G.R. No.

203766 April 2, 2013

ATONG PAGLAUM, INC., represented by its President, Mr. Alan Igot, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

CARPIO, J.:

FACTS:

Pursuant to the provisions of Republic Act No. 7941 and COMELEC Resolution Nos. 9366 and 9531,
approximately 280 groups and organizations registered and manifested their desire to participate in the 13 May
2013 party-list elections. However, 52 party-list groups and organizations assailed the Resolutions issued by the
COMELEC disqualifying them from participating in the 13 May 2013 party-list elections, either by denial of their
petitions for registration under the party-list system, or cancellation of their registration and accreditation as party-list
organizations.

ISSUES:

1. Whether the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in
disqualifying petitioners from participating in the 13 May 2013 party-list elections

2. Whether the criteria for participating in the party-list system laid down in Ang Bagong Bayani and
Barangay Association for National Advancement and Transparency v. Commission on Elections (BANAT) should be
applied by the COMELEC in the coming 13 May 2013 party-list elections.

RULING:

1. NO. The COMELEC did not commit grave abuse of discretion in following prevailing decisions of this
Court in disqualifying petitioners.

2. NO. The Court adopted in the present Decision new parameters in the qualification of national, regional,
and sectoral parties under the party-list system, thereby abandoning the rulings in the decisions applied by the
COMELEC in disqualifying petitioners.

Under the 1987 Constitution, the party-list system is intended to democratize political power by giving
political parties that cannot win in legislative district elections a chance to win seats in the House of
Representatives. The voter elects two representatives in the House of Representatives: one for his or her legislative
district and another for his or her party-list group or organization of choice.

Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative

unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of
not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member
of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the
election, and is at least twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of
age on the day of the election.

Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in
office until the expiration of his term.
 Thus, we remand all the present petitions to the COMELEC. In determining who may participate in the
coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the following parameters:

1. Three different groups may participate in the party-list system: (1) national parties or organizations, (2)
regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to organize along
sectoral lines and do not need to represent any "marginalized and underrepresented" sector.

3. Political parties can participate in party-list elections provided they register under the party-list system and
do not field candidates in legislative district elections. A political party, whether major or not, that fields
candidates in legislative district elections can participate in party-list elections only through its sectoral wing
that can separately register under the party-list system. The sectoral wing is by itself an independent
sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be "marginalized and underrepresented" or lacking in "well-
defined political constituencies." It is enough that their principal advocacy pertains to the special interest and
concerns of their sector. The sectors that are "marginalized and underrepresented" include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The
sectors that lack "well-defined political constituencies" include professionals, the elderly, women, and the
youth.

5. A majority of the members of sectoral parties or organizations that represent the "marginalized and
underrepresented" must belong to the "marginalized and underrepresented" sector they represent. Similarly,
a majority of the members of sectoral parties or organizations that lack "well-defined political constituencies"
must belong to the sector they represent. The nominees of sectoral parties or organizations that represent
the "marginalized and underrepresented," or that represent those who lack "well-defined political
constituencies," either must belong to their respective sectors, or must have a track record of advocacy for
their respective sectors. The nominees of national and regional parties or organizations must be bona-fide
members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees
are disqualified, provided that they have at least one nominee who remains qualified.
G.R. Nos. 107435-36 December 11, 1992

SAIDAMEN B. PAGARUNGAN, petitioner,

vs.
COMMISSION ON ELECTIONS and MAHID MUTILAN, respondents.

DAVIDE, JR., J.:

FACTS:

Petitioner and the private respondent were candidates for the Office of the Provincial Governor of Lanao del
Sur in the May 1992 elections.

During the canvassing of the certificates of canvass for provincial offices by the Provincial Board of
Canvassers (PBC) of Lanao de Sur, private respondent objected to the inclusion of Certificate of Canvass (COC) of
the Municipality of Madamba; petitioner opposed this move. Consequently, both parties submitted their evidence to
the PBC. The PBC decided not to include in the count/canvass the said COC for being substituted and spurious
based primarily on the Investigation Report of Atty. Clarita Callar who was directed by the Chairman of the PBC to
investigate the Madamba incident.

Petitioner appealed the case with the COMELEC along with all his documentary evidence and affidavits of
his witnesses, and all the records and evidence submitted to the PBC.

The COMELEC en banc took cognizance thereof and set the case for hearing wherein the parties, through
their respective counsel, agreed to submit their respective Position Papers. The case was then raffled to the
COMELEC First Division which affirmed the ruling of the PBC based on Atty. Calar’s report.

Petitioner claims that there was total lack of due process in the proceedings before the COMELEC's First
Division when it, resolved the appeal without hearing and merely on the basis of the report of Atty. Callar.

ISSUE:

Whether the proceedings before the First Division lacked due process

RULING:

NO. No violation of due process, amounting to grave abuse of discretion or lack of jurisdiction, was
committed by the COMELEC's First Division when it promulgated the Resolution without any hearing.The parties,
upon the suggestion of the COMELEC en banc, agreed to submit the appeals on the basis of their position papers.
Petitioner extensively discussed in his position paper the issues raised and the evidence to support the latter's
thesis that the COC in question is clean, clear, authentic and duly signed and executed.

Section 20 of R.A. No. 7166 provides that on the basis of the records and evidence elevated to it by the
board, the Commission shall decide summarily the appeal. That he was not allowed to cross-examine Atty. Callar
did not deprive him of due process for the COMELEC Rules of Procedure provides that where evidence is to be
offered, reception thereof shall be done summarily, and oral testimonies shall be dispensed with and the parties
shall be required to present their affidavits or counter-affidavits. Moreover, the parties voluntarily and unconditionally
observed the same by submitting their evidence which included the affidavits of their respective witnesses.

Finally, the First Division affirmed the PBC's ruling that the questioned COC is spurious, and found for itself
that the attendant circumstances in this case "tend to established the fact that the COC and the SOV have not been
regularly prepared, as such the same could not be made as a sound basis in determining the true and genuine
results of the votes casts (sic) for the municipal and provincial candidates in Madamba." 30 These are findings on a
factual issue which this Court accords the highest respect. The Court cannot review rulings or findings of fact of the
Commission on Elections as there is no reason to believe that the framers of the Constitution intended to place the
Commission, created and explicitly made independent by the Constitution itself, on a lower level than ordinary
administrative organs, the findings of which are not even disturbed by courts of justice except when there is
absolutely no evidence or no substantial evidence to support the same.
G.R. No. 80519-21 December 17,1987

JUNIE EVANGELISTA CUA, petitioner,

vs.
COMMISSION ON ELECTIONS and RICHARD S. PUZON, respondents.

PER CURIAM:

FACTS:

The First Division of the COMELEC rendered a 2-1 decision on August 10, 1987, favoring the herein
petitioner Cua but nevertheless suspended his proclamation as winner in the lone congressional district of Quirino
due to the lack of the unanimous vote required by the procedural rules in. Private respondent Puzon filed a "motion
for reconsideration/appeal" of the said decision with the COMELEC en banc, where three members voted to sustain
the First Division, with two dissenting and one abstaining. On the strength of this 3-2 vote, Cua moved for his
proclamation by the board of canvassers, which granted his motion. Cua took his oath the same day. Puzon filed
with the COMELEC an urgent motion to suspend Cua's proclamation or to annul or suspend its effect if already
made. The COMELEC set the motion for hearing and three days later restrained Cua from assuming the office of
member of the House of Representatives.

ISSUE:

Whether the 2-1 decision rendered by the First Division was a valid decision

RULING:

Notwithstanding Section 5 of COMELEC Resolution No. 1669 which provides that a case before a Division
shall be decided with the unanimous concurrence of all three, the decision rendered by the First Division was a valid
decision under Article IX-A, Section 7 of the Constitution stating that "each Commission shall decide by a majority
vote of all its members any case or matter brought before it." Furthermore, the three members who voted to affirm
the First Division constituted a majority of the five members who deliberated and voted thereon en banc and their
decision is also valid under the aforecited constitutional provision. Hence, the proclamation of Cua on the basis of
the two aforecited decisions was a valid act that entitles him now to assume his seat in the House of
Representatives.
G.R. No. 121031 March 26, 1997

ATTY. ROSAURO I. TORRES, petitioner,

vs.
COMMISSION ON ELECTIONS and VICENTE RAFAEL A. DE PERALTA, respondents.

BELLOSILLO, J.:

FACTS:

On 9 May 1995 the Municipal Board of Canvassers of Tanza, Cavite, issued a Certificate of Canvass of
Votes and Proclamation of the Winning Candidates for Municipal Offices wherein petitioner Torres was proclaimed
as the fifth winning candidate for councilor.

Two days after, Municipal Board of Canvassers requested the COMELEC for correction of the number of
votes garnered by petitioner due to votes erroneously added to petitioner. Respondent COMELEC issued the
assailed En Banc resolution granting the said request and ordered the Municipal Board of Canvassers to reconvene
and proclaim private respondent Vicente Rafael A. de Peralta as the eighth winning councilor of Tanza, Cavite.

ISSUE:

Whether the COMELEC has the power to annul the proclamation of a winning candidate for Municipal
Councilor and to direct the Municipal Board of Canvassers to reconvene and proclaim the rightful winner

RULING:

YES. Under Sec. 7, Rule 27, of the COMELEC Rules of Procedure provides that where it is clearly shown
before proclamation that manifest errors were committed in the tabulation or tallying of election returns, or
certificates of canvass, the board may motu proprio or upon verified petition by any candidate, political party,
organization or coalition of political parties, after due notice and hearing, correct the errors committed.

As held by the Court, although said rule applies to pre-proclamation controversies, and even if the proclamation of a
winning candidate has already been made, there is nothing to prevent its application to cases like the one at bar in
which the validity of the proclamation is precisely in question. Furthermore, the Court has sustained the power of the
COMELEC En Banc to order a correction of the Statement of Votes to make it conform to the election returns in
accordance with a procedure ti that under Sec. 7, Rule 27, of the COMELEC Rules of Procedure.

It may be argued that because petitioner has already been proclaimed as winning candidate the remedy of the
losing party is an election protest over which the Regional Trial Court — and not the COMELEC nor the Municipal
Board of Canvassers — has original jurisdiction. However, as the Court already ruled, where a proclamation is null
and void, the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot
deprive the COMELEC of the power to declare such nullity and annul the proclamation.
G.R. No. 134932 February 18, 2000

VITO BESO, petitioner,

vs.
RITA ABALLE and HON. ROBERTO A. NAVIDAD, Acting Presiding Judge, Branch 31, Regional Trial Court of
Calbayog City, respondents.

DAVIDE, JR., C.J.:

FACTS:

Petitioner Vito Beso (hereafter BESO) and private respondent Rita Aballe (hereafter ABALLE) were
candidates for the position of Barangay Captain of Barangay Carayman, Calbayog City. BESO was credited with
four hundred ninety-five (495) votes, while ABALLE obtained four hundred ninety-six (496) votes. The latter was
thus proclaimed the winning candidate. BESO seasonably filed a protest with the Municipal Trial Court of Calbayog
City and obtained a favorable decision.

ABALLE filed a Notice of Appeal manifesting therein that she is appealing from the decision, "to the
Regional Trial Court, Calbayog City." It likewise appears ABALLE filed a Notice of Appeal indicating therein that she
was appealing from the decision "to the COMMISSION ON ELECTIONS, MANILA."

BESO filed with the MTCC a motion for execution which was granted. ABALLE then filed with the Regional
Trial Court of Calbayog City a special civil action for certiorari and prohibition.

BESO filed a comment to ABALLE's petition for certiorari and prohibition alleging therein that pursuant to the
COMELEC Rules of Procedure and our decision in Relampagos v. Cumba, the COMELEC, and not RTC has
jurisdiction over the petition.

ISSUE:

Whether the RTC has jurisdiction over Aballe’s petition for certiorari ad prohibition

RULING:

NO. Since ABALLE has appealed to the COMELEC by filing a Notice of Appeal on 22 January 1998, and
submitting at the same time the postal money orders for the appeal fees, it follows that the COMELEC has primary
jurisdiction on the petition for certiorari to annul the execution pending appeal granted by the MTCC. This is an issue
which already decided in Relampagos v. Cumba, et al. It was ruled that the COMELEC is vested with exclusive
authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases over which
the Commission has exclusive appellate jurisdiction.

Under the second paragraph of Section 2 of Article IX-C of the Constitution, the Commission on Elections
has exclusive appellate jurisdiction over, inter alia, contests involving elective barangay officials decided by trial
courts of limited jurisdiction. The Municipal Trial Court of Calbayog City, a court of limited jurisdiction, had the
exclusive original jurisdiction over the election protest, and the COMELEC has the exclusive appellate jurisdiction
over such protest.
G.R. No. 167011 April 30, 2008

SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R. ROMUALDEZ, petitioners,

vs.
COMMISSION ON ELECTIONS and DENNIS GARAY, respondents.

DECISION

CHICO-NAZARIO, J.:

FACTS:

Private respondent claims petitioners applied for registration as new voters Burauen, Leyte, by making false
and untruthful representations in violation of Republic Act Nos. 8189, by indicating therein that they are residents
thereof when in truth and in fact, they still are residents and registered voters of Quezon City.

Petitioners deny the allegation and contended that they intended to reside in Burauen, Leyte, since the year
1989. On 9 May 2000, they took actual residence in Burauen, Leyte, by leasing for five (5) years, a house therein.

Two separate Informations, were filed with the RTC by the COMELEC against each petitioners for violation
of Section 10(j), and the other, of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189.

ISSUEs:

Whether or not petitioners may be charged with an election offense

Whether or not the COMELEC exceeded its powers when it directed the filing of the Informations against the
petitioners

RULING:

1. YES. Petitioners cannot be said to have been denied due process on the claim that the election offenses
charged against them by private respondent are entirely different from those stated in the Informations since the
same were based on the same set of facts as originally alleged in the private respondent’s Complaint-Affidavit. The
designation of the offense in the complaint is not conclusive.

Petitioners also claim that Section 45(j) of Republic Act No. 8189 is void for being vague since it makes no
reference to a definite provision of the law, the violation of which would constitute an election offense. The argument
is misplaced. The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its application. However, this Court has imposed certain limitations
by which a criminal statute, as in the challenged law at bar, may be scrutinized. This Court has declared that facial
invalidation or an "on-its-face" invalidation of criminal statutes is not appropriate.

Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal of parties
whose cases may not have even reached the courts. Such invalidation would constitute a departure from
the usual requirement of "actual case and controversy" and permit decisions to be made in a sterile
abstract context having no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S.
Supreme Court in these words:

The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.
Section 45 of Republic Act No. 8189 makes a recital of election offenses under the same Act. Section 45(j) is,
without doubt, crystal in its specification that a violation of any of the provisions of Republic Act No. 8189 is an
election offense.

Perforce, this Court has underlined that an act will not be held invalid merely because it might have been
more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would
be impossible to provide all the details in advance as in all other statutes.

The law articulates the policy of the State to systematize the present method of registration in order to
establish a clean, complete, permanent and updated list of voters. A reading of Section 45 (j) conjointly with the
provisions, upon which petitioners are charged, would reveal that the matters that are required to be set forth under
the aforesaid sections are crucial to the achievement of a clean, complete, permanent and updated list of voters.

2. NO. The constitutional grant of prosecutorial power in the COMELEC finds statutory expression under
Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code. The task of the
COMELEC whenever any election offense charge is filed before it is to conduct the preliminary investigation of the
case, and make a determination of probable cause.

It is succinct that courts will not substitute the finding of probable cause by the COMELEC in the
absence of grave abuse of discretion. The abuse of discretion must be so patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, 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 hostility.

According to the COMELEC En Banc, the investigating officer, in the case at bar, held that there was
sufficient cause for the filing of criminal charges against petitioners, and found no reason to depart therefrom.
Without question, petitioners applied for registration as new voters with the Office of the Election Officer of Burauen,
Leyte, notwithstanding the existence of petitioners’ registration records as registered voters of Quezon City.
G.R. No. 132922 April 21, 1998

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. and GMA NETWORK,
INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:

In Osmeña v. COMELEC, G.R. No. 132231, decided March 31, 1998,1 we upheld the validity of § 11(b) of R.A. No.
6646 which prohibits the sale or donation of print space or air time for political ads, except to the Commission on
Elections under §90, of B.P. No. 881, the Omnibus Election Code, with respect to print media, and §92, with respect
to broadcast media. In the present case, we consider the validity of §92 of B.P. Blg. No. 881 against claims that the
requirement that radio and television time be given free takes property without due process of law; that it violates the
eminent domain clause of the Constitution which provides for the payment of just compensation; that it denies
broadcast media the equal protection of the laws; and that, in any event, it violates the terms of the franchise of
petitioner GMA Network, Inc.

Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an organization of lawyers of
radio and television broadcasting companies. They are suing as citizens, taxpayers, and registered voters. The
other petitioner, GMA Network, Inc., operates radio and television broadcasting stations throughout the Philippines
under a franchise granted by Congress.

Petitioners challenge the validity of §92 on the ground (1) that it takes property without due process of law and
without just compensation; (2) that it denies radio and television broadcast companies the equal protection of the
laws; and (3) that it is in excess of the power given to the COMELEC to supervise or regulate the operation of media
of communication or information during the period of election.

The Question of Standing

At the threshold of this suit is the question of standing of petitioner Telecommunications and Broadcast Attorneys of
the Philippines, Inc. (TELEBAP). As already noted, its members assert an interest as lawyers of radio and television
broadcasting companies and as citizens, taxpayers, and registered voters.

In those cases2 in which citizens were authorized to sue, this Court upheld their standing in view of the
"transcendental importance" of the constitutional question raised which justified the granting of relief. In contrast, in
the case at bar, as will presently be shown, petitioner's substantive claim is without merit. To the extent, therefore,
that a party's standing is determined by the substantive merit of his case or preliminary estimate thereof, petitioner
TELEBAP must be held to be without standing. Indeed, a citizen will be allowed to raise a constitutional question
only when he can show that he has personally suffered some actual or threatened injury as a result of the allegedly
illegal conduct of the government; the injury fairly is fairly traceable to the challenged action; and the injury is likely
to be redressed by a favorable action.3 Members of petitioner have not shown that they have suffered harm as a
result of the operation of §92 of B.P. Blg. 881.

Nor do members of petitioner TELEBAP have an interest as registered voters since this case does not concern their
right of suffrage. Their interest in §92 of B.P. Blg. 881 should be precisely in upholding its validity.
Much less do they have an interest as taxpayers since this case does not involve the exercise by Congress of its
taxing or spending power.4 A party suing as a taxpayer must specifically show that he has a sufficient interest in
preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of
the enforcement of the questioned statute.

Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and television
broadcasting companies. Standing jus tertii will be recognized only if it can be shown that the party suing has some
substantial relation to the third party, or that the third party cannot assert his constitutional right, or that the eight of
the third party will be diluted unless the party in court is allowed to espouse the third party's constitutional claim.
None of these circumstances is here present. The mere fact that TELEBAP is composed of lawyers in the broadcast
industry does not entitle them to bring this suit in their name as representatives of the affected companies.

Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc., appears to have the
requisite standing to bring this constitutional challenge. Petitioner operates radio and television broadcast stations in
the Philippines affected by the enforcement of §92 of B.P. Blg. 881 requiring radio and television broadcast
companies to provide free air time to the COMELEC for the use of candidates for campaign and other political
purposes.

Petitioner claims that it suffered losses running to several million pesos in providing COMELEC Time in connection
with the 1992 presidential election and the 1995 senatorial election and that it stands to suffer even more should it
be required to do so again this year. Petitioner's allegation that it will suffer losses again because it is required to
provide free air time is sufficient to give it standing to question the validity of §92.5

Airing of COMELEC Time, a

Reasonable Condition for

Grant of Petitioner's

Franchise

As pointed out in our decision in Osmeña v. COMELEC, §11(b) of R.A. No. 6646 and §90 and §92 of the B.P. Blg.
881 are part and parcel of a regulatory scheme designed to equalize the opportunity of candidates in an election in
regard to the use of mass media for political campaigns. These statutory provisions state in relevant parts:

R.A. No. 6646

Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

(b) for any newspapers, radio broadcasting or television station, or other mass media, or any person making
use of the mass media to sell or to give free of charge print space or air time for campaign or other political
purposes except to the Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any
mass media columnist, commentator, announcer or personality who is a candidate for any elective public
office shall take a leave of absence from his work as such during the campaign period.

B.P. Blg. 881, (Omnibus Election Code)

 Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general
circulation in every province or city; Provided, however, That in the absence of said newspaper, publication
shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec
Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge,
equally and impartially by the Commission among all candidates within the area in which the newspaper is
circulated. (Sec. 45, 1978 EC).

Sec. 92. Comelec time. — The commission shall procure radio and television time to be known as "Comelec
Time" which shall be allocated equally and impartially among the candidates within the area of coverage of
all radio and television stations. For this purpose, the franchise of all radio broadcasting and television
stations are hereby amended so as to provide radio or television time, free of charge, during the period of
the campaign. (Sec. 46, 1978 EC)

Thus, the law prohibits mass media from selling or donating print space and air time to the candidates and requires
the COMELEC instead to procure print space and air time for allocation to the candidates. It will be noted that while
§90 of B.P. Blg. 881 requires the COMELEC to procure print space which, as we have held, should be paid for, §92
states that air time shall be procured by the COMELEC free of charge.

Petitioners contend that §92 of BP Blg. 881 violates the due process clause6 and the eminent domain provision7 of
the Constitution by taking air time from radio and television broadcasting stations without payment of just
compensation. Petitioners claim that the primary source of revenue of the radio and television stations is the sale of
air time to advertisers and that to require these stations to provide free air time is to authorize a taking which is not
"a de minimis temporary limitation or restraint upon the use of private property." According to petitioners, in 1992,
the GMA Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour every morning from Mondays to
Fridays and one (1) hour on Tuesdays and Thursday from 7:00 to 8:00 p.m. (prime time) and, in this year's
elections, it stands to lose P58,980,850.00 in view of COMELEC'S requirement that radio and television stations
provide at least 30 minutes of prime time daily for the COMELEC Time.8

Petitioners' argument is without merit, All broadcasting, whether by radio or by television stations, is licensed by the
government. Airwave frequencies have to be allocated as there are more individuals who want to broadcast than
there are frequencies to assign.9 A franchise is thus a privilege subject, among other things, to amended by
Congress in accordance with the constitutional provision that "any such franchise or right granted . . . shall be
subject to amendment, alteration or repeal by the Congress when the common good so requires."10

The idea that broadcast stations may be required to provide COMELEC Time free of charge is not new. It goes back
to the Election Code of 1971 (R.A. No. 6388), which provided:

Sec. 49. Regulation of election propaganda through mass media. — (a) The franchise of all radio
broadcasting and television stations are hereby amended so as to require each such station to furnish free
of charge, upon request of the Commission [on Elections], during the period of sixty days before the election
not more than fifteen minutes of prime time once a week which shall be known as "Comelec Time" and
which shall be used exclusively by the Commission to disseminate vital election information. Said "Comelec
Time" shall be considered as part of the public service time said stations are required to furnish the
Government for the dissemination of public information and education under their respective franchises or
permits.

The provision was carried over with slight modification by the 1978 Election Code (P.D. No. 1296), which provided:

Sec. 46. COMELEC Time. — The Commission [on Elections] shall procure radio and television time to be
known as "COMELEC Time" which shall be allocated equally and impartially among the candidates within
the area of coverage of said radio and television stations. For this purpose, the franchises of all radio
 broadcasting and television stations are hereby amended so as to require such stations to furnish the
Commission radio or television time, free of charge, during the period of the campaign, at least once but not
oftener than every other day.

Substantially the same provision is now embodied in §92 of B.P. Blg. 881.

Indeed, provisions for COMELEC Tima have been made by amendment of the franchises of radio and
television broadcast stations and, until the present case was brought, such provisions had not been
thought of as taking property without just compensation. Art. XII, §11 of the Constitution authorizes the
amendment of franchises for "the common good." What better measure can be conceived for the common
good than one for free air time for the benefit not only of candidates but even more of the public,
particularly the voters, so that they will be fully informed of the issues in an election? "[I]t is the right of the
viewers and listeners, not the right of the broadcasters, which is paramount."11

Nor indeed can there be any constitutional objection to the requirement that broadcast stations give free air time.
Even in the United States, there are responsible scholars who believe that government controls on broadcast media
can constitutionally be instituted to ensure diversity of views and attention to public affairs to further the system of
free expression. For this purpose, broadcast stations may be required to give free air time to candidates in an
election. 12 Thus, Professor Cass R. Sunstein of the University of Chicago Law School, in urging reforms in
regulations affecting the broadcast industry, writes:

Elections. We could do a lot to improve coverage of electoral campaigns. Most important, government
should ensure free media time for candidates. Almost all European nations make such provisions; the
United States does not. Perhaps government should pay for such time on its own. Perhaps broadcasters
should have to offer it as a condition for receiving a license. Perhaps a commitment to provide free time
would count in favor of the grant of a license in the first instance. Steps of this sort would simultaneously
promote attention to public affairs and greater diversity of view. They would also help overcome the
distorting effects of "soundbites" and the corrosive financial pressures faced by candidates in seeking time
on the media. 13

In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves
and frequencies through which they transmit broadcast signals and images. They are merely given the
temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may
reasonably be burdened with the performance by the grantee of some form of public service. Thus, in De Villata
v. Stanley,14 a regulation requiring interisland vessels licensed to engage in the interisland trade to carry mail and,
for this purpose, to give advance notice to postal authorities of date and hour of sailings of vessels and of changes
of sailing hours to enable them to tender mail for transportation at the last practicable hour prior to the vessel's
departure, was held to be a reasonable condition for the state grant of license. Although the question of
compensation for the carriage of mail was not in issue, the Court strongly implied that such service could be without
compensation, as in fact under Spanish sovereignty the mail was carried free.15

In Philippine Long Distance Telephone Company v. NTC,16 the Court ordered the PLDT to allow the interconnection
of its domestic telephone system with the international gateway facility of Eastern Telecom. The Court cited (1) the
provisions of the legislative franchise allowing such interconnection; (2) the absence of any physical, technical, or
economic basis for restricting the linking up of two separate telephone systems; and (3) the possibility of increase in
the volume of international traffic and more efficient service, at more moderate cost, as a result of interconnection.

Similarly, in the earlier case of PLDT v. NTC,17 it was held:

 Such regulation of the use and ownership of telecommunications systems is in the exercise of the plenary
police power of the State for the promotion of the general welfare. The 1987 Constitution recognizes the
existence of that power when it provides:

Sec. 6. The use of property bears a social function, and all economic agents shall contribute
to the common good. Individuals and private groups, including corporations, cooperatives,
and similar collective organizations, shall have the right to own, establish, and operate
economic enterprises, subject to the duty of the State to promote distributive justice and to
intervene when the common good so demands (Article XII).

The interconnection which has been required of PLDT is a form of "intervention" with property rights dictated
by "the objective of government to promote the rapid expansion of telecommunications services in all areas
of the Philippines, . . . to maximize the use of telecommunications facilities available, . . . in recognition of the
vital role of communications in nation building . . . and to ensure that all users of the public
telecommunications service have access to all other users of the service wherever they may be within the
Philippines at an acceptable standard of service and at reasonable cost" (DOTC Circular No. 90-248).
Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory agency of the
State, merely exercised its delegated authority to regulate the use of telecommunications networks when it
decreed interconnection.

In the granting of the privilege to operate broadcast stations and thereafter supervising radio and television stations,
the state spends considerable public funds in licensing and supervising such stations. 18 It would be strange if it
cannot even require the licensees to render public service by giving free air time.

Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production of television
programs involves large expenditure and requires the use of equipment for which huge investments have to be
made. The dissent cites the claim of GMA Network that the grant of free air time to the COMELEC for the duration of
the 1998 campaign period would cost the company P52,380,000, representing revenue it would otherwise earn if
the air time were sold to advertisers, and the amount of P6,600,850, representing the cost of producing a program
for the COMELEC Time, or the total amount of P58,980,850.

The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is based on the
assumption that air time is "finished product" which, it is said, become the property of the company, like oil produced
from refining or similar natural resources after undergoing a process for their production. But air time is not owned
by broadcast companies. As held in Red Lion Broadcasting Co. v. F.C.C.,19 which upheld the right of a party
personally attacked to reply, "licenses to broadcast do not confer ownership of designated frequencies, but only the
temporary privilege of using them." Consequently, "a license permits broadcasting, but the license has no
constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his
fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to
share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those
views and voices which are representative of his community and which would otherwise, by necessity, be barred
from the airwaves." 20 As radio and television broadcast stations do not own the airwaves, no private property is
taken by the requirement that they provide air time to the COMELEC.

Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that "the air lanes themselves 'are
not property because they cannot be appropriated for the benefit of any individual.'" (p. 5) That means neither the
State nor the stations own the air lanes. Yet the dissent also says that "The franchise holders can recover their huge
investments only by selling air time to advertisers." (p. 13) If air lanes cannot be appropriated, how can they be used
to produce air time which the franchise holders can sell to recover their investment? There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a program and it is for such
items as "sets and props," "video tapes," "miscellaneous (other rental, supplies, transportation, etc.)," and "technical
facilities (technical crew such as director and cameraman as well as 'on air plugs')." There is no basis for this claim.
Expenses for these items will be for the account of the candidates. COMELEC Resolution No. 2983, §6(d)
specifically provides in this connection:

(d) Additional services such as tape-recording or video-taping of programs, the preparation of visual aids,
terms and condition thereof, and consideration to be paid therefor may be arranged by the candidates with
the radio/television station concerned. However, no radio/television station shall make any discrimination
among candidates relative to charges, terms, practices or facilities for in connection with the services
rendered.

It is unfortunate that in the effort to show that there is taking of private property worth millions of pesos, the
unsubstantiated charge is made that by its decision the Court permits the "grand larceny of precious time," and
allows itself to become "the people's unwitting oppressor." The charge is really unfortunate. In Jackson
v. Rosenbaun,21 Justice Holmes was so incensed by the resistance of property owners to the erection of party walls
that he was led to say in his original draft, "a statute, which embodies the community's understanding of the
reciprocal rights and duties of neighboring landowners, does not need to invoke the penalty larceny of the police
power in its justification." Holmes's brethren corrected his taste, and Holmes had to amend the passage so that in
the end it spoke only of invoking "the police power."22 Justice Holmes spoke of the "petty larceny" of the police
power. Now we are being told of the "grand larceny [by means of the police power] of precious air time."

Giving Free Air Time a Duty

Assumed by Petitioner

Petitioners claim that §92 is an invalid amendment of R.A. No. 7252 which granted GMA Network, Inc. a franchise
for the operation of radio and television broadcasting stations. They argue that although §5 of R.A. No. 7252 gives
the government the power to temporarily use and operate the stations of petitioner GMA Network or to authorize
such use and operation, the exercise of this right must be compensated.

The cited provision of. R.A. No. 7252 states:

Sec. 5. Right of Government. — A special right is hereby reserved to the President of the Philippines, in
times of rebellion, public peril, calamity, emergency, disaster or disturbance of peace and order, to
temporarily take over and operate the stations of the grantee, to temporarily suspend the operation of any
station in the interest of public safety, security and public welfare, or to authorize the temporary use and
operation thereof by any agency of the Government, upon due compensation to the grantee, for the use of
said stations during the period when they shall be so operated.

The basic flaw in petitioner's argument is that it assumes that the provision for COMELEC Time constitutes the use
and operation of the stations of the GMA Network, Inc., This is not so. Under §92 of B.P. Blg. 881, the COMELEC
does not take over the operation of radio and television stations but only the allocation of air time to the candidates
for the purpose of ensuring, among other things, equal opportunity, time, and the right to reply as mandated by the
Constitution.23

Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that B.P. Blg. 881, which is said to
have amended R.A. No. 7252, actually antedated it.24 The provision of §92 of B.P. Blg. 881 must be deemed instead
to be incorporated in R.A. No. 7252. And, indeed, §4 of the latter statute does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render "adequate public service
time" implements §92 of B.P. Blg. 881. Undoubtedly, its purpose is to enable the government to communicate with
the people on matters of public interest. Thus, R.A. No. 7252 provides:

Sec. 4. Responsibility to the Public. — The grantee shall provide adequate public service time to enable the
Government, through the said broadcasting stations, to reach the population on important public issues;
provide at all times sound and balanced programming; promote public participation such as in community
programming; assist in the functions of public information and education; conform to the ethics of honest
enterprise; and not use its station for the broadcasting of obscene and indecent language, speech, act or
scene, or for the dissemination of deliberately false information or willful misrepresentation, or to the
detriment of the public interest, or to incite, encourage, or assist in subversive or treasonable acts.
(Emphasis added).

It is noteworthy that §40 of R.A. No. 6388, from which §92 of B.P. Blg. 881 was taken, expressly provided that the
COMELEC Time should "be considered as part of the public service time said stations are required to furnish the
Government for the dissemination of public information and education under their respective franchises or permits."
There is no reason to suppose that §92 of B.P. Blg. 881 considers the COMELEC Time therein provided to be
otherwise than as a public service which petitioner is required to render under §4 of its charter (R.A. No. 7252). In
sum, B.P. Blg. 881, §92 is not an invalid amendment of petitioner's franchise but the enforcement of a duty
voluntarily assumed by petitioner in accepting a public grant of privilege.

Thus far, we have confined the discussion to the provision of §92 of B.P. Blg. 881 for free air time without taking into
account COMELEC Resolution No. 2983-A, §2 of which states:

Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station operating under
franchise shall grant the Commission, upon payment of just compensation, at least thirty (30) minutes of
prime time daily, to be known as "Comelec Time", effective February 10, 1998 for candidates for President,
Vice-President and Senators, and effective March 27, 1998, for candidates for local elective offices, until
May 9, 1998. (Emphasis added).

This is because the amendment providing for the payment of "just compensation" is invalid, being in contravention
of §92 of B.P. Blg. 881 that radio and television time given during the period of the campaign shall be "free of
charge." Indeed, Resolution No. 2983 originally provided that the time allocated shall be "free of charge," just as §92
requires such time to be given "free of charge." The amendment appears to be a reaction to petitioner's claim in this
case that the original provision was unconstitutional because it allegedly authorized the taking of property without
just compensation.

The Solicitor General, relying on the amendment, claims that there should be no more dispute because the payment
of compensation is now provided for. It is basic, however, that an administrative agency cannot, in the exercise of
lawmaking, amend a statute of Congress. Since §2 of Resolution No. 2983-A is invalid, it cannot be invoked by the
parties.

Law Allows Flextime for Programming

by Stations, Not Confiscation of

Air Time by COMELEC

It is claimed that there is no standard in the law to guide the COMELEC in procuring free air time and that
"theoretically the COMELEC can demand all of the air time of such stations."25 Petitioners do not claim that
COMELEC Resolution No. 2983-A arbitrarily sequesters radio and television time. What they claim is that because
of the breadth of the statutory language, the provision in question is susceptible of "unbridled, arbitrary and
oppressive exercise."26

The contention has no basis. For one, the COMELEC is required to procure free air time for candidates "within the
area of coverage" of a particular radio or television broadcaster so that it cannot, for example, procure such time for
candidates outside that area. At what time of the day and how much time the COMELEC may procure will have to
be determined by it in relation to the overall objective of informing the public about the candidates, their
qualifications and their programs of government. As stated in Osmeña v. COMELEC, the COMELEC Time provided
for in §92, as well as the COMELEC Space provided for in §90, is in lieu of paid ads which candidates are prohibited
to have under §11(b) of R.A. No. 6646. Accordingly, this objective must be kept in mind in determining the details of
the COMELEC Time as well as those of the COMELEC Space.

There would indeed be objection to the grant of power to the COMELEC if §92 were so detailed as to leave no room
for accommodation of the demands of radio and television programming. For were that the case, there could be an
intrusion into the editorial prerogatives of radio and television stations.

Differential Treatment of

Broadcast Media Justified

Petitioners complain that B.P. Blg. 881, §92 singles out radio and television stations to provide free air time. They
contend that newspapers and magazines are not similarly required as, in fact, in Philippine Press Institute
v.COMELEC,27 we upheld their right to the payment of just compensation for the print space they may provide under
§90.

The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the same treatment
under the free speech guarantee of the Constitution as the print media. There are important differences in the
characteristics of the two media, however, which justify their differential treatment for free speech purposes.
Because of the physical limitations of the broadcast spectrum, the government must, of necessity, allocate
broadcast frequencies to those wishing to use them. There is no similar justification for government allocation and
regulation of the print media.28

In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or licensees. The
reason for this is that, as already noted, the government spends public funds for the allocation and regulation of the
broadcast industry, which it does not do in the case of the print media. To require the radio and television broadcast
industry to provide free air time for the COMELEC Time is a fair exchange for what the industry gets.

From another point of view, this Court has also held that because of the unique and pervasive influence of the
broadcast media, "[n]ecessarily . . . the freedom of television and radio broadcasting is somewhat lesser in scope
than the freedom accorded to newspaper and print media."29

The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers
and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast
and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and
magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also becoming universal.
Their message may be simultaneously received by a national or regional audience of listeners including the
indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials
broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to
persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or
 offensive speech would he difficult to monitor or predict. The impact of the vibrant speech is forceful and
immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate,
analyze, and reject the utterance. 30

Petitioners' assertion therefore that §92 of B.P. Blg. 881 denies them the equal protection of the law has no basis. In
addition, their plea that §92 (free air time) and §11(b) of R.A. No. 6646 (ban on paid political ads) should be
invalidated would pave the way for a return to the old regime where moneyed candidates could monopolize media
advertising to the disadvantage of candidates with less resources. That is what Congress tried to reform in 1987
with the enactment of R.A. No. 6646. We are not free to set aside the judgment of Congress, especially in light of
the recent failure of interested parties to have the law repealed or at least modified.

Requirement of COMELEC Time, a

Reasonable Exercise of the

State's Power to Regulate

Use of Franchises

Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-C, §4 of the
Constitution does not include the power to prohibit. In the first place, what the COMELEC is authorized to supervise
or regulate by Art. IX-C, §4 of the Constitution,31 among other things, is the use by media of information of their
franchises or permits, while what Congress (not the COMELEC) prohibits is the sale or donation of print space or air
time for political ads. In other words, the object of supervision or regulation is different from the object of the
prohibition. It is another fallacy for petitioners to contend that the power to regulate does not include the power to
prohibit. This may have force if the object of the power were the same.

In the second place, the prohibition in §11(b) of R.A. No. 6646 is only half of the regulatory provision in the statute.
The other half is the mandate to the COMELEC to procure print space and air time for allocation to candidates. As
we said in Osmeña v. COMELEC:

The term political "ad ban" when used to describe §11(b) of R.A. No. 6646, is misleading, for even as §11(b)
prohibits the sale or donation of print space and air time to political candidates, it mandates the COMELEC
to procure and itself allocate to the candidates space and time in the media. There is no suppression of
political ads but only a regulation of the time and manner of advertising.

xxx xxx xxx

. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to advertise freely
in the mass media, the law provides for allocation, by the COMELEC of print space and air time to give all
candidates equal time and space for the purpose of ensuring "free, orderly, honest, peaceful, and credible
elections."

With the prohibition on media advertising by candidates themselves, the COMELEC Time and COMELEC Space
are about the only means through which candidates can advertise their qualifications and programs of government.
More than merely depriving their qualifications and programs of government. More than merely depriving candidates
of time for their ads, the failure of broadcast stations to provide air time unless paid by the government would clearly
deprive the people of their right to know. Art III, §7 of the Constitution provides that "the right of the people to
information on matters of public concern shall be recognized," while Art. XII, §6 states that "the use of property
bears a social function [and] the right to own, establish, and operate economic enterprises [is] subject to the duty of
the State to promote distributive justice and to intervene when the common good so demands."
To affirm the validity of §92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to see to it that the
variety and vigor of public debate on issues in an election is maintained. For while broadcast media are not mere
common carriers but entities with free speech rights, they are also public trustees charged with the duty of ensuring
that the people have access to the diversity of views on political issues. This right of the people is paramount to the
autonomy of broadcast media. To affirm the validity of §92, therefore, is likewise to uphold the people's right to
information on matters of public concern. The use of property bears a social function and is subject to the state's
duty to intervene for the common good. Broadcast media can find their just and highest reward in the fact that
whatever altruistic service they may render in connection with the holding of elections is for that common good.

For the foregoing reasons, the petition is dismissed.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and Quisumbing, JJ., concur.
G.R. No. 147571 May 5, 2001

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing

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

MENDOZA, J.:

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 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. 1âw phi1.nêt

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5.4 of RA.
No.9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys
affecting local candidates shall not be published seven (7) days be- fore an election.

The term "election surveys" is defined in §5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a
candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election,
including voters preference for candidates or publicly discussed issues during the campaign period
(hereafter referred to as "Survey").

The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the COMELEC enjoins –

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys
affecting local candidates shall not be published seven (7) days be- fore an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the
national and local levels and release to the media the results of such survey as well as publish them directly.
Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey
results up to the last day of the elections on May 14,2001.

Petitioners argue that the restriction on the publication of election survey results 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 pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to
as close as two days before the election day without causing confusion among the voters and that there is neither
empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile
voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from
explaining their opinion 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. 1âwphi1.nêt

Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as necessary to prevent the
manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the
election. It contends that (1) the prohibition on the publication of election survey results 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 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 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 before a local
election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims
that in National Press Club v. COMELEC,1 a total ban on political advertisements, with candidates being merely
allocated broadcast time during the so-called COMELEC space or COMELEC hour, 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.

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.

To be sure, §5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of
election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding
a national election seven (7) days before a local election. Because of tile preferred status of tile constitutional rights
of speech, expression, and he press, such a measure is vitiated by a weighty presumption of invalidity.2 Indeed, any
system of prior restraints of expression comes to this Court bearing a heavy Presumption against its constitutional
validity. ...The Government thus carries a heavy burden of showing justification for in enforcement of such restraint.
"'3 There, thus a reversal of the normal presumption of validity that inheres in every legislation.

Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the COMELEC supervisory
power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no
presumption of invalidity attaches to a measure like §5.4. For as we have pointed out in sustaining tile ban on media
political advertisements, the grant of power to the COMELEC under Art. IX-C, §4 is limited to ensuring "equal
opportunity, time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use of
such media facilities "public information campaigns and forums among candidates."4 This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of
invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for
the Purpose of securing equal opportunity among candidates for political office, although such supervision or
regulation may result in some 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 Osmeña 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.

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:

Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be seen that its
limitingimpact on the rights of free speech 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 election surveys. It is limited
in duration; it applies only during the period when the voters are presumably contemplating whom they
 should elect 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 equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for
public information campaigns and forums among candidates. " Hence the validity of the ban on media advertising. It
is noteworthy that R.A. No. 9006, § 14 has lifted the ban and now allows candidates to advertise their candidacies in
print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the
censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims
made during the campaigns can confuse voters and thus debase the electoral process.

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.

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 mature than the Philippines in political development, do not restrict the publication of election survey results.

What test should then be employed to determine the constitutional validity of §5.4? The United States Supreme
Court, through Chief Justice Warren, held in United States v. O 'Brien:

[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 and press] is no greater than is essential to the furtherance of that
interest.8

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

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.

Our inquiry should accordingly focus on these two considerations as applied to §5.4.

>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the
asserted governmental interest makes such 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

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

[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…

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 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 suppression of a
category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a
national election and seven (7) days immediately before a local election. ..

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 Osmeña 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 Osmeña, 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 speech because of apprehension that such speech creates the danger of such evils. Thus, under the
Administrative Code of 1987,17the COMELEC is given the power:

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. 1âwphi1.nêt

SO ORDERED. 1âw phi 1.nêt

G.R. No. 170365 February 2, 2010

ABDUL GAFFAR P.M. DIBARATUN, Petitioner,

vs.
COMMISSION ON ELECTIONS and ABDUL CARIM MALA ABUBAKAR, Respondents.

DECISION

PERALTA, J.:

This is a petition for certiorari1 of the Resolution of the Commission on Elections (COMELEC) en banc dated
October 17, 2005 in SPA No. 02-481, which declared a failure of elections in Precinct No. 6A/7A, Barangay
Bagoainguid, Municipality of Tugaya, Lanao del Sur and annulled the proclamation of petitioner Abdul Gaffar 2 P.M.
Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid in the July 15, 2002 Synchronized
Barangay and Sangguniang Kabataan Elections.

The facts are as follows:

Respondent Abdulcarim Mala Abubakar,3 a re-electionist candidate for the position of Punong Barangay of
Barangay Bagoainguid, Tugaya, Lanao del Sur, filed a petition4 before the COMELEC to declare a failure of
elections in Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur and to annul the proclamation of
petitioner Abdul Gaffar P.M. Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid in the July
15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.

In his petition, respondent Abubakar alleged:

xxxx

3. That on July 15, 2002 at around 10:30 o’ clock in the morning, the casting of votes in the above named
precinct was commenced at its designated Polling Place in Cayagan Elementary School and while only ten
(10) voters had actually voted, a certain ALIPECRY ACOP GAFFAR, who is the son of respondent Punong
Barangay candidate ABDULGAFFAR DIBARATUN got inside the polling place and was caught in
possession of Three (3) filled up ballots where candidate ABDULGAFFAR DIBARATUN were voted which
he wanted to place or insert inside the ballot box for official (sic).

4. That when said ALIPECRY GAFFAR was confronted by the petitioner’s watcher and other watchers
confronted him of said official ballots, he got mad and flared up and committed violence which disrupted and
stopped the casting of votes and because of the commotion, the chairman left the ballot box which was held
by the companions of Alipecry Acop Gaffar and destroyed the said ballot box, took the official ballot
contained therein and inserted, placed therein a bundle of substituted ballots.

5. That due to the facts adverted to above, the casting of votes was stopped and it was never resumed nor
continued. Only Ten (10) voters had actually voted out of One Hundred Fifty One (151) registered voters.

6. That even candidates for Barangay Chairmen and Barangay Kagawad were unable to cast their votes
because the casting of votes was illegally disturbed, disrupted, interrupted and stopped by Alipecry Acop
Gaffar despite the presence of numerous registered voters ready to cast their votes.

xxxx
 9. The Election Officer knowing fully that there was really a failure of election in the said precinct
recommended that a special election be called for the said precinct.

10. That unknown to the petitioner, the respondent Board of Election Inspectors, in conspiracy and
connivance with respondent – Abdulgaffar Dibaratun, surreptitiously and clandestinely canvassed the
election returns and then illegally proclaimed the respondent Abdulgaffar Dibaratun and issued Certificate of
Canvass of Votes and Proclamation of Winning Candidates dated July 16, 2002 which was ant[e]dated
xerox copy of which is hereto attached as Annex "C" hereof.5

Respondents therein filed their Answer denying the allegations of herein private respondent. They contended that as
10 voters had actually voted, there was no failure of elections in the aforementioned precinct. They further
contended that the petition was filed out of time.

In the Resolution dated October 17, 2005, the COMELEC en banc granted the petition, the dispositive portion of
which reads:

WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it hereby RESOLVES, to GIVE
DUE COURSE to the instant petition.

ACCORDINGLY, the proclamation of respondent Abdulgaffar P.M. Dibaratun as the duly elected Punong Barangay
of Barangay Bagoainguid, Tugaya, Lanao del Sur is hereby ANNULLED and he is thus ORDERED to CEASE AND
DESIST from exercising the powers and responsibilities of the said office. Pending the conduct of the special
elections yet to be scheduled by this Commission and until no Punong Barangay has been duly elected and
qualified, the incumbent Punong Barangay shall continue to exercise the powers and duties of such office in a hold-
over capacity in accordance with Section 5 of R.A. No. 9164 (An Act Providing for Synchronized Barangay and
Sangguniang Kabataan Elections, Amending Republic Act No. 7160, As Amended, Otherwise Known as The ‘Local
Government Code of 1991,’ and For Other Purposes).

Let the Office of the Deputy Executive Director for Operations (ODEDO), this Commission, furnish a copy of this
Resolution to the Provincial Election Supervisor of Lanao del Sur for the implementation of the same upon its
finality.6

Dibaratun filed this petition, raising the following issues:

1) The COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it
unjustly gave due course to the unmeritorious petition of respondent Abubakar for the simple reason that it
was filed out of time and the validity of the proclamation of petitioner Dibaratun on July 16, 2002 can no
longer be legally assailed after the expiration of ten (10) days.

2) Private respondent Abubakar is estopped to assert whatever rights he has in the election laws/rules of
procedure when he desparately failed to make the proper objections during the casting, counting and
canvassing of votes, and, therefore, the COMELEC en banc gravely abused its discretion amounting to lack
or excess of jurisdiction when it erroneously heard and considered the unmeritorious petition of respondent
Abubakar.

3) Public respondent COMELEC en banc gravely abused its discretion amounting to lack or excess of
jurisdiction when it erroneously declared failure of elections in Precinct No. 6A/7A of Barangay Bagoainguid,
Tugaya, Lanao del Sur and called for special elections in the said precinct.7
The main issue is whether or not the COMELEC en banc committed grave abuse of discretion amounting to lack or
excess of jurisdiction in declaring a failure of elections in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya,
Lanao del Sur and in annulling the proclamation of petitioner as the elected Punong Barangay.

The petition is unmeritorious.

The 1987 Constitution vests in the COMELEC the broad power to enforce all the laws and regulations relative to the
conduct of elections, as well as the plenary authority to decide all questions affecting elections except the question
as to the right to vote.8

Section 6 of the Omnibus Election Code provides for the instances when the COMELEC may declare failure of
elections, thus:

SEC. 6. Failure of election. – If, on account of force majeure, violence, terrorism, fraud, or other analogous causes
the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed
by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the
failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a
verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the
election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of
the cause of such postponement or suspension of the election or failure to elect.

Sec. 6 of the Omnibus Election Code is reflected in Sec. 2, Rule 26 of the COMELEC Rules of Procedure.

In its Resolution, the COMELEC en banc, citing Banaga, Jr. v. Commission on Elections,9 enumerated the three
instances when a failure of elections may be declared by the Commission:

(1) the election in any polling place has not been held on the date fixed on account of force majeure,
violence, terrorism, fraud or other analogous causes;

(2) the election in any polling place had been suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or

(3) after the voting and during the preparation and transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism,
fraud or other analogous causes. 1avvphi1

Before the COMELEC can act on a verified petition seeking to declare a failure of elections, two conditions must
concur: (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the
election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the elections.10 The
cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other
analogous causes.11

The COMELEC en banc based its decision to declare a failure of elections in Precinct No. 6A/7A on the second
instance stated in Section 6 of the Omnibus Election Code, that is, the election in any polling place had been
suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism,
fraud or other analogous causes.

The COMELEC en banc held that in this case, it was undisputed that after only 10 registered voters cast their votes,
the voting was suspended before the hour fixed by law by reason of violence. This was supported by the affidavits
submitted by both petitioner and private respondent, who only disagreed as to the perpetrator of the violence as
each party blamed the other party.

In its Resolution, the COMELEC en banc averred:

The letter of Mayor Abdul Jabbar Mangawan A.P. Balindong, Municipal Mayor of Tugaya, Lanao Del Sur, addressed
to Chairman Benjamin Abalos, Sr., the Joint Affidavit of Norhata M. Ansari and Sahara T. Guimba, Poll Clerk and
Third Member, respectively, of the Board of Election Inspectors of Precinct No. 6A/7A of Barangay Bagoainguid and
the Joint Affidavit of PO1 Yahya M. Dirindigun and PO1 Casary C. Modasir all state that it is the petitioner and his
relatives and followers who started the violence that caused the suspension of the voting.

Meanwhile, the affidavits submitted by the witnesses of the petitioner all state that it is respondent Dibaratun and his
followers and relatives who were the cause of the violence which resulted in the suspension of the election after only
ten (10) people managed to vote.12

The COMELEC en banc ruled that since both parties agreed that the elections were suspended before the hour
fixed by law due to violence caused by undetermined persons, there was obviously a failure of elections in the
aforementioned precinct.13

The findings of fact of the COMELEC en banc are binding on this Court. The grounds for failure of election (i.e.,
force majeure, violence, terrorism, fraud, or other analogous cases) involve questions of fact, which can only be
determined by the COMELEC en banc after due notice to and hearing of the parties.14 An application for certiorari
against actions of the COMELEC is confined to instances of grave abuse of discretion,15 amounting to lack or
excess of jurisdiction. The COMELEC, as the administrative agency and 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 the expertise in its field so that its findings and conclusions are generally
respected by and conclusive on the Court.16

Thus, the Court agrees with the COMELEC that the elections in Precinct No. 6A/7A were suspended before the
hour fixed by law for the closing of the voting due to violence. Only 10 voters were able to cast their votes out of 151
registered voters; hence, the votes not cast would have affected the result of the elections. The concurrence of
these two conditions caused the COMELEC en banc to declare a failure of elections. When there is failure of
elections, the COMELEC is empowered to annul the elections and to call for special elections.17 Public respondent,
therefore, did not commit grave abuse of discretion in its resolution of the case.

Moreover, petitioner contends that respondent Abubakar’s petition for the declaration of failure of elections and to
annul the proclamation of petitioner was in the nature of a pre-proclamation controversy under Sec. 241 of the
Omnibus Election Code, but respondent failed to comply with the procedures therefor. Petitioner also contends that
the petition was filed out of time, and that respondent failed to pay the docket fees on time.

Petitioner’s arguments lack merit.

Respondent Abubakar’s petition for declaration of failure of elections falls under Sec. 6 of the Omnibus Election
Code. The allegations in respondent’s petition constitute one of the instances for the declaration by the COMELEC
of failure of elections in Precinct No. 6A/7A. Hence, the COMELEC en banc took cognizance of the petition pursuant
to Sec. 4 of Republic Act No. 7166,18 thus:

SEC. 4. Postponement, Failure of Elections and Special Elections.—The postponement, declaration of failure of
election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall
be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a
failure of election may occur before or after the casting of votes or on the day of the election.19
The Court finds the petition for declaration of failure of elections under Section 6 of the Omnibus Election Code to be
in order, and it was properly disposed of by the COMELEC en banc. Hence, petitioner erred in contending that the
petition of respondent Abubakar was in the nature of a pre-proclamation controversy under Sec. 241 of the Omnibus
Election Code, but failed to comply with the procedures therefor. The issue addressed by the COMELEC en banc
was whether the evidence submitted supported the allegations in the petition that violence suspended the elections
in Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur, before the hour fixed by law for the closing of
the voting on July 15, 2002, which resulted in failure of elections. The issue does not fall under pre-proclamation
controversies. The issues that may be ventilated in a pre-proclamation controversy are enumerated in Sec. 243 of
the Omnibus Election Code,20 thus:

1. Illegal composition or proceedings of the board of canvassers;

2. The canvassed election returns are incomplete, contain material defects, appear to be tampered with or
falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in
Sections 233, 234, 235 and 236 of the Omnibus Election Code;

3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously
manufactured or not authentic; and

4. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which
materially affected the standing of the aggrieved candidate or candidates.21

A petition to declare a failure of elections is neither a pre-proclamation controversy as classified under Sec. 5 (h),
Rule 1 of the Revised COMELEC Rules of Procedure, nor an election case.22

Further, petitioner’s basis for the allegation that private respondent’s petition was filed out of time is Sec. 252 of the
Omnibus Election Code,23 covering election contests for barangay offices, wherein a petition is filed with the proper
municipal or metropolitan trial court within ten days after the proclamation of the results of the election. Granting that
the petition filed was for an election contest, it would have been filed on time, since it was filed on July 26, 2002,
which was within the ten-day period from the proclamation of petitioner on July 16, 2002.

However, the petition filed by private respondent was not for an election contest under Sec. 252 of the Omnibus
Election Code, but for the declaration of failure of elections under Section 6 of the same Code. The Court notes that
the provisions on failure of elections in Section 6 of the Omnibus Election Code24 and Sec. 2, Rule 26 of the
COMELEC Rules of Procedure do not provide for a prescriptive period for the filing of a petition for declaration of
failure of elections. It appears that the COMELEC en banc has the discretion whether or not to take cognizance of
such petition. In this case, the petition was filed 11 days after the scheduled election. In its Resolution, the
COMELEC en banc declared that petitioner’s allegation that the petition was filed out of time was rendered moot
and academic by the fact that the petition was already heard by the Commission and submitted for resolution.25 The
COMELEC’s resolution of private respondent’s petition was in keeping with its function to ensure the holding of free,
orderly, honest, peaceful, and credible elections.

Lastly, petitioner’s allegation that private respondent failed to pay the docket fee on time does not appear to have
been raised before the COMELEC; hence, it cannot be raised for the first time on appeal.

Petitioner’s allegation of grave abuse of discretion by public respondent COMELEC en banc implies such capricious
and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of the
power in an arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so patent or 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.26 It is not present in this case, as public respondent issued the COMELEC Resolution dated
October 17, 2005 based on the evidence on record and the law on the matter.
WHEREFORE, the instant petition for certiorari is hereby DISMISSED.

SO ORDERED.
G.R. No. 181869 October 2, 2009

ISMUNLATIP H. SUHURI, Petitioner,

vs.
THE HONORABLE COMMISSION ON ELECTIONS (En Banc), THE MUNICIPAL BOARD OF CANVASSERS OF
PATIKUL, SULU AND KABIR E. HAYUDINI, Respondents.

DECISION

BERSAMIN, J.:

In this special civil action for certiorari, the Court again determines whether or not the exclusion of certain election
returns from the canvass due to allegations of irregularities and statistical improbability made by a candidate are
proper grounds for a pre-proclamation controversy by which to annul the proclamation of his rival as duly-elected.

THE CASE

The Municipal Board of Canvassers (MBC) of Patikul, Sulu had earlier ruled against petitioner Ismunlatip H. Suhuri’s
plea for the exclusion of 25 election returns from the canvass of votes cast for the 2007 mayoralty race in Patikul,
Sulu and then proclaimed respondent Kabir E. Hayudini as the duly-elected Mayor. Appealing to the Commission on
Elections (COMELEC), Suhuri insisted on the invalidity of the proclamation because of the existing pre-proclamation
controversy involving the exclusion of the 25 election returns. The COMELEC, Second Division, had sustained
Suhuri’s appeal and nullified Hayudini’s proclamation, but the COMELEC en banc reversed the Second Division
through the assailed resolution of January 29, 2008.

Suhuri thus assails on certiorari the January 29, 2008 resolution of the COMELEC en banc that reversed the
resolution of the Second Division.1 He claims that the COMELEC en banc thereby gravely abused its discretion
amounting to lack or excess of jurisdiction.

ANTECEDENTS

Suhuri ran for the position of Municipal Mayor of Patikul, Sulu during the May 14, 2007 national and local elections.
He was opposed by Hayudini and a third candidate, Datu Jun Tarsum.2 During the canvassing held on May 17,
2007 within the Sulu State College in Jolo, Sulu, Suhuri orally objected to the inclusion of the election returns from
the following 25 precincts, namely: Precincts 09/10A, 11A/12A, 13A/14A, 15A/16A, 17A/18A, 19A/20A, and 21A/22A
of Barangay Anuling; Precincts 47A/48A, 49A/50A, and 51A/52A of Barangay Bongkuang; Precincts 87A/88A,
89A/90A, 91A/92A, 93A/94A, 95A/96A, 97A/98A, and 99A/100A of Barangay Langhub; Precincts 101A/102A,
103A/104A, 105A/106A, 107A/108A, and 109A/110A of Barangay Latih; and Precincts 116A/117A, 118A/119A, and
120A of Barangay Maligay. The affected precincts carried a total of 4,686 votes.3 He later filed with the MBC written
petitions regarding such exclusion on May 17, 18 and 19, 2007.4 He asserted that the 25 election returns were "(1)
[o]bviously manufactured; (2) [t]ampered with or falsified; (3) [p]repared under duress; and (4) [characterized by]
[s]tatistical improbability."5

The MBC ruled against Suhuri in the evening of May 19, 2007 by rejecting his objections to the 25 election
returns.6Then and there, he manifested his intent to appeal vis-à-vis the ruling. He filed his notice of appeal shortly
thereafter.7 In the same evening, the MBC proclaimed Hayudini as the duly elected Mayor for having obtained 7,578
votes as against Suhuri’s 6,803 votes based on a complete canvass of the election returns, for a margin of 775
votes in favor of Hayudini.8

On May 23, 2007, Suhuri filed a petition-appeal with the COMELEC,9 docketed as S.P.C. No. 07-118. The petition-
appeal was assigned to the Second Division.
On May 25, 2007, Suhuri likewise filed an election protest ad cautelam dated May 21, 2007 in the Regional Trial
Court (RTC) in Patikul, Sulu to contest the results of the elections for Municipal Mayor of Patikul, Sulu.10 On June
28, 2007, however, the RTC held the election protest in abeyance upon Suhuri’s own motion due to his pending pre-
proclamation controversy in S.P.C. 07-118.

In a further move, Suhuri brought a so-called petition to declare a failure of election with urgent motion to suspend
and/or annul the canvass of the election returns dated May 18, 2007,11 referring to the results from the 25 precincts
in Barangays Anuling, Bongkaung, Langhub, Latih, and Maligay, all within Patikul, Sulu. However, the COMELEC
en banc denied the petition for insufficiency of evidence on October 9, 2007.121avvph!1

On June 12, 2007, the COMELEC, Second Division, gave due course to Suhuri’s petition-appeal.13

On July 24, 2007, the COMELEC, Second Division, ruling on Suhuri’s petition-appeal, excluded the 25 questioned
electoral returns from the canvass for the position of Mayor of Patikul, Sulu; and voided the proclamation of Hayudini
as the duly elected Mayor.14 1avv phi 1

In due course, Hayudini moved for the reconsideration of the July 24, 2007 ruling of the Second Division.15

Initially resolving Hayudini’s motion for reconsideration, Commissioners Florentino A. Tuason, Jr. and Nicodemo
Ferrer voted in favor of the resolution of the Second Division, while Acting Chairman Resurreccion Z. Borra,
Commissioner Romeo A. Brawner and Commissioner Rene V. Sarmiento dissented.16 Due to the fact that the
required majority vote necessary to reverse the resolution of the Second Division was not reached, the
COMELEC en banc conducted a re-hearing on November 22, 2007 pursuant to Section 6, Rule 18 of the Comelec
Rules of Procedure.17 At the re-hearing, Suhuri presented 20 witnesses, who affirmed and identified their respective
affidavits. For his part, Hayudini waived the cross-examination. Thereafter, the parties were required to submit their
memoranda, and the appeal was then deemed submitted for resolution.18

On January 29, 2008, the COMELEC en banc promulgated its assailed resolution,19 disposing:

WHEREFORE, premises all considered the Commission (En Banc) resolved as it hereby resolves to GRANT the
Motion for Reconsideration. The Resolution of the Second Division is hereby REVERSED and SET ASIDE.
Consequently, the proclamation of Kabir Hayudini is hereby declared VALID.

ISSUES

In his petition, Suhuri insists that:

I. THE RESPONDENT HONORABLE COMMISSION ON ELECTIONS (EN BANC) COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT HELD TO REVERSE AND
SET ASIDE THE 24 JULY 2007 RESOLUTION OF THE HONORABLE COMMISSSION’S SECOND DIVISION
BASED ON THE REPORT OF RESPONDENT MUNICIPAL BOARD OF CANVASSERS BELATEDLY FILED
AFTER RESPONDENT HAYUDINI’S MOTION FOR RECONSIDERATION, FOR THE SECOND TIME, HAS
ALREADY BEEN SUBMITTED FOR DECISION; AND

II. THE RESPONDENT HONORABLE COMMISSION ON ELECTIONS (EN BANC) COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT HELD THAT THE ISSUE
PROFERRED BY PETITIONER DOES NOT INVOLVE A PRE-PROCLAMATION CONTROVERSY.

RULING OF THE COURT

We uphold the assailed resolution of the COMELEC en banc.

 I

Suhuri’s Grounds Were Not Proper

for a Pre-Proclamation Controversy

Were Suhuri’s grounds for nullifying Hayudini’s proclamation as the duly elected Mayor proper for a pre-
proclamation controversy?

A pre-proclamation controversy, according to Section 1, Article XX of the Omnibus Election Code, refers to:

xxx any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any
candidate or by any registered political party or coalition of parties before the board or directly with the Commission,
or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt,
custody and appreciation of the election returns.

Not every question bearing on or arising from the elections may constitute a ground for a pre-proclamation
controversy. Section 243 of the Omnibus Election Code enumerates the scope of a pre-proclamation controversy,
as follows:

Sec. 243. Issue that may be raised in pre-proclamation controversy – The following shall be proper issues that may
be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or
falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in
Sections 233, 234, 235, and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously
manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which
materially affected the standing of the aggrieved candidate or candidates.

Clearly, Section 243, supra, limits a pre-proclamation controversy to the questions enumerated therein. The
enumeration is restrictive and exclusive.20 Resultantly, the petition for a pre-proclamation controversy must fail in the
absence of any clear showing or proof that the election returns canvassed are incomplete or contain material
defects (Section 234, Omnibus Election Code); or appear to have been tampered with, falsified or prepared under
duress (Section 235, Omnibus Election Code); or contain discrepancies in the votes credited to any candidate, the
difference of which affects the result of the election (Section 236, Omnibus Election Code).21

To be noted, too, is that in a pre-proclamation controversy, the COMELEC is restricted to an examination of the
election returns and is without jurisdiction to go beyond or behind the election returns and to investigate election
irregularities.22 For as long as the election returns appear to be authentic and duly accomplished on their faces, the
Board of Canvassers cannot look beyond or behind the election returns in order to verify allegations of irregularities
in the casting or counting of votes. 23

Suhuri submits that the 25 challenged election returns were defective for being manufactured, tampered with or
falsified, and for statistical improbability. He lists the following irregularities to buttress his submission, namely:24
 i. The election returns for Precinct Nos. 9A/10A and 99A/100A have no signatures and thumbmarks of poll
watchers. More importantly, the respective poll clerks in the two precincts did not affix their signatures in the
election returns.

ii. For Precinct Nos. 11A/12A, 17A/18A, 89A/90A, 91A/92A, 93A/94A and 95A/96A (6 of the 25 contested
election returns), petitioner got zero (0)- a statistically improbable result.

iii. For Precinct Nos. 15A/16A, there appears to be two poll watchers who affixed their signatures are the
same and appear to have been made by the same and one person;

iv. For Precinct Nos. 13A/14A, of the 210 total registered voters, respondent Hayudini garnered a perfect
210 and petitioner got one (1) – a statistically improbable result;

v. For Precinct Nos. 21/A/22A, the names of the members of the Board of Election Inspectors (BEI) and the
poll watchers appear to have been made by only one person;

vi. For Precinct Nos. 49A/50, the printed names of the poll watchers of the petitioner are printed thereon
without their signature, consistent with their Affidavit that they were intimidated into leaving the polling place
as early as when they had just presented their appointment papers to the members of the BEI;

vii. For Precinct Nos. 11A/12A, there is only one poll watcher who affixed his signature;

viii. For Precinct Nos. 51A/52A, there is the lack of signature of the third member of the BEI;

ix. For Precinct Nos. 89A/90A, the entries for the precinct no., barangay, city/municipality and province are
completely blank while names, signatures and thumb marks of the BEI are complete; and

x. For Precinct Nos. 93A/94A, there is only one poll watcher who affixed his name and signature and with no
thumb mark;25

Suhuri further submits that threat, violence, duress and intimidation attended the preparation of the questioned
election returns. As proof, his petition-appeal has included the following affidavits,26 to wit:

1. The affidavit of Benhar S. Mohammad, attesting that the supporters of Hayudini and his party-mate,
gubernatorial candidate Abdulsakur Tan, prevented him from entering the polling place where he was
supposed to vote;

2. The joint-affidavit of Angka J. Saradil, Nurhia J. Sidin and Muranda A. Tilah and Injang A. Ajidin, attesting
that they were not allowed to vote after being identified as supporters of Suhuri; and that they saw other
voters being also prevented from voting;

3. The affidavit of Munning Mandun, a duly appointed watcher, attesting that the persons who cast their
votes were not those appearing in the voter’s list; and that the bona fide voters listed therein were prevented
from casting their votes;

4. The joint-affidavit of Sherilyn Sawadjaan, Nurmina Usman, Najir S. Bakil, Merhami S. Bakil, Mubin G.
Bakil, Nur-Asiya J. Jumdail and Gabir S. Jumdail, duly appointed poll watchers, attesting that they were not
allowed to enter their assigned precincts by known supporters of Hayudini;

5. The joint affidavit of Bennajar Jul, Nelson Jul, Rubin Ambutong and Wahab N. Sanuddin, attesting, among
others, that they saw Maligay Barangay Chair Pula Juhul enter the precinct with an identified group of
 persons; that when affiant Bennajar Jul confronted Juhul regarding his unlawful presence in the precinct,
Juhul boxed him, causing his nose to bleed; that the ballots that they had filled as registered voters were not
dropped into the ballot box; and that they were told to go home by a member of the Board of Election
Inspectors (BEI) of the precinct because the voting had supposedly ended as early as 1:30 pm;

6. The joint-affidavit of Jarah A. Jumdail, Kahil T. Barrahani, Almezer H. Rashid, Elias O. Villamor, Anna A.
Barrahani and Najar T. Jihili, attesting that Hayudini’s younger brother Mindal threatened them not to go into
their precincts to vote; and that they saw the companions of Mindal accomplish the ballots in said precincts
in place of the bona fide registered voters therein;

7. The joint affidavit of Munib A. Sabiran, Aldibar Sabiran, Nuramin J. Usman, Sarkiya Usman, and
Abdulhan Bakil, duly assigned poll watchers, attesting that they were not allowed to enter their assigned
precincts by known supporters of Hayudini;

8. The joint affidavit of Muharram Jul, Kagayan Sanuddin, Amil Elias, Sehon Eli, Weldizon Awwalon, Tayte
Sanuddin, Juljamin Sannudin, Hali Sannudin, Pathar Juli and Abduranil Sanuddin, attesting to the illegal
intervention of Maligay Chair Juhul in the casting of votes by threatening them with bodily harm, resulting in
their not being able to vote;

9. The affidavit of Ermalyn J. Jamasali, a member of the BEI on duty in Precinct 17A/18A, attesting that BEI
Chair Rolina Abubakar gave the unused ballots under duress to unidentified men who proceeded to fill them
up and handed them to affiant Jamasali to drop in the ballot box; and

10. The affidavit of Police Inspector Francisco K. Panisan, Chief of Police of Patikul, attesting that he
received several complaints to the effect that a number of registered voters in the precincts clustered within
the Anuling Elementary School were not allowed to vote; and that some voters were physically prevented
from getting into their respective precincts.

In fine, Suhuri’s submissions and supporting affidavits show that the election returns for Precinct Nos. 51A/52A
lacked one of the necessary BEI signatures; that six of the contested election returns lacked some or all of the
signatures and/or thumbmarks of the poll watchers; that another six election returns might indicate a statistical
improbability of results; and that only one election return had no entries in the spaces for the precinct number,
barangay, city/municipality and province.27

Unfortunately for the petitioner, the cited irregularities and omissions could not be the bases for granting his petition
for the exclusion of the 25 election returns in a pre-proclamation controversy.

Firstly, the defects cited by Suhuri were mere irregularities or formal defects that did not warrant the exclusion of the
affected election returns. Indeed, the mere attendance or presence of the formal defects did not establish the
commission of palpable irregularities in the election returns. As held in Baterina v. Commission on Elections,28 the
grounds for the exclusion of election returns from the canvassing as raised by the petitioners’ therein –referring to,
among others, the failure to close the entries with the signatures of the election inspectors, and the lack of
signatures of the petitioners’ watchers, both involving a violation of the rules governing the preparation and delivery
of election returns for canvassing – did not necessarily affect the authenticity and genuineness of the subject
election returns as to warrant their exclusion from the canvassing, being but defects in form insufficient to support
the conclusion that these had been tampered with or spurious.29

In this regard, the Court has said that the conclusion that election returns were obviously manufactured or false and
should consequently be disregarded from the canvass must be approached with extreme caution and made only
upon the most convincing proof;30 and that only when the election returns were palpably irregular might they be
rejected.31
Secondly, the MBC corrected the defects before the canvass of the election returns upon finding the cause of the
defects to be satisfactorily explained by the members of the Board of Election Tellers. The MBC’s report bears this
out, to wit:32

3. Minutes of the canvass x x x will show that there were only very few election returns that were not signed by
some members of the Board of Election Tellers. The Board decided to defer the canvass on those returns and
issued written directives to each of the concerned Board of Election Teller to appear before the Board of
Canvassers for explanation for such omission. True enough, the summoned members of the Board of Election
Tellers who failed to affix their signatures in the return appeared and gave the explanation in open session that they
failed to affix their signature not because there was fraud, violence or other irregularities in the preparation thereof,
but such omission was caused solely and unwittingly by the fact that they were heavily sleepy, tired, hungry and
miserably exhausted in the waiting for the delivery of the election returns. Prior to this, they have been in the
different polling centers spread throughout the municipality of Patikul early morning on election day for the
preparation of the voting and the voting proper.

4. Some testified that the counting of ballots and the preparation of election returns in their respective precinct was
merely lighted by candles outside the school classrooms since the school classrooms were not enough to
accommodate all the precincts for the purpose of counting and preparation of election returns. This had unwittingly
contributed to the faultless and innocent omission to affix the signature.

5. In the presence of lawyers from different political parties and candidates, official watchers and before the Board of
Canvassers, the members of the Board of Election Tellers affixed their signature on the previously incomplete
election returns.

6. After such completion and towards the end of the canvass, not a single election return appeared to be materially
defective x x x.33

The COMELEC en banc expectedly approved of the MBC’s actions, absent any other plausible explanation for the
defects supported by substantial evidence. In the assailed resolution, the COMELEC en banc aptly stated, viz:34

We meticulously re-examined the questioned election returns and they all appear to be regular and authentic. No
showing of alterations and erasures could be seen on their faces. The re-examination would also show that twenty
three (23) of the returns were completely signed and thumbmarked by all the members of the Board of Election
Inspectors. Some were signed by at least two (2) watchers. In Precinct Nos. 47A/48A and 91A/92A, all the watchers
signed the returns. Only two (2) returns, Precinct Nos. 9A/10A and 99A/100A did not contain the signatures of poll
watchers, but were signed and thumbmarked by the Chairmen and Third Members. Even then, this is not a formal
defect which would constitute a proper ground for exclusion. This means that the asseverations of the petitioner-
appellant has no leg to lean on. 35

We agree with the COMELEC en banc. The actions of the MBC were reasonable and warranted. Judicial notice is
properly taken of the fact that the conduct of elections in many parts of this country, particularly in areas like Patikul,
Sulu, often come under circumstances less than ideal and convenient for the officials administering the elections;
and of the fact that the process of elections usually involvesd sleepless nights, tiresome work, and constant dangers
to the lives and personal safeties of the many officials who work to see to it that the elections are orderly and
peaceful and their results are obtained smoothly and with the least delay. We can easily conclude that such trying
circumstances often lead to unintended omissions in form similar to those Suhuri pointed out.

Thirdly, the allegation of a statistical improbability reflected in the election returns for Precinct Nos. 11A/12A,
17A/18A, 89A/90A, 91A/92A, 93A/94A and 95A/96A (wherein Suhuri obtained zero) and for Precinct Nos. 13A/14A
(wherein Hayudini garnered 210 out of the 211 total registered voters, with Suhuri being credited with one vote)
lacks substance and merit.
The doctrine of statistical improbability was first pronounced in Lagumbay v. Commission on Elections,36 in which
the Court upheld the power and duty of the COMELEC to reject the returns of about 50 precincts affecting the
elections of Senators, because their results were "contrary to all statistical probabilities," thus:

It appearing therein that — contrary to all statistical probabilities — in the first set, in each precinct the number of
registered voters equalled the number of ballots and the number of votes reportedly cast and tallied for each and
every candidate of the Liberal Party, the party in power; whereas, all the candidates of the Nacionalista Party got
exactly zero; and in the second set, — again contrary to all statistical probabilities — all the reported votes were for
candidates of the Liberal Party, all of whom were credited with exactly the same number of votes in each precinct,
ranging from 240 in one precinct to 650 in another precinct; whereas, all the candidates of the Nacionalista Party
were given exactly zero in all said precincts.

Lagumbay expounded on the doctrine of statistical improbability and the doctrine’s effect on the power of the
COMELEC to reject the results reflected in the election returns when such returns showed prima facie that they did
not reflect the true and valid reports of regular voting, thus:37

We opined that the election result in said precincts as reported was utterly improbable and clearly incredible. For it is
not likely, in the ordinary course of things, that all the electors of one precinct would, as one man, vote for all the
eight candidates of the Liberal Party, without giving a single vote to one of the eight candidates of the Nacionalista
Party. Such extraordinary coincidence was quite impossible to believe, knowing that the Nacionalista Party had and
has a nationwide organization, with branches in every province, and was, in previous years, the party in power in
these islands.

We also know from our experience in examining ballots in the three Electoral Tribunals (Presidential, Senate, and
House) that a large portion of the electors do not fill all the blanks for senators in their ballots. Indeed, this
observation is confirmed by the big differences in the votes received by the eight winning senators in this as well as
in previous national elections; 2 almost a million votes between the first place and the eight. Furthermore, in 1965,
the total number of electors who cast their votes was 6,833,369 (more or less). If every voter had written eight
names on his ballot, the total number of votes cast for all the candidates would be that number multiplied by 8,
namely 54,666,952. But the total number of votes tallied for the candidates for senator amounted to 49,374,942
only. The difference between the two sums represents the number of ballots that did not contain eight names for
senators. In other words, some 5 million ballots did not carry eight names. Of course, this is a rough estimate,
because some ballots may have omitted more names, in which case, the number of incomplete ballots would be
less. But the general idea and the statistical premise is there.

The same statistical result is deducible from the 1963 election data: total number of electors who voted, 7,712,019; if
each of them named eight senators, the total votes tallied should have been 61,696,152, and yet the total number
tallied for all the senatorial candidates was 45,812,470 only. A greater number of incomplete ballots.

It must be noted that this is not an instance wherein one return gives to one candidate all the votes in the precinct,
even as it gives exactly zero to the other. This is not a case where some senatorial candidates obtain zero exactly,
while some others receive a few scattered votes. Here, all the eight candidates of one party garnered all the votes,
each of them receiving exactly the same number; whereas all the eight candidates of the other party got precisely
nothing.

The main point to remember is that there is no blockvoting nowadays.

What happened to the vote of the Nacionalista inspector? There was one in every precinct. Evidently, either he
became a traitor to his party, or was made to sign a false return by force or other illegal means. If he signed
voluntarily, but in breach of faith, the Nacionalista inspector betrayed his party; and, any voting or counting of ballots
therein, was a sham and a mockery of the national suffrage.
Hence, denying prima facie recognition to such returns on the ground that they are manifestly fabricated or falsified,
would constitute a practical approach to the Commission's mission to insure free and honest elections.

In Mitchell vs. Stevens, supra, the returns showed a noticeable excess of votes over the number of registered
voters, and the court rejected the returns as obviously "manufactured". Why? The excess could have been due to
the fact that, disregarding all pertinent data, the election officers wrote the number of votes their fancy dictated; and
so the return was literally a "manufactured", "fabricated" return. Or maybe because persons other than voters, were
permitted to take part and vote; or because registered voters cast more than one ballot each, or because those in
charge of the tally sheet falsified their counts. Hence, as the Mitchell decision concluded, the returns were "not true
returns . . . but simply manufactured evidences of an attempt to defeat the popular will." All these possibilities and/or
probabilities were plain fraudulent practices, resulting in misrepresentation of the election outcome. "Manufactured"
was the word used. "Fabricated" or "false" could as well have been employed.

The same ratio decidendi applies to the situation in the precincts herein mentioned. These returns were obviously
false or fabricated — prima facie. Let us take for example, precinct No. 3 of Andong, Lanao del Sur. There were 648
registered voters. According to such return all the eight candidates of the Liberal Party got 648 each, and the eight
Nacionalista candidates got exactly zero. We hold such return to be evidently fraudulent or false because of the
inherent improbability of such a result — against statistical probabilities — specially because at least one vote
should have been received by the Nacionalista candidates, i.e., the vote of the Nacionalista inspector. It is, of
course, "possible" that such inspector did not like his party's senatorial line-up; but it is not probable that he disliked
all of such candidates, and it is not likely that he favored all the eight candidates of the Liberal Party. Therefore,
most probably, he was made to sign an obviously false return, or else he betrayed his party, in which case, the
election therein — if any — was no more than a barefaced fraud and a brazen contempt of the popular polls.

Of course we agree that frauds in the holding of the election should be handled — and finally settled — by the
corresponding courts or electoral tribunals. That is the general rule, where testimonial or documentary evidence, is
necessary; but where the fraud is so palpable from the return itself (res ipsa loquitur — the thing speaks for itself),
there is no reason to accept it and give it prima facie value.

At any rate, fraud or no fraud, the verdict in these fifty precincts may ultimately be ascertained before the Senate
Electoral Tribunal. All we hold now is that the returns show "prima facie" that they do not reflect true and valid
reports of regular voting. The contrary may be shown by candidate Climaco — in the corresponding election protest.

Under Lagumbay, therefore, the doctrine of statistical improbability is applied only where the unique uniformity of
tally of all the votes cast in favor of all the candidates belonging to one party and the systematic blanking of all the
candidates of all the opposing parties appear in the election return.38 The doctrine has no application where there
is neither uniformity of tallies nor systematic blanking of the candidates of one party.39 Thus, the bare fact that a
candidate for public office received no votes in one or two precincts, standing alone and without more, cannot
adequately support a finding that the subject election returns are statistically improbable. Verily, a zero vote for a
particular candidate in the election returns is but one strand in the web of circumstantial evidence that the electoral
returns were prepared under duress, force and intimidation.40

The Court has thus warned that the doctrine of statistical improbability must be restrictively viewed, with the utmost
care being taken lest in penalizing fraudulent and corrupt practices – which is truly called for – innocent voters
become disenfranchised, a result that hardly commends itself.41 Such prudential approach makes us dismiss
Suhuri’s urging that some of the electoral results had been infected with the taint of statistical improbability as to
warrant their exclusion from the canvass in a pre-proclamation controversy. Specifically, his petition and the records
nowhere show that his party-mates received a similar number of votes (or lack of any) by which to conclude that
there were a unique uniformity of tally and a systematic blanking of other candidates belonging to one party.
Fourthly, Suhuri contends that threat, violence, duress and intimidation were attendant in the preparation of election
returns of the 25 contested precincts. He has presented the affidavits of voters and poll watchers from the 25
precincts whose election returns he questioned;42 the affidavit of one Ermalyn J. Jamasali, a member of the BEI of
one of the precincts; and the affidavit of Police Inspector Panisan, Chief of Police of Patikul, Sulu.43

Yet, the affidavits, because they referred to incidents that had occurred at the various precincts during the voting,
did not substantiate Suhuri’s allegation of duress, threats, coercion, and intimidation during the preparation or
making of the election returns. The COMELEC en banc rightly noted and pointed this out in its assailed resolution,
to wit:

x x x the various affidavits presented by the petitioner do not even relate to the fact of the election returns being
manufactured or prepared under duress, but to the alleged irregularities in the voting which are proper grounds in an
election protest.44

Fifthly, BEI member Jamasali narrated in her affidavit her having personally witnessed fraud committed during the
elections. Even assuming that the fraud she thereby exposed constituted an irregularity in the conduct of the
elections, the incident, being isolated, did not warrant the exclusion of all the 25 election returns, but only of the
return for the precinct where the fraud had occurred. However, the exclusion of the election returns from that
precinct (i.e., Precinct 17A/18A), if called for, would not alter the overall result for the mayoralty contest in Patikul,
Sulu,45 considering that said precinct had only 189 registered voters. We note that Hayudini had a winning margin of
775 votes over Suhuri.

Lastly, Police Inspector Panisan’s election report,46 albeit official, would not justify the exclusion of the returns from
the precincts clustered in the Anuling Elementary School. Concededly, Panisan’s report, being hearsay because he
had not himself actually witnessed the incidents described in the report, was unreliable and had no value for
purposes of Suhuri’s petition-appeal. It would not be trite to emphasize that the results of an election should not be
annulled based on hearsay evidence.

II

COMELEC En Banc

Did Not Gravely Abuse Its Discretion

In a special civil action for certiorari, the petitioner carries the burden of proving not merely reversible error, but
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent for its
issuance of the impugned order.47 Grave abuse of discretion is present "when there is a capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."48In
other words, the tribunal or administrative body must have issued the assailed decision, order or resolution in a
capricious or despotic manner.49

Suhuri did not discharge his burden as petitioner, to satisfactorily show that his grounds were proper for a pre-
proclamation controversy. We cannot go to his succor, for the COMELEC cannot not look behind or beyond the 25
contested election returns in a pre-proclamation controversy. Moreover, contrary to his urging, the COMELEC en
banc did not rely mainly on the report submitted by the MBC on December 4, 2007 in order to find against him. It is
clear that the COMELEC en banc took note of the matters and circumstances that Suhuri himself had submitted to
its consideration when it rendered its assailed resolution. If it did not accept his submissions, it did not abuse its
discretion, because it based its assailed resolution on the established facts, the law, and the pertinent jurisprudence.
Before closing, we stress that the powers of the COMELEC are essentially executive and administrative in nature.
This is the reason why the question of whether or not there were terrorism, vote-buying and other irregularities in the
elections should be ventilated in regular election protests. The COMELEC is not the proper forum for deciding such
protests.50 Accordingly, a party seeking to raise issues, the resolution of which compels or necessitates the
COMELEC’s piercing the veil of election returns that appear prima facie to be regular on their face, has his proper
remedy in a regular election contest.51

WHEREFORE, we affirm the resolution dated January 29, 2008 issued in S.P.C. No. 07-118 by the Commission on
Elections en banc, reversing the resolution dated July 24, 2007 of its Second Division; and confirm the proclamation
of respondent Kabir E. Hayudini as the duly elected Mayor of the Municipality of Patikul, Province of Sulu in the local
elections of May 14, 2007.

The petitioner shall pay the costs of suit.

G.R. No. 180492 March 13, 2009

ELPIDIO B. VALINO, Petitioner,

vs.
ALVIN P. VERGARA, TOMAS N. JOSON III, RAUL P. MENDOZA, ATTY. HAROLD A. RAMOS, et
al.,*Respondents.

RESOLUTION

NACHURA, J.:

Before this Court is a Petition1 for Certiorari under Rule 65 of the Rules of Civil Procedure, seeking the annulment of
(a) the June 28, 2007 Resolution No. 82122 or the Omnibus Resolution on Pending Cases issued by the
Commission on Elections (COMELEC) en banc (Resolution No. 8212) and (b) the October 18, 2007 Order3 of the
COMELEC Second Division (assailed Order).

The Facts

In the May 14, 2007 national and local elections, petitioner Elpidio B. Valino (petitioner), together with respondents
Alvin P. Vergara (Vergara), Tomas N. Joson III (Joson) and Raul P. Mendoza (Mendoza) (respondents), vied for the
local position of mayor in Cabanatuan City, Nueva Ecija (the City).4 During the campaign period, petitioner
complained about the illegal display and installation of campaign posters, streamers and other materials in all polling
places, streets and highways of the City by local and national candidates. On May 8, 2007, petitioner wrote
respondent Atty. Harold Ramos (Atty. Ramos), Election Officer of the COMELEC-Cabanatuan, about these
violations and reminded the latter of his duty to remove illegal campaign materials and to impose sanctions on the
erring candidates.5 Petitioner also wrote Police Superintendent Eliseo D.C. Cruz (P/Supt. Cruz), City Chief of Police,
on May 11, 2007, reiterating his complaint and demanding that the clean-up drive against illegal campaign materials
be continuously implemented up to May 14, 2007.6 On May 13 and 14, 2007, petitioner took pictures of several
polling places showing the violations committed by respondents and other candidates.7 No action was taken by
anyone to remove the illegal campaign materials.

After the elections, Vergara won and was proclaimed City Mayor.8 On May 25, 2007, petitioner filed with the
COMELEC a Petition9 for Violation of Republic Act (R.A.) No. 9006, otherwise known as the Fair Election Act,
against respondents, docketed as Special Case (SPC) No. 07-152 (SPC 07-152). The petition sought the
cancellation of the proclamation of respondent Vergara and the other elected city officials, and enjoined them from
exercising their respective duties as elected city officials, for having intentionally caused the installation of illegal
campaign materials outside the authorized common poster areas in violation of the law. The case was raffled to the
COMELEC Second Division. 1aw phil.zw+

On June 28, 2007, the COMELEC en banc issued Resolution No. 8212 pursuant to Section 16 of R.A. No.
7166,10and SPC No. 07-152 was not included in the list of pre-proclamation cases that shall remain active after June
30, 2007. Petitioner alleged that he came to know of Resolution No. 8212 from the newspaper, Manila
Bulletin,11published on July 9, 2007, with its headline "Hundreds of Poll Cases Dismissed" by the COMELEC.
Petitioner also alleged that he personally received a photocopy of the Resolution on July 16, 2007, and was advised
that SPC 07-152 was already dismissed by the COMELEC Second Division.12 lawphil.net

Aggrieved, petitioner, on July 18, 2007, without the assistance of counsel, filed a Motion for
Reconsideration13praying that SPC 07-152 be included in the list of active cases, and the proceedings therein
continue beyond June 30, 2007. Petitioner asseverated that he filed the Motion with the COMELEC en banc through
its Second Division, claiming that only the COMELEC en banc, which issued Resolution No. 8212, had the
jurisdiction to resolve his Motion. Petitioner, however, received no reply from the COMELEC en banc. Subsequently,
on August 21, 2007 and October 4, 2007, petitioner filed a Manifestation and Motion,14 and an Urgent Omnibus
Motion,15 respectively, reiterating his Motion for Reconsideration, but no immediate reply came from the COMELEC.

On October 18, 2007, the COMELEC Second Division issued the assailed Order, forwarding to the Clerk of the
COMELEC the original case folder of SPC 07-152, being a pre-proclamation case considered not to have survived
pursuant to Resolution No. 8212. Petitioner averred that he received a copy of the assailed Order on November 13,
2007.16 Hence, on November 28, 2007, petitioner filed the instant petition before this Court, assigning the following
errors:

1. Violation of the due process clause of the Constitution;

2. Failure of the COMELEC to follow the prescribed laws regarding cases of disqualification and hearing
thereof;

3. The complaint filed by the Petitioner is not among those considered pre-proclamation cases dismissed by
the COMELEC; and

4. The COMELEC as the leading Constitutional Body tasked to implement Election Laws but which [was] not
followed by its authorized representatives in Cabanatuan City, Province of Nueva Ecija.17

Petitioner argues that he was denied due process because no initial hearing or preliminary investigation was
conducted on his petition to determine the guilt of respondents for violation of election laws. Petitioner adds that
Resolution No. 8212 was issued only to accommodate and meet the deadline for the proclamation of duly elected
officials at the expense of due process; and of honest, fair and credible elections. Moreover, petitioner alleges that
Atty. Ramos and respondents conspired to circumvent the law in favor of Vergara by being silent about the
complaint of petitioner. Lastly, petitioner manifests that Atty. Ramos, in dereliction of duty and with gross negligence,
succumbed to the pressures, whims and caprices of respondents; and failed to conduct a summary hearing to
resolve the complaint, without giving a formal notice to any of respondents and ordering the removal of their
respective illegal campaign materials.18

Only respondents Vergara and the COMELEC, through the Office of the Solicitor General (OSG), filed their
comments and, subsequently, their respective memoranda. In our Resolution of February 24, 2009, we dispensed
with the other respondents’ memoranda.

Vergara claims that he was not charged with an election offense; that Atty. Ramos and P/Supt. Cruz did not send
any notice to him requiring him to remove the alleged offending campaign materials; and that he was not aware at
all of their existence. Vergara submits that the instant petition is insufficient in form and substance; hence, it ought to
be dismissed.19

The COMELEC, through the OSG, reiterates the rule that a decision, order or resolution issued by a division of the
COMELEC must be elevated first to the COMELEC en banc via a motion for reconsideration, and it is the final
decision of the COMELEC en banc that can be brought to the Supreme Court on certiorari pursuant to Section
7,20Article IX-A of the 1987 Constitution; that petitioner does not dispute his failure to elevate the assailed Order of
the COMELEC Second Division to the COMELEC en banc; and that this Court has no power to review via certiorari
an interlocutory order or even a final resolution of a division of the COMELEC. The OSG postulates that a motion for
reconsideration is the plain and adequate remedy under the law and, thus, the failure of petitioner to comply with
this mandatory procedural requirement constitutes a ground for the dismissal of the instant petition.21

Our Ruling

The instant petition is bereft of merit.

We acknowledge that Resolution No. 8212 is an issuance in the exercise of the COMELEC's adjudicatory or quasi-
judicial function pursuant to the second paragraph of Section 1622 of R.A. No. 7166. The determination by the
COMELEC of the merits of a pre-proclamation case definitely involves the exercise of adjudicatory powers, wherein
the COMELEC examines and weighs the parties' pieces of evidence vis-à-vis their respective arguments, and
considers whether, on the basis of the evidence thus far presented, the case appears to have merit. Where a power
rests in judgment or discretion, so that the exercise thereof is of judicial nature or character, but does not involve the
exercise of functions of a judge, or is conferred upon an officer other than a judicial officer, it is deemed quasi-
judicial.23

Petitioner’s pre-proclamation case was not in the list annexed to Resolution No. 8212. Simply put, the COMELEC en
banc, in Resolution No. 8212, found petitioner’s case unmeritorious and, thus, excluded it from the list of cases that
would remain active beyond June 30, 2007. Accordingly, petitioner could no longer expect any favorable ruling from
the COMELEC en banc. The appropriate recourse of petitioner should have been a petition for certiorari filed before
this Court within thirty (30) days from notice of Resolution No. 8212, pursuant to Sections 224 and 3,25 Rule 64 in
connection with Rule 65 of the Rules of Civil Procedure. However, petitioner failed to do so and, instead, filed a
motion for reconsideration addressed to the COMELEC en banc through its Second Division. The failure of the
petitioner to seasonably undertake the proper recourse before this Court is fatal to his cause.

The filing of his Motion for Reconsideration is of no moment. Section 1(d), Rule 13 of the 1993 COMELEC Rules of
Procedure categorically prohibits a motion to reconsider a resolution of the COMELEC en banc except in cases
involving election offenses. As held in Bautista v. COMELEC:26

We hold that petitioner acted correctly in filing the present petition because the resolution of the COMELEC in
question is not subject to reconsideration and, therefore, any party who disagreed with it only had one recourse, and
that was to file a petition for certiorari under Rule 65 of the Rules of Civil Procedure. Rule 13, §1 of the COMELEC
Rules of Procedure provides:

What Pleadings are Not Allowed. — The following pleadings are not allowed:

xxxx

d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases;

xxxx

As the case before the COMELEC did not involve an election offense, reconsideration of the COMELEC resolution
was not possible and petitioner had no appeal or any plain, speedy, and adequate remedy in the ordinary course of
law. For him to wait until the COMELEC denied his motion would be to allow the reglementary period for filing a
petition for certiorari with this Court to run and expire.27

Time and again, we held that rules of procedure exist for a noble purpose, and to disregard such rules, in the guise
of liberal construction, would be to defeat such purpose. Procedural rules are not to be disdained as mere
technicalities. They may not be ignored to suit the convenience of a party. Adjective law ensures the effective
enforcement of substantive rights through the orderly and speedy administration of justice. Rules are not intended to
hamper litigants or complicate litigation; they help provide a vital system of justice where suitors may be heard
following judicial procedure and in the correct forum. Public order and our system of justice are well served by a
conscientious observance by the parties of the procedural rules.28 We see no cogent reason why we should exempt
petitioner’s case from this doctrine.

Based on the foregoing disquisitions, Resolution No. 8212, with respect to petitioner, had already become final and
executory and, therefore, beyond the purview of this Court to act upon.29
Ostensibly, petitioner’s case before the COMELEC-Cabanatuan was a complaint against the respondents for
installing illegal campaign materials outside the common poster areas and near the polling places, which is
technically an election offense. When Atty. Ramos of the COMELEC-Cabanatuan and P/Supt. Cruz allegedly failed
to act on the matter, petitioner went to the COMELEC. We observe, however, that petitioner, from the start, failed to
avail himself of the proper procedure. Rule 3430 of the 1993 COMELEC Rules of Procedure clearly lays down the
legal steps in the prosecution of election offenses. In Laurel v. Presiding Judge, RTC-Manila, Br. 10,31 we applied
the aforementioned rule. For purposes of clarity, we enumerate the lapses of petitioner, who, perhaps due to the
lack of assistance of a lawyer, failed to follow the rules.

First, when petitioner reported to Atty. Ramos and to P/Supt. Cruz the alleged illegally posted campaign materials,
his respective letter-complaints to them were unverified and the same appeared not to have been supported by
affidavits and other evidence as required by the COMELEC Rules.

Second, when the complaint was not acted upon by Atty. Ramos and P/Supt. Cruz, petitioner did not file a verified
complaint with the COMELEC Law Department.

Third, in his petition filed with the COMELEC, petitioner sought the annulment of the proclamation of all respondents
instead of asking for a preliminary investigation and the eventual prosecution of said election offense. It is obvious
that because of the relief sought, the COMELEC treated petitioner’s case as a pre-proclamation controversy when,
as to law,32 the grounds relied upon were not at all proper grounds thereof.

Thus, since his petition was in the nature of a pre-proclamation contest not anchored on the exclusive issues that
may be raised in a pre-proclamation contest under Section 243 of the Omnibus Election Code, the COMELEC
properly dismissed the same by not including it in the list of cases that would remain active beyond June 30, 2007.

Well-entrenched in this jurisdiction is the principle that the office of a petition for certiorari is not the correction of
simple errors of judgment but capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or
arbitrary and despotic exercise of power because of passion or personal hostility.33 In this regard, the COMELEC did
not commit grave abuse of discretion in treating petitioner’s case as a pre-proclamation controversy and in excluding
the same, due to lack of merit, from the list annexed to Resolution No. 8212. This is consistent with the policy that
pre-proclamation controversies should be summarily decided, consonant with the law's desire that the canvass and
proclamation be delayed as little as possible.34 In the present case, the petition does not, in fact, ascribe grave
abuse of discretion nor does it sufficiently show that the COMELEC gravely abused its discretion in excluding his
case from the list of those that shall continue. Apart from petitioner's bare allegations, the record is bereft of any
evidence to prove that petitioner's pre-proclamation case appears meritorious and warrants the annulment of the
proclamation of Vergara as elected mayor of the city and of other respondents who were likewise elected and
proclaimed but were not impleaded herein with particularity.

However, as a Court of justice and equity, we cannot simply brush aside Atty. Ramos’ failure to exercise his duty
under Section 4(c), Rule 34 of the 1993 COMELEC Rules of Procedure. Atty. Ramos apparently failed to furnish the
Director of the COMELEC Law Department a copy of petitioner’s complaint, as required in Section 4(b), Rule 34 of
the COMELEC Rules of Procedure. He should be made to explain why he ignored the complaint and breached the
COMELEC Rules of Procedure. As to the petitioner, considering that election offenses prescribe in four (4) years, he
may still file or revive his complaint, following COMELEC rules.

On the assailed Order, dated October 18, 2007, of the COMELEC Second Division, it is well to note that it did not
dismiss petitioner’s case. It merely forwarded the original case folder to the Clerk of the COMELEC. As already
mentioned, what actually dismissed petitioner’s case was Resolution No. 8212 issued by the COMELEC en banc.
Inasmuch as one of the duties of the Clerk of the COMELEC is to keep and secure all records, papers, files,
exhibits, the office seal and other public property committed to his charge,35 no grave abuse of discretion may be
imputed to the COMELEC Second Division when it issued the assailed Order because the same merely directed
that the original case folder of petitioner’s case be forwarded to the Clerk of the COMELEC — an act administrative
in nature which does not involve an exercise of discretion.

In light of the foregoing discussion, the instant petition has no leg to stand on.

Admittedly, the advent of COMELEC Resolution No. 8212 caused a measure of confusion among party litigants and
even among lawyers. This is the reason why, in Patalinghug v. Commission on Elections,36 we took the opportunity,
for the guidance of the members of the bench and bar, to set the following guidelines:

First, if a pre-proclamation case is excluded from the list of those (annexed to the Omnibus Resolution on Pending
Cases) that shall continue after the beginning of the term of the office involved, the remedy of the aggrieved party is
to timely file a certiorari petition assailing the Omnibus Resolution before the Court under Rules 64 and 65,
regardless of whether a COMELEC division is yet to issue a definitive ruling in the main case or the COMELEC en
banc is yet to act on a motion for reconsideration filed if there is any.

It follows that if the resolution on the motion for reconsideration by the banc precedes the exclusion of the said case
from the list, what should be brought before the Court on certiorari is the decision resolving the motion.

Second, if a pre-proclamation case is dismissed by a COMELEC division and, on the same date of dismissal
or within the period to file a motion for reconsideration, the COMELEC en banc excluded the said case from
the list annexed to the Omnibus Resolution, the remedy of the aggrieved party is also to timely file a certiorari
petition assailing the Omnibus Resolution before the Court under Rules 64 and 65. The aggrieved party need no
longer file a motion for reconsideration of the division ruling.

The rationale for this is that the exclusion by the COMELEC en banc of a pre-proclamation case from the list of
those that shall continue is already deemed a final dismissal of that case not only by the division but also by the
COMELEC en banc. As already explained earlier, the aggrieved party can no longer expect any favorable ruling
from the COMELEC. 1avv phi 1.net

And third, if a pre-proclamation case is dismissed by a COMELEC division but, on the same date of
dismissal or within the period to file a motion for reconsideration, the COMELEC en banc included the case
in the list annexed to the Omnibus Resolution, the remedy of the aggrieved party is to timely file a motion for
reconsideration with the COMELEC en banc. The reason for this is that the challenge to the ruling of the COMELEC
division will have to be resolved definitively by the entire body.37

These guidelines – and Section 16, R.A. No. 7166 – notwithstanding, we are constrained to express the view that
the COMELEC should rule on pre-proclamation cases individually, even if the ruling is simply couched in a minute
resolution. This will dispel qualms about lack of adequate notice to party litigants, and obviate the confusion that
generally results from the issuance of omnibus resolutions. In all, such a practice would be consistent with the
constitutional principle of transparency, and lend itself to greater public confidence in our electoral system.

In the case at bar, the petitioner may have been equally confused on the remedies available to him vis-à-vis
Resolution No. 8212. We do not fault him for this, but we nonetheless dismiss his petition because we find no grave
abuse of discretion in the assailed COMELEC Resolution and Order.

WHEREFORE, the instant petition is DISMISSED. No costs.

SO ORDERED.
G.R. No. 181295 April 2, 2009

HARLIN CASTILLO ABAYON, Petitioner,

vs.
COMMISSION ON ELECTIONS and RAUL A. DAZA, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Certiorari and Prohibition under Rule 65 of the Revised Rules of Court seeking to set aside the
Resolution1 dated 28 January 2008 of the Commission on Elections (COMELEC) en banc in EPC No. 2007-62,
which affirmed the Order dated 8 October 2007 of the COMELEC First Division2 dismissing the election protest of
petitioner Harlin Castillo Abayon (Abayon) for having been filed out of time.

Abayon and respondent Raul Daza (Daza) were candidates for the Office of Governor of the Province of Nothern
Samar during the 14 May 2007 elections.3

On 19 May 2007, Abayon filed a pre-proclamation protest before the Provincial Board of Canvassers (PBoC) of
Northern Samar, docketed as SPC No. 07-037, entitled, "IN THE MATTER OF THE PETITION TO EXCLUDE THE
CERTIFICATE[S] OF CANVASS (COC) OF THE MUNICIPALITIES OF CAPUL, ROSARIO AND BOBON—ALL IN
THE PROVINCE OF NORTHERN SAMAR WHICH WERE PREPARED UNDER DURESS, THREATS AND
INTIMIDATION."4

On 20 May 2007, Daza was proclaimed as the winning candidate having garnered a total of 101,819 votes against
Abayon’s 98,351 votes, winning by a margin of 3,468 votes.5

On 21 May 2007, Abayon filed with the COMELEC SPC NO. 07-069, entitled, "PETITION TO EXCLUDE
CERTIFICATE OF CANVAS (COC) OF MUNICIPALITY OF CATUBIG, NORTHERN SAMAR WHICH WAS
PREPARED UNDER DURESS, THREATS, COERCION OR INTIMIDATION."6

On the same day, Abayon filed with the COMELEC two other petitions, "IN THE MATTER OF PETITION TO
DECLARE THE PROCLAMATION OF PRIVATE RESPONDENT [Daza] AS WINNING CANDIDATE FOR THE
POSITION OF GOVERNOR OF NORTHERN SAMAR NULL AND VOID," docketed as SPC No. 07-070, and "IN
THE MATTER OF THE PETITION FOR DECLARATION OF FAILURE OF ELECTIONS IN THE MUNICIPALITIES
OF CAPUL, ROSARIO AND BOBON, ALL OF NORTHERN SAMAR," docketed as SPA No. 07-460.7

On 24 May 2007, Abayon filed with the COMELEC a fifth petition, "IN THE MATTER OF THE PETITION TO
DECLARE FAILURE OF ELECTION IN THE MUNICIPALITY OF CATUBIG, NORTHERN SAMAR, AND FOR THE
HOLDING OF SPECIAL ELECTIONS THEREOF," docketed as SPC No. 07-484.8

On 29 June 2007, Abayon filed with the COMELEC a Petition of Protest, docketed as EPC No. 2007-62, contesting
the election and proclamation of Daza as Governor of Northern Samar.9

Of Abayon’s numerous petitions, three were denied or dismissed. SPC No. 07-069, Abayon’s petition to exclude
from canvass the COC of Catubig, Northern Samar, was denied by the COMELEC Second Division in a Resolution
dated 2 July 2007.10 SPC No. 07-484, Abayon’s petition for the declaration of a failure of election in the Municipality
of Catubig, Northern Samar, and for the holding of special elections therein, was dismissed by the COMELEC en
banc in a Resolution dated 9 July 2007.11 SPA No. 07-460, Abayon’s petition for the declaration of failure of
elections in the Municipalities of Capul, Rosario and Bobon, in Northern Samar, was also dismissed by the
COMELEC en banc in a Resolution dated 29 January 2008. 12
Abayon was similarly unsuccessful in EPC No. 2007-62, his Petition of Protest. On 8 October 2007, the COMELEC
First Division issued its Order13 dismissing Abayon’s election protest for having been filed out of time. Under Section
250 of the Omnibus Election Code,14 an election protest should be filed within 10 days from the date of the
proclamation of the results of the election. Since Daza was proclaimed on 20 May 2007, Abayon had only until 30
May 2007 to file his election protest. However, he filed his election protest only on 29 June 2007. The COMELEC
referred to the case of Villamor v. Comelec,15 when it declared that in order for a petition for annulment of
proclamation to suspend the period for filing of election protest, it should be based on a valid pre-proclamation
issue. In applying this ruling, it decreed that the pendency of SPC No. 07-070, Abayon’s petition for annulment of
Daza’s proclamation, did not toll the running of the ten-day period for filing an election protest. SPC No. 07-070 was
based on SPC No. 07-037, Abayon’s earlier petition for the exclusion from canvass of the COCs from the
Municipalities of Capul, Rosario and Bobon, Norther Samar, since they were prepared under duress, threats, and
coercion or intimidation, grounds which do not involve proper pre-proclamation issues. The COMELEC, thus,
decreed in its Order dated 8 October 2007 that:

WHEREFORE, premises considered, the instant election protest is hereby DISMISSED for having been filed out of
time.16

On 10 October 2007, Abayon filed before the COMELEC en banc a Motion for Reconsideration17 of the Order dated
8 October 2007 of the COMELEC First Division in EPC No. 2007-62.

The COMELEC en banc denied Abayon’s Motion for Reconsideration in a Resolution18 dated 28 January 2008. It
affirmed that the election protest in EPC No. 2007-62 was belatedly filed. The COMELEC en banc maintained that
SPC No. 07-037 seeking the exclusion from canvass of the COCs from three municipalities of Northern Samar was
based on grounds that were not proper for a pre-proclamation controversy. SPC No. 07-037 lacked merit and could
not have rendered Daza’s proclamation void. Consequently, SPC No. 07-070 – in which Abayon challenged Daza’s
proclamation on the basis that it was made counting the votes in the COCs sought to be excluded in SPC No. 07-
037 – was without merit. The suspension of the ten-day period for filing an election protest was intended to ensure
that the losing candidate who filed a pre-proclamation case retains the right to avail himself of an election protest.
This rationale presupposes that there is a valid pre-proclamation controversy; otherwise, such rationale would be
defeated if the ten-day suspension period is applied to a pre-proclamation contest so manifestly baseless that it
cannot prosper. The COMELEC then ruled that:

WHEREFORE, premises considered, the Commission RESOLVES, as it hereby RESOLVED, to DENY the instant
Motion for Reconsideration. The Resolution of the Commission (First Division) ordering the dismissal of the case for
having been filed out of time is hereby AFFIRMED.19

On 5 February 2003, Abayon sought remedy from this Court via the present Petition for Certiorari and Prohibition
under Rule 65 of the Revised Rules of Court, on the basis of the following arguments:

VILLAMOR VS. COMELEC APPLIES ONLY TO THE SPECIFIC INSTANCE WHERE THE BASIS FOR THE
ANNULMENT OF PROCLAMATION IS BY ITS VERY NATURE COULD NOT BE A GROUND FOR THE
ANNULMENT OF PROCLAMATION, LIKE THE ILLEGAL COMPOSITION OF THE BOARD;

II

VILLAMOR VS. COMELEC IS AN EXCEPTION TO THE GENERAL RULE THAT (sic) UNDER SECTION 248 OF
THE OMNIBUS ELECTION CODE; HENCE IT SHOULD BE CONSTRUED STRICTLY; AND

III
THE PROTEST IS SUFFICIENT IN FORM AND SUBSTANCE; HENCE, THE PUBLIC INTEREST INVOLVED IN
DETERMINING THE TRUE WINNER IN THE ELECTION SHOULD BE PARAMOUNT OVER THE TECHNICAL
OBJECTIONS.20

The Court identifies the two main issues in this case to be as follows: (1) whether the mere filing of a pre-
proclamation case, regardless of the issues raised therein, suspends the ten-day period for the filing of an election
protest; and (2) if the answer to the first issue is in the negative, whether the election protest which is untimely filed
may still be considered by the COMELEC.

Section 250 of the Omnibus Election Code fixes the period within which to file an election contest for provincial
offices at ten days after the proclamation of the election results, to wit:

Section 250. Election contests for Batasang Pambansa, regional, provincial and city offices. - A sworn petition
contesting the election of any Member of the Batasang Pambansa or any regional, provincial and city official shall
be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for
the same office, within ten days after the proclamation of the results of the election.

However, this ten-day period may be suspended, as Section 248 of the Omnibus Election Law provides:

Section 248. Effect of filing petition to annul or to suspend the proclamation.-- The filing with the Commission of a
petition to annul or to suspend the proclamation of any candidate shall suspend the running of the period within
which to file an election protest or quo warranto proceedings.

In Dagloc v. Commission on Elections,21 this Court clarified that the "petition to annul or to suspend the
proclamation," which Section 248 refers to, and which suspends the running of the period within which to file the
election protest or quo warranto proceedings, must be a pre-proclamation controversy. The Court, thus, decreed
in the same case that a petition for the declaration of failure of election was not a pre-proclamation controversy and,
therefore, did not suspend the running of the reglementary period within which to file an election protest or quo
warranto proceedings.

In this case, it is worthy to reiterate that on 20 May 2007, Daza was already proclaimed the winning candidate for
the Office of Governor of the Province of Nothern Samar in the 14 May 2007 elections. Abayon had until 30 May
2007 to file his election protest. Yet, he filed EPC No. 2007-62, his Petition of Protest only on 29 June 2007, or
almost 40 days after Daza’s proclamation.

The Court scrutinized the petitions filed by Abayon in the present case to determine if any of them suspended the
ten-day period for the filing of an election protest.

SPA No. 07-460 and SPA No. 07-484, which are petitions for the declaration of failure of elections in the
Municipalities of Capul, Rosario, Bolon, and Catubig, Northern Samar, cannot suspend the ten-day period for filing
an election protest, per the ruling of the Court in Dagloc. Abayon also readily admits that SPC No. 07-069, a petition
for the exclusion from canvass of the COC from the Municipality of Catubig, had been previously resolved and
denied by the COMELEC.22

Abayon, however, maintains that SPC No. 07-037, a petition for the exclusion from canvass of the COCs from the
Municipalities of Capul, Rosario, and Bobon, Northern Samar; and SPC No. 07-070, a petition to annul the
proclamation of Daza, both effectively suspended the running of the period to file EPC No. 2007-62, his election
protest. As regards particularly SPC No. 07-037, Abayon asserts that it is a pre-proclamation case.

Abayon’s position is untenable.

Jurisprudence makes it clear that the mere filing of a petition denominated as a pre-proclamation case or one
seeking the annulment of a proclamation will not suspend the ten-day period for filing an election protest. It is
required that the issues raised in such a petition be restricted to those that may be properly included therein.

The Court pronounced in Dagloc,23 and quoted in Villamor v. Commission on Elections,24 that:

Not all actions seeking the annulment of proclamation suspend the running of the period for filing an election protest
or a petition for quo warranto. For it is not the relief prayed for which distinguishes actions under [Section] 248 from
an election protest or quo warranto proceedings, but the grounds on which they are based. (Emphasis ours.)

The grounds that must support a pre-proclamation controversy are limited by the Omnibus Election Code to the
following:

Section 243. Issues that may be raised in pre-proclamation controversy.—The following shall be proper issues that
may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or
falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in
Sections 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously
manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which
materially affected the standing of the aggrieved candidate or candidates.

The enumeration is restrictive and exclusive. Thus, in the absence of any clear showing or proof that the election
returns canvassed are incomplete or contain material defects; appear to have been tampered with, falsified or
prepared under duress; and/or contain discrepancies in the votes credited to any candidate, which would affect the
result of the election, a petition cannot be properly considered as a pre-proclamation controversy. 25

The purpose of a pre-proclamation controversy is to ascertain the winner or winners in the election on the basis of
the election returns duly authenticated by the board of inspectors and admitted by the board of canvassers. It is a
well-entrenched rule that the Board of Canvassers and the COMELEC are not to look beyond or behind electoral
returns. A pre-proclamation controversy is summary in nature. It is the policy of the election law that pre-
proclamation controversies be summarily decided, consistent with the law’s desire that the canvass and
proclamation be delayed as little as possible. There is no room for the presentation of evidence aliunde, the
inspection of voluminous documents, and for meticulous technical examination. That is why such questions as those
involving the appreciation of votes and the conduct of the campaign and balloting, which require more deliberate
and necessarily longer consideration, are left for examination in the corresponding election protest.26

The COMELEC First Division herein found, and Abayon never disputed before the COMELEC or this Court,
that SPC No. 07-037, his petition for exclusion from canvass of the COCs from three municipalities in Northern
Samar, was based on the grounds quoted hereunder:

[T]he petition for annulment of proclamation was based on an unresolved petition for exclusion from the canvass of
three certificates of canvass on the ground that they were allegedly prepared under duress, threats, coercion or
intimidation as shown by the following circumstances:
 1. a voter was forcibly taken by members of the Philippine Army;

2. a political leader was killed;

3. threats which prevented the holding of campaign sorties or rallies;

4. vote buying; threats and intimidation on voters;

5. alleged missing certificate of canvass; and

6. a wife of a BEI member was seen going in and out of the polling precinct under suspicious
circumstances. 27

None of the aforementioned circumstances fall under the enumeration of issues that may be raised in a pre-
proclamation controversy. Abayon acknowledges that SPC No. 07-037 does not involve the illegal composition of
the board of canvassers.28 Not any of these circumstances involves defects or irregularities apparent from the
physical examination of the election returns. The alleged abduction of a voter, the killing of a political leader, the
threats which prevented the holding of the campaign sorties, and the intimidation of voters, are acts of terrorism
which are properly the subject of an election protest, but not of a pre-proclamation controversy. Precisely,
in Dipatuan v. Commission on Elections,29 the Court held that massive vote-buying, like the allegation of bribery
evidenced by the suspicious presence of the wife of a Board of Election Inspectors (BEI) member, was a proper
ground for an election protest, but not for a pre-proclamation controversy.

Since SPC No. 07-037 did not qualify as a pre-proclamation controversy, it could not have suspended the ten-day
statutory period for the filing of an election protest.

Bereft of any legal basis, SPC No. 07-070, Abayon’s petition to annul the proclamation of Daza, likewise, could not
have suspended the period for the filing of an election protest. In SPC No. 07-070, Abayon questioned the validity of
"the proclamation of [Daza] despite the pendency of a pre-proclamation controversy, SPC No. 07-037, which
questioned the inclusion of three municipal certificates of canvass."30 Abayon posited that Daza’s proclamation
was void under Section 20(i) of Republic Act No. 7166, hereunder reproduced:

Section 20. Procedure in Disposition of Contested Election Returns.

xxxx

(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after
the latter has ruled on the object brought to it on appeal by the losing party. Any proclamation made in violation
hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.

To begin with, as this Court already ruled herein, SPC No. 07-037 was not a pre-proclamation case that should
defer the proclamation of Daza during its pendency.

More importantly, the procedure under Section 20 of Republic Act No. 7166 applies only to valid pre-proclamation
contests. The first part of Section 20, particularly paragraph (a), actually states that:

Section 20. Procedure in Disposition of Contested Election Returns.

a) Any candidate, political party or coalition of political parties contesting the inclusion or exclusion in the canvass of
any election returns on any of the grounds authorized under Article XX or Sections 234, 235 and 236 of Article XIX
of the Omnibus Election Code shall submit their oral objection to the chairman of the board of canvassers at the
time the questioned return is presented for inclusion in the canvass. Such objection shall be recorded in the minutes
of the canvass. [Emphasis ours.]

It bears to point out that under Section 20(a) of Republic Act No. 7166, election returns may be contested on any of
the grounds recognized under Article XX, and Sections 234, 235, and 236 of the Omnibus Election Code. Sections
234, 235, and 236 of the Omnibus Election Code are the very same grounds for a pre-proclamation controversy
recognized under Section 243(b) of the Omnibus Election Code, which reads: "The canvassed election returns are
incomplete, contain material defects, appear tampered with or falsified, or contain discrepancies in the same returns
or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236." On the other hand, Article XX
entitled "Pre-Proclamation Controversies" is unequivocal about the kind of petition discussed therein. Section 20 (i)
of Republic Act No. 7166 is part of the procedure undergone by a valid pre-proclamation contest. Hence, Abayon
cannot seek the annulment of Daza’s proclamation, where no valid pre-proclamation contest was filed.

SPC No. 07-070 sought the annulment of Daza’s proclamation and was necessarily filed after the said proclamation.
Clearly it is not a pre-proclamation case. Moreover, it is based on a legally implausible ground--the COMELEC’s
failure to resolve SPC No. 07-037. Under Section 16 of Republic Act No. 7166,31 pre-proclamation cases which are
unresolved at the beginning of the term of the winning candidate are automatically terminated. The COMELEC is not
obligated to resolve each and every pre-proclamation case. Since SPC No. 07-070 is apparently not a pre-
proclamation contest and it is based on a legal argument which contradicts the law, this Court cannot possibly
accord it the effect of suspending the statutory period for the filing of an election protest.

To reiterate, the circumstances pointed out by Abayon in SPC No. 07-037 are proper grounds for an election
protest, not a pre-proclamation controversy. In fact, had Abayon timely filed an election protest, bearing the same
allegations and raising identical issues, it would have been given due course. Instead, Abayon repeatedly insisted
on pursuing remedies which were not available to him given, the circumstances alleged in his petitions.

Abayon’s assertion that Villamor v. Commission on Elections32 should not be applied to his case, because of the
difference in the factual backgrounds of the two cases, is unconvincing. In Villamor, the petition to annul the
proclamation was based on the purported illegal composition of the municipal board of canvassers, a fact that could
have constituted a pre-proclamation controversy. However, since the petition therein was belatedly filed, after the
proclamation of the winning candidate, the Court ruled that it still could not suspend the period for filing an election
protest. Even the factual background in Dagloc is not on all fours with the present case, for it involved a petition for
the declaration of failure of elections, which was adjudged not to be a pre-proclamation case. In the case presently
before this Court, Abayon argues that the period for filing his election protest was suspended by his previous filing of
SPC No. 07-037, a petition to exclude from canvass the COCs from three municipalities of Northern Samar; and
SPC No. 07-070, a petition to annul Daza’s proclamation.

Despite the aforementioned differences between the facts of Villamor and Dagloc vis-à-vis the case at bar, the Court
finds the same to be actually irrelevant, and should not detract this Court from applying the wisdom of its ruling in its
two decided cases to the one at bar. It is clear from Villamor and Dagloc that, as provided under Section 248 of the
Omnibus Election Code, the period within which an election protest must be filed could only be suspended upon the
filing of a pre-proclamation case based on any of the grounds enumerated under Section 243 of the same Code.
Petitions based upon grounds other than those so identified under Section 243, even if they seek to annul the
proclamation, will not suspend the period for filing the election protest.

Section 248 of the Omnibus Election Code, allowing a pre-proclamation case to suspend the period for filing the
election protest, was clearly intended to afford the protestant the opportunity to avail himself of a remedy to its fullest
extent; in other words, to have his pre-proclamation case resolved, without the pressure of having to abandon it in
order to avail himself of other remedies. It protects the right of the protestant to still file later on an election protest
on grounds that he could not raise in, or only became apparent after his filing of, a pre-proclamation case. Section
248 is not to be used as a justification for the irresponsible filing of petitions, which on their face are contrary to the
provisions of election laws and regulations, and which only serve to delay the filing of proper remedies and clog the
dockets of the COMELEC and the courts. 1avvphi 1

The processes of the adjudication of election disputes should not be abused. By their very nature and given the
public interest involved in the determination of the results of an election, the controversies arising from the canvass
must be resolved speedily; otherwise, the will of the electorate would be frustrated. And the delay brought about by
the means resorted to by petitioner is precisely the very evil sought to be prevented by election laws and the
relevant jurisprudence.33

It bears enucleation that the rule prescribing the ten-day period for the filing of an election protest is mandatory and
jurisdictional; and the filing of an election protest beyond the period deprives the court of jurisdiction over the protest.
Violation of this rule should not be taken lightly, nor should it be brushed aside as a mere procedural lapse that can
be overlooked. This is not a mere technicality but an essential requirement, the non-compliance with which would
oust the court of jurisdiction over the case.34

The cases cited by Abayon in support of his present Petition are not in point. Saquilayan v. Commission on
Elections35 does not involve delay in filing an election protest, but rather the wrongful manner in which the
allegations were made in the protest. Respondent therein filed an election protest, which failed to specifically
mention the precincts where widespread election fraud and irregularities supposedly occurred, as well as where and
how these occurrences took place. The Court, nevertheless, allowed the election protest to proceed, taking into
account the then recent case Miguel v. Commission on Elections,36 which was also invoked by Abayon. Respondent
in Miguel filed a timely election protest, wherein he made general allegations of fraud and irregularities in the
conduct of the electoral exercise. Petitioner therein insisted that a "preliminary hearing" on the particulars of the
alleged fraud and irregularities must be conducted before the ballots were opened. The Court ruled in favor of the
respondent and held that the opening of the ballot boxes would ascertain, with the least amount of protracted delay,
the veracity of fraud and irregularities.

While there is merit in allowing an election protest to proceed in order to ascertain the allegations of massive fraud
and irregularities which tend to defeat the electorate’s will, one must also keep sight of jurisdictional requirements
such as the period within which to file the protest. Otherwise, election disputes would drag on, and the political
stability which the election rules seek to preserve will be vulnerable to challenges even beyond a reasonable period
of time. In this case, Abayon failed to give this Court a justification for the delay in filing his election protest, apart
from his reliance on the argument that the manifestly invalid pre-proclamation case he filed suspended the period for
the filing of his election protest.

In a special civil action for certiorari, the burden is on the part of the 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.37 In the present case, the COMELEC did not gravely abuse its discretion. Rather, it
decided the matter in accordance with the prevailing laws and jurisprudence. The conclusion of the COMELEC on a
matter decided within its competence is entitled to utmost respect.38

WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28 January 2008 of the COMELEC en
banc, affirming the Resolution dated 8 October 2007 of the COMELEC Second Division, is AFFIRMED.

The election protest filed by Abayon is DISMISSED for having been filed out of time. Costs against petitioner.

SO ORDERED.
G.R. No. L-49705-09 February 8, 1979

TOMATIC ARATUC, SERGIO TOCAO, CISCOLARIO DIAZ, FRED TAMULA, MANGONTAWAR GURO and
BONIFACIO LEGASPI, petitioners,
vs.
The COMMISSION ON ELECTIONS, REGIONAL BOARD OF CANVASSERS for Region XII (Central
Mindanao), ABDULLAH DIMAPORO, JESUS AMPARO, ANACLETO BADOY, et al., respondents.

Nos. L-49717-21 February 8,1979.

LINANG MANDANGAN, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE REGIONAL BOARD OF CANVASSERS for Region XII, and
ERNESTO ROLDAN, respondents.

L-49705-09 — Lino M. Patajo for petitioners.

Estanislao A. Fernandez for private respondents.

L-49717-21 — Estanislao A. Fernandez for petitioner.

Lino M. Patajo for private respondent.

Office of the Solicitor General, for Public respondents.

BARREDO, J.:

Petition in G. R. Nos. L-49705-09 for certiorari with restraining order and preliminary injunction filed by six (6)
independent candidates for representatives to tile Interim Batasang Pambansa who had joined together under the
banner of the Kunsensiya ng Bayan which, however, was not registered as a political party or group under the 1976
Election Code, P.D. No. 1296, namely Tomatic Aratuc, Sorgio Tocao, Ciscolario Diaz, Fred Tamula, Mangontawar
Guro and Bonifacio Legaspi her referred to as petitioners, to review the decision of the respondent Commission on
Election (Comelec) resolving their appeal from the Of the respondent Regional Board of Canvasses for Region XII
regarding the canvass of the results of the election in said region for representatives to the I.B.P. held on April 7,
1978. Similar petition in G.R. Nos. L49717-21, for certiorari with restraining order and preliminary injunction filed by
Linang Mandangan, abo a candidate for representative in the same election in that region, to review the decision of
the Comelec declaring respondent Ernesto Roldan as entitled to be proclaimed as one of the eight winners in said
election.

The instant proceedings are sequels of Our decision in G.R. No. L- 48097, wherein Tomatic Aratuc et al. sought the
suspension of the canvass then being undertaken by respondent dent Board in Cotabato city and in which canvass,
the returns in 1966 out of a total of 4,107 voting centers in the whole region had already been canvassed showing
partial results as follows:

NAMES OF NO. OF
CANDIDATES
VOTES

1. Roldan, 225,674
Ernesto (KB)
2. Valdez, 217,789
Estanislao
(KBL)

3. Dimporo, 199,244
Abdullah (KBL)

4. Tocao, 199,062
Sergio (KB)

5. Badoy, 198,966
Anacleto (KBL)

6. Amparo, 184,764
Jesus (KBL)

7. 183,646
Pangandaman,
Sambolayan
(KBL)

8. Sinsuat, 182,457
Datu Blah
(KBL)

9. Baga, 171,656
Tomas (KBL)

10. Aratuc, 165,795

Tomatic (KB)

11. 165,032
Mandangan,
Linang(KB)

12. Diaz, 159,977

Ciscolario (KB)

13. Tamalu, 153,734

Fred (KB)

14. Legaspi 148,200

Bonifacio (KB)

15. Guro, 139,386

Mangontawar
(KB)

16. Loma, 107,455

Nemesio (KB)

17. 101,350
Macapeges,
Malamama
 (Independent)

(Votes Of the independent candidates who actually were not in contention omitted)" (Page 6, Record, L-49705-09.)

A supervening panel headed by Commissioner of Elections, Hon- Venancio S. Duque, had conducted of the
complaints of the petitioners therein of alleged irregularities in the election records in all the voting centers in the
whole province of Lanao del Sur, the whole City of Marawi, eight (8) towns of Lanao del Norte, namely, Baloi,
Karomatan, Matungao, Munai, Nunungan, Pantao Ragat, Tagoloan and Tangcal, seven (7) towns in Maguindanao,
namely, Barrira, Datu Piang, Dinaig, Matanog Parang, South Upi and Upi, ten (10) towns in North Cotabato, namely,
Carmen, Kabacan, Kidapwan, Magpet, Matalam Midsayap, Pigcawayan, Pikit, Pres. Roxas and Tulonan, and
eleven (11) towns in Sultan Kudarat, namely, Bagumbayan, Columbia Don Mariano Marcos, Esperanza, Isulan,
Kalamansig, Lebak, Lutayan, Palimbang, President Quirino and Tacurong, by reason for which, petitioners had
asked that the returns from said voting centers be excluded from the canvass. Before the start of the hearings, the
canvass was suspended but after the supervisory panel presented its report, on May 15, 1978, the Comelec lifted its
order of suspension and directed the resumption of the canvass to be done in Manila. This order was the one
assailed in this Court. We issued a restraining order.

After hearing the parties, the Court allowed the resumption of the canvass but issued the following guidelines to be
observed thereat:

1. That the resumption of said canvass shall be held in the Comelec main office in Manila starting
not later than June 1, 1978;

2. That in preparation therefor, respondent Commission on Elections shall see to it that all the
material election paragraph corresponding to all the voting center involved in Election Nos. 78-8, 78-
9, 78-10, 78-11 and 78-12 are taken to its main office in Manila, more particularly, the ballot boxes,
with the contents, used during the said elections, the books of voters or records of voting and the
lists or records of registered voters, on or before May 31, 1978;

3. That as soon as the corresponding records are available, petitioners and their counsel shall be
allowed to examine the same under such security measures as the respondent Board may
determine, except the contents of the ballot boxes which shall be opened only upon orders of either
the respondent Board or respondent Commission, after the need therefor has become evident, the
purpose of such examination being to enable petitioners, and their counsel to expeditiously
determine which of them they would wish to be scrutinized and passed upon by the Board as
supporting their charges of election frauds and anomalies, petitioners and their counsel being
admonished in this connection, that no dilatory tactics should be in by them and that only such
records substantial objections should be offered by them for the scrutiny by the Board;

4. That none of the election returns reffered to in the petition herein shall be canvassed without first
giving the herein petitioners ample opportunity to make their specific objections thereto, if they have
any, and to show sufficient basis for the rejection of any of the returns, and, in this connection, the
respondent Regional Board of Canvassers should give due consideration to the points raised in the
memorandum filed by said petitioners with the Commission on Election in the above cases dated
April 26, 1978;

5. That should it appear to the board upon summary scrutiny of the records to be offered by
petitioners indication that in the voting center actually held and/or that election returns were prepared
either before the day of the election returns or at any other time, without regard thereto or that there
has been massive substitution of voters, or that ballots and/or returns were prepared by the same
 groups of persons or individuals or outside of the voting centers, the Board should exclude the
corresponding returns from the canvass;

6. That appeals to the commission on Election of the Board may be made only after all the returns in
question in all the above, the above five cases shall have been passed upon by the Board and,
accordingly, no proclamation made until after the Commission shall have finally resolved the appeal
without prejudice to recourse to this court, if warranted as provided by the Code and the
Constitution, giving the parties reasonable time therefor;

7. That the copies of the election returns found in the corresponding ballot boxes shall be the one
used in the canvass;

8. That the canvass shall be conducted with utmost dispatch, to the end that a proclamation, if
feasible, may be made not later than June 10, 1978; thus, the canvass may be terminated as soon
as it is evident that the possible number of votes in the still uncanvassed returns with no longer
affect the general results of the elections here in controversy;

9. That respondent Commission shall promulgate such other directive not inconsistent with this
resolution y necessary to expedite the proceedings herein contemplated and to accomplish the
purposes herein intended. (Pp. 8-9, Record.

On June 1, 1978, upon proper motion, said guidelines were modified:

... in the sense that the ballot boxes for the voting centers just referred to need not be taken to
Manila, EXCEPT those of the particular voting centers as to which the petitioners have the right to
demand that the corresponding ballot boxes be opened in order that the votes therein may be
counted because said ballots unlike the election returns, have not been tampered with or
substituted, which instances the results of the counting shall be specified and made known by
petitioners to the Regional Board of Canvassers not later than June 3, 1978; it being understood,
that for the purposes of the canvass, the petitioners shall not be allowed to invoke any objection not
already alleged in or comprehend within the allegations in their complaint in the election cases
above- mentioned. (Page 8, Id.)

Thus respondent Board proceeded with the canvass, with the herein petitioners presenting objections, most of them
supported by the report of handwriting and finger print experts who had examined the voting records and lists of
voters in 878 voting centers, out of 2,700 which they specified in their complaints or petitions in Election Cases 78-8,
78-9, 78-10, 78-11 and 7812 in the Comelec. In regard to 501 voting centers, the records cf. which, consisting of the
voters lists and voting records were not available- and could not be brought to Manila, petitions asked that the
results therein be completely excluded from the canvass. On July 11, 1978, respondent Board terminated its
canvass and declared the result of the voting to be as follows:

NAME OF CANDIDATE VOTES

OBTAIN

VALDEZ, 436,069
Estanislao

DIMAPORO, 429,351
Abdullah

PANGANDAMAN, 406,106
 Sambolayan

SINSUAT, Blah 403,445

AMPARO, Jesus 399,997

MANDANGAN, 387,025
Linang

BAGA, Tomas 386,393

BADOY,Anacleto 374,933

ROLDAN, 275,141
Ernesto

TOCAO, Sergio 239,914

ARATUC, 205,829
Tomatic

GURO, 190,489
Mangontawar

DIAZ, Ciscolario 190,077

TAMULA, Fred 180,280

LEGASPI, 174,396
Bonifacio

MACAPEGES, 160,271
Malamana

(Pp. 11-12,
Record.)

Without loss of time, the petitioners brought the resolution of respondent Board to the Comelec. Hearing was held
on April 25, 1978, after which , the case was declared submitted for decision. However, on August 30,1978, the
Comelec issued a resolution stating inter alia that :

In order to enable the Commission to decide the appeal properly :

a. It will have to go deeper into the examination of the voting records and registration records and in
the case of voting centers whose voting and registration records which have not yet been submitted
for the Commission to decide to open the ballot boxes; and

b. To interview and get statements under oath of impartial and disinterested persons from the area
to determine whether actual voting took place on April 7, 1978, as well as those of the military
authorities in the areas affects (Page 12). Record, L-49705-09 .)

On December 11, 1978, the Comelec required the parties "to file their respective written comments on the reports
they shall periodically receive from the NBI-Comelec team of finger-print and signature experts within the
inextendible period of seven (7) days from their receipt thereof". According to counsel for Aratuc, et al., "Petitioners
submitted their various comments on the report 4, the principal gist of which was that it would appear uniformly in all
the reports submitted by the Comelec-NBI experts that the registered voters were not the ones who voted as shown
by the fact that the thumbprints appearing in Form 1 were different from the thumbprints of the voters in Form 5. "
But the Comelec denied a motion of petitioners asking that the ballot boxes corresponding to the voting centers the
record of which are not available be opened and that a date be set when the statements of witnesses referred to in
the August 30, 1978 resolution would be taken, on the ground that in its opinion, it was no longer necessary to
proceed with such opening of ballot boxes and taking of statements.

For his part, counsel for petitioner M in G.R. No. L-49717-21 filed with Comelec on December 19,1978 a
Memorandum. To quote from the petition:

On December 19, 1978, the KBL, through counsel, filed a Memorandum for the Kilusang Bagong
Lipunan (KBL) Candidates on the Comelec's Resolution of December 11, 1978, a xerox copy of
which is attached hereto and made a part hereof as Annex 2, wherein they discussed the following
topics: (I) Brief History of the President Case; (II) Summary of Our Position and Submission Before
the Honorable commission; and (III) KBL's Appeal Ad Cautelam. And the fourth topic, because of its
relevance to the case now before this Honorable Court, we hereby quote for ready reference:

IV

OUR POSITION WITH RESPECT TO THE

ESOLUTION OF THE HONORABLE

COMMISSION OF DECEMBER 11, 1978

We respectfully submit that the Resolution of this case by this Honorable Commission should
be limited to the precincts and municipalities involved in the KB'S Petitions in Cases Nos. 78-8 to 78-
12, on which evidence had been submitted by the parties, and on which the KB submitted the
reports of their handwriting-print. Furthermore, it should be limited by the appeal of the KB. For
under the Supreme Court Resolution of May 23, 1978, original jurisdiction was given to the Board,
with appeal to this Honorable Commission-Considerations of other matters beyond these would be,
in our humble opinion, without jurisdiction.

For the present, we beg to inform this Honorable Commission that we stand by the reports and
findings of the COMELEC/NBI experts as submitted by them to the Regional Board of Canvassers
and as confirmed by the said Regional Board of Canvassers in its Resolution of July 11, 1978, giving
the 8 KBL candidates the majorities we have already above mentioned. The Board did more than
make a summary scrutiny of the records' required by the Supreme Court Resolution, Guideline No.
5, of May 23, 1978. Hence, if for lack of material time we cannot file any Memorandum within the
non-extendible period of seven (7) days, we would just stand by said COMELEC/NBI experts'
reports to the Regional Board, as confirmed by the Board (subject to our appeal ad cautelam).

The COMELEC sent to the parties copies of the reports of the NBI-COMELEC experts. For lack of
material time due to the voluminous reports and number of voting centers involved, the Christmas
holidays, and our impression that the COMELEC will exercise only its appellate jurisdiction, specially
as per resolution of this Honorable Court of May 23, 1978 (in G.R. No. L-48097), we, the KBL, did
not comment any more on said reports. (Pp. 5-6, Record, L-49717-21.)

On January 13, 1979, the Comelec rendered its resolution being assailed in these cases, declaring the final result of
the canvass to be as follows:
 CANDIDATES VOTES

VALDEZ, 319,514
Estanislao

DIMAPORO, 289.751
Abdullah

AMPARO, Jesus 286,180

BADOY, Anacleto 285,985

BAGA, Tomas 271,473

PANGANDAMAN, 271,393
Sambolayan

SINSUAT, Blah 269,905

ROLDAN, 268,287
Ernesto

MANDANGAN, 251,226
Linang

TACAO, Sergio 229,124

DIAZ, Ciscolario 187,986

ARATUC, 183,316
Tomatic

LEGASPI, 178,564
Bonifacio

TAMULA, Fred 177,270

GURO, 163,449
Mangontawar

LOMA, Nemesio 129,450

(Page 14,
Record, L-49705-
09.)

It is alleged in the Aratuc petition that:

The Comelec committee grave abuse of dicretion, amounting to lack of jurisdiction:

1. In not pursuing further the examination of the registration records and voting records from the
other voting centers questioned by petitioners after it found proof of massive substitute voting in all
of the voting records and registration records examined by Comelec and NBI experts;
 2. In including in the canvass returns from the voting centers whose book of voters and voting
records could not be recovered by the Commission in spite of its repeated efforts to retrieve said
records;

3. In not excluding from the canvass returns from voting centers showing a very high percentage of
voting and in not considering that high percentage of voting, coupled with massive substitution of
voters is proof of manufacturing of election returns;

4. In denying petitioners' petition for the opening of the ballot boxes from voting centers whose
records are not available for examination to determine whether or not there had been voting in said
voting centers;

5. In not Identifying the ballot boxes that had no padlocks and especially those that were found to be
empty while they were shipped to Manila pursuant to the directive of the Commission in compliance
with the guidelines of this Honorable Court;

6. In not excluding from the canvass returns where the results of examination of the voting records
and registration records show that the thumbprints of the voters in CE Form 5 did not correspond to
those of the registered voters as shown in CE Form 1;

7. In giving more credence to the affidavits of chairmen and members of the voting centers,
municipal treasurers and other election officials in the voting centers where irregularities had been
committed and not giving credence to the affidavits of watchers of petitioners;

8. In not including among those questioned before the Board by petitioners those included among
the returns questioned by them in their Memorandum filed with the Commission on April 26, 1978,
which Memorandum was attached as Annex 'I' to their petition filed with this Honorable Court G.R.
No. L-48097 and which the Supreme Court said in its Guidelines should be considered by the Board
in the course of the canvass (Guidelines No. 4). (Pp. 15-16, Record, Id.)

On the other hand, the Mandangan petition submits that the Comelec comitted the following errors:

1. In erroneously applying the earlier case of Diaz vs. Commission on Elections (November 29,
1971; 42 SCRA 426), and particularly the highly restrictive criterion that when the votes obtained by
the candidates with the highest number of votes exceed the total number of highest possible valid
votes, the COMELEC ruled to exclude from the canvass the election return reflecting such rests,
under which the COMELEC excluded 1,004 election returns, involving around 100,000 votes, 95 %
of which are for KBL candidates, particularly the petitioner Linang Mandangan, and which rule is so
patently unfair, unjust and oppressive.

2. In not holding that the real doctrine in the Diaz Case is not the total exclusion of election returns
simply because the total number of votes exceed the total number of highest possible valid votes,
but 'even if all the votes cast by persons Identified as registered voters were added to the votes cast
by persons who can not be definitely ascertained as registered or not, and granting, ad arguendo,
that all of them voted for respondent Daoas, still the resulting total is much below the number of
votes credited to the latter in returns for Sagada, 'and that 'of the 2,188 ballots cast in Sagada,
nearly one-half (1,012) were cast by persons definitely Identified as not registered therein or still
more than 40 % of substitute voting which was the rule followed in the later case of Bashier/Basman
(Diaz Case, November 19,1971,42 SCRA 426,432).
 3. In not applying the rule and formula in the later case of Bashier and Basman vs. Commission on
Election (February 24, 1972, 43 SCRA 238) which was the one followed by the Regional Board of
Canvassers, to wit:

In Basman vs Comelec (L-33728, Feb. 24, 1972) the Supreme Court upheld the
Supreme Court upheld the ruling of the Commission setting the standard of 40 %
excess votes to justify the exclusion of election returns. In line with the above ruling,
the Board of Canvassers may likewise set aside election returns with 40 % substitute
votes. Likewise, where excess voting occured and the excess was such as to destroy
the presumption of innocent mistake, the returns was excluded.

(COMELEC'S Resolution, Annex I hereof, p. 22), which this Honorable Court must have meant when
its Resolution of May 23, 1978 (G.R. No. 7), it referred to "massive substitution of voters.

4. In examining, through the NBI/COMELEC experts, the records in more than 878 voting centers
examined by the KB experts and passed upon by the Regional Board of Canvassers which was all
that was within its appellate jurisdiction is examination of more election records to make a total of
1,085 voting centers (COMELEC'S Resolution, Annex 1 hereof, p. 100), being beyond its jurisdiction
and a denial of due process as far as the KBL, particularly the petitioner Mandangan, were
concerned because they were informed of it only on December, 1978, long after the case has been
submitted for decision in September, 1978; and the statement that the KBL acquiesced to the same
is absolutely without foundation.

5. In excluding election returns from areas where the conditions of peace and order were allegedly
unsettled or where there was a military operation going on immediately before and during election
and where the voter turn out was high (90 % to 100 %), and where the people had been asked to
evacuate, as a ruling without jurisdiction and in violation of due process because no evidence was at
all submitted by the parties before the Regional Board of Canvasssers. (Pp. 23-25, Record, L-
47917-21.)

Now before discussing the merits of the foregoing contentions, it is necessary to clarify first the nature and extent of
the Supreme Court's power of review in the premises. The Aratuc petition is expressly predicated on the ground that
respondent Comelec "committed grave abuse of discretion, amounting to lack of jurisdiction" in eight specifications.
On the other hand, the Mandangan petition raises pure questions of law and jurisdiction. In other words, both
petitions invoked the Court's certiorari jurisdiction, not its appellate authority of review.

This is as it should be. While under the Constitution of 1935, "the decisions, orders and rulings of the Commission
shall be subject to review by the Supreme Court" (Sec. 2, first paragraph, Article X) and pursuant to the Rules of
Court, the petition for "certiorari or review" shall be on the ground that the Commission "has decided a question of
substance not theretofore determined by the Supreme Court, or has decided it in a way not in accord with law or the
applicable decisions of the Supreme Court" (Sec. 3. Rule 43), and such provisions refer not only to election contests
but even to pre-proclamation proceedings, the 1973 Constitution provides somewhat differently thus: "Any decision,
order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from his receipt of a copy thereof" (Section 11, Article XII c), even as it ordains that the Commission shall
"be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National
Assembly and elective provincial and city official" (Section 2(2).)

Correspondingly, the ElectionCode of 1978, which is the first legislative constructionof the pertinent constitutional
provisions, makes the Commission also the "sole judge of all pre-proclamation controversies" and further provides
that "any of its decisions, orders or rulings (in such contoversies) shall be final and executory", just as in election
contests, "the decision of the Commission shall be final, and executory and inappealable." (Section 193)
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 constitutinal body charged with the
safeguarding of free, peaceful and honest elections. The framers of the new Constitution must be presumed ot 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.

Withal, as already stated, the legislative construction of the modified peritinent constitutional provision is to the effect
that the actuations of the Commission are final, executory and even inappealable. While such construction does not
exclude the general certiorari jurisdiction of the Supreme Court which inheres in it as the final guardian of the
Constitution, particularly, of its imperious due process mandate, it correspondingly narrows down the scope and
extent of the inquiry the Court is supposed to undertake to what is strictly the office of certiorari as distinguished
from review. We are of the considered opinion that the statutory modifications are consistent with the apparent new
constitional intent. Indeed, it is obvious that to say that actuations of the Commission may be brought to the
Supreme Court on certiorari technically connotes something less than saying that the same "shall be subject to
review by the Supreme Court", when it comes to the measure of the Court's reviewing authority or prerogative in the
premises.

A review includes digging into the merits and unearthing errors of judgment, while certiorari deals exclusively with
grave abuse of discretion, which may not exist even when the decision is otherwise erroneous. certiorari implies an
indifferent disregard of the law, arbitrariness and caprice, an omission to weight pertinent considerations, a decision
arrived at without rational deliberation. While the effecdts of an error of judgment may not differ from that of an
indiscretion, as a matter of policy, there are matters taht by their nature ought to be left for final determination to the
sound discretion of certain officers or entities, reserving it to the Supreme Court to insure the faithful observance of
due process only in cases of patent arbitrariness.

Such, to Our mind, is the constitutional scheme relative to the Commission on Elections. Conceived by the charter
as the effective instrument to preserve the sanctity of popular suffrage, endowed with independence and all the
needed concommittant powers, it is but proper that the Court should accord the greatest measure of presumption of
regularity to its course of action and choice of means in performing its duties, to the end that it may achieve its
designed place in the democratic fabric of our government. Ideally, its members should be free from all suspicions of
partisan inclinations, but the fact that actually some of them have had stints in the arena of politics should not,
unless the contrary is shown, serve as basis for denying to its actuations the respect and consideration that the
Constitution contemplates should be accorded to it, in the same manner that the Supreme Court itself which from
time to time may have members drawn from the political ranks or even from military is at all times deemed insulated
from every degree or form of external pressure and influence as well as improper internal motivations that could
arise from such background or orientation.

We hold, therefore that under the existing constitution and statutory provisions, the certiorari jurisdiction of the Court
over orders, and decisions of the Comelec is not as broad as it used to be and should be confined to instances of
grave abuse of discretion amounting to patent and substantial denial of due process. Accordingly, it is in this light
that We the opposing contentions of the parties in this cases.

THE MANDANGAN CASE

Being more simple in Our view, We shall deal with the petition in G.R. No. L-49717-21 first.

The errors assigned in this petition boil down to two main propositions, namely, (1) that it was an error of law on the
part of respondent Comelec to have applied to the extant circumstances hereof the ruling of this Court in Diaz vs.
Comelec 42 SCRA 426 instead of that of Bashier vs. Comelec 43 SCRA 238; and (2) that respondent Comelec
exceeded its jurisdiction and denied due process to petitioner Mandangan in extending its inquiry beyond the
election records of "the 878 voting centers examined by the KB experts and passed upon by the Regional Board of
Canvassers" and in excluding from the canvass the returns showing 90 to 100 % voting, from voting centers where
military operations were by the Army to be going on, to the extent that said voting centers had to be transferred to
the poblaciones the same being by evidence.

Anent the first proposition, it must be made clear that the Diaz and Bashier rulings are not mutually exclusive of
each other, each being an outgrowth of the basic rationale of statistical improbability laid down in Lagumbay vs.
Comelec and , 16 SCRA 175. Whether they be apply together or separately or which of them be applied depends on
the situation on hand. In the factual milieu of the instant case as found by the Comelec, We see no cogent reason,
and petitioner has not shown any, why returns in voting centers showing that the votes of the candidate obtaining
highest number of votes of the candidate obtaining the highest number of votes exceeds the highest possible
number of valid votes cast therein should not be deemed as spurious and manufactured just because the total
number of excess votes in said voting centers were not more than 40 %. Surely, this is not the occasion, consider
the historical antecedents relative to the highly questionable manner in which elections have been bad in the past in
the provinces herein involved, of which the Court has judicial notice as attested by its numerous decisions in cases
involving practically every such election, of the Court to move a whit back from the standards it has enunciated in
those decisions.

In regard to the jurisdictional and due process points raised by herein petitioner, it is of decisive importance to bear
in mind that under Section 168 of the Revised Election Code of 1978, "the Commission (on Elections) shall have
direct control and supervision on over the board of canvassers" and that relatedly, Section 175 of the same Code
provides that it "shall be the sole judge of all pre-proclamation controversies." While nominally, the procedure of
bringing to the Commission objections to the actuations of boards of canvassers has been quite loosely referred to
in certain quarters, even by the Commission and by this Court, such as in the guidelines of May 23,1978 quoted
earlier in this opinion, as an appeal, the fact of the matter is that the authority of the Commission in reviewing such
actuations does not spring from any appellate jurisdiction conferred by any specific provision of law, for there is
none such provision anywhere in the Election Code, but from the plenary prerogative of direct control and
supervision endowed to it by the above-quoted provisions of Section 168. And in administrative law, it is a too well
settled postulate to need any supporting citation here, that a superior body or office having supervision and control
over another may do directly what the latter is supposed to do or ought to have done.

Consequently, anything said in Lucman vs. Dimaporo, 33 SCRA 387, cited by petitioner, to the contrary
notwithstanding, We cannot fault respondent Comelec for its having extended its inquiry beyond that undertaken by
the Board of Canvass On the contrary, it must be stated that Comelec correctly and commendably asserted its
statutory authority born of its envisaged constitutional duties vis-a-vis the preservation of the purity of elections and
electoral processes and p in doing what petitioner it should not have done. Incidentally, it cannot be said that
Comelec went further than even what Aratuc et al. have asked, since said complaints had impugned from the outset
not only the returns from the 878 voting centers examined by their experts but all those mentioned in their
complaints in the election cases filed originally with the Comelec enumerated in the opening statements hereof,
hence respondent Comelec had that much field to work on.

The same principle should apply in respect to the ruling of the Commission regarding the voting centers affected by
military operations. It took cognizance of the fact, not considered by the board of canvass, that said voting centers
had been transferred to the poblaciones. And, if only for purposes of pre-proclamation proceedings, We are
persuaded it did not constitute a denial of due process for the Commission to have taken into account, without the
need or presentation of evidence by the parties, a matter so publicly notorious as the unsettled situation of peace
and order in localities in the provinces herein involved that their may perhaps be taken judicial notice of, the same
being capable of unquestionable demonstration. (See 1, Rule 129)
In this connection, We may as well perhaps, say here as later that regrettably We cannot, however, go along with
the view, expressed in the dissent of our respected Chief Justice, that from the fact that some of the voting centers
had been transferred to the poblaciones there is already sufficient basis for Us to rule that the Commission should
have also subjected all the returns from the other voting centers of the some municipalities, if not provinces, to the
same degree of scrutiny as in the former. The majority of the Court feels that had the Commission done so, it would
have fallen into the error by petitioner Mandangan about denial of due process, for it is relatively unsafe to draw
adverse conclusions as to the exact conditions of peace and order in those other voting centers without at list
some prima facie evidence to rely on considering that there is no allegation, much less any showing at all that the
voting centers in question are so close to those excluded by the Comelec on as to warrant the inescapable
conclusion that the relevant circumstances by the Comelec as obtaining in the latter were Identical to those in the
former.

Premises considered the petition in G.R. Nos. L-49717-21 is hereby dismiss for lack of merit.

THE ARATUC ET AL. PETITION

Of the eight errors assigned by herein petitioners earlier adverted to, the seventh and the sight do not require any
extended disquisition. As to the issue of whether the elections in the voting centers concerned were held on April 7,
1978, the date designated by law, or earlier, to which the seventh alleged error is addressed, We note that
apparently petitioners are not seriously pressing on it anymore, as evidenced by the complete absence of any
reference thereto during the oral argument of their counsel and the practically cavalier discussion thereof in the
petition. In any event, We are satisfied from a careful review of the analysis by the Comelec in its resolution now
before Us that it took pains to consider as meticulously as the nature of the evidence presented by both parties
would permit all the contentions of petitioners relative to the weight that should be given to such evidence. The
detailed discussion of said evidence is contained in not less than nineteen pages (pp. 70-89) of the resolution. In
these premises, We are not prepared to hold that Comelec acted wantonly and arbitrarily in drawing its conclusions
adverse to petitioners' position. If errors there are in any of those conclusions, they are errors of judgment which are
not reviewable in certiorari, so long as they are founded on substantial evidence.

As to eighth assigned error. the thrust of respondents, comment is that the results in the voting centers mentioned in
this assignment of error had already been canvassed at the regional canvass center in Cotabato City. Again, We
cannot say that in sustaining the board of canvassers in this regard, Comelec gravely abused its discretion, if only
because in the guidelines set by this Court, what appears to have been referred to is, rightly or wrongly, the
resumption only of the canvass, which does not necessarily include the setting aside and repetition of the canvass
already made in Cotabato City.

The second and fourth assignments of error concern the voting centers the corresponding voters' record (C.E. Form
1) and record of voting, (C.E. Form 5) of which have never been brought to Manila because they, were not available
The is not clear as to how many are these voting centers. According to petitioners they are 501, but in the Comelec
resolution in question, the number mentioned is only 408, and this number is directly challenged in the petition.
Under the second assignment, it is contended that the Comelec gravely abused its discretion in including in the
canvass the election returns from these voting centers and, somewhat alternatively, it is alleged as fourth
assignment that the petitioners motion for the opening of the ballot boxes pertaining to said voting centers was
arbitraly denied by respondent Comelec.

The resolution under scrutiny explains the situation that confronted the Commission in regard to the 408 voting
centers reffered to as follows :

The Commission had the option of excluding from the canvass the election returns under category.
By deciding to exclude, the Commission would be summarily disenfranchising the voters registered
in the voting centers affected without any basis. The Commission could also order the inclusion in
 the canvass of these elections returns under the injunction of the Supreme Court that extremes
caution must be exercised in rejecting returns unless these are palpably irregular. The Commission
chose to give prima facie validity to the election returns mentioned and uphold the votes cast by the
voters in those areas. The Commission held the view that the failure of some election officials to
comply with Commission orders(to submit the records) should not parties to such official
disobedience. In the case of Lino Luna vs. Rodriguez, 39 Phil. 208, the Supreme Court ruled that
when voters have honestly cast their ballots, the same should not be nullified because the officers
appointed under the law to direct the election and guard the purity of the ballot have not complied
with their duty. (cited in Laurel on Elections, p. 24)

On page 14 of the comment of the Solicitor General, however, it is stated that:

At all events, the returns corresponding to these voting centers were examined by the Comelec and
141 of such returns were excluded, as follows:

SUMMARY

PROVINCE TOTAL EXCLUDED INCLUDED

Lanao del Norte 30 — 30

Lanao del Sur 342 137 205

Maguindanao 21 1 20

North Cotabato 7 1 6

Sultan Kudarat 12 2 10

totals ----- 412 141 271

(Page 301, Record.)

This assertion has not been denied by petitioners.

Thus, it appears that precisely use of the absence or unavailability of the CE Forms 1 and 5 corresponding to the
more than 400 voting centers concerned in our present discussion the Comelec examined the returns from said
voting centers to determine their trustworthiness by scrutinizing the purported relevant data appearing on their
faces, believing that such was the next best thing that could be done to avoid total disenfranchisement of the voters
in all of them On the Other hand, Petitioners' insist that the right thing to do was to order the opening of the ballot
boxes involved.

In connection with such opposing contentions, Comelec's explanation in its resolution is:

... The commission had it seen fit to so order, could have directed the opening of the ballot boxes.
But the Commission did not see the necessity of going to such length in a that was in nature and
decided that there was sufficient bases for the revolution of the appeal. That the Commission has
discretion to determine when the ballot boxes should be opened is implicit in the guidelines set by
the Supreme Court which states that '. . . the ballot bones [which] shall be opened only upon orders
of either the respondent Board or respondent Commission, after the need therefor has become
evident ... ' (guideline No. 3; emphasissupplied). Furthermore, the Court on June 1, 1978, amended
the guidelines that the "ballot boxes for the voting centers ... need not be taken to Manila EXCEPT
 those of the centers as to which the petitioners have the right to demand that the corresponding
ballot boxes be opened ... provided that the voting centers concerned shall be specified and made
known by petitioners to the Regional Board of Canvassers not later than June 3,1978 ... ' (Emphasis
supplied). The KB, candidates did not take advantage of the option granted them under these
guidelines.( Pp 106-107, Record.)

Considering that Comelec, if it had wished to do so, had the facilities to Identify on its own the voting centers without
CE Forms I and 5, thereby precluding the need for the petitioners having to specify them, and under the
circumstances the need for opening the ballot boxes in question should have appeared to it to be quite apparent, it
may be contended that Comelec would have done greater service to the public interest had it proceeded to order
such opening, as it had announced it had thoughts of doing in its resolution of August 30, 1978. On the other hand,
We cannot really blame the Commission too much, since the exacting tenor of the guidelines issued by Us left it with
very little elbow room, so to speak, to use its own discretion independently of what We had ordered. What could
have saved matters altogether would have been a timely move on the part of petitioners on or before June 3, 1978,
as contemplated in Our resolution. After all come to think of it, that the possible outcome of the opening of the ballot
boxes would favor the petitioners was not a certainty — the contents them could conceivably boomerang against
them, such as, for example, if the ballots therein had been found to be regular and preponderantly for their
opponents. Having in mind that significantly, petitioners filed their motion for only on January 9, 1979, practically on
the eve of the promulgation of the resolution, We hold that by having adhered to Our guidelines of June 1, 1978,
Comelec certainly cannot be held to be guilty of having gravely abused its discretion, in examining and passing on
the returns from the voting centers reffered to in the second and fourth assignments of error in the canvass or in
denying petitioners' motion for the of the ballot boxes concerned.

The first, third and sixth assignment of involve related matters and maybe discussed together. They all deal with the
inclusion in or exclusion from the canvass of returns on the basis of the percentage of voting in specified voting
centers and the corresponding findings of the Comelec on the extent of substitute voting therein as indicated by the
result of either the technical examination by experts of the signatures and thumb-prints of the voters threat.

To begin with, petitioners' complaint that the Comelec did not examine and study 1,694 of the records in an the
2,775 voting centers questioned by them is hardly accurate. To be more exact, the Commission excluded a total of
1,267 returns coming under four categories namely: 1,001 under the Diaz, supra, ruling, 79 because of 90-100 %
turnout of voters despite military operations, 105 palpably manufactured owe and 82 returns excluded by the board
of canvass on other grounds. Thus, 45.45 % of the of the petitioners were sustained by the Comelec. In contrast, in
the board of canvassers, only 453 returns were excluded. The board was reversed as to 6 of these, and 821 returns
were excluded by Comelec over and above those excluded by the board. In other words, the Comelec almost
doubled the exclusions by the board.

Petitioners would give the impression by their third assignment of error that Comelec refused to consider high
percentage of voting, coupled with mass substitute voting, as proof that the pertinent returns had been
manufactured. That such was not the case is already shown in the above specifications. To add more, it can be
gleaned from the resolution that in t to the 1,065 voting centers in Lanao del Sur and Marawi City where a high
percentage of voting appeared, the returns from the 867 voting centers were excluded by the Comelec and only 198
were included a ratio of roughly 78 % to 22 %. The following tabulation drawn from the figures in the resolution
shows how the Comelec went over those returns center by center and acted on them individually:

90% — 100% VOTING

MARAWI CITY AND LANAO DEL SUR

NO. OF V/C THAT V/C WITH 90% to 100%

MUNICIPALITIES FUNCTIONED VOTING
 N Exclu Inclu
o. ded ded
of
V/
C

Marawi 151 1 107 5

City 1
2

Bacolod 28 2 27 1
Grande 8

Balabagan 53 5 49 4
3

Balindong 22 2 15 7
2

Bayang 29 2 13 7
0

Binidayan 37 3 29 4
3

Buadiposo 41 1 10 0
Bunton 0

Bubong 24 2 21 2
3

Bumbaran 21
(All
exclu
ded)

Butig 35 3 32 1
3

Calanogas 23 2 21 0
1

Ditsaan- 42 3 38 1
Ramain 9

Ganassi 39 3 23 15
8

Lumba 64 6 47 16
Bayabao 3

Lumbatan 30 2 17 11
8
Lumbayan 37 3 28 5
ague 3

Madalum 14 1 6 7
3

Madamba 20 2 5 15
0

Maguing 57 5 53 2
5

Malabang 59 4 5 42
7

Marantao 79 6 41 22
3

Marugong 37 3 32 3
5

Masiu 27 2 24 2
6

Pagayawa 15 1 9 4
n 3

Piagapo 39 3 36 3
9

Poona- 44 4 42 2
Bayabao 4

Pualas 23 2 20 0
0

Saguiaran 36 3 21 11
2

Sultan 35 3 31 0
Gumander 1

Tamparan 24 2 15 6
1

Taraka 31 3 31 0
1

Tubaran 23 1 19 0
9

TOTALS:
Marawi &

Lanao del 1,218 1, 867 198

 Sur 0
6
5

We are convinced, apart from presuming regularity in the performance of its duties, that there is enough showing in
the record that it did examine and study the returns and pertinent records corresponding to all the 2775 voting
centers subject of petitioners' complaints below. In one part of its resolution the Comelec states:

The Commission as earlier stated examined on its own the Books of Voters (Comelec Form No. 1)
and the Voters Rewards Comelec Form No. 5) to determine for itself which of these elections form
needed further examination by the COMELEC-NBI experts. The Commission, aware of the nature of
this pre-proclamation controversy, believes that it can decide, using common sense and perception,
whether the election forms in controversy needed further examination by the experts based on the
presence or absence of patent signs of irregularity. (Pp. 137-138, Record.)

In the face of this categorical assertion of fact of the Commission, the bare charge of petitioners that the records
pertaining to the 1,694 voting centers assailed by them should not create any ripple of serious doubt. As We view
this point under discussion, what is more factually accurate is that those records complained of were not examined
with the aid of experts and that Comelec passed upon the returns concerned "using common sense and perception
only." And there is nothing basically objectionable in this. The defunct Presidential Senate and House Electoral
Tribunals examine passed upon and voided millions of votes in several national elections without the assistance of
experts and "using" only common sense and perception". No one ever raised any eyebrows about such procedure.
Withal, what we discern from the resolution is that Comelec preliminary screened the records and whatever it could
not properly pass upon by "using common sense and perception" it left to the experts to work on. We might disagree
with he Comelec as to which voting center should be excluded or included, were We to go over the same records
Ourselves, but still a case of grave abuse of discretion would not come out, considering that Comelec cannot be
said to have acted whimsically or capriciously or without any rational basis, particularly if it is considered that in
many respects and from the very nature of our respective functions, becoming candor would dictate to Us to
concede that the Commission is in a better position to appreciate and assess the vital circumstances closely and
accurately. By and large, therefore, the first, third and sixth assignments of error of the petitioners are not well taken.

The fifth assignment of error is in Our view moot and academic. The Identification of the ballot boxes in defective
condition, in some instances open and allegedly empty, is at best of secondary import because, as already
discussed, the records related thereto were after all examined, studied and passed upon. If at all, deeper inquiry into
this point would be of real value in an electoral protest.

CONCLUSION

Before closing, it may not be amiss to state here that the Court had initially agreed to dispose of the cases in a
minute resolution, without prejudice to an extended or reasoned out opinion later, so that the Court's decision may
be known earlier. Considering, however, that no less than the Honorable Chief Justice has expressed misgivings as
to the propriety of yielding to the conclusions of respondent Commission because in his view there are strong
considerations warranting farther meticulous inquiry of what he deems to be earmarks of seemingly traditional faults
in the manner elections are held in the municipalities and provinces herein involved, and he is joined in this pose by
two other distinguished colleagues of Ours, the majority opted to ask for more time to put down at least some of the
important considerations that impelled Us to see the matters in dispute the other way, just as the minority bidded for
the opportunity to record their points of view. In this manner, all concerned will perhaps have ample basis to place
their respective reactions in proper perspective.

In this connection, the majority feels it is but meet to advert to the following portion of the ratiocination of respondent
Board of Canvassers adopted by respondent Commission with approval in its resolution under question:
 First of all this Board was guided by the legal doctrine that canvassing boards must exercise
"extreme caution" in rejecting returns and they may do so only when the returns are palpably
irregular. A conclusion that an election return is obviously manufactured or false and consequently
should be disregarded in the canvass must be approached with extreme caution, and only upon the
most convincing proof. Any plausible explanation one which is acceptable to a reasonable man in
the light of experience and of the probabilities of the situation, should suffice to avoid outright
nullification, with the resulting t of those who exercised their right of suffrage. (Anni vs. Isquierdo et
at L-35918, Jude 28,1974; Villavon v. Comelec L-32008, August 31,1970; Tagoranao v. Comelec 22
SCRA 978). In the absence of strong evidence establishing the spuriousness of the return, the basis
rule of their being accorded prima facie status as bona fide reports of the results of the count of the
votes for canvassing and proclamation purposes must be applied, without prejudice to the question
being tried on the merits with the presentation of evidence, testimonial and real in the corresponding
electoral protest. (Bashier vs. Comelec L-33692, 33699, 33728, 43 SCRA 238, February 24, 1972).
The decisive factor is that where it has been duly de ed after investigation and examination of the
voting and registration records hat actual voting and election by the registered voters had taken
place in the questioned voting centers, the election returns cannot be disregarded and excluded with
the resting disenfranchisement of the voters, but must be accorded prima facie status as bona
fide reports of the results of the voting for canvassing and registration purposes. Where the
grievances relied upon is the commission of irregularities and violation of the Election Law the
proper remedy is election protest. (Anni vs. Isquierdo et al. Supra). (P. 69, Record, L-49705-09).

The writer of this opinion has taken care to personally check on the citations to be doubly sure they were not taken
out of context, considering that most, if not all of them arose from similar situations in the very venues of the actual
milieu of the instant cases, and We are satisfied they do fit our chosen posture. More importantly, they actually
came from the pens of different members of the Court, already retired or still with Us, distinguished by their
perspicacity and their perceptive prowess. In the context of the constitutional and legislative intent expounded at the
outset of this opinion and evident in the modifications of the duties and responsibilities of the Commission on
Elections vis-a-vis the matters that have concerned Us herein, particularly the elevation of the Commission as the
"sole judge of pre-proclamation controversies" as well as of all electoral contests, We find the afore-quoted doctrines
compelling as they reveal through the clouds of existing jurisprudence the pole star by which the future should be
guided in delineating and circumscribing separate spheres of action of the Commission as it functions in its equally
important dual role just indicated bearing as they do on the purity and sanctity of elections in this country.

In conclusion, the Court finds insufficient merit in the petition to warrant its being given due course. Petition
dismissed, without pronouncement as to costs. Justices Fernando, Antonio and Guerrero who are presently on
official missions abroad voted for such dismissal.
G.R. No. 104960 September 14, 1993

PHILIP G. ROMUALDEZ, petitioner,

vs.
REGIONAL TRIAL COURT, BRANCH 7, TACLOBAN CITY, DONATO ADVINCULA, BOARD OF ELECTION
INSPECTORS, PRECINCT No. 9, MALBOG, TOLOSA, LEYTE, and the MUNICIPAL REGISTRAR COMELEC,
TOLOSA, LEYTE, respondents.

Otilia Dimayuga-Molo for petitioner.

The Solicitor General for respondents.

VITUG, J.:

An event in this decade, which future generations would likely come to know simply as the "EDSA People's Power
Revolution of 1986," has dramatically changed the course of our nation's history. So, too, not a few of our
countrymen have by it been left alone in their own personal lives. One such case is that of the petitioner in this
special civil action for certiorari.

The petitioner is Philip Romualdez, a natural born citizen of the Philippines, the son of the former Governor of Leyte,
Benjamin "Kokoy" Romualdez, and nephew of the then First Lady Imelda Marcos. Sometime in the early part of
1980, the petitioner, in consonance with his decision to establish his legal residence at Barangay Malbog, Tolosa,
Leyte,1 caused the construction of his residential house therein. He soon thereafter also served as Barangay
Captain of the place. In the 1984 Batasan Election and 1986 "snap" Presidential Election, Romualdez acted as the
Campaign Manager of the Kilusang Bagong Lipunan (KBL) in Leyte where he voted.2

When the eventful days from the 21st to the 24th of February, 1986, came or were about to come to a close, some
relatives and associates of the deposed President, fearing for their personal safety, whether founded or not, "fled"
the country. Petitioner Romualdez, for one, together with his immediate family, left the Philippines and sought
"asylum" in the United States which the United States (U.S.) government granted.3 While abroad, he took special
studies on the development of Leyte-Samar and international business finance.4

In the early part of 1987, Romualdez attempted to come back to the Philippines to run for a congressional seat in
Leyte. On 23 March 1987, he finally decided to book a flight back to the Philippines but the flight was somehow
aborted.5

On 25 September 1991, Romualdez received a letter from Mr. Charles Cobb, District Director of the U.S.
Immigration and Naturalization Service, informing him that he should depart from the U.S. at his expense on or
before 23 August 1992, thus:

. . . Failure to depart on or before the specified date may result in the withdrawal of voluntary
departure and action being taken to effect your deportation. In accordance with a decision made to
your case, you are required to depart from the United States at your expense on or before 23 August
1992.6

Upon receipt of the letter, Romualdez departed from the U.S. for the Philippines, arriving on December 1991
apparently without any government document.7
When Romualdez arrived in the Philippines, he did not delay his return to his residence at Malbog, Tolosa, Leyte.
During the registration of voters conducted by the Commission on Election ("COMELEC") on 01 February 1992 for
the Synchronized National and Local Election scheduled for 11 May 1992, petitioner registered himself anew as a
voter at Precinct No. 9 of Malbog, Tolosa, Leyte. The chairman of the Board of Election Inspectors, who had known
Romualdez to be a resident of the place and, in fact, an elected Barangay Chairman of Malbog in 1982, allowed him
to be registered.

Romualdez's registration, however, was not to be unquestioned. On 21 February 1992, herein private respondent
Donato Advincula ("Advincula") filed a petition with the Municipal Trial Court of Tolosa, Leyte, praying that
Romualdez be excluded from the list of voters in Precinct No. 9 of Malbog, Tolosa, Leyte, under BP 881 and RA
7166.8 Advincula alleged that Romualdez was a resident of Massachusetts, U.S.A.; that his profession and
occupation was in the U.S.A.; that he had just recently arrived in the Philippines; and that he did not have the
required one-year residence in the Philippines and the six-month residence in Tolosa to qualify him to register as a
voter in Barangay Malbog, Tolosa, Leyte.9

On 25 February 1992, Romualdez filed an answer, contending that he has been a resident of Tolosa, Leyte, since
the early 1980's, and that he has not abandoned his said residence by his physical absence therefrom during the
period from 1986 up to the third week of December 1991. 10

After due hearing, the Municipal Court of Tolosa, Leyte rendered a decision 11 on 28 February 1992, the dispositive
portion of which reads:

WHEREFORE PREMISES CONSIDERED, the court finds the respondent to be a resident of Brgy.
Malbog, Tolosa, Leyte and qualified to register as a voter thereat. Hence, the instant petition for
exclusion of Philip G. Romualdez from the list of voter of Precinct No. 9, Malbog, Tolosa, Leyte is
hereby ordered DENIED and petition DISMISSED.

SO ORDERED.

Upon receipt of the adverse decision, Advincula appealed the case to the respondent court.

On 03 April 1992, the respondent court rendered the assailed decision, 12 thus:

WHEREFORE, this Court finds respondent Philip Romualdez disqualified to register as a voter for
the 1992 elections and hereby reverses the decision of the lower court in toto.

The Municipal Registrar of the Commission on Elections of Tolosa, Leyte, is hereby ordered to
delete and cancel the name of respondent Philip G. Romualdez from the list of qualified voters
registered February 1, 1992, at Precinct 9, barangay Malbog, Tolosa, Leyte.

SO ORDERED.

Hence, this recourse.

On 7 May 1992, this Court issued a temporary restraining order directing respondent Regional Trial Court Judge
Pedro Espino to cease and desist from enforcing questioned decision.13

The petitioner has raised several issues which have been well synthesized by the Solicitor General into —
(1) Whether or not the MTC and RTC acquired jurisdiction over, respectively, Case No. 01-S. 1992 and Case No.
92-03-42, the petition having been filed by one who did not allege to be himself a registered voter of the municipality
concerned; and

(2) Whether or not the respondent court erred in finding the petitioner to have voluntarily left the country and
abandoned his residence in Malbog, Tolosa, Leyte.

The petition is impressed with merit.

Anent the first issue, the petitioner assails for the first time the jurisdiction of the respondent Court and the MTC of
Tolosa, Leyte, in taking cognizance of the case, despite an absence of any allegation in the petition filed with the
MTC that Advincula was himself a registered voter in Precinct No. 9 of Barangay Malbog, Tolosa, Leyte conformably
with Section 142 of the Omnibus Election Code. 14

When respondent Advincula filed the petition with the MTC for the exclusion of herein petitioner Romualdez, the
latter countered by filing his answer 15 and praying for the denial of the petition, without raising the issue of
jurisdiction. But what can be telling is that when the MTC decision, denying the petition for disqualification, went on
appeal to the RTC, Romualdez, in his own appeal-memorandum, explicitly prayed that the MTC decision be
affirmed. This unassailable incident leads us to reiterate that "while lack of jurisdiction may be assailed at any stage,
a party's active participation in the proceedings before a court without jurisdiction will estop such party from assailing
such lack of jurisdiction." 16 Undoubtedly, the petitioner is now estopped from questioning the jurisdiction of the
respondent not only by his active participation in the proceedings thereat but, more importantly, in having sought an
affirmative relief himself when the appeal was made to the latter court whose jurisdiction he, in effect, invoked.
Furthermore, the question is not really as much the jurisdiction of the courts below as merely the locus standi of the
complainant in the proceedings, a matter that, at this stage, should be considered foreclosed.

In any case, we consider primordial the second issue of whether or not Romualdez voluntarily left the country and
abandoned his residence in Malbog, Tolosa, Leyte. Here, this time, we find for the petitioner.

The Solicitor General himself sustains the view of petitioner Romualdez. Expressing surprise at this stance given by
the Solicitor General, respondent Advincula posits non sequitur argument 17 in his comment assailing instead the
person of Solicitor Edgar Chua. If it would have any value, at all, in disabusing the minds of those concerned, it may
well be to recall what this Court said in Rubio vs. Sto. Tomas: 18

It is also incumbent upon the Office of the Solicitor General to present to the Court the position that
will legally uphold the best interest of the government, although it may run counter to a client's
position.

In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as
used in the election law is synonymous with "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." 19 "Domicile" denotes a
fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to
return. 20 That residence, in the case of the petitioner, was established during the early 1980's to be at Barangay
Malbog, Tolosa, Leyte. Residence thus acquired, however, may be lost by adopting another choice of domicile. In
order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new
locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. 21 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 must be for an indefinite period of time; the change of residence must be voluntary; and the residence at
the place chosen for the new domicile must be actual. 22
The political situation brought about by the "People's Power Revolution" must have truly caused great apprehension
to the Romualdezes, as well as a serious concern over the safety and welfare of the members of their families. Their
going into self-exile until conditions favorable to them would have somehow stabilized is understandable. Certainly,
their sudden departure from the country cannot be described as "voluntary," or as "abandonment of residence" at
least in the context that these terms are used in applying the concept of "domicile by choice."

We have closely examined the records, and we find not that much to convince us that the petitioner had, in fact,
abandoned his residence in the Philippines and established his domicile elsewhere.

It must be emphasized that the right to vote is a most precious political right, as well as a bounden duty of every
citizen, enabling and requiring him to participate in the process of government so as to ensure that the government
can truly be said to derive its power solely from the consent of the governed. 23 We, therefore, must commend
respondent Advincula for spending time and effort even all the way up to this Court, for as the right of suffrage is not
to be abridged, so also must we safeguard and preserve it but only on behalf of those entitled and bound to exercise
it.

WHEREFORE, finding merit on the petition the same is hereby GRANTED DUE COURSE; of the Decision of the
respondent Regional Trial Court dated 03 April 1992 is hereby REVERSED and SET ASIDE, and the Decision of
the Municipal Trial Court dated 28 February 1992 is hereby REINSTATED and the Temporary Restraining Order
issued by the Court in this case is correspondingly made PERMANENT. No pronouncement as to costs.

SO ORDERED.
G.R. No. 176947 February 19, 2009

GAUDENCIO M. CORDORA, Petitioner,

vs.
COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, Respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for certiorari and mandamus, with prayer for the issuance of a temporary restraining order under
Rule 65 of the 1997 Rules of Civil Procedure.

In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S. Tambunting (Tambunting) of an
election offense for violating Section 74 in relation to Section 262 of the Omnibus Election Code. The Commission
on Elections’ (COMELEC) En Banc dismissed Cordora’s complaint in a Resolution1 dated 18 August 2006. The
present petition seeks to reverse the 18 August 2006 Resolution as well as the Resolution2 dated 20 February 2007
of the COMELEC En Banc which denied Cordora’s motion for reconsideration.

The Facts

In his complaint affidavit filed before the COMELEC Law Department, Cordora asserted that Tambunting made false
assertions in the following items:

That Annex A [Tambunting’s Certificate of Candidacy for the 2001 elections] and Annex B [Tambunting’s Certificate
of Candidacy for the 2004 elections] state, among others, as follows, particularly Nos. 6, 9 and 12 thereof:

1. No. 6 – I am a Natural Born/Filipino Citizen

2. No. 9 – No. of years of Residence before May 14, 2001.

36 in the Philippines and 25 in the Constituency where I seek to be elected;

3. No. 12 – I am ELIGIBLE for the office I seek to be elected.3 (Boldface and capitalization in the original)

Cordora stated that Tambunting was not eligible to run for local public office because Tambunting lacked the
required citizenship and residency requirements.

To disprove Tambunting’s claim of being a natural-born Filipino citizen, Cordora presented a certification from the
Bureau of Immigration which stated that, in two instances, Tambunting claimed that he is an American: upon arrival
in the Philippines on 16 December 2000 and upon departure from the Philippines on 17 June 2001. According to
Cordora, these travel dates confirmed that Tambunting acquired American citizenship through naturalization in
Honolulu, Hawaii on 2 December 2000. Cordora concluded:

That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74 (OEC): [sic] Re: CONTENTS OF
CERTIFICATE OF CANDIDACY: which requires the declarant/affiant to state, among others, under oath, that he
is a Filipino (No. 6), No. 9- residence requirement which he lost when [he was] naturalized as an American
Citizen on December 2, 2000 at [sic] Honolulu, Hawaii, knowingly and willfully affirmed and reiterated that he
possesses the above basic requirements under No. 12 – that he is indeed eligible for the office to which he
seeks to be elected, when in truth and in fact, the contrary is indubitably established by his own
statements before the Philippine Bureau of Immigration x x x.4 (Emphases in the original)

Tambunting, on the other hand, maintained that he did not make any misrepresentation in his certificates of
candidacy. To refute Cordora’s claim that Tambunting is not a natural-born Filipino, Tambunting presented a copy of
his birth certificate which showed that he was born of a Filipino mother and an American father. Tambunting further
denied that he was naturalized as an American citizen. The certificate of citizenship conferred by the US
government after Tambunting’s father petitioned him through INS Form I-130 (Petition for Relative) merely
confirmed Tambunting’s citizenship which he acquired at birth. Tambunting’s possession of an American passport
did not mean that Tambunting is not a Filipino citizen. Tambunting also took an oath of allegiance on 18 November
2003 pursuant to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention and Reacquisition Act of
2003.

Tambunting further stated that he has resided in the Philippines since birth. Tambunting has imbibed the Filipino
culture, has spoken the Filipino language, and has been educated in Filipino schools. Tambunting maintained that
proof of his loyalty and devotion to the Philippines was shown by his service as councilor of Parañaque.

To refute Cordora’s claim that the number of years of residency stated in Tambunting’s certificates of candidacy is
false because Tambunting lost his residency because of his naturalization as an American citizen, Tambunting
contended that the residency requirement is not the same as citizenship.

The Ruling of the COMELEC Law Department

The COMELEC Law Department recommended the dismissal of Cordora’s complaint against Tambunting because
Cordora failed to substantiate his charges against Tambunting. Cordora’s reliance on the certification of the Bureau
of Immigration that Tambunting traveled on an American passport is not sufficient to prove that Tambunting is an
American citizen.

The Ruling of the COMELEC En Banc

The COMELEC En Banc affirmed the findings and the resolution of the COMELEC Law Department. The
COMELEC En Banc was convinced that Cordora failed to support his accusation against Tambunting by sufficient
and convincing evidence.

The dispositive portion of the COMELEC En Banc’s Resolution reads as follows:

WHEREFORE, premises considered, the instant complaint is hereby DISMISSED for insufficiency of evidence to
establish probable cause.

SO ORDERED.5

Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate opinion which concurred with the
findings of the En Banc Resolution. Commissioner Sarmiento pointed out that Tambunting could be considered a
dual citizen. Moreover, Tambunting effectively renounced his American citizenship when he filed his certificates of
candidacy in 2001 and 2004 and ran for public office.

Cordora filed a motion for reconsideration which raised the same grounds and the same arguments in his complaint.
In its Resolution promulgated on 20 February 2007, the COMELEC En Banc dismissed Cordora’s motion for
reconsideration for lack of merit.

The Issue
Cordora submits that the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction
when it declared that there is no sufficient evidence to support probable cause that may warrant the prosecution of
Tambunting for an election offense.

Cordora’s petition is not an action to disqualify Tambunting because of Tambunting’s failure to meet citizenship and
residency requirements. Neither is the present petition an action to declare Tambunting a non-Filipino and a non-
resident. The present petition seeks to prosecute Tambunting for knowingly making untruthful statements in his
certificates of candidacy.

The Ruling of the Court

The petition has no merit. We affirm the ruling of the COMELEC En Banc.

Whether there is Probable Cause to Hold Tambunting for Trial for Having Committed an Election Offense

There was no grave abuse of discretion in the COMELEC En Banc’s ruling that there is no sufficient and convincing
evidence to support a finding of probable cause to hold Tambunting for trial for violation of Section 74 in relation to
Section 262 of the Omnibus Election Code.

Probable cause constitutes those facts and circumstances which would lead a reasonably discreet and prudent man
to believe that an offense has been committed. Determining probable cause is an intellectual activity premised on
the prior physical presentation or submission of documentary or testimonial proofs either confirming, negating or
qualifying the allegations in the complaint.6

Section 74 of the Omnibus Election Code reads as follows:

Contents of certificate of candidacy. — The certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is eligible for said office; x x x the political party to
which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his
profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true
faith and allegiance thereto; that he will obey the laws, legal orders and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his
oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge.

xxx

The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in
duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires.

Section 262 of the Omnibus Election Code, on the other hand, provides that violation of Section 74, among other
sections in the Code, shall constitute an election offense.

Tambunting’s Dual Citizenship

Tambunting does not deny that he is born of a Filipino mother and an American father. Neither does he deny that he
underwent the process involved in INS Form I-130 (Petition for Relative) because of his father’s citizenship.
Tambunting claims that because of his parents’ differing citizenships, he is both Filipino and American by birth.
Cordora, on the other hand, insists that Tambunting is a naturalized American citizen.
We agree with Commissioner Sarmiento’s observation that Tambunting possesses dual citizenship. Because of the
circumstances of his birth, it was no longer necessary for Tambunting to undergo the naturalization process to
acquire American citizenship. The process involved in INS Form I-130 only served to confirm the American
citizenship which Tambunting acquired at birth. The certification from the Bureau of Immigration which Cordora
presented contained two trips where Tambunting claimed that he is an American. However, the same certification
showed nine other trips where Tambunting claimed that he is Filipino. Clearly, Tambunting possessed dual
citizenship prior to the filing of his certificate of candidacy before the 2001 elections. The fact that Tambunting had
dual citizenship did not disqualify him from running for public office.7

Requirements for dual citizens from birth who desire to run for public office

We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we ruled that dual citizenship
is not a ground for disqualification from running for any elective local position.

To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the
concurrent application of the different laws of two or more states, a person is simultaneously considered a national
by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state
which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a
person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states.
Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of
the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country
such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by
their act or omission they are deemed to have renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen
of another state; but the above cases are clearly possible given the constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive
act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s
volition.

xxx

[I]n including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual
citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their
naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be
understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under
this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process
with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon
the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as
persons with dual citizenship considering that their condition is the unavoidable consequence of
conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the
Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no
control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not
she is considered a citizen of another country is something completely beyond our control."
By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of
which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view
of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of
no moment as the following discussion on §40(d) between Senators Enrile and Pimentel clearly shows:

SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual
citizenship" is disqualified to run for any elective local position. Under the present Constitution, Mr. President,
someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the
Republic. There is no requirement that such a natural-born citizen, upon reaching the age of majority, must elect or
give up Philippine citizenship.

On the assumption that this person would carry two passports, one belonging to the country of his or her father and
one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local
government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for
public office, he has to repudiate one of his citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the
father claims that person, nevertheless, as a citizen,? No one can renounce. There are such countries in the world. 1avv phi1

SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him
of his desire to be considered a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the
Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim
the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman’s example, if he does not
renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first
thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one
citizenship."

SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one
citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also
acknowledges other citizenships, then he will probably fall under this disqualification.8 (Emphasis supplied)

We have to consider the present case in consonance with our rulings in Mercado v. Manzano,9 Valles v.
COMELEC,10 and AASJS v. Datumanong.11 Mercado and Valles involve similar operative facts as the present case.
Manzano and Valles, like Tambunting, possessed dual citizenship by the circumstances of their birth. Manzano was
born to Filipino parents in the United States which follows the doctrine of jus soli. Valles was born to an Australian
mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated that dual citizenship is different
from dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual citizenship is
involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a
person is simultaneously considered a national by the said states. Thus, like any other natural-born Filipino, it is
enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the
oath of allegiance contained therein. Dual allegiance, on the other hand, is brought about by the individual’s active
participation in the naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a
naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme
authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a
naturalized citizen’s foreign citizenship.

R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted years after the
promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No. 9225 reads as follows:

I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines;
and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith
and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or
purpose of evasion.

In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se, but with the
status of naturalized citizens who maintain their allegiance to their countries of origin even after their
naturalization.12 Section 5(3) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and
desire to run for elective public office in the Philippines shall "meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time of filing the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath"
aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an
Oath of Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our recent rulings
in Jacot v. Dal and COMELEC,13 Velasco v. COMELEC,14 and Japzon v. COMELEC,15 all of which involve natural-
born Filipinos who later became naturalized citizens of another country and thereafter ran for elective office in the
Philippines. In the present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized
citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him.

Tambunting’s residency

Cordora concluded that Tambunting failed to meet the residency requirement because of Tambunting’s
naturalization as an American. Cordora’s reasoning fails because Tambunting is not a naturalized American.
Moreover, residency, for the purpose of election laws, includes the twin elements of the fact of residing in a fixed
place and the intention to return there permanently,16 and is not dependent upon citizenship.

In view of the above, we hold that Cordora failed to establish that Tambunting indeed willfully made false entries in
his certificates of candidacy. On the contrary, Tambunting sufficiently proved his innocence of the charge filed
against him. Tambunting is eligible for the office which he sought to be elected and fulfilled the citizenship and
residency requirements prescribed by law.

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the Commission on Elections En
Banc dated 18 August 2006 and 20 February 2007 in EO Case No. 05-17.

SO ORDERED.
G.R. No. 188671 February 24, 2010

MOZART P. PANLAQUI, Petitioner,

vs.
COMMISSION ON ELECTIONS and NARDO M. VELASCO, Respondents.

DECISION

CARPIO MORALES, J.:

The present petition is one for certiorari.

Petitioner Mozart Panlaqui (Panlaqui) assails the Commission on Elections (Comelec) En Banc Resolution of June
17, 2009 denying his motion for proclamation, which he filed after this Court affirmed in G.R. No. 1800511 the
nullification of the proclamation of private respondent Nardo Velasco (Velasco) as mayor of Sasmuan, Pampanga.

Velasco was born in Sasmuan on June 22, 1952 to Filipino parents. He married Evelyn Castillo on June 29, 1975. In
1983, he moved to the United States where he subsequently became a citizen.

Upon Velasco’s application for dual citizenship under Republic Act No. 92252 was approved on July 31, 2006, he
took on even date his oath of allegiance to the Republic of the Philippines and returned to the Philippines on
September 14, 2006.

On October 13, 2006, Velasco applied for registration as a voter of Sasmuan, which application was denied by the
Election Registration Board (ERB). He thus filed a petition for the inclusion of his name in the list of voters before the
Municipal Trial Court (MTC) of Sasmuan which, by Decision of February 9, 2007, reversed the ERB’s decision
and ordered his inclusion in the list of voters of Sasmuan.

On appeal, the Regional Trial Court (RTC) of Guagua, Pampanga, by Decision of March 1, 2007, reversed3 the
MTC Decision, drawing Velasco to elevate the matter via Rule 42 to the Court of Appeals which, by Amended
Decision4 of August 19, 2008, dismissed the appeal for lack of jurisdiction.

In the meantime, Velasco filed on March 28, 2007 his Certificate of Candidacy (COC) for mayor of Sasmuan, therein
claiming his status as a registered voter. Panlaqui, who vied for the same position, thereupon filed before the
Comelec a Petition to Deny Due Course To and/or To Cancel Velasco’s COC based on gross material
misrepresentation as to his residency and, consequently, his qualification to vote.

In the electoral bout of May 2007, Velasco won over Panlaqui as mayor of Sasmuan. As the Comelec failed to
resolve Panlaqui’s petition prior to the elections, Velasco took his oath of office and assumed the duties of the office.

Finding material misrepresentation on the part of Velasco, the Comelec cancelled his COC and nullified his
proclamation, by Resolutions of July 6, 2007 and October 15, 2007, which this Court affirmed in G.R. No. 180051.

Panlaqui thereafter filed a motion for proclamation which the Comelec denied by the assailed Resolution, pointing
out that the rule on succession does not operate in favor of Panlaqui as the second placer because Velasco was not
disqualified by final judgment before election day.

Hence, the present petition which imputes grave abuse of discretion on the part of the Comelec for not regarding the
RTC March 1, 2007 Decision as the final judgment of disqualification against Velasco prior to the elections, so as to
fall within the ambit of Cayat v. Commission on Elections5 on the exception to the doctrine on the rejection of the
second placer.
Velasco filed his Comment of September 18, 2009 with motion to consolidate the present case with G.R. No.
189336, his petition challenging the Comelec’s September 8, 2009 Order which directed him to vacate his mayoralty
post for the incumbent vice-mayor to assume office as mayor. A perusal of the records of the petition shows,
however, that it had already been dismissed by the Court by Resolution of October 6, 2009.6

In his present petition, Panlaqui implores this Court to apply in his favor the case of Cayat where the Court affirmed,
inter alia, the Comelec Order directing the proclamation of the second placer as Mayor of Buguias, Benguet in this
wise:

There is no doubt as to the propriety of Palileng’s proclamation for two basic reasons.

First, the COMELEC First Division’s Resolution of 12 April 2004 cancelling Cayat’s certificate of candidacy due to
disqualification became final and executory on 17 April 2004 when Cayat failed to pay the prescribed filing fee.
Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twenty–three
days before election day, Cayat was already disqualified by final judgment to run for Mayor in the 10 May 2004
elections. As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only
placer, second to none. The doctrine on the rejection of the second placer, which triggers the rule on succession,
does not apply in the present case because Palileng is not a second-placer but the only placer. Consequently,
Palileng’s proclamation as Mayor of Buguias, Benguet is beyond question.

Second, there are specific requirements for the application of the doctrine on the rejection of the second placer. The
doctrine will apply in Bayacsan’s favor, regardless of his intervention in the present case, if two conditions concur:
(1) the decision on Cayat’s disqualification remained pending on election day, 10 May 2004, resulting in the
presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the decision on Cayat’s
disqualification became final only after the elections.7 (emphasis and italics in the original; underscoring supplied)

Repackaging the present petition in Cayat’s fashion, Panlaqui asserts that the RTC March 1, 2007 Decision in the
voter’s inclusion proceedings must be considered as the final judgment of disqualification against Velasco, which
decision was issued more than two months prior to the elections. Panlaqui posits that when Velasco’s petition for
inclusion was denied, he was also declared as disqualified to run for public office.

Unwrapping the present petition, the Court finds that the true color of the issue of distinction between a petition for
inclusion of voters in the list and a petition to deny due course to or cancel a certificate of candidacy has already
been defined in Velasco v. Commission on Elections8 where the Court held that the two proceedings may ultimately
have common factual bases but they are poles apart in terms of the issues, reliefs and remedies involved, thus:

In terms of purpose, voters’ inclusion/exclusion and COC denial/cancellation are different proceedings; one refers to
the application to be registered as a voter to be eligible to vote, while the other refers to the application to be a
candidate. Because of their differing purposes, they also involve different issues and entail different reliefs, although
the facts on which they rest may have commonalities where they may be said to converge or interface. x x
x9(underscoring supplied)

Voters’ inclusion/exclusion proceedings, on the one hand, essentially involve the issue of whether a petitioner shall
be included in or excluded from the list of voters based on the qualifications required by law and the facts presented
to show possession of these qualifications.10

On the other hand, COC denial/cancellation proceedings involve the issue of whether there is a false representation
of a material fact. The false representation must necessarily pertain not to a mere innocuous mistake but to a
material fact or those that refer to a candidate’s qualifications for elective office. Apart from the requirement of
materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible or, otherwise stated, with the intention to deceive the electorate as to
the would-be candidate’s qualifications for public office.11

In Velasco, the Court rejected Velasco’s contention that the Comelec improperly ruled on the right to vote when it
cancelled his COC. The Court stated that the Comelec merely relied on or recognized the RTC’s final and executory
decision on the matter of the right to vote in the precinct within its territorial jurisdiction.

In the present petition, it is Panlaqui’s turn to proffer the novel interpretation that the RTC properly cancelled
Velasco’s COC when it ruled on his right to vote. The Court rejects the same. 1avv phi 1

It is not within the province of the RTC in a voter’s inclusion/exclusion proceedings to take cognizance of and
determine the presence of a false representation of a material fact. It has no jurisdiction to try the issues of whether
the misrepresentation relates to material fact and whether there was an intention to deceive the electorate in terms
of one’s qualifications for public office. The finding that Velasco was not qualified to vote due to lack of residency
requirement does not translate into a finding of a deliberate attempt to mislead, misinform, or hide a fact which
would otherwise render him ineligible.

Assuming arguendo the plausibility of Panlaqui’s theory, the Comelec correctly observed that when the RTC issued
its March 1, 2007 Decision, there was yet no COC to cancel because Velasco’s COC was filed only on March 28,
2007. Indeed, not only would it be in excess of jurisdiction but also beyond the realm of possibility for the RTC to
rule that there was deliberate concealment on the part of Velasco when he stated under oath in his COC that he is a
registered voter of Sasmuan despite his knowledge of the RTC decision which was yet forthcoming.

IN FINE, the Comelec did not gravely abuse its discretion when it denied Panlaqui’s motion for proclamation. Since
Velasco’s disqualification
as a candidate had not become final before the elections, the Comelec properly applied the rule on succession.

x x x 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 such circumstances.

To allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is
to disenfranchise them through no fault on their part, and to undermine the importance and the meaning of
democracy and the right of the people to elect officials of their choice.

Theoretically, the second placer could receive just one vote. In such a case, it would be absurd to proclaim the
totally repudiated candidate as the voters’ choice. x x x12

WHEREFORE, the petition is DISMISSED. The assailed June 17, 2009 Resolution of the Commission on Elections
is AFFIRMED.

SO ORDERED.
G.R. No. 86564 August 1, 1989

RAMON L. LABO, JR., petitioner,

vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL, respondents

Estelito P. Mendoza for petitioner.

Rillera and Quintana for private respondent.

CRUZ, J.:

The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his
citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is
not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this
matter, considering that the petition for quo warranto against him was not filed on time.

It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment of
the filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough, all of
P300.00 only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it is shown
that the petition was indeed filed beyond the reglementary period, there is no question that this petition must be
granted and the challenge abated.

The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20, 1988. The petition
for quo warranto was filed by the private respondent on January 26, 1988, but no filing fee was paid on that date.
This fee was finally paid on February 10, 1988, or twenty-one days after his proclamation. As the petition by itself
alone was ineffectual without the filing fee, it should be deemed filed only when the fee was paid. This was done
beyond the reglementary period provided for under Section 253 of the Omnibus Election Code reading as follows:

SEC. 253. Petition for quo warranto. — Any voter contesting the election of a Member of the
Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty
to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission
within ten days after the proclamation of the result of the election.

The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural Rules of
the COMELEC providing that —

Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in
the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law.

and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the
timeliness of the filling of the petition itself. He cites many rulings of the Court to this effect, specifically Manchester
v. Court of Appeals. 1

For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was
flied ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate
Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a
pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was collected although it
was offered. It was only on February 8, 1988, that the COMELEC decided to treat his petition as solely for quo
warranto and re-docketed it as EPC Case No. 88-19, serving him notice on February 10, 1988. He immediately paid
the filing fee on that date.

The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-
proclamation controversy, the time for filing an election protest or quo warranto proceeding was deemed suspended
under Section 248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC
Rules of Procedure cited by the petitioner, became effective only on November 15, 1988, seven days after
publication of the said Rules in the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not
retroact to January 26,1988, when he filed his petition with the COMELEC.

In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of filing
fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent COMELEC,
promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private respondent counters
that the latter resolution was intended for the local elections held on January 30, 1980, and did not apply to the 1988
local elections, which were supposed to be governed by the first-mentioned resolution. However, Res. No. 1996
took effect only on March 3, 1988, following the lapse of seven days after its publication as required by RA No.
6646, otherwise known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its
Section 30 provides in part:

Sec. 30. Effectivity of Regulations and Orders of the Commission. — The rules and regulations
promulgated by the Commission shall take effect on the seventh day after their publication in the
Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines.

The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on
time. We agree with the respondents that the fee was paid during the ten-day period as extended by the pendency
of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the
payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the
payment of the fees in quo warranto proceedings was already effective. There is no record that Res. No. 1450 was
even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in
the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed.

The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the resolutions became effective "immediately upon
approval" simply because it was so provided therein. We held in that case that publication was still necessary under
the due process clause despite such effectivity clause.

In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not
imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the timely
payment of the filing fee as a precondition for the timeliness of the filing of the case itself. In Sun Insurance Office,
Ltd. v. Asuncion, 5 however this Court, taking into account the special circumstances of that case, declared:

This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the
payment of the prescribed filing fee. However, the court may allow the payment of the said fee within
a reasonable time. In the event of non-compliance therewith, the case shall be dismissed.

The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20,
1988, thus:

Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are not paid,
the Commission may refuse to take action thereon until they are paid and may dismiss the action or
the proceeding. (Emphasis supplied.)
The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for
failure to pay the filing fee on time, the petitioner would at the same time minimize his alleged lack of citizenship as
"a futile technicality," It is regrettable, to say the least, that the requirement of citizenship as a qualification for public
office can be so demeaned. What is worse is that it is regarded as an even less important consideration than the
reglementary period the petitioner insists upon.

This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of the quo
warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and considering the
necessity for an early resolution of that more important question clearly and urgently affecting the public interest, we
shall directly address it now in this same action.

The Court has similarly acted in a notable number of cases, thus:

From the foregoing brief statement of the nature of the instant case, it would appear that our sole
function in this proceeding should be to resolve the single issue of whether or not the Court of
Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be
deemed pro forma.But going over the extended pleadings of both parties, the Court is immediately
impressed that substantial justice may not be timely achieved, if we should decide this case upon
such a technical ground alone. We have carefully read all the allegations and arguments of the
parties, very ably and comprehensively expounded by evidently knowledgeable and unusually
competent counsel, and we feel we can better serve the interests of justice by broadening the scope
of our inquiry, for as the record before us stands, we see that there is enough basis for us to end the
basic controversy between the parties here and now, dispensing, however, with procedural steps
which would not anyway affect substantially the merits of their respective claims. 6

xxx

While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the period
for appeal to lapse, the more correct procedure was for the respondent court to forward the case to
the proper court which was the Court of Appeals for appropriate action. Considering, however, the
length of time that this case has been pending, we apply the rule in the case of Del Castillo v.
Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of
Appeals, (135 SCRA 37) which states:

... it is a cherished rule of procedure for this Court to always strive to settle the entire
controversy in a single proceeding leaving no root or branch to bear the seeds of
future litigation. No useful purpose will be served if this case is remanded to the trial
court only to have its decision raised again to the Intermediate Appellate Court and
from there to this Court. (p. 43)

Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No. 50141,
January 29, 1988), we stated that:

... But all those relevant facts are now before this Court. And those facts dictate the rendition of a
verdict in the petitioner's favor. There is therefore no point in referring the case back to the Court of
Appeals. The facts and the legal propositions involved will not change, nor should the ultimate
judgment. Considerable time has already elapsed and, to serve the ends of justice, it is time that the
controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil.
57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA
575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162). Sound lâwphî1.ñèt

practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to
 the parties and the government, not to speak of delay in the disposal of the case (cf. Fernandez v.
Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the dictates of
justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat v. Republic, 21
SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case,
the dictates of justice do demand that this Court act, and act with finality. 7

xxx

Remand of the case to the lower court for further reception of evidence is not necessary where the
court is in a position to resolve the dispute based on the records before it. On many occasions, the
Court, in the public interest and the expeditious administration of justice, has resolved actions on the
merits instead of remanding them to the trial court for further proceedings, such as where the ends
of justice would not be subserved by the remand of the case or when public interest demands an
early disposition of the case or where the trial court had already received all the evidence of the
parties. 8

This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed that
a foreigner is holding a public office.

We also note in his Reply, the petitioner says:

In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its own"
private respondent's repeated assertion that petitioner is no longer a Filipino citizen. In so doing, has
not respondent COMELEC effectively disqualified itself, by reason of prejudgment, from resolving
the petition for quo warranto filed by private respondent still pending before it? 9

This is still another reason why the Court has seen fit to rule directly on the merits of this case.

Going over the record, we find that there are two administrative decisions on the question of the petitioner's
citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and found the petitioner to be
a citizen of the Philippines. 10 The second was rendered by the Commission on Immigration and Deportation on
September 13, 1988, and held that the petitioner was not a citizen of the Philippines. 11

The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners Pabalate
Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the petition
"without prejudice to the issue of the respondent's citizenship being raised anew in a proper case." Commissioner
Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision until representations shall have
been made with the Australian Embassy for official verification of the petitioner's alleged naturalization as an
Australian.

The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners Alano
and Geraldez of the Commission on Immigration and Deportation. It is important to observe that in the proceeding
before the COMELEC, there was no direct proof that the herein petitioner had been formally naturalized as a citizen
of Australia. This conjecture, which was eventually rejected, was merely inferred from the fact that he had married
an Australian citizen, obtained an Australian passport, and registered as an alien with the CID upon his return to this
country in 1980.

On the other hand, the decision of the CID took into account the official statement of the Australian Government
dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of
that date by reason of his naturalization in 1976. That statement 12 is reproduced in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment signed and
sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and recognized as such by Letter
of Patent signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983, do hereby
provide the following statement in response to the subpoena Testificandum dated 9 April 1984 in regard to the
Petition for disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the
statement is true and correct.

STATEMENT

A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines
to an Australian citizen. As the spouse of an Australian citizen, he was not required to meet normal
requirements for the grant of citizenship and was granted Australian citizenship by Sydney on 28
July 1976.

B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of
allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I ...,
renouncing all other allegiance ..." etc. This need not necessarily have any effect on his former
nationality as this would depend on the citizenship laws of his former country.

C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on
the ground that the marriage had been bigamous.

D) According to our records LABO is still an Australian citizen.

E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian
Citizenship Act 1948 which relates to the giving of false or misleading information of a material
nature in respect of an application for Australian citizenship. If such a prosecution was successful,
he could be deprived of Australian citizenship under Section 21 of the Act.

F) There are two further ways in which LABO could divest himself of Australian citizenship:

(i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the
Australian Citizenship Act, or

(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act other than
marriage, then he would automatically lose as Australian citizenship under Section 17 of the Act.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN
EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT MANILA IN THE PHILIPPINES.

(Signed) GRAHAM C. WEST Consul

This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by the
Department of Foreign Affairs reading as follows: 13

Sir:

With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with the
Australian Government through the Embassy of the Philippines in Canberra has elicited the following
information:
 1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.

2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of
allegiance or make an affirmation of allegiance which carries a renunciation of "all other allegiance.

Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR. Assistant
Secretary

The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows:

OATH OF ALLEGIANCE

I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true
allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors
according to law, and that I will faithfully observe the laws of Australia and fulfill my duties as an
Australian citizen. 14

and the Affirmation of Allegiance, which declares:

AFFIRMATION OF ALLEGIANCE

I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be
faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs
and successors according to law, and that I will faithfully observe the Laws of Australia and fulfill my
duties as an Australian citizen. 15

The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained
Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when he declared before
the immigration authorities that he was an alien and registered as such under Alien Certificate of Registration No. B-
323985. 16 He later asked for the change of his status from immigrant to a returning former Philippine citizen and was
granted Immigrant Certificate of Residence No. 223809. 17 He also categorically declared that he was a citizen of
Australia in a number of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of the
barangay court on the ground that he was a foreigner. 18

The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the
petitioner of his citizenship, although, as earlier noted, not all the members joined in this finding. We reject this ruling
as totally baseless. The petitioner is not an unlettered person who was not aware of the consequences of his acts,
let alone the fact that he was assisted by counsel when he performed these acts.

The private respondent questions the motives of the COMELEC at that time and stresses Labo's political affiliation
with the party in power then, but we need not go into that now.

There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this
too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several
cases. 19 Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the
answer, having been invoked only when the petitioner filed his reply 20 to the private respondent's comment.
Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case.

The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of
Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because
of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and
positive process, simplified in his case because he was married to an Australian citizen. As a condition for such
naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above.
Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the
Second, Queen of Australia ..." and to fulfill his duties "as an Australian citizen."

The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did not
divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear provisions of CA
No. 63, which enumerates the modes by which Philippine citizenship may be lost. Among these are: (1)
naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of
allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It is
also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual
allegiance of citizens is inimical to the national interest and shall be dealt with by law."

Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found
that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his
Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between
him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine
citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may
have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically
reinstated as a citizen of the Philippines.

Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress,
by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has
reacquired Philippine citizenship by any of these methods. He does not point to any judicial decree of naturalization
as to any statute directly conferring Philippine citizenship upon him. Neither has he shown that he has complied with
PD No. 725, providing that:

... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine
citizenship through repatriation by applying with the Special Committee on Naturalization created by
Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of
allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired
Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their
certificate of registration. (Emphasis supplied.)

That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his alien
certificate of registration. And that is also the reason we must deny his present claim for recognition as a citizen of
the Philippines.

The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the
Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. 21 He was
therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the Local Government Code
providing in material part as follows:

Sec. 42. Qualifications. — An elective local official must be a citizen of the Philippines, at least
twenty-three years of age on election day, a qualified voter registered as such in the barangay,
municipality, city or province where he proposes to be elected, a resident therein for at least one
year at the time of the filing of his certificate of candidacy, and able to read and write English,
Filipino, or any other local language or dialect.

The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of
the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be accurate, it was not
as loud as all that, for his lead over the second-placer was only about 2,100 votes. In any event, the people of that
locality could not have, even unanimously, changed the requirements of the Local Government Code and the
Constitution. The electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia,
or at least a stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as
mayor of their city. Only citizens of the Philippines have that privilege over their countrymen.

The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified
only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held
by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the
office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently
lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from
running as mayor and, although elected, is not now qualified to serve as such.

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can
replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest
number of votes in the election, he was obviously not the choice of the people of Baguio city.

The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 decided in 1985. In that case, the
candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a
turncoat and considered a non-candidate, were all disregarded as stray. In effect, the second placer won by default.
That decision was supported by eight members of the Court then 23 with three dissenting 24 and another two reserving
their vote. 25 One was on official leave. 26

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case
of Geronimo v. Ramos, 27 Which represents the more logical and democratic rule. That case, which reiterated the
doctrine first announced in 1912 in Topacio vs. Paredes 28 was supported by ten members of the Court 29 without any
dissent, although one reserved his vote, 30 another took no part 31 and two others were on leave. 32 There the Court
held:

... 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 a winner
and imposed as the representative of a constituency, the majority of which have positively declared
through their ballots that they do not choose him.

Sound policy dictates that public elective offices are filled by those who have received the highest
number of votes cast in the election for that office, and it is a fundamental Idea in all republican
forms of government that no one can be declared elected and no measure can be declared carried
unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris
2nd, S 243, p. 676.)

The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote
the winner into office or maintain him there. However, in the absence of a statute which clearly
asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere
belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or
meaningless.

It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless
gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he
must not lightly yield this precious advantage, rejecting it for another land that may offer him material and other
attractions that he may not find in his own country. To be sure, he has the right to renounce the Philippines if he
sees fit and transfer his allegiance to a state with more allurements for him. 33 But having done so, he cannot expect
to be welcomed back with open arms once his taste for his adopted country turns sour or he is himself disowned by
it as an undesirable alien.

Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be
restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and he
solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not be
accomplished by election to public office.

WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore
DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and
surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and executory. The
temporary restraining order dated January 31, 1989, is LIFTED.
G.R. No. 120295 June 28, 1996

JUAN G. FRIVALDO, petitioner,

vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.

G.R. No. 123755 June 28, 1996

RAUL R. LEE, petitioner,

vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

PANGANIBAN, J.:p

The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of Sorsogon -

(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who
was twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now
claims to have re-assumed his lost Philippine citizenship thru repatriation;

(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo
should be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and
that legally, he secured the most number of valid votes; or

(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor,
but who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of
Frivaldo, a "permanent vacancy in the contested office has occurred"?

In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing
jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms.

G.R. No. 123755

This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to
review and annul a Resolution of the respondent Commission on Elections (Comelec), First Division,1 promulgated
on December 19, 19952 and another Resolution of the Comelec en banc promulgated February 23, 19963 denying
petitioner's motion for reconsideration.

The Facts

On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor
of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a
petition4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or
holding any public office or position by reason of not yet being a citizen of the Philippines", and that his Certificate of
Candidacy be canceled. On May 1, 1995, the Second Division of the Comelec promulgated a Resolution5 granting
the petition with the following disposition6:

WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is
DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen
of the Philippines. Accordingly, respondent's certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So,
his candidacy continued and he was voted for during the elections held on said date. On May 11, 1995, the
Comelec en banc7 affirmed the aforementioned Resolution of the Second Division.

The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes8 dated
May 27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of
Sorsogon:

Antonio H. Escudero, Jr. 51,060

Juan G. Frivaldo 73,440

Raul R. Lee 53,304

Isagani P. Ocampo 1,925

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 praying for his proclamation as the
duly-elected Governor of Sorsogon.

In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the
Comelec en banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of
proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June 29,
1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed governor of Sorsogon.

On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC No. 95-317, praying for the
annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30,
1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for
repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had
been granted". As such, when "the said order (dated June 21, 1995) (of the Comelec) . . . was released and
received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the
proclamation (of Frivaldo) as governor . . ." In the alternative, he averred that pursuant to the two cases of Labo
vs. Comelec,12 the Vice-Governor - not Lee - should occupy said position of governor.

On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution13 holding that Lee,
"not having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-elected
governor; and that Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of
Presidential Decree No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:

PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the
Petition.

Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of
Sorsogon is hereby ordered annulled, being contrary to law, he not having garnered the highest
number of votes to warrant his proclamation.

Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of
Canvassers is directed to immediately reconvene and, on the basis of the completed canvass,
proclaim petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon having garnered the
highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June
 30, 1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of
Governor of Sorsogon.

Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the
Commission is directed to notify His Excellency the President of the Philippines, and the Secretary of
the Sangguniang Panlalawigan of the Province of Sorsogon of this resolution immediately upon the
due implementation thereof.

On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its
Resolution 14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the
prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter
alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition."

The Issues in G.R. No. 123755

Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following propositions"15:

First -- The initiatory petition below was so far insufficient in form and substance to warrant the
exercise by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted
without jurisdiction in taking cognizance of and deciding said petition;

Second -- The judicially declared disqualification of respondent was a continuing condition and
rendered him ineligible to run for, to be elected to and to hold the Office of Governor;

Third -- The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive
as to cure his ineligibility and qualify him to hold the Office of Governor; and

Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's
proclamation as duly elected Governor of Sorsogon.

G.R. No. 120295

This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in
G.R. No. 123755, as follows:

1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from
running for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen
of the Philippines";

2. Resolution17 of the Comelec en banc, promulgated on May 11, 1995; and

3. Resolution18 of the Comelec en banc, promulgated also on May 11, 1995 suspending the
proclamation of, among others, Frivaldo.

The Facts and the Issue

The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the above-
mentioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is
reproduced hereinunder:
 Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be decided, after notice and hearing, not
later than fifteen days before the election. (Emphasis supplied.)

the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period
allowed by law" i.e., "not later than fifteen days before the election."

Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within
the period of fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said
Resolutions null and void.

By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately
related in their factual environment and are identical in the ultimate question raised, viz., who should occupy the
position of governor of the province of Sorsogon.

On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file
simultaneously their respective memoranda.

The Consolidated Issues

From the foregoing submissions, the consolidated issues may be restated as follows:

1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify
him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when?

2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to
run for, be elected to or hold the governorship of Sorsogon?

3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that said
petition is not "a pre-proclamation case, an election protest or a quo warranto case"?

4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence?

5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all
of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered
within the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the
elections"?

The First Issue: Frivaldo's Repatriation

The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other
matters raised are secondary to this.

The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for elective local
officials, including that of provincial governor, thus:

Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city, or province or, in the case of a member of the
 sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or dialect.

(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang
panlungsod of highly urbanized cities must be at least twenty-three (23) years of age
on election day.

xxx xxx xxx

Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore incumbent upon him to show
that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute
(R.A. 7160).

Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation.
Frivaldo told this Court in G.R. No. 10465422 and during the oral argument in this case that he tried to resume his
citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the
endorsement of several members of the House of Representatives" due, according to him, to the "maneuvers of his
political rivals." In the same case, his attempt at naturalization was rejected by this Court because of jurisdictional,
substantial and procedural defects.

Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of
Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same
opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from holding and
discharging his popular mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon
and a favorable decision from the Commission on Elections to boot. Moreover, he now boasts of having successfully
passed through the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less
than the Solicitor General himself, who was the prime opposing counsel in the previous cases he lost, this time, as
counsel for co-respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S.
Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on June 30,
1995 is not disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the duly-elected
governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and
unquestionably, he garnered the highest number of votes in the elections and since at that time, he already
reacquired his citizenship.

En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now discuss in
seriatim.

First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President Corazon Aquino
exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of
citizenship by Presidential Decree or Executive Issuances as the same poses a serious and contentious issue of
policy which the present government, in the exercise of prudence and sound discretion, should best leave to the
judgment of the first Congress under the 1987 Constitution", adding that in her memorandum dated March 27, 1987
to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725,
President Aquino directed them "to cease and desist from undertaking any and all proceedings within your
functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as
amended."23

This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed as a law
sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal may
be express or implied. It is obvious that no express repeal was made because then President Aquino in her
memorandum -- based on the copy furnished us by Lee -- did not categorically and/or impliedly state that P.D. 725
was being repealed or was being rendered without any legal effect. In fact, she did not even mention it specifically
by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not
favored. An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the
two laws are clearly repugnant and patently inconsistent that they cannot co-exist".26

The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every
pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should
be regarded as an exercise of her law-making powers. At best, it could be treated as an executive policy addressed
to the Special Committee to halt the acceptance and processing of applications for repatriation pending whatever
"judgment the first Congress under the 1987 Constitution" might make. In other words, the former President did not
repeal P.D. 725 but left it to the first Congress -- once created -- to deal with the matter. If she had intended to
repeal such law, she should have unequivocally said so instead of referring the matter to Congress. The fact is she
carefully couched her presidential issuance in terms that clearly indicated the intention of "the present government,
in the exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other
interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee, would visit
unmitigated violence not only upon statutory construction but on common sense as well.

Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that
Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in just one day or on June 30,
1995 . . .", which "prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed
his application for repatriation with the Office of the President in Malacañang Palace on August 17, 1994. This is
confirmed by the Solicitor General. However, the Special Committee was reactivated only on June 8, 1995, when
presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-submitted
the FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent
haste" in the processing of his application.

Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely
for the personal interest of respondent,"27 the Solicitor General explained during the oral argument on March 19,
1996 that such allegation is simply baseless as there were many others who applied and were considered for
repatriation, a list of whom was submitted by him to this Court, through a Manifestation28 filed on April 3, 1996.

On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of
official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by
Lee. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that such
proceedings were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult
to comply with, nor are they tedious and cumbersome. In fact, P.D.
72529 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were
left to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets
a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is
merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born
citizen who openly and faithfully served his country and his province prior to his naturalization in the United States --
a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and
could not in conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic
space, wasted no time in returning to his country of birth to offer once more his talent and services to his people.

So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues
convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any
contest on the legality of Frivaldo's repatriation should have been pursued before the Committee itself, and, failing
there, in the Office of the President, pursuant to the doctrine of exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective
as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code
"must exist on the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R.
10465430 which held that "both the Local Government Code and the Constitution require that only Philippine
citizens can run and be elected to public office." Obviously, however, this was a mere obiter as the only issue in said
case was whether Frivaldo's naturalization was valid or not -- and NOT the effective date thereof. Since the Court
held his naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT
resolved at all by the Court. Which question we shall now directly rule on.

Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:

* a citizen of the Philippines;

* a registered voter in the barangay, municipality, city, or province . . . where he intends to be

elected;

* a resident therein for at least one (1) year immediately preceding the day of the election;

* able to read and write Filipino or any other local language or dialect.

* In addition, "candidates for the position of governor . . . must be at least twenty-three (23) years of
age on election day.

From the above, it will be noted that the law does not specify any particular date or time when the candidate must
possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately
preceding the day of election) and age (at least twenty three years of age on election day).

Philippine citizenship is an indispensable requirement for holding an elective public office,31 and the purpose of the
citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation,
shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to
discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin.
Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the very day32 the term of office of governor (and
other elective officials) began -- he was therefore already qualified to be proclaimed, to hold such office and to
discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to
govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as
distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be required at the
time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such
qualifications -- unless otherwise expressly conditioned, as in the case of age and residence -- should thus be
possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start
of his term -- in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap
& Sons, 33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being
governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but
instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected
official and at the start of his term.

But perhaps the more difficult objection was the one raised during the oral argument34 to the effect that the
citizenship qualification should be possessed at the time the candidate (or for that matter the elected official)
registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another
item of qualification, that he be a "registered voter". And, under the law35 a "voter" must be a citizen of the
Philippines. So therefore, Frivaldo could not have been a voter -- much less a validly registered one -- if he was not
a citizen at the time of such registration.

The answer to this problem again lies in discerning the purpose of the requirement. If the law intended
the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered
voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore
stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if
being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as
another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official
be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter
in the barangay, municipality, city, or province . . . where he intends to be elected." It should be emphasized that the
Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually.
Hence, registration -- not the actual voting -- is the core of this "qualification". In other words, the law's purpose in
this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern
-- and not anywhere else.

Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was and is a
registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration . . .
In fact, he cast his vote in his precinct on May 8, 1995."36

So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been a registered
voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter
was questioned, but the court dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted
in all the previous elections including on May 8, 1995."3 7

It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.

There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation,
not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus
Election Code 38 gives any voter, presumably including the defeated candidate, the opportunity to question the
ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on
how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications
enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within
ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may
be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June
30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the
afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the
highest number of votes in the immediately preceding elections and such oath had already cured his previous
"judicially-declared" alienage. Hence, at such time, he was no longer ineligible.

But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the
date of the filing of his application on August 17, 1994.

It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the contrary is
provided." But there are settled exceptions40 to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS.

According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities, thereby
validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which
otherwise would not produce their intended consequences by reason of some statutory disability or failure to comply
with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in
operation. Agpalo,42 on the other hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are intended to
supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very nature, curative
statutes are retroactive . . . (and) reach back to past events to correct errors or irregularities and to render valid and
effective attempted acts which would be otherwise ineffective for the purpose the parties intended."

On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure,
which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of
such rights, ordinarily do not come within the legal meaning of a retrospective law, nor within the general rule
against the retrospective operation of statutes.43

A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby
filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino
women (who) had lost their Philippine citizenship by marriage to aliens" and who could not, under the existing law
(C.A. No. 63, as amended) avail of repatriation until "after the death of their husbands or the termination of their
marital status" and who could neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino
woman who marries an alien to retain her Philippine citizenship . . ." because "such provision of the new
Constitution does not apply to Filipino women who had married aliens before said constitution took effect." Thus,
P.D. 725 granted a new right to these women -- the right to re-acquire Filipino citizenship even during their marital
coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also provided a new
remedy and a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now
desire to re-acquire Philippine citizenship", because prior to the promulgation of P.D. 725 such former Filipinos
would have had to undergo the tedious and cumbersome process of naturalization, but with the advent of P.D. 725
they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation.

The Solicitor General44 argues:

By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are
intended to supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and
Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).

In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law,
specifically C.A. No. 63 wherein married Filipino women are allowed to repatriate only upon the
death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and
other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of
Filipino citizenship by naturalization.

Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its
provisions are considered essentially remedial and curative.

In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent
was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or
amendment where the intent that it should so operate clearly appears from a consideration of the act as a whole, or
from the terms thereof."45 It is obvious to the Court that the statute was meant to "reach back" to those persons,
events and transactions not otherwise covered by prevailing law and jurisprudence. And inasmuch as it has been
held that citizenship is a political and civil right equally as important as the freedom of speech, liberty of abode, the
right against unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the
legislative intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been
said that a remedial statute must be so construed as to make it effect the evident purpose for which it was enacted,
so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so
applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate
some constitutional guaranty."46 This is all the more true of P.D. 725, which did not specify any restrictions on or
delimit or qualify the right of repatriation granted therein.

At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that
said law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983,
and applied for repatriation even later, on August 17, 1994?

While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless,
it is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the repatriation granted under
said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application therefor,
August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative authority that
the law should apply to past events -- i.e., situations and transactions existing even before the law came into being -
- in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the
constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest effect and
expression, then there is all the more reason to have the law apply in a retroactive or retrospective manner to
situations, events and transactions subsequent to the passage of such law. That is, the repatriation granted to
Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier mentioned,
there is nothing in the law that would bar this or would show a contrary intention on the part of the legislative
authority; and there is no showing that damage or prejudice to anyone, or anything unjust or injurious would result
from giving retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any
contractual obligation, disturbance of any vested right or breach of some constitutional guaranty.

Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine
laws and whatever defects there were in his nationality should now be deemed mooted by his repatriation.

Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725
were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of
applications for any substantial length of time, then the former Filipinos who may be stateless, as Frivaldo -- having
already renounced his American citizenship -- was, may be prejudiced for causes outside their control. This should
not be. In case of doubt in the interpretation or application of laws, it is to be presumed that the law-making body
intended right and justice to prevail.4 7

And as experience will show, the Special Committee was able to process, act upon and grant applications for
repatriation within relatively short spans of time after the same were filed.48 The fact that such interregna were
relatively insignificant minimizes the likelihood of prejudice to the government as a result of giving retroactivity to
repatriation. Besides, to the mind of the Court, direct prejudice to the government is possible only where a person's
repatriation has the effect of wiping out a liability of his to the government arising in connection with or as a result of
his being an alien, and accruing only during the interregnum between application and approval, a situation that is not
present in the instant case.

And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the
circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as
of the date of his application, i.e., on August 17, 1994. This being so, all questions about his possession of the
nationality qualification -- whether at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995)
or date of filing his certificate of candidacy (March 20, 1995) would become moot.

Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed
settled. Inasmuch as he is considered as having been repatriated -- i.e., his Filipino citizenship restored -- as of
August 17, 1994, his previous registration as a voter is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation
not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him
"from running for any elective local position?"49 We answer this question in the negative, as there is cogent reason to
hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he
ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his
American citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the interim -- when he
abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship."50

On this point, we quote from the assailed Resolution dated December 19, 1995:51

By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his
oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in
1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government."

These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been
effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this
Court, absent any showing of capriciousness or arbitrariness or
abuse.52

The Second Issue: Is Lack of Citizenship

a Continuing Disqualification?

Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as affirmed in
toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on
May 17, 1995, no restraining order having been issued by this Honorable Court.54 Hence, before Lee "was
proclaimed as the elected governor on June 30, 1995, there was already a final and executory judgment
disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes were legally "correct")
declaring Frivaldo an alien have also become final and executory way before the 1995 elections, and these "judicial
pronouncements of his political status as an American citizen absolutely and for all time disqualified (him) from
running for, and holding any public office in the Philippines."

We do not agree.

It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the
1988 elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for
such elections is final and can no longer be changed. In the words of the respondent Commission (Second Division)
in its assailed Resolution:55

The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino
citizen and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no
record of any "final judgment" of the disqualification of Frivaldo as a candidate for the May 8, 1995
elections. What the Commission said in its Order of June 21, 1995 (implemented on June 30, 1995),
directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen "having been
declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of the Philippines."
This declaration of the Supreme Court, however, was in connection with the 1992 elections.

Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with
finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of
the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration,56 we held:
 Everytime the citizenship of a person is material or indispensable in a judicial or administrative case,
whatever the corresponding court or administrative authority decides therein as to such citizenship is
generally not considered res judicata, hence it has to be threshed out again and again, as the
occasion demands.

The Third Issue: Comelec's Jurisdiction

Over The Petition in SPC No. 95-317

Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the
only "possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an
election protest or a quo warranto case". Again, Lee reminds us that he was proclaimed on June 30, 1995 but that
Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-day
reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an election protest or a quo
warranto action."

This argument is not meritorious. The Constitution57 has given the Comelec ample power to "exercise exclusive
original jurisdiction over all contests relating to the elections, returns and qualifications of all elective . . . provincial . .
. officials." Instead of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional
prerogatives, may entertain, suffice it to say that this Court has invariably recognized the Commission's authority to
hear and decide petitions for annulment of proclamations -- of which SPC No. 95-317 obviously is one.58 Thus,
in Mentang vs. COMELEC,59 we ruled:

The petitioner argues that after proclamation and assumption of office, a pre-proclamation
controversy is no longer viable. Indeed, we are aware of cases holding that pre-proclamation
controversies may no longer be entertained by the COMELEC after the winning candidate has been
proclaimed. (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513;
Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that the
proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot
deprive the COMELEC of the power to make such declaration of nullity. (citing Aguam vs.
COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)

The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following
the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no
question that the Comelec correctly acquired jurisdiction over the same.

The Fourth Issue: Was Lee's Proclamation Valid?

Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:

First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the choice of the
sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second placer, . . . just that, a second placer."

In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid
Labo62 case, as follows:

The rule would have been different if the electorate fully aware in fact and in law of a candidate's
disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast
their votes in favor of the ineligible candidate. In such case, the electorate may be said to have
waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing
away their votes, in which case, the eligible candidate obtaining the next higher number of votes
may be deemed elected.
But such holding is qualified by the next paragraph, thus:

But this is not the situation obtaining in the instant dispute. It has not been shown, and none was
alleged, that petitioner Labo was notoriously known as an ineligible candidate, much less the
electorate as having known of such fact. On the contrary, petitioner Labo was even allowed by no
less than the Comelec itself in its resolution dated May 10, 1992 to be voted for the office of the city
Payor as its resolution dated May 9, 1992 denying due course to petitioner Labo's certificate of
candidacy had not yet become final and subject to the final outcome of this case.

The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was
in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy
was not yet final on election day as there was in both cases a pending motion for reconsideration, for which reason
Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others can still be
voted for in the May 8, 1995 election, as in fact, he was.

Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully
aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of
notoriety;" in other words, that the voters intentionally wasted their ballots knowing that, in spite of their voting for
him, he was ineligible. If Labo has any relevance at all, it is that the vice-governor -- and not Lee -- should be pro-
claimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not the choice of the people" of
Sorsogon. This is the emphatic teaching of Labo:

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the
eligible candidate receiving the next highest number of votes to be declared elected. A minority or
defeated candidate cannot be deemed elected to the office.

Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he
obtained the highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's
proclamation was patently erroneous and should now be corrected.

The Fifth Issue: Is Section 78 of the

Election Code Mandatory?

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1,
1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be
annulled because they were rendered beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus
Election Code which reads as follows:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be decided after notice and hearing, not
later than fifteen days before the election. (Emphasis supplied.)

This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent
ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc63 on February 23, 1996;
which both upheld his election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No.
6646 authorizes the Commission to try and decide petitions for disqualifications even after the elections, thus:
 Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest and upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong. (emphasis supplied)

Refutation of
Mr. Justice Davide's Dissent

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's
memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725.
But whether it decrees a suspension or a repeal is a purely academic distinction because the said issuance is not a
statute that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case;64 viz., "(u)nder CA No. 63 as
amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation". He also
contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this
Court abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting
or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may have
been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his
disqualifications in 1988 and 1992, which were the subjects of such previous rulings.

Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate,
citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of
candidacy on the ground of a false material representation therein as required by Section 74. Citing Loong, he then
states his disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is
that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995
and May 11, 1995 were invalid because they were issued "not later than fifteen days before the election" as
prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit
grave abuse of discretion because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide
disqualifications even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is
merely directory", we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295".
One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must
be filed within the 25-day period prescribed therein. The present case however deals with the period during which
the Comelec may decide such petition. And we hold that it may be decided even after the fifteen day period
mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even after the elections is valid
but Loong held that a petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict.

Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo,
repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo
case. But the first (and even the second Frivaldo) decision did not directly involve repatriation as a mode of
acquiring citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for purposes of
determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has
changed his political status -- not in 1988 or 1992, but only in the 1995 elections.

Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that
"informal renunciation or abandonment is not a ground to lose American citizenship". Since our courts are charged
only with the duty of determining who are Philippine nationals, we cannot rule on the legal question of who are or
who are not Americans. It is basic in international law that a State determines ONLY those who are its own citizens -
- not who are the citizens of other countries.65 The issue here is: the Comelec made a finding of fact that Frivaldo
was stateless and such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case
law, such finding is binding and final.

The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections,
should be declared winner because "Frivaldo's ineligibility for being an American was publicly known". First, there is
absolutely no empirical evidence for such "public" knowledge. Second, even if there is, such knowledge can be
truepost facto only of the last two previous elections. Third, even the Comelec and now this Court were/are still
deliberating on his nationality before, during and after the 1995 elections. How then can there be such "public"
knowledge?

Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of electivelocal
officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section]
must be possessed by candidates, not merely at the commencement of the term, but by election day at the latest.
We see it differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to
"candidates". If the qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the
legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if
Congress had meant that the citizenship qualification should be possessed at election day or prior thereto, it would
have specifically stated such detail, the same way it did in pars. (b) to (f) far other qualifications of candidates for
governor, mayor, etc.

Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among
others, that the law specifically provides that it is only after taking the oath of allegiance that applicants shall be
deemed to have reacquired Philippine citizenship. We do not question what the provision states. We hold however
that the provision should be understood thus: that after taking the oath of allegiance the applicant is deemed to have
reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have
retroacted to the date of his application therefor.

In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of
the Local Authority Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725
suggest non-retroactivity, were already taken up rather extensively earlier in this Decision.

Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We
agree -- we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be
interpreted and applied in this case so it can be followed, so it can rule!

At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply
laws relating to elections: literal or liberal; the letter or the spirit, the naked provision or its ultimate purpose; legal
syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of
the voters' obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than
to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate
of Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's
conscience.

EPILOGUE

In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective
official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected.
We further hold P.D. No. 725 to be in full force and effect up to the present, not having been suspended or repealed
expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been properly granted and
thus valid and effective. Moreover, by reason of the remedial or curative nature of the law granting him a new right
to resume his political status and the legislative intent behind it, as well as his unique situation of having been forced
to give up his citizenship and political aspiration as his means of escaping a regime he abhorred, his repatriation is
to be given retroactive effect as of the date of his application therefor, during the pendency of which he was
stateless, he having given up his U.S. nationality. Thus, in contemplation of law, he possessed the vital requirement
of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead of
Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of
Sorsogon is deemed to have been validated as of said date as well. The foregoing, of course, are precisely
consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to
run for and hold public office. And once again, we emphasize herein our previous rulings recognizing the Comelec's
authority and jurisdiction to hear and decide petitions for annulment of proclamations.

This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect
to the manifest will of our people,66 for in case of doubt, political laws must be interpreted to give life and spirit to the
popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. Consistently, we have held:

. . . (L)aws governing election contests must be liberally construed to the end that the will of the
people in the choice of public officials may not be defeated by mere technical objections (citations
omitted).67

The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the
popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order
to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral
choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the
majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the
majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that
the ineligibility is so patently antagonistic68 to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very
democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this
undertaking, Lee has miserably failed.

In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have refused to
grant retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship
at the time he registered as a voter before the 1995 elections. Or, it could have disputed the factual findings of the
Comelec that he was stateless at the time of repatriation and thus hold his consequent dual citizenship as a
disqualification "from running for any elective local position." But the real essence of justice does not emanate from
quibblings over patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of
law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against and eschewed the
easy, legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in the
larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine political life.
Concededly, he sought American citizenship only to escape the clutches of the dictatorship. At this stage, we cannot
seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to
this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three
times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his
failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to re-
assume his nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than
any legal technicality, of his consuming intention and burning desire to re-embrace his native Philippines even now
at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on
this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life
of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted
on returning to and serving once more his struggling but beloved land of birth. He therefore deserves every liberal
interpretation of the law which can be applied in his favor. And in the final analysis, over and above Frivaldo himself,
the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice.

WHEREFORE, in consideration of the foregoing:

(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission
are AFFIRMED.

(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit.

No costs.

SO ORDERED.
G.R. No. 187478 December 21, 2009

Representative DANILO RAMON S. FERNANDEZ, Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and JESUS L. VICENTE, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

This petition for certiorari and prohibition filed under Rule 65 of the Rules of Court stems from the Decision1 in HRET
CASE No. 07-034 for quo warranto entitled Jesus L. Vicente v. Danilo Ramon S. Fernandez promulgated by the
House of Representatives Electoral Tribunal (HRET) on December 16, 2008 as well as Minute Resolution No. 09-
080 promulgated on April 30, 2009, likewise issued by the HRET, denying petitioner’s Motion for Reconsideration.

The dispositive portion of the questioned Decision reads as follows:

WHEREFORE, the Tribunal DECLARES respondent Danilo Ramon S. Fernandez ineligible for the Office of
Representative of [the] First District of Laguna for lack of residence in the district and [ORDERS] him to vacate his
office.

As soon as this Resolution becomes final and executory, let notices be sent to the President of the Philippines, the
House of Representatives through the Speaker, and the Commission on Audit through its Chairman, pursuant to
Rule 96 of the 2004 Rules of the House of Representatives Electoral Tribunal.

No pronouncement as to costs.

SO ORDERED.2

On December 22, 2008, petitioner Danilo Ramon S. Fernandez (petitioner) filed a Motion for Reconsideration of the
above-quoted Decision. The HRET, in the questioned Resolution, found petitioner’s Motion to be "bereft of new
issues/ arguments that [had] not been appropriately resolved"3 in the Decision.

Petitioner thus applied for relief to this Court, claiming that the questioned Decision and Resolution should be
declared null and void for having been respectively issued with grave abuse of discretion amounting to lack of or in
excess of jurisdiction, and praying for the issuance of a writ of prohibition to enjoin and prohibit the HRET from
implementing the questioned Decision and Resolution.4

The antecedent facts are clear and undisputed.

Petitioner filed for candidacy as Representative of the First Legislative District of the Province of Laguna in the May
14, 2007 elections. In his Certificate of Candidacy (COC), he indicated his complete/exact address as "No. 13
Maharlika St., Villa Toledo Subdivision, Barangay Balibago, Sta. Rosa City, Laguna" (alleged Sta. Rosa residence).5

Private respondent Jesus L. Vicente (private respondent) filed a "Petition to Deny Due Course to and/or Cancel
Certificate of Candidacy and Petition for Disqualification" before the Office of the Provincial Election Supervisor of
Laguna. This was forwarded to the Commission on Elections (COMELEC) and docketed therein as SPA No. 07-046
(PES). Private respondent sought the cancellation of petitioner’s COC and the latter’s disqualification as a candidate
on the ground of an alleged material misrepresentation in his COC regarding his place of residence, because during
past elections, he had declared Pagsanjan, Laguna as his address, and Pagsanjan was located in the Fourth
Legislative District of the Province of Laguna. Private respondent likewise claimed that petitioner maintained another
house in Cabuyao, Laguna, which was also outside the First District.6 The COMELEC (First Division) dismissed said
petition for lack of merit.7

Petitioner was proclaimed as the duly elected Representative of the First District of Laguna on June 27, 2007,
having garnered a total of 95,927 votes, winning by a margin of 35,000 votes over the nearest candidate.8

On July 5, 2007, private respondent filed a petition for quo warranto before the HRET, docketed as HRET CASE No.
07-034, praying that petitioner be declared ineligible to hold office as a Member of the House of Representatives
representing the First Legislative District of the Province of Laguna, and that petitioner’s election and proclamation
be annulled and declared null and void.9

Private respondent’s main ground for the quo warranto petition was that petitioner lacked the required one-year
residency requirement provided under Article VI, Section 6 of the 1987 Constitution. In support of his petition, private
respondent argued that petitioner falsely declared under oath: (1) his alleged Sta. Rosa residence; (2) the period of
his residence in the legislative district before May 14, 2007, which he indicated as one year and two months; and (3)
his eligibility for the office where he was seeking to be elected. Private respondent presented the testimony of a
certain Atty. Noel T. Tiampong, who stated that petitioner is not from the alleged Sta. Rosa residence but a resident
of Barangay Pulo, Cabuyao, Laguna; as well as the respective testimonies of Barangay Balibago Health Workers
who attested that they rarely, if ever, saw respondent in the leased premises at the alleged Sta. Rosa residence;
and other witnesses who testified that contrary to the misrepresentations of petitioner, he is not a resident of the
alleged Sta. Rosa residence. A witness testified that petitioner attempted to coerce some of the other witnesses to
recant their declarations and change their affidavits. Finally, private respondent presented as witness the lawyer
who notarized the Contract of Lease dated March 8, 2007 between petitioner as lessee and Bienvenido G. Asuncion
as lessor.10

Petitioner, as respondent in HRET Case No. 07-034, presented as his witnesses residents of Villa de Toledo who
testified that they had seen respondent and his family residing in their locality, as well as Bienvenido G. Asuncion
who testified that petitioner is the lessee in Unit No. 13 Block 1 Lot I, Maharlika St., Villa de Toledo Subdivision,
Brgy. Balibago, Sta. Rosa City, Laguna. Petitioner likewise presented Mr. Joseph Wade, President of South Point
Homeowner’s Association of Cabuyao, Laguna, as well as Engr. Larry E. Castro (Castro), who testified that since
February 2006 up to the present, petitioner had no longer been residing in his property located at Block 28, Lot 18,
South Point Subdivision, Cabuyao, Laguna, and that said property was being offered for sale and temporarily being
used by Castro, together with some security men of petitioner and employees of Rafters Music Lounge owned by
petitioner.11 Petitioner testified that he had been a resident of Sta. Rosa even before February 2006; that he owned
property in another Sta. Rosa subdivision (Bel-Air); that he and his wife had put up a business therein, the
"RAFTERS" restaurant/ bar; and that he had prior residence in another place also at Sta. Rosa as early as 2001.12

Since the HRET ruled in favor of private respondent, this petition was filed before us.

In petitioner’s assignment of errors, he alleges that the HRET grievously erred and committed grave abuse of
discretion:

1. In not placing on the quo warranto petitioner Jesus L. Vicente the burden of proving that then respondent
(now petitioner) Fernandez is not a qualified candidate for Representative of the First District of the Province
of Laguna;

2. When it disregarded the ruling of a co-equal tribunal in SPA No. 07-046;

3. When it added a property qualification to a Member of Congress;

 4. When it determined that the petitioner failed to comply with the one (1) year residency requirement based
on the contract of lease;

5. When it completely disregarded the testimonies of material witnesses;

6. When it failed to consider the intent of the petitioner to transfer domicile based on the totality of the
evidence adduced; and

7. When it failed to find the petitioner in HRET Case No. 07-034 guilty of forum-shopping.13

On the first assignment of error, petitioner questions the following pronouncement of the HRET in its decision:

In the case before us, petitioner has clearly asserted, and respondent does not deny, that his domicile of origin is
Pagsanjan in the Fourth District of Laguna. Hence, the burden is now on respondent to prove that he has
abandoned his domicile of origin, or since his birth, where he formerly ran for provincial Board Member of Laguna in
1998, for Vice-Governor of Laguna in 2001 and for Governor of Laguna in 2004. In all his Certificates of Candidacy
when he ran for these positions, he indicated under oath that his domicile or permanent residence was in Pagsanjan
in the Fourth District of Laguna, not in the First District where he later ran in the last elections.14

Petitioner contends that "it is a basic evidentiary rule that the burden of proof is on he who alleges, and he who
relies on such an allegation as his cause of action should prove the same."15 Since private respondent is the party
alleging that petitioner is not eligible for his position, it is therefore incumbent on the former, who filed the quo
warranto case before the HRET, to prove such allegation. He cites in support of his contention Sec. 1, Rule 131 of
the Rules of Court, to wit:

SECTION 1. Burden of proof . — Burden of proof is the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of evidence required by law.

Petitioner avers that private respondent failed to establish his claim and to adduce evidence sufficient to overcome
petitioner’s eligibility to be a candidate for Representative of the First District of Laguna.

On the second assignment of error, petitioner submits that the HRET should have been "guided and/or cautioned"
by the COMELEC’s dispositions in SPA No. 07-046, wherein he was adjudged as qualified to run for the position of
Congressman of the First District of Laguna by an agency tasked by law and the Constitution to ascertain the
qualifications of candidates before election. Petitioner claims that the HRET should have respected the findings of
the COMELEC and should have discreetly denied the petition.

On the third assignment of error, petitioner argues that under Article V, Section 1, of the 1987 Constitution, any
citizen of the Philippines who is a qualified voter may likewise, if so qualified under the appertaining law and the
constitution, be able to run and be voted for as a candidate for public office. Said provision reads:

SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are
at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or
other substantive requirement shall be imposed on the exercise of suffrage. 1avvphi1

Petitioner alleges that in the questioned Decision, the HRET added a new qualification requirement for candidates
seeking election to the position of Member of the House of Representatives, and that is, they must be real property
owners in the legislative district where they seek election.
On the fourth assignment of error, petitioner addresses private respondent’s arguments against the contract of lease
that he presented as part of the proof of his compliance with the residency requirement. Petitioner asserts that the
nomenclature used by contracting parties to describe a contract does not determine its nature, but the decisive
factor is the intention of the parties to a contract – as shown by their conduct, words, actions, and deeds – prior to,
during and after executing the agreement.16 Petitioner claims that he has presented ample proof of his residency in
terms of evidence more numerous and bearing more weight and credibility than those of private respondent. He
proceeds to highlight some of the evidence he offered in the quo warranto case that allegedly prove that his transfer
of residence and intention to reside in Sta. Rosa were proven by his stay in Villa de Toledo, to wit: (1) even earlier
than 2006, he had purchased a house and lot in Bel-Air Subdivision in Sta. Rosa which he rented out because he
was not yet staying there at that time; (2) he sent his children to schools in Sta. Rosa as early as 2002; and (3) he
and his wife established a restaurant business there in 2003. Petitioner contends that when he and his family moved
to Sta. Rosa by initially renting a townhouse in Villa de Toledo, it cannot be said that he did this only in order to run
for election in the First Legislative District.17

As regards the alleged infirmities characterizing the execution of the contract of lease and the renewal of said
contract of lease, petitioner contends that these are not material since the lessor, Bienvenido Asuncion, affirmed his
stay in his townhouse; the neighbors and other barangay personalities confirmed his and his family’s stay in their
area; and petitioner has continued actual residence in Sta. Rosa from early 2006 to the present. Petitioner claims
that all these prove that he had effectively changed his residence and could therefore likewise transfer his voter’s
registration from Pagsanjan to Sta. Rosa under Sec. 12 of R.A. No. 8189.18 Petitioner also alleges that he had
become qualified to seek elective office in his new place of residence and registration as a voter.

To further prove that he has made Sta. Rosa his domicile of choice from early 2006 to the present, petitioner points
out that he and his wife had purchased a lot in the same area, Villa de Toledo, on April 21, 2007, built a house
thereon, and moved in said house with their family.

Regarding the non-notarization of the contract of lease raised by private respondent, petitioner avers that this "does
not necessarily nullify nor render the parties’ transaction void ab initio."19

On the fifth assignment of error, petitioner alleges that the HRET relied on private respondent’s witnesses in
negating petitioner’s claim that he had validly resided at the alleged Sta. Rosa residence for more than one year and
two months prior to the May 14, 2007 elections, and did not touch on the testimonies of his witnesses. The
questioned Decision pointed out petitioner’s alleged non-appearance in the day-to-day activities of the Homeowners’
Association and considered this as failure to prove that he is a resident of Villa de Toledo, without considering the
fact that private respondent failed to discharge the burden of proof in support of his indictment against petitioner.

On the sixth assignment of error, petitioner claims that the questioned Decision was arrived at based on the
perceived weakness of his evidence and arguments as respondent, instead of the strength of private respondent’s
own evidence and arguments in his quo warranto petition.

On the seventh and last assignment of error, petitioner alleges that the matters raised in HRET Case No. 07-034
were no different from the ones raised by private respondent before the COMELEC in SPA No. 07-046 (PES); thus,
private respondent’s petition should have been dismissed by the HRET for forum-shopping.

In his Comment dated June 22, 2009, private respondent summarized the issues raised in petitioner’s assignment of
errors into two: (1) those that involve the issue of conflict of jurisdiction between the HRET and the COMELEC
respecting the eligibility, qualification/s or disqualification of elective public officials; and (2) those that involve factual
and evidentiary matters designed as supposed errors.20
Regarding the first issue, private respondent contends that the 1987 Constitution is most equivocal in declaring that
the HRET is the sole judge of all contests relating to the election, returns and qualifications of Members of the
House of Representatives, under the following provision:

Art. VI, SECTION 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.

Private respondent alleges that the above constitutional provision was adopted by the HRET in its Rules, which
read:

THE 1998 RULES OF THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL

The House of Representatives Electoral Tribunal hereby adopts and promulgates the following Rules governing its
proceedings as the sole judge of all contests relating to the election, returns and qualifications of Members of the
House of Representatives, pursuant to Section 17, Article VI of the Constitution.

xxx xxx xxx

RULE 17

Quo Warranto

A verified petition for quo warranto contesting the election of a Member of the House of Representatives on the
ground of ineligibility or of disloyalty to the Republic of the Philippines shall be filed by any voter within ten (10) days
after the proclamation of the winner. The party filing the petition shall be designated as the petitioner while the
adverse party shall be known as the respondent.

The rule on verification provided in Section 16 hereof shall apply to petitions for quo warranto.

xxx xxx xxx

Private respondent concludes from the above that petitioner had no legal basis to claim that the HRET, when
reference to the qualification/s of Members of the House of Representatives is concerned, is "co-equal" to the
COMELEC, such that the HRET cannot disregard any ruling of COMELEC respecting the matter of eligibility and
qualification of a member of the House of Representatives. The truth is the other way around, because the
COMELEC is subservient to the HRET when the dispute or contest at issue refers to the eligibility and/or
qualification of a Member of the House of Representatives. A petition for quo warranto is within the exclusive
jurisdiction of the HRET as sole judge, and cannot be considered forum shopping even if another body may have
passed upon in administrative or quasi-judicial proceedings the issue of the Member’s qualification while the
Member was still a candidate. There is forum-shopping only where two cases involve the same parties and the
same cause of action. The two cases here are distinct and dissimilar in their nature and character.

Anent the second issue, private respondent contends that petitioner raised errors of judgment, mistakes in the
factual findings, and/or flaws in the evidence appreciation, which are appropriate on appeal, but not in a petition for
certiorari which is a special civil action, where the only allowable ground in order to prosper is grave abuse of
discretion amounting to lack or in excess of jurisdiction.

For its part, public respondent HRET, through the Solicitor General, filed a Comment dated July 14, 2009, arguing
that it did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it held that petitioner
failed to comply with the one year residency requirement under Section 6, Article VI of the 1987 Constitution.21
The HRET avers that the questioned Decision is supported by factual and legal basis, for it found that the original
and extended contracts of lease presented by petitioner were defective and fabricated, as it contained "several
apparent, if not visible, deficiencies as to form, i.e.[,] it being not notarized; the absence of witnesses, the
intercalations thereat especially on the term/period of the alleged lease; the absence of respondent’s participation
therein and some others pointed out in the petition."22 The Decision states that even if the contract of lease was valid
and legitimate, "a fixed period of one year … negates the concept of permanency that would suffice to prove
abandonment of respondent’s previous residence or domicile at Pagsanjan." The Decision further reads as follows:

Respondent’s connection to the First District of Laguna is an alleged lease agreement of a townhouse unit in the
area. The intention not to establish a permanent home in the First District of Laguna is evident in his leasing a
townhouse unit instead of buying one. The short length of time he claims to be a resident of the First District of
Laguna (and the fact that his domicile of origin is Pagsanjan, Laguna is not within the First District of
Laguna) indicate that his sole purpose in transferring his physical residence is not to acquire a new residence or
domicile but only to qualify as a candidate for Representative of the First District of Laguna.23

xxx xxx xxx

Exhibit –"3" is the very document that was produced and presented by respondent to attest that while the original
contract, replete with infirmities, as only for one year expiring even before the May 14, 2007 elections, here now
comes the renewed Contract of Lease, signed by respondent himself, no longer his wife, immaculately perfect on its
face, now notarized and properly witnessed, and even the terms and conditions thereof undeniably clear and
explicit, with the added feature of a prolonged 2-year period of lease that will go well beyond the May 14, 2007
elections.

We cannot however, simply accept the renewed Contract of Lease (Exhibit –"3") on its face. In fact, as succinctly
pointed out by petitioner, the renewed Contract of Lease suffers from a more grievous infirmity.

x x x As respondent’s brother-in-law, Atty. Macalalag is prohibited from notarizing a document that involves the
respondent.24

xxx xxx xxx

But the lack of notarial authentication does not even constitute the main defect of [Exhibit "3"]. The surfacing of
Exhibit "3" very late in the day cannot but lead to the conclusion that the same was a mere afterthought. x x x25

xxx xxx xxx

We have to emphasize that the initial one-year lease contract expired on February 27, 2007, and as such, standing
alone, the same cannot prove and will not establish the declared one-year and two months prior residence eligibility
requirement of respondent, unless it is shown that the expired lease agreement was extended or renewed beyond
the May 14, 2007 elections, and, more importantly, accompanied by a copy of the claimed existing renewed lease
agreement. x x x26

xxx xxx xxx

By the unexplained delay in the production and presentation of Exhibit "3", respondent’s residence qualifications
suffered a fatal blow. For it can no longer be denied that respondent’s claimed residence at the alleged townhouse
unit in Sta. Rosa for one year and two months prior to the May 14, 2007 election is not only most doubtful, but also
negates the concept of permanency that would suffice to prove abandonment of respondent’s previous residence or
domicile at Pagsanjan.27
Furthermore, the HRET alleges that, as it found in the questioned Decision, the witnesses presented who were
residents of Sta. Rosa, Laguna were consistent and credible in disputing petitioner’s alleged physical presence at
any given time in said place. Among these witnesses were three Barangay Health Workers, one of whom, Rowena
Dineros, submitted an affidavit that her job required her to frequently go around Villa de Toledo, knocking on every
household door to inquire about its occupants, and not once did she see petitioner at the alleged Sta. Rosa
residence. The HRET claims that this testimony was corroborated by another Barangay Health Worker (BHW),
Jeanet Cabingas, who stated in her affidavit that every time she accompanied her niece, who was petitioner’s
goddaughter, to request a favor from petitioner, the latter would ask them to return to his house in Cabuyao,
Laguna, even if she was a resident of Sta. Rosa.28 The Solicitor General quotes the following portion from the
questioned Decision:

What appears very evident from this is that respondent has absolutely not the slightest intention to reside in Sta.
Rosa permanently.

This ineluctably confirms that respondent has not developed animus manendi over the latter place, Sta. Rosa[,] and
that he has not actually abandoned his old domicile of origin in Pagsanjan.29

As for the third BHW witness, Flocerfina Torres, the HRET gives credence to her testimony that she conducted a
household census in Villa de Toledo every three months, but not once had she seen petitioner in the alleged Sta.
Rosa residence, and that she was advised by petitioner to proceed to his house in Cabuyao, Laguna when she had
attempted to solicit from petitioner at his "Rafter’s establishment because it was near her residence in Sta. Rosa."
From the foregoing testimonies, the HRET found in the questioned Decision that:

The uniform testimony of our 3 BHW witnesses disputing the physical presence of the respondent at his claimed
Toledo address during all the time that they were performing their routine duties at that community, and which
encompassed the period of "1 year and 2 months before the May 14, 2007 election", revealed that he was not
staying in Sta. Rosa.30

The HRET likewise contends that the fact that petitioner registered as a voter in Sta. Rosa does not prove that he is
a resident thereat, given that a voter is required to reside in the place wherein he proposes to vote only for six
months preceding the election.

The HRET avers that this Court had explained the importance of property ownership in Aquino v. COMELEC, et
al.31 and finds no merit in petitioner’s insistence that the will of the electorate attests to his residence in Sta. Rosa
because, the HRET further avers, "[a] disqualified candidate cannot assume office."32

The HRET likewise contends that the purpose of the residency requirement is to ensure that the person elected is
familiar with the needs and problems of his constituency.

The issues for determination are: (1) whether the HRET had jurisdiction over the case; and (2) whether petitioner
sufficiently complied with the one-year residency requirement to be a Member of the House of Representatives, as
provided in the 1987 Constitution.

The first issue is procedural and involves the jurisdiction of the HRET vis-à-vis that of the COMELEC in cases
involving the qualification of Members of the House of Representatives. Petitioner suggests that the matters raised
in HRET Case No. 07-034 were already passed upon by the COMELEC in SPA No. 07-046 (PES), thus the HRET
should have dismissed the case for forum-shopping.

We do not agree. The 1987 Constitution explicitly provides under Article VI, Section 17 thereof that the HRET and
the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns,
and qualifications of their respective members. The authority conferred upon the Electoral Tribunal is full, clear and
complete. The use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals,33 which is
conferred upon the HRET and the SET after elections and the proclamation of the winning candidates. A candidate
who has not been proclaimed and who has not taken his oath of office cannot be said to be a member of the House
of Representatives. 34

Thus, private respondent correctly pointed out that a petition for quo warranto is within the exclusive jurisdiction of
the HRET, and cannot be considered forum shopping even if, as in this case, the COMELEC had already passed
upon in administrative or quasi-judicial proceedings the issue of the qualification of the Member of the House of
Representatives while the latter was still a candidate.

Anent the second issue pertaining to petitioner’s compliance with the residency requirement for Members of the
House of Representatives, after studying the evidence submitted by the parties, we find for petitioner, taking into
account our ruling in Frivaldo v. COMELEC,35 which reads in part:

This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect
to the manifest will of our people, for in case of doubt, political laws must be interpreted to give life and spirit to the
popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. xxx (Emphasis supplied)

For the foregoing reason, the Court must exercise utmost caution before disqualifying a winning candidate, shown to
be the clear choice of the constituents that he wishes to represent in Congress.

The qualifications of a member of the House of Representatives are found in Article VI, Section 6 of the Constitution,
which provides:

Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the
Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except
the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for
a period of not less than one year immediately preceding the day of the election. (Emphasis supplied)

We find the interpretation of the HRET of the residency requirement under the Constitution to be overly restrictive
and unwarranted under the factual circumstances of this case.

The evidence presented by private respondent before the HRET hardly suffices to prove that petitioner failed to
comply with the one-year residency requirement under the Constitution. Private respondent’s documentary evidence
to disqualify petitioner mainly consisted of (a) petitioner’s certificates of candidacy (COCs) for various positions in
1998, 2001 and 2004, which all indicated his residence as Pagsanjan, Laguna within the Fourth District of said
province; (b) his application for a driver’s license in August 2005 that indicated Pagsanjan, Laguna as his residence;
and (c) the statement in his COCs including his 2007 COC for Congressman for the First District of Laguna that his
place of birth was Pagsanjan, Laguna.

The only thing these pieces of documentary evidence prove is that petitioner’s domicile of origin was Pagsanjan,
Laguna and it remained his domicile up to 2005, at the latest. On the other hand, what petitioner asserted in his
2007 COC is that he had been a resident of Sta. Rosa, Laguna in the First District of Laguna as of February 2006
and respondent’s evidence failed contradict that claim.

If it is true that petitioner and his family had been living in Sta. Rosa, Laguna as of February 2006 with the intent to
reside therein permanently, that would more than fulfill the requirement that petitioner be a resident of the district
where he was a candidate for at least one year before election day, which in this case was May 14, 2007.
In order to buttress his claim that he and his family actually resided in Sta. Rosa, Laguna beginning at least in
February 2006, petitioner’s evidence included, among others: (a) original and extended lease contracts for a
townhouse in Villa de Toledo, Barangay Balibago, Sta. Rosa, Laguna; (b) certification issued by the President of the
Villa de Toledo Homeowners Association, Inc, that petitioner has been a resident of said Subdivision since February
2006; (c) affidavits of petitioner’s neighbors in Villa de Toledo attesting that petitioner has been a resident of said
subdivision since February 2006; (d) certification of the barangay chairman of Barangay Balibago, Sta. Rosa,
Laguna that petitioner is a resident of Villa de Toledo within the said barangay; (e) certificates of attendance of
petitioner’s children in schools located in Sta. Rosa, Laguna since 2005; and (f) DTI certificates of business issued
in the name of petitioner and his wife to show that they own and operate businesses in Sta. Rosa, Laguna since
2003.

The fact that a few barangay health workers attested that they had failed to see petitioner whenever they allegedly
made the rounds in Villa de Toledo is of no moment, especially considering that there were witnesses (including
petitioner’s neighbors in Villa de Toledo) that were in turn presented by petitioner to prove that he was actually a
resident of Villa de Toledo, in the address he stated in his COC. The law does not require a person to be in his
home twenty-four (24) hours a day, seven days a week, in order to fulfill the residency requirement. It may be that
whenever these health workers do their rounds petitioner was out of the house to attend to his own employment or
business. It is not amiss to note that even these barangay health workers, with the exception of one, confirm seeing
petitioner’s wife at the address stated in petitioner’s 2007 COC. Indeed, these health workers’ testimonies do not
conclusively prove that petitioner did not in fact reside in Villa de Toledo for at least the year before election day.

Neither do we find anything wrong if petitioner sometimes transacted business or received visitors in his Cabuyao
house, instead of the alleged Sta. Rosa residence, as there is nothing in the residency requirement for candidates
that prohibits them from owning property and exercising their rights of ownership thereto in other places aside from
the address they had indicated as their place of residence in their COC.

As regards the weight to be given the contract of lease vis-à-vis petitioner’s previous COCs, we find Perez v.
COMELEC36 to be instructive in this case, and quote the pertinent portions of the decision below:

In the case at bar, the COMELEC found that private respondent changed his residence from Gattaran to
Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the following: (1) the affidavit of Engineer Alfredo
Ablaza, the owner of the residential apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where private
respondent had lived in 1990; (2) the contract of lease between private respondent, as lessee, and Tomas T.
Decena, as lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao, Cagayan, for the period July 1,
1995 to June 30, 1996; (3) the marriage certificate, dated January 18, 1998, between private respondent and Lerma
Dumaguit; (4) the certificate of live birth of private respondent's second daughter; and (5) various letters addressed
to private respondent and his family, which all show that private respondent was a resident of Tuguegarao, Cagayan
for at least one (1) year immediately preceding the elections on May 11, 1998.

There is thus substantial evidence supporting the finding that private respondent had been a resident of the Third
District of Cagayan and there is nothing in the record to detract from the merit of this factual finding.

Petitioner contends that the fact that private respondent was a resident of Gattaran, at least until June 22, 1997, is
shown by the following documentary evidence in the record, to wit: (1) his certificates of candidacy for governor of
Cagayan in the 1988, 1992 and 1995 elections; (2) his voter's registration records, the latest of which was made on
June 22, 1997; and (3) the fact that private respondent voted in Gattaran, Cagayan, in the elections of 1987, 1988,
1992 and 1995.

The contention is without merit. The fact that a person is registered as a voter in one district is not proof that he is
not domiciled in another district. Thus, in Faypon v. Quirino, this Court held that the registration of a voter in a place
other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence.
Nor is it of much importance that in his certificates of candidacy for provincial governor in the elections of 1988,
1992, and 1995, private respondent stated that he was a resident of Gattaran. Under the law, what is required for
the election of governor is residency in the province, not in any district or municipality, one year before the election.

Moreover, as this Court said in Romualdez-Marcos v. COMELEC:

It is the fact of residence, not a statement in a certificate of candidacy, which ought to be decisive in determining
whether or not an individual has satisfied the constitution's residency qualification requirement. The said statement
becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate ineligible.

In this case, although private respondent declared in his certificates of candidacy prior to the May 11, 1998 elections
that he was a resident of Gattaran, Cagayan, the fact is that he was actually a resident of the Third District not just
for one (1) year prior to the May 11, 1998 elections but for more than seven (7) years since July 1990. His claim that
he had been a resident of Tuguegarao since July 1990 is credible considering that he was governor from 1988 to
1998 and, therefore, it would be convenient for him to maintain his residence in Tuguegarao, which is the capital of
the province of Cagayan.

As always, the polestar of adjudication in cases of this nature is Gallego v. Vera, in which this Court held: "[W]hen
the evidence on the alleged lack of residence qualification is weak or inconclusive and it clearly appears, as in the
instant case, that the purpose of the law would not be thwarted by upholding the right to the office, the will of the
electorate should be respected." In this case, considering the purpose of the residency requirement, i.e., to ensure
that the person elected is familiar with the needs and problems of his constituency, there can be no doubt that
private respondent is qualified, having been governor of the entire province of Cagayan for ten years immediately
before his election as Representative of that province's Third District.37

Thus, in the case above, the Court found that the affidavit of the lessor and the contract of lease were sufficient
proof that private respondent therein had changed his residence. In the case now before us, although private
respondent raised alleged formal defects in the contract of lease, the lessor himself testified that as far as he was
concerned, he and petitioner had a valid contract and he confirmed that petitioner and his family are the occupants
of the leased premises.

Petitioner correctly pointed out that the lack of proper notarization does not necessarily nullify nor render the parties’
transaction void ab initio. In Mallari v. Alsol, we found a contract of lease to be valid despite the non-appearance of
one of the parties before a notary public, and ruled in this wise:

Notarization converts a private document into a public document. However, the non-appearance of the parties
before the notary public who notarized the document does not necessarily nullify nor render the parties' transaction
void ab initio. Thus:

. . . Article 1358 of the New Civil Code on the necessity of a public document is only for convenience, not for validity
or enforceability. Failure to follow the proper form does not invalidate a contract. Where a contract is not in the form
prescribed by law, the parties can merely compel each other to observe that form, once the contract has been
perfected. This is consistent with the basic principle that contracts are obligatory in whatever form they may have
been entered into, provided all essential requisites are present.

Hence, the Lease Contract is valid despite Mayor Perez's failure to appear before the notary public. 38

The HRET puts undue emphasis on the fact that petitioner is only leasing a townhouse in Sta. Rosa while he owns
houses in Pagsanjan and Cabuyao. His ownership of properties in other places has been taken to mean that
petitioner did not intend to make Sta. Rosa his permanent residence or that he had not abandoned his domicile of
origin.

Although it is true that the latest acquired abode is not necessarily the domicile of choice of a candidate, there is
nothing in the Constitution or our election laws which require a congressional candidate to sell a previously acquired
home in one district and buy a new one in the place where he seeks to run in order to qualify for a congressional
seat in that other district. Neither do we see the fact that petitioner was only leasing a residence in Sta. Rosa at the
time of his candidacy as a barrier for him to run in that district. Certainly, the Constitution does not require a
congressional candidate to be a property owner in the district where he seeks to run but only that he resides in that
district for at least a year prior to election day. To use ownership of property in the district as the determinative
indicium of permanence of domicile or residence implies that only the landed can establish compliance with the
residency requirement. This Court would be, in effect, imposing a property requirement to the right to hold public
office, which property requirement would be unconstitutional.

This case must be distinguished from Aquino v. COMELEC39 and Domino v. COMELEC,40 where the disqualified
candidate was shown to be merely leasing a residence in the place where he sought to run for office. In Aquino and
Domino, there appeared to be no other material reason for the candidate to lease residential property in the place
where he filed his COC, except to fulfill the residency requirement under election laws.

In the case at bar, there are real and substantial reasons for petitioner to establish Sta. Rosa as his domicile of
choice and abandon his domicile of origin and/or any other previous domicile. To begin with, petitioner and his wife
have owned and operated businesses in Sta. Rosa since 2003. Their children have attended schools in Sta. Rosa at
least since 2005. Although ownership of property should never be considered a requirement for any candidacy,
petitioner had sufficiently confirmed his intention to permanently reside in Sta. Rosa by purchasing residential
properties in that city even prior to the May 2007 election, as evidenced by certificates of title issued in the name of
petitioner and his wife. One of these properties is a residence in Bel-Air, Sta. Rosa which petitioner acquired even
before 2006 but which petitioner had been leasing out. He claims that he rented out this property because prior to
2006 he had not decided to permanently reside in Sta. Rosa. This could explain why in early 2006 petitioner had to
rent a townhouse in Villa de Toledo— his Bel-Air residence was occupied by a tenant. The relatively short period of
the lease was also adequately explained by petitioner – they rented a townhouse while they were in the process of
building their own house in Sta. Rosa. True enough, petitioner and his spouse subsequently purchased a lot also in
Villa de Toledo in April 2007, about a month before election day, where they have constructed a home for their
family’s use as a residence. In all, petitioner had adequately shown that his transfer of residence to Sta. Rosa was
bona fide and was not merely for complying with the residency requirement under election laws.

It was incumbent upon private respondent to prove his assertion that petitioner is indeed disqualified from holding
his congressional seat. Private respondent’s burden of proof was not only to establish that petitioner’s domicile of
origin is different from Sta. Rosa but also that petitioner’s domicile for the one year prior to election day continued to
be Pagsanjan, Laguna which was petitioner’s domicile of origin or that petitioner had chosen a domicile other than
Sta. Rosa, Laguna for that same period. In other words, to prove petitioner’s disqualification, the relevant period is
the one year period prior to election day. It would be absurd to rule that the petitioner in a quo warranto suit only
needs to prove that the candidate had some other previous domicile, regardless of how remote in time from election
day that previous domicile was established, and then the candidate would already have the burden to prove
abandonment of that previous domicile. It is the burden of the petitioner in a quo warranto case to first prove the
very fact of disqualification before the candidate should even be called upon to defend himself with countervailing
evidence.

In our considered view, private respondent failed to discharge his burden of proof. Petitioner’s COCs for previous
elections and his 2005 application for a driver’s license only proved that his domicile of origin was Pagsanjan,
Laguna and it remained to be so up to 2005. Affidavits/testimonies of respondent’s witnesses, at most, tended to
prove that petitioner was on several instances found in his house in Cabuyao, Laguna, which was not even his
domicile of origin. Cabuyao, Laguna is in the Second District of Laguna while petitioner’s domicile of origin,
Pagsanjan, is in the Fourth District of Laguna. Based on private respondent’s own documentary submissions,
Cabuyao was never even stated as a domicile or residence in any of the petitioner’s COCs. Moreover, owning an
abode in Cabuyao where petitioner is occasionally found did not prove that Cabuyao is petitioner’s real domicile.
Indeed, disregarding Cabuyao as petitioner’s domicile would be consistent with the established principle that
physical presence in a place sans the intent to permanently reside therein is insufficient to establish domicile.
Neither did private respondent’s submissions refute petitioner’s evidence that since February 2006 petitioner has
chosen Sta. Rosa as his domicile.

To summarize, private respondent’s own evidence did not categorically establish where petitioner’s domicile is nor
did said evidence conclusively prove that for the year prior to the May 14, 2007 petitioner had a domicile other than
where he actually resided, i.e. Sta. Rosa, Laguna. To be sure, Gallego v. Vera41 decreed that:

We might add that the manifest intent of the law in fixing a residence qualification is to exclude a stranger or
newcomer, unacquainted with the conditions and needs of a community and not identified with the latter, from an
elective office to serve that community; and when the evidence on the alleged lack of residence qualification is weak
or inconclusive and it clearly appears, as in the instant case, that the purpose of the law would not be thwarted by
upholding the right to the office, the will of the electorate should be respected. xxx xxx xxx (Emphasis supplied)

Frivaldo42 likewise prescribed that:

xxx xxx xxx To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate
that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility
and thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very
democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. xxx
xxx xxx (Emphasis supplied)

In Torayno,43 the Court had the occasion to say that:

The Constitution and the law requires residence as a qualification for seeking and holding elective public office, in
order to give candidates the opportunity to be familiar with the needs, difficulties, aspirations, potentials for growth
and all matters vital to the welfare of their constituencies; likewise, it enables the electorate to evaluate the office
seekers' qualifications and fitness for the job they aspire for. xxx xxx xxx

Recently, in Japzon v. COMELEC,44 the Court, citing Papandayan, Jr. v. COMELEC,45 said:

In Papandayan, Jr. v. Commission on Elections, the Court provided a summation of the different principles and
concepts in jurisprudence relating to the residency qualification for elective local officials. Pertinent portions of the
ratio in Papandayan are reproduced below:

Our decisions have applied certain tests and concepts in resolving the issue of whether or not a candidate has
complied with the residency requirement for elective positions. The principle of animus revertendi has been used to
determine whether a candidate has an "intention to return" to the place where he seeks to be elected. Corollary to
this is a determination whether there has been an "abandonment" of his former residence which signifies an
intention to depart therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of the
COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao,
Pangasinan on the ground that respondent's immigration to the United States in 1984 constituted an abandonment
of his domicile and residence in the Philippines. Being a green card holder, which was proof that he was a
permanent resident or immigrant of the United States, and in the absence of any waiver of his status as such before
he ran for election on January 18, 1988, respondent was held to be disqualified under §68 of the Omnibus Election
Code of the Philippines (Batas Pambansa Blg. 881).
In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was proclaimed the duly
elected representative of the 2nd District of Northern Samar. The House of Representatives Electoral Tribunal
(HRET) upheld his election against claims that he was not a natural born Filipino citizen and a resident of Laoang,
Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept of
animus revertendi or "intent to return", stating that his absence from his residence in order to pursue studies or
practice his profession as a certified public accountant in Manila or his registration as a voter other than in the place
where he was elected did not constitute loss of residence. The fact that respondent made periodical journeys to his
home province in Laoag revealed that he always had animus revertendi.

In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained that the
determination of a person's legal residence or domicile largely depends upon the intention that may be inferred from
his acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the highest number
of votes in the local elections of February 1, 1988 and who had thus been proclaimed as the duly elected governor,
was disqualified by the COMELEC for lack of residence and registration qualifications, not being a resident nor a
registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her
residence one year before the election by registering at Kananga, Leyte to qualify her to run for the position of
governor of the province of Leyte was proof that she considered herself a resident of Ormoc City. This Court
affirmed the ruling of the COMELEC and held that petitioner Larrazabal had established her residence in Ormoc
City, not in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on
February 1, 1988. There was no evidence to show that she and her husband maintained separate residences, i.e.,
she at Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte
through the years did not signify an intention to continue her residence after leaving that place.

In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence" are synonymous. The
term "residence", as used in the election law, 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. "Domicile" denotes a fixed
permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. In
that case, petitioner Philip G. Romualdez established his residence during the early 1980's in Barangay Malbog,
Tolosa, Leyte. It was held that the sudden departure from the country of petitioner, because of the EDSA People's
Power Revolution of 1986, to go into self-exile in the United States until favorable conditions had been established,
was not voluntary so as to constitute an abandonment of residence. The Court explained that in order to acquire a
new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to
remain there, and (3) an intention to abandon the old domicile. There must be animus manendi coupled with animus
non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.

Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the decisive factor in
determining whether or not an individual has satisfied the residency qualification requirement.

We do not doubt that the residency requirement is a means to prevent a stranger or newcomer from holding office
on the assumption that such stranger or newcomer would be insufficiently acquainted with the needs of his
prospective constituents. However, it is appropriate to point out at this juncture that aside from petitioner’s actual,
physical presence in Sta. Rosa for more than a year prior to election day, he has demonstrated that he has
substantial ties to Sta. Rosa and the First District of Laguna for an even longer period than that. Petitioner has
business interests in Sta. Rosa comprised of restaurants and a residential property for lease. Petitioner has two
children studying in Sta. Rosa schools even before 2006. These circumstances provided petitioner with material
reasons to frequently visit the area and eventually take up residence in the said district. Significantly, petitioner
previously served as Board Member and Vice-Governor for the Province of Laguna, of which the First District and
Sta. Rosa are a part. It stands to reason that in his previous elected positions petitioner has acquired knowledge of
the needs and aspirations of the residents of the First District who were among his constituents.
Simply put, petitioner could not be considered a "stranger" to the community which he sought to represent and that
evil that the residency requirement was designed to prevent is not present in this case.

We take this occasion to reiterate our ruling in Sinaca v. Mula,46 to wit:

[When] a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts
should be resolved in favor of the candidate's eligibility for to rule otherwise is to defeat the will of the people. Above
and beyond all, the determination of the true will of the electorate should be paramount. It is their voice, not ours or
of anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred.

WHEREFORE, premises considered, the petition is hereby GRANTED. The decision of the HRET in HRET CASE
No. 07-034 promulgated on December 16, 2008, and its Minute Resolution No. 09-080 promulgated on April 30,
2009 in the same case, are hereby REVERSED AND SET ASIDE.

SO ORDERED.