proclamation of the elected official. Issues whose
without sufficient justification, supposedly deprived him of life, liberty, or resolution would require the presentation and examination of witnesses are more
properly raised in a regular election protest.
property.
And as a final observation on the matter of due process, this Court notes that
although Pimentel was not able to propound questions to the election officials
involved in the preparation and canvassing of the Maguindanao MCOCs and
PCOC, he was still able, through his counsel, to state his observations,
manifestations, and objections regarding the said certificates, which were duly
noted.43 He may not have received the response or action that he wanted with
respect to his observations, manifestations, and objections, but Pimentel cannot
Any objection or manifestation concerning a certificate of canvass before the deny that these were heard and presented in the canvass proceedings. Pimentel
NBC, as well as any contest involving the inclusion or exclusion of an election further admitted that he did not submit his written observations, manifestations,
rules of procedure before the NBC and the local boards of
return or certificate of canvass before a local board of canvassers, must be orally and objections as the
44
canvassers
require.
He
cannot now decry that his observations, manifestations,
submitted to the Chairperson of the NBC or the local board of canvassers, as the
and
objections
were
not
given due course when he himself failed to comply with
case may be. Simultaneous with the oral submission, the party concerned must
the
procedure
governing
the
same.
submit his written objection, manifestation, or contest in the form required. The
objection, manifestation, or contest shall also be recorded in the minutes of the
At most, Pimentel can claim that he was denied procedural due process when he
was not allowed by the NBC and the SPBOC-Maguindanao to propound questions
to certain election officials. But even on this point, Pimentel fails to convince this
Court. Asking election officials questions and confronting them with evidence are
not part of the canvass proceedings. There is no statute or regulation expressly
providing for such a procedure.

Election Law |111

Equally baseless is Pimentels averment that his right to equal protection of the
laws was violated when the NBC and the SPBOC-Maguindanao adopted a
procedure of "no questions" in the canvass of the Maguindanao MCOCs, different
from the procedure adopted in the canvass of the certificates of canvass from
other provinces/areas. Article III, Section 1 of the 1987 Constitution guarantees
that no person shall be denied equal protection of the laws. According to a long
line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed. Similar subjects, in other words, should not be treated
differently, so as to give undue favor to some and unjustly discriminate against
others.45 According to Pimentel, he was deprived of equal protection of the laws
when he was not allowed to question the election officials involved in the canvass
proceedings for Maguindanao, although he was allowed to do so for other
provinces or districts. In support of his claim, Pimentel compared his own
experiences in the canvass proceedings for different provinces or districts. This
Court, however, finds Pimentels assessment misplaced. What would have been
essential for Pimentel to allege and prove was that other senatorial candidates
were allowed during the canvass proceedings to question the election officials
involved in the preparation and canvassing of the Maguindanao MCOCs and
PCOC, while he was not; and that the other senatorial candidates were given
undue favor, while he was the only one unjustly discriminated against. It seems
apparent to this Court that the position of the SPBOC-Maguindanao and the NBC
not to allow, during the canvass proceedings, the questioning of election officials
involved in the preparation and canvassing of the Maguindanao MCOCs and
PCOC, was consistent for all senatorial candidates. Hence, petitioner was similarly
situated with all the other senatorial candidates and they were all treated alike
insofar as the canvass proceedings for Maguindanao were concerned.
Electoral protest before the Senate Electoral Tribunal (SET)
Pimentels Petition is for Certiorari and Mandamus, both governed by Rule 65 of
the Rules of Court.
A special civil action for certiorari may be filed under the following circumstances:

SECTION 1. Petition for certiorari. When any tribunal, board or officer

exercising judicial or quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.
In a special civil action for certiorari, the burden is on the part of petitioner to
prove not merely reversible error, but grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the public respondent issuing the
impugned order. Grave abuse of discretion means a capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough, it must be so grave as when the power is exercised in
an arbitrary or despotic manner by reason of passion or personal hostility, and
must be so patent and so gross as to amount to an evasion of a positive duty or
to a virtual refusal to perform the duty enjoined or to act at all in contemplation
of law.46
The extraordinary remedy of mandamus, on the other hand, may be availed of
under the conditions provided below:
RULE 65, SECTION 3. Petition for mandamus. When any tribunal,
corporation, board, officer or person unlawfully neglects the performance
of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is
no other plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment
be rendered commanding the respondent, immediately or at some other
time to be specified by the court, to do the act required to be done to
protect the rights of the petitioner, and to pay the damages sustained by
the petitioner by reason of the wrongful acts of the respondent.
The writ of mandamus shall be issued only if the legal right to be enforced is well
defined, clear and certain. It lies only to compel an officer to perform a
ministerial duty, not a discretionary one. The duty is ministerial only when its
discharge requires neither the exercise of official discretion nor judgment. 47

Election Law |112

To avail of both special civil actions, there must be no other plain, speedy and
adequate remedy in the ordinary course of law available to the petitioner, and in
this, Pimentels Petition falters.
It must be kept in mind that Zubiri was proclaimed the twelfth Senator-elect in
the 14 May 2007 elections on 14 July 2007, and that he formally assumed office
on 16 July 2007. In accordance with this Courts ruling inAggabao, Pimentels
Petition must be dismissed, for his recourse lies, not with this Court, but with the
SET.
This Court elucidated in Aggabao48 that:
Article VI, Section 17 of the 1987 Constitution provides:
Sec. 17. The Senate and the House of Representatives shall each have
an Electoral Tribunal which shall be the sole judge of all contests relating
to the election, returns, and qualifications of their respective Members.
Each Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated by the
Chief Justice, and the remaining six shall be Members of the Senate or
the House of Representatives, as the case may be, who shall be chosen
on the basis of proportional representation from the political parties and
the parties or organization registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be
its Chairman.
In Pangilinan v. Commission on Elections we ruled that:
The Senate and the House of Representatives now have their
respective Electoral Tribunals which are the "sole judge of all
contests relating to the election, returns, and qualifications of
their respective Members, thereby divesting the Commission on
Elections of its jurisdiction under the 1973 Constitution over
election cases pertaining to the election of the Members of the
Batasang Pambansa (Congress). It follows that the COMELEC is
now bereft of jurisdiction to hear and decide pre-proclamation
controversies against members of the House of Representatives
as well as of the Senate.
The HRET has sole and exclusive jurisdiction over all contests relative to
the election, returns, and qualifications of members of the House of
Representatives. Thus, once a winning candidate has been proclaimed,

taken his oath, and assumed office as a Member of the House of

Representatives, COMELECs jurisdiction over election contests relating to
his election, returns, and qualifications ends, and the HRETs own
jurisdiction begins.
It is undisputed that Miranda has already been proclaimed, taken his
oath and assumed office on June 14, 2004. As such, petitioners recourse
would have been to file an electoral protest before the HRET. His remedy
is not this petition for certiorari. Thus:
Finally, the private respondent Feliciano Belmonte, Jr. has
already been proclaimed as the winner in the congressional
elections in the fourth district of Quezon City. He has taken his
oath of office and assumed his duties as representative; hence,
the remedy open to the petitioner was to have filed an electoral
protest with the Electoral Tribunal of the House of
Representatives.
The allegation that Mirandas proclamation is null and void ab initio does
not divest the HRET of its jurisdiction. Thus:
(I)n an electoral contest where the validity of the proclamation
of a winning candidate who has taken his oath of office and
assumed his post as Congressman is raised, that issue is best
addressed to the HRET. The reason for this ruling is self-evident,
for it avoids duplicity of proceedings and a clash of jurisdiction
between constitutional bodies, with due regard to the peoples
mandate.
In Lazatin v. Commission on Elections we ruled that, upon proclamation
of the winning candidate and despite its alleged invalidity, the COMELEC
is divested of its jurisdiction to hear the protest. Thus:
The petition is impressed with merit because the petitioner has
been proclaimed winner of the Congressional elections in the
first district of Pampanga, has taken his oath of office as such,
and assumed his duties as Congressman. For this Court to take
cognizance of the electoral protest against him would be to
usurp the functions of the House Electoral Tribunal. The alleged
invalidity of the proclamation (which has been previously
ordered by the COMELEC itself) despite alleged irregularities in
connection therewith, and despite the pendency of the protests

Election Law |113

of the rival candidates, is a matter that is also addressed,

considering the premises, to the sound judgment of the Electoral
Tribunal.

May 2007 elections; and if he is the rightful winner, then logically and necessarily,
Zubiris proclamation must also be annulled and set aside.

Finally, while Section 15, in relation to Section 30, of Republic Act No. 7166, as
amended by Republic Act No. 9369, did introduce an additional exception to the
prohibition against pre-proclamation controversies in elections for President, VicePresident, and Senators, this Court has already established in the preceding
discussion that Pimentel cannot invoke the same in his Petition. The provisions in
question did not materially change the nature of canvass proceedings before the
boards of canvassers, which still remain summary and administrative in nature
for the purpose of canvassing the votes and determining the elected official with
The afore-quoted pronouncements are likewise applicable to the Petition at bar, as little delay as possible and in time for the commencement of the new term of
with the references therein to the jurisdiction of the House of Representatives office.
Electoral Tribunal over election protests involving members of the House of
Representatives also being true for the SET as regards election protests involving This Court deems it necessary to stress that attempts to delay the canvass
Senators.
proceedings, except for the permissible pre-proclamation controversies, must be
shunned. Grounds which are proper for electoral protests should not be allowed
50
In Chavez v. Commission on Elections,49 this Court similarly ruled that the word to delay the proclamation of the winners. It may well be true that public policy
"sole" in Article VI, Section 17 of the 1987 Constitution underscores the may occasionally permit the occurrence of "grab the proclamation and prolong
exclusivity of the electoral tribunals' jurisdiction over election contests relating to the protest" situations; that public policy, however, balances the possibility of
their respective members. It is therefore crystal clear that this Court has no such situations against the shortening of the period during which no winners are
jurisdiction to entertain a petition for certiorari and mandamus on matters which proclaimed, a period commonly fraught with tension and danger for the public at
may be threshed out in an election contest. It is the SET which has exclusive large. For those who disagree with that public policy, the appropriate recourse is
jurisdiction to act on the complaint of Pimentel involving, as it does, a contest not to ask this Court to abandon case law, which merely interprets faithfully
existing statutory norms, to engage in judicial legislation and in effect to rewrite
relating to the election of Zubiri, now a member of the Senate.
portions of the Omnibus Election Code. The appropriate recourse is, of course, to
Pimentel attempts to bring his case outside the jurisprudential precedent set by the Legislative Department of the Government and to ask that Department to
strike a new and different equilibrium in the balancing of the public interests at
Aggabao, but to no avail.
stake.51
In this case, certiorari will not lie considering that there is an available
and adequate remedy in the ordinary course of law for the purpose of
annulling or modifying the proceedings before the COMELEC. After the
proclamation, petitioners remedy was an electoral protest before the
HRET. The resolution of the issues presented in this petition is best
addressed to the sound judgment and discretion of the electoral tribunal.

That Pimentel filed the present Petition prior to Zubiris proclamation is

VIEW
OF
THE
FOREGOING,
the
present
insignificant. Since Pimentels prayer for a TRO and/or Status Quo Ante Order had IN
for
Certiorari
and
Mandamus
is
hereby
DISMISSED.
No
costs.
been denied, Zubiri was proclaimed the twelfth winning Senator in the 2007
Senatorial Elections.
SO ORDERED.
Pimentel further claims that he is not challenging Zubiris proclamation, but
rather the conduct of the proceedings before the NBC and the SPBOCMaguindanao. This is just a roundabout argument. Pimentel cannot deny that he
assails the canvass proceedings because he believes that the annulment and
setting aside thereof would result in his winning as the twelfth Senator in the 14

Petition