Pre-proclamation Controversy vs.

Election Contest

Sarangani vs. COMELEC, G.R. No. 155560-62, Nov. 11, 2003

This case involves two rulings of the Provincial Board of Canvassers, signed by only two of
its members. The rulings excluded Certificates of Canvass from the municipalities of Wao
and Bubong on the ground that they were manufactured and falsified. Consequently, the
COMELEC directed an investigation to be conducted on the two members of the Provincial
Board of Canvassers for any culpable violation of the election laws which they might have
committed by the following acts: (1) their failure to appear on the scheduled
hearings/meetings in the instant cases after the suspension of the canvass despite their
assurances and legal duty to do so; (2) their having issued the alleged written rulings
excluding the COCs from Wao and Bubong without giving the Vice-Chairman the
opportunity to participate and take part in the deliberations; and (3) their unprecedented
act of deliberating and/or issuing the written rulings by themselves and of clandestinely
submitting or turning over the said rulings to the Office of the COMELEC Secretary for
promulgation without setting any hearing or giving notice to the Vice-Chairman and/or to
the
herein
parties.
The Supreme Court upheld the findings of the COMELEC during its investigation that the
alleged tampering and falsification in the Certificates of Canvass were duly accounted for
and
did
not
affect
the
integrity
of
the
ballot.
In a pre-proclamation controversy, the board of canvassers and the COMELEC are not
required to look beyond or behind the election returns which are on their face regular and
authentic. Where a party seeks to raise issues the resolution on which would necessitate
the COMELEC to pierce the veil of election returns which are prima facie regular, the
proper remedy would be a regular election protest and not a pre-proclamation
controversy.

EN BANC
[G.R. No. 135927. June 26, 2000]
SULTAN USMAN SARANGANI, SORAIDA M. SARANGANI and HADJI NOR HASSAN,
petitioners, vs. COMMISSION ON ELECTIONS and HADJI ABOLAIS R. OMAR, MANAN OSOP
and ATTY. NASIB D. YASSIN, respondents.
DECISION
BUENA, J.:
Way back in the 1950s and during the martial law era, it has been said that even the dead, the birds and
the bees voted in Lanao. This petition for certiorari under Rule 65 of the Rules of Court which seeks to
nullify the Order issued by the Commission on Elections [COMELEC, for brevity] dated June 29,

1998, finding Padian Torogan in Madalum, Lanao Del Sur as "ghost precinct," is an illustrative case.
The facts are as follows:
On September 15, 1997, a petition for annulment of several precincts and annulment of book of voters
in Madalum, Lanao Del Sur was filed with the COMELEC by, among others, Hadji Oblais R. Omar
thru counsel Atty. Nasib D. Yasin, herein private respondents. Among the precincts sought to be
annulled was Padian Torogan, subject matter of the present petition for certiorari.[1]
On September 18, 1997, the COMELEC, thru the Clerk of the Commission sent telegrams to the
respective Board of Election Inspectors (BEI) of the questioned precincts in Madalum, Lanao Del Sur,
including Padian Torogan, to file their answer to the petition for abolition of precincts and annulment of
book of voters.[2]
On October 31, 1997, the incumbent mayor of Madalum, Lanao Del Sur, Usman T. Sarangani, herein
petitioner, together with other oppositors who were allegedly barangay chairmen of the twenty- three
(23) barangays the "Books of Voters" and precincts of which were sought to be annulled and abolished,
respectively, filed an "Answer in Opposition"[3] which included the affidavits of the barangay
chairmen of the affected precincts attesting to the fact that the move to annul the book of voters and
abolish the questioned election precincts were for the purpose of diminishing the bailiwicks of the
incumbent mayor of Madalum, Lanao del Sur.[4]
After hearing and submission of formal offer of exhibits and memoranda by the parties, the COMELEC
issued an Order[5] dated February 11, 1998, referring the case to its Law Department for appropriate
investigation. The COMELEC - Law Department conformably issued a memorandum dated April 29,
1998 directing Atty. Muslemin Tahir, the Provincial Election Supervisor of Marawi City, Lanao del Sur
"to conduct a rigorous incisive investigation on the alleged ghost precincts and thereafter submit a
report on the investigation conducted."[6] Consequently, Atty. Tahir created a TASK FORCE
INVESTIGATION TEAM by virtue of a memorandum dated June 13, 1998 directing Election Officers
Casan Macadato, Sacrain Guro and Anuar Datudacula "to conduct ocular inspection on the alleged
twelve (12) ghost barangays in the Municipality of Madalum, Lanao Del Sur."[7]
On June 18, 1998, an ocular inspection was conducted on the alleged ghost precincts yielding the
following results
"At 12:10 pm, the Task Force Investigation Team from the COMELEC accompanied by traditional
leaders, political leaders, many concerned residents of this town, a representative from the Lanao del
Sur Provincial Statistics Office, Mr. Lacson Abdullah, and a Team from the DILG-ARMM, Lanao del
Sur, arrived in the area supposedly Barangay Padian Torogan with these comments and observations:
"It appears that in this area there are only two structures: One is a concrete house with no roof, and the
other is a wooden structure without walls and roof. This obviously mean that no single human being

could possibly reside in these two structures.

"Also, it came out that the name Padian-Torogan means a cemetery not a residential place. So this
contradicts the records being brought by the COMELEC Team from the Census saying that the area has
45 households with a total population of 285. (Ref. Municipal census Report as of September 1, 1995).
"Besides, no less than the Chairman of the COMELEC Investigating Team asked the people around
who among them is a resident or a registered voter in the so-called Barangay Padian-Torogan, and no
one answered affirmatively.
"Then at 12:50 PM, the COMELEC Investigating Team still with the people mentioned above are in
Barangay Lumbac to look for the other supposed Barangay named Rakutan, and found this
observations.
x x x.....x x x.....x x x
"By the way, unfortunately, at the peak of this ocular inspection, the Madalum Municipal Chief of
Police Mahdi Mindalano, armed with UZI pistolized Machine Gun, arrived at the scene at exactly
12:55 pm boarding an orange Mitsubishi car with four armed bodyguards, the (sic) confronted the
Team Leader of the COMELEC Investigating Group and angrily insisted to stop the ocular inspection.
"This STACOM Mindalano, in warning a photographer not to take a shot on him, pointed his pistolized
Rifle to this man when the photographer positioned his camera to take a picture of him while he is
arguing with the investigating leader, Mr. CASAN MACADATO.
"Moving camera film and several pictures are added hereto for further information and as exhibits.
Also attached hereof are the names and signatures of among the more-or-less one hundred people who
observed the conduct of this ocular inspection.
(NOTE: This writer, Mr. Khalil Y. Alawi, is a member of the five (5) man Committee from the DILGARMM, Lanao del Sur created in respect to the Memo/Invitation from the COMELEC Provincial
Office of Lanao del Sur dated June 15, 1998 signed by Mr. CASAN MACADATO, EO II, Chief
Investigation Team. Mr. Macadato designated verbally and in public Mr. ALAWI to be his Secretary
during this investigation, and of course, the (sic) with the consent of the DILG Team).
"I hereby certify that the foregoing are true and correct to the best of my knowledge.
Prepared by: (sgd) Khalil Y. Alawi

Member, DILG Team

Submitted by: (sgd) Casan Macadato
Election Officer II
Chairman, Task Force Investigation Team" [8]
On the basis of the foregoing, Election Officer Casan Macadato submitted to the Provincial Election
Supervisor of COMELEC in Marawi City its 1st Indorsement dated June 19, 1998 reporting the results
of the ocular inspection that Padian Torogan and Rakutan were uninhabited.[9]
On June 29, 1998, the COMELEC issued the assailed Order finding "Padian Torogan as ghost
precinct." The dispositive portion of the COMELEC Order reads:
"ACCORDINGLY, the Commission En Banc:
(1) resolves to GRANT the request and hereby:
(a).....DIRECTS the Task Force Investigating Team created pursuant to the Order of the Commission en
banc dated February 11, 1998, to continue the conduct of ocular inspection and investigation as
contained in the original directive of the Law Department dated April 29, 1998;
(b).....RECOMMENDS to the PNP Director and the Regional Director of the Philippine National
police, (1) to immediately relieve and transfer Chief of Police Mahdi Mindalano of Madalum, Lanao
del Sur and transfer him to an area where it will be extremely difficult for him to return to Mandalum
and do further damage to effort of the Commission to investigate ghost precincts in said area
considering the urgency of said investigation. (2) to look into the possibility of involvement of other
policement (sic) in Madalum in the aforestated criminal mischief of the Police Station Commander or
their possible partisanship.
(c).....RECOMMENDS to AFP Regional Command, Armed Forces of the Philippines, to immediately
assign sufficient number of men to maintain peace and order in the Municipality of Madalum, Lanao
del Sur, and to escort and secure the safety of the COMELEC Investigating Team during the conduct of
ocular inspections and investigations.
(2) finds Padian Torogan as ghost precinct and shall be excluded from the special election to be
conducted in Madalum.

(3) Order the Investigating Team, thru Macadatu, to immediately resume the investigation, the
remaining ghost precincts in Madalum and to submit its findings to the Commission with dispatch,
allowing it to submit partial findings if necessary.
The Law Department of this Commission is hereby directed to implement this order.
SO ORDERED." (emphasis supplied)[10]
On November 3, 1998, Sultan Usman Sarangani, Soraida M. Sarangani and Hadji Nor Hassan, in their
respective capacity as former Municipal Mayor, incumbent Mayor and Vice-Mayor of Madalum filed
the instant petition for certiorari and mandamus urging us to nullify the Order issued by the
COMELEC, for having been issued with grave abuse of discretion. Likewise, petitioners moved to
consolidate this case with G.R. No. 134456 entitled "Sultan Sarangani, et. al vs. COMELEC, et. al"
alleging that G.R. No. 134456 also involves a COMELEC decision declaring the precinct
corresponding to eight (8) barangays in Madalum, Lanao del Sur as ghosts precincts.
In a resolution[11] issued by this Court on January 19, 1999, we denied the motion to consolidate,
considering that G.R. No. 134456 had already been dismissed in our resolutions of August 4, 1998 and
August 18, 1998.
The basic issue to be resolved in this petition is whether or not the respondent COMELEC committed
grave abuse of discretion in declaring Padian-Torogan as ghost precinct.[12]
On a preliminary matter, though not clear, it appears from the records that Padian Torogan is a
barangay in Madalum, Lanao del Sur and it was erroneous for the COMELEC to consider PadianTorogan as a ghost precinct. In any case, the court is not tasked to determine whether the so-called
Padian Torogan is a barangay or a mere election precinct. The petition states that precinct No. 27A
located in Barangay Padian Torogan was the one declared as a ghost precinct by the COMELEC
although the assailed Order did not mention any specific precinct but simply declared "Padian Torogan
as ghost precinct." To be clear, what was necessarily contemplated by the assailed Order would be the
election precinct in the said place.
It must be noted that under the Omnibus Election Code, there should be at least one precinct per
barangay.[13] In designating election precincts, the COMELEC usually refers to them by number.
Nevertheless, the determination of whether a certain election precinct actually exists or not and whether
the voters registered in said precinct are real voters is a factual matter. On such issue, it is a timehonored precept that factual findings of the COMELEC based on its own assessments and duly
supported by evidence, are conclusive upon this Court, more so, in the absence of a substantiated attack
on the validity of the same.[14] Upon review of the records, the Court finds that the COMELEC had
exerted efforts to investigate the facts and verified that there were no public or private buildings in the
said place, hence its conclusion that there were no inhabitants. If there were no inhabitants, a fortiori,
there can be no registered voters, or the registered voters may have left the place. It is not impossible
for a certain barangay not to actually have inhabitants considering that people migrate. A barangay may

officially exist on record and the fact that nobody resides in the place does not result in its automatic
cessation as a unit of local government. Under the Local Government Code of 1991, the abolition of a
local government unit (LGU) may be done by Congress in the case of a province, city, municipality, or
any other political subdivision.[15] In the case of a barangay, except in Metropolitan Manila area and in
cultural communities, it may be done by the Sangguniang Panlalawigan or Sangguniang Panglungsod
concerned subject to the mandatory requirement of a plebiscite[16] conducted for the purpose in the
political units affected.
The findings of the administrative agency cannot be reversed on appeal or certiorari particularly when
no significant facts and circumstances are shown to have been overlooked or disregarded which when
considered would have substantially affected the outcome of the case. The COMELEC has broad
powers to ascertain the true results of an election by means available to it.[17] The assailed order
having been issued pursuant to COMELECs administrative powers and in the absence of any finding
of grave abuse of discretion in declaring a precinct as non-existent, said order shall stand. Judicial
interference is unnecessary and uncalled for.[18] No voter is disenfranchised because no such voter
exist. The sacred right of suffrage guaranteed by the Constitution[19] is not tampered when a list of
fictitious voters is excluded from an electoral exercise. Suffrage is conferred by the Constitution only
on citizens who are qualified to vote and are not otherwise disqualified by law. On the contrary, such
exclusion of non-existent voters all the more protects the validity and credibility of the electoral
process as well as the right of suffrage because the "electoral will" would not be rendered nugatory by
the inclusion of some ghost votes. Election laws should give effect to, rather than frustrate the will of
the people.[20]
WHEREFORE, the petition is hereby DISMISSED, and the assailed Order dated June 29, 1998 of the
Commission on Elections is UPHELD. No pronouncement as to costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 164858

November 16, 2006

HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner,

CHARMIE Q. BENAVIDES, Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari1 assailing the Resolution dated 20 August 2004,2 the Resolution dated
21 May 20043 of the Commission on Elections (COMELEC) En Banc, and the Advisory dated 10 May
20044 of COMELEC Chairman Benjamin S. Abalos ("Chairman Abalos") in SPA No. 04-288.
The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National Capital Region (NCR)
Regional Director Esmeralda Amora-Ladra ("Director Ladra") from implementing the COMELEC First
Divisions 5 May 2004 Resolution.5 The 5 May 2004 Resolution ordered (1) the disqualification of
respondent Vicente P. Eusebio ("Eusebio") as a candidate for Pasig City Mayor in the 10 May 2004
elections, (2) the deletion of Eusebios name from the certified list of candidates for Pasig City Mayor,
(3) the consideration of votes for Eusebio as stray, (4) the non-inclusion of votes for Eusebio in the
canvass, and (5) the filing of the necessary information against Eusebio by the COMELEC Law
Department.
The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May 2004 Order of the
COMELEC En Banc6 and directed the Pasig City Board of Canvassers to proclaim the winning
candidate for Pasig City Mayor without prejudice to the final outcome of Eusebios disqualification
case. The 11 May 2004 Order suspended the proclamation of Eusebio in the event that he would
receive the winning number of votes.

Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5 May 2004 Resolution of the
COMELEC First Division7 and nullified the corresponding order. The COMELEC En Banc referred
the case to the COMELEC Law Department to determine whether Eusebio actually committed the acts
subject of the petition for disqualification.
The Facts
On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"), Roberto Peralta ("Peralta"),
Reynaldo dela Paz ("dela Paz"), Edilberto Yamat ("Yamat"), and Ram Alan Cruz ("Cruz") (collectively,
"petitioners"), filed a petition for disqualification8 under Sections 68 and 80 of the Omnibus Election
Code against Eusebio before the COMELEC. Lanot, Obispo, and Eusebio were candidates for Pasig
City Mayor, while Peralta, dela Paz, Yamat, and Cruz were candidates for Pasig City Councilor in the
10 May 2004 elections. The case was docketed as SPA (NCR-RED) No. C04-008.
Petitioners alleged that Eusebio engaged in an election campaign in various forms on various occasions
outside of the designated campaign period, such as (1) addressing a large group of people during a
medical mission sponsored by the Pasig City government; (2) uttering defamatory statements against
Lanot; (3) causing the publication of a press release predicting his victory; (4) installing billboards,
streamers, posters, and stickers printed with his surname across Pasig City; and (5) distributing shoes to
schoolchildren in Pasig public schools to induce their parents to vote for him.
In his Answer filed on 29 March 2004,9 Eusebio denied petitioners allegations and branded the
petition as a harassment case. Eusebio further stated that petitioners evidence are merely fabricated.
Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she received the parties
documentary and testimonial evidence. Petitioners submitted their memorandum10 on 15 April 2004,
while Eusebio submitted his memorandum11 on 16 April 2004.
The Ruling of the Regional Director
On 4 May 2004, Director Ladra submitted her findings and recommendations to the COMELEC.
Director Ladra recommended that:
WHEREFORE, in view of the foregoing, undersigned respectfully recommends that the instant petition
be GRANTED. Consequently, pursuant to Section 68 (a) and (e) of the Omnibus Election Code,
respondent VICENTE P. EUSEBIO shall be DISQUALIFIED to run for the position of Mayor, Pasig
City for violation of Section 80 of the Omnibus Election Code.
Further, undersigned respectfully recommends that the instant case be referred to the Law Department
for it to conduct a preliminary investigation on the possible violation by the respondent of Sec. 261 (a)
of the Omnibus Election Code.12

The Ruling of the COMELEC

In a resolution dated 5 May 2004, or five days before the elections, the COMELEC First Division
adopted the findings and recommendation of Director Ladra. The dispositive portion of the resolution
read:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) RESOLVED as it
hereby RESOLVES to ORDER:
1. the disqualification of respondent VICENTE P. EUSEBIO from being a candidate for mayor of Pasig
City in the May 10, 2004 elections;
2. the Election Officers of District I and District II of Pasig City to DELETE and CANCEL the name of
respondent VICENTE P. EUSEBIO from the certified list of candidates for the City Offices of Pasig
City for the May 10, 2004 elections;
3. the Board of Election Inspectors of all the precincts comprising the City of Pasig not to count the
votes cast for respondent VICENTE EUSEBIO, the same being cast for a disqualified candidate and
therefore must be considered stray;
4. the City Board of Canvassers of Pasig City not to canvass the votes erroneously cast for the
disqualified candidate respondent VICENTE P. EUSEBIO, in the event that such votes were recorded
in the election returns[;]
5. the Regional Director of NCR, and the Election Officers of Pasig City to immediately implement the
foregoing directives[;]
6. the Law Department through its Director IV, Atty. ALIODEN DALAIG to file the necessary
information against Vicente P. Eusebio before the appropriate court.
This Resolution is immediately executory unless restrained by the Commission En Banc.13 (Emphasis
in the original)
In a Very Urgent Advisory14 dated 8 May 2004, or two days before the elections, Chairman Abalos
informed the following election officers of the resolution of the COMELEC First Division: Director
Ladra; Atty. Romeo Alcazar, Acting Election Officer of the First District of Pasig City; Ms. Marina
Gerona, Acting Election Officer of the Second District of Pasig City; and all Chairmen and Members of
the Board of Election Inspectors and City Board of Canvassers of Pasig City (collectively, "pertinent
election officers"). Director Ladra repeated the dispositive portion of the 5 May 2004 resolution in a

Memorandum15 which she issued the next day. On 9 May 2004, Eusebio filed a motion for
reconsideration16 of the resolution of the COMELEC First Division.
On election day itself, Chairman Abalos issued the first of the three questioned COMELEC issuances.
In a memorandum, Chairman Abalos enjoined Director Ladra from implementing the COMELEC First
Divisions 5 May 2004 resolution due to Eusebios motion for reconsideration. The 10 May 2004
memorandum stated:
Considering the pendency of a Motion for Reconsideration timely filed by Respondent, Vicente P.
Eusebio[,] with the Commission En Banc, you are hereby ENJOINED from implementing the
Resolution promulgated on May 5, 2004, in the x x x case until further orders from the Commission En
Banc.17 (Emphasis in the original)
On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela Paz, Yamat, and Cruz filed
before the COMELEC En Banc a motion to suspend the counting and canvassing of votes and the
proclamation of the winning mayoral candidate for Pasig City.18 Without waiting for Eusebios
opposition, the COMELEC En Banc partially denied the motion on the same day. The dispositive
portion of the Order declared:
WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the motion for suspension
of the counting of votes and the canvassing of votes. However, in order not to render moot and
academic the issues for final disposition by the En Banc and considering that on the basis of the
Resolution of the FIRST DIVISION, the evidence of respondents guilt is strong, the Commission En
Banc hereby ORDERS to SUSPEND, UNTIL FURTHER ORDERS OF THE COMMISSION, the
proclamation of respondent in the event he receives the winning number of votes.19 (Emphasis in the
original)
On 12 May 2004, Eusebio filed his opposition to petitioners motion.
On 21 May 2004, the COMELEC En Banc issued the second questioned issuance. The order quoted
from the motion for advisory opinion of the Pasig City Board of Canvassers which reported that 98%
of the total returns of Pasig City had been canvassed and that there were only 32 uncanvassed returns
involving 6,225 registered voters. Eusebio had 119,693 votes while Lanot had 108,941 votes. Thus, the
remaining returns would not affect Eusebios lead over Lanot. The COMELEC En Banc stated its
"established policy" to "expedite the canvass of votes and proclamation of winning candidates to ease
the post election tension and without prejudice to [its] action in [the] x x x case"20 and resolved to
declare Eusebio as Pasig City Mayor. The dispositive portion of the 21 May 2004 Order read:
WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES, to LIFT AND SET ASIDE
the order suspending the proclamation of the respondent.
FURTHER, the City Board of Canvassers is DIRECTED to complete [the] canvass and immediately

proceed with the proclamation of the winning candidate for Mayor of Pasig City without prejudice to
the final outcome of the case entitled, "Henry P. Lanot, et al., vs. Vicente Eusebio[, "] docketed as SPA
No. 04-288.21 (Emphasis in the original)
Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the 21 May 2004
Order.1wphi1 On 25 June and 6 July 2004, the COMELEC En Banc conducted hearings on Eusebios
motion for reconsideration of the 5 May 2004 COMELEC First Division resolution. On 6 August 2004,
Lanot filed a motion to annul Eusebios proclamation and to order his proclamation instead.22
On 20 August 2004, the COMELEC En Banc promulgated the third questioned issuance. The
COMELEC En Banc invoked Section 1 of COMELEC Resolution No. 2050 ("Resolution 2050") and
this Courts rulings in Albaa v. COMELEC,23 Lonzanida v. COMELEC,24 and Sunga v.
COMELEC25 in justifying the annulment of the order to disqualify Eusebio and the referral of the case
to the Law Department for preliminary investigation. The dispositive portion stated:
WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by the First Division dated 8
May 2004 on the above-captioned case, affirming the recommendation of the Regional Director (NCR)
to disqualify herein respondent, is hereby SET ASIDE, and the corresponding ORDER issued
thereunder, ANNULLED. Accordingly, this case is referred to the Law Department for investigation to
finally determine [whether] the acts complained of were in fact committed by respondent Eusebio.26
(Emphasis in the original)
Hence, this petition.
The Issues
Lanot alleged that as the COMELECs issuances are not supported by substantial evidence and are
contrary to law and settled jurisprudence, the COMELEC committed grave abuse of discretion
amounting to lack of or excess of jurisdiction. Lanot raised the following issues before this Court:
A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS] RESOLUTION DATED
AUGUST 20, 2004, ACTED WITH GRAVE ABUSE OF DISCRETION OR LACK OR IN EXCESS
OF JURISDICTION
1. by setting aside the Resolution of Disqualification promulgated by its First Division on May 5, 2004
affirming the recommendation of the Regional Election Director (NCR) to disqualify Respondent, and
by annulling the order issued thereunder,
a) erroneously, whimsically and maliciously ADOPTED and APPLIED Sections 1 and 2 of Rule 2050
to this case,

b) capriciously VIOLATED COMELEC Resolution 6452 and Sec. 6, R.A. 6646,

c) erroneously, whimsically and capriciously ARROGATED unto themselves a quasi-judicial
legislation, and
d) erroneously and maliciously MISAPPLIED the Albaa and Sunga cases to the case at bar;
2. by referring the case to the Law Department for investigation, it illegally, erroneously and
maliciously DISMISSED the electoral aspect of the case and whimsically VIOLATED Resolution 6452
and Section 6 of RA 6646;
3. by disregarding the Order of disqualification, it erroneously and whimsically IGNORED and
DISREGARDED the inchoate right of petitioner as the winning party.
B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION OR IN
EXCESS OR LACK OF JURISDICTION IN ISSUING ITS RESOLUTION DATED MAY 21, 2004
1. by lifting and setting aside the Order of suspension of proclamation by winning candidate issued on
May 11, 2004, it erroneously and intentionally and whimsically DISREGARDED the strong evidence
of guilt of Respondent to warrant the suspension of his proclamation and erroneously and capriciously
VIOLATED Resolution of May 11, 2004.
C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC ACTED WITH GRAVE
ABUSE OF POWER, AUTHORITY OR DISCRETION OR LACK OR IN EXCESS OF
JURISDICTION
1. by unilaterally enjoining the implementation of the Order of Respondents disqualification despite
the condition therein that it could only be restrained by the Commission En Banc, and whether or not
he illegally, erroneously and blatantly whimsically grabbed the exclusive adjudicatory power of the
Commission En Banc.
D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CAPRICIOUSLY DISREGARDING
THE RESOLUTION OF MAY 5, 2004 AS ALREADY FINAL AND EXECUTED AND IN FAILING
TO ORDER THE PROCLAMATION OF PETITIONER.
E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO WARRANT RESPONDENT
EUSEBIOS DISQUALIFICATION.

b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED DISQUALIFIED WITH FOUR

(4) AFFIRMATIVE VOTES OF COMMISSIONERS, TWO (2) VOTES FROM COMMISSIONERS
BORRA AND GARCILLANO WHO VOTED FOR THE DISQUALIFICATION IN THE MAY 5,
2004
RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM COMMISSIONERS TUAZON, JR.
AND SADAIN WHO VOTED TO DISQUALIFY HIM IN THEIR DISSENTING OPINION (ANNEX
"A-1") SHOULD REFERRAL OF THE CASE TO THE LAW DEPARTMENT BY RESPONDENT
COMELEC BE DECLARED A PATENT NULLITY.
F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO, WHETHER PETITIONER
LANOT CAN BE PROCLAIMED AND ALLOWED TO SIT AS MAYOR-ELECT, AND WHETHER
THE DOCTRINES IN TOPACIO, CODILLA, JR., LABO AND OTHERS APPLY IN THIS CASE.27
The Ruling of the Court
The petition has no merit.
Parties to the Present Petition
On 13 April 2005, during the pendency of this case, an unidentified person shot and killed Lanot in
Pasig City. It seemed that, like an endangered specie, the disqualification case would be extinguished
by Lanots death. However, on 27 April 2005, Lanots counsel manifested, over Eusebios objections,
that Mario S. Raymundo ("Raymundo"), a registered voter and former Mayor of Pasig City, is Lanots
substitute in this case. Also, on 25 August 2005, Charmie Q. Benavides ("Benavides"), a Pasig City
mayoral candidate and the third placer in the 10 May 2004 elections, filed a petition-in-intervention.
Benavides asked whether she could be proclaimed Pasig City Mayor because she is the surviving
qualified candidate with the highest number of votes among the remaining candidates.
The law and the COMELEC rules have clear pronouncements that the electoral aspect of a
disqualification case is not rendered inutile by the death of petitioner, provided that there is a proper
substitution or intervention of parties while there is a pending case. On Raymundos substitution, any
citizen of voting age is competent to continue the action in Lanots stead.28 On Benavides
intervention, Section 6 of Republic Act No. 6646, or the Electoral Reforms Law of 1987 ("Electoral
Reforms Law of 1987"), allows intervention in proceedings for disqualification even after elections if
no final judgment has been rendered. Although Eusebio was already proclaimed as Pasig City Mayor,
Benavides could still intervene, as there was still no final judgment in the proceedings for
disqualification.29
The case for disqualification exists, and survives, the election and proclamation of the winning

candidate because an outright dismissal will unduly reward the challenged candidate and may even
encourage him to employ delaying tactics to impede the resolution of the disqualification case until
after he has been proclaimed.30 The exception to the rule of retention of jurisdiction after proclamation
applies when the challenged candidate becomes a member of the House of Representatives or of the
Senate, where the appropriate electoral tribunal would have jurisdiction. There is no law or
jurisprudence which says that intervention or substitution may only be done prior to the proclamation
of the winning candidate. A substitution is not barred by prescription because the action was filed on
time by the person who died and who is being substituted. The same rationale applies to a petition-inintervention.
COMELECs Grave Abuse of Discretion
Propriety of Including Eusebios Name in the Pasig City Mayoral Candidates and of the Counting of
Votes and Canvassing of Election Returns
In its 5 May 2004 resolution, the COMELEC First Division ordered the pertinent election officials to
delete and cancel Eusebios name from the certified list of Pasig City mayoral candidates, not to count
votes cast in Eusebios favor, and not to include votes cast in Eusebios favor in the canvass of election
returns. Eusebio filed a motion for reconsideration of the resolution on 9 May 2004. Hence,
COMELEC Chairman Abalos issued a memorandum on 10 May 2004 which enjoined the pertinent
election officials from implementing the 5 May 2004 resolution. In a Resolution dated 11 May 2004,
the COMELEC En Banc subsequently ratified and adopted Chairman Abalos 10 May 2004
memorandum when it denied Lanots motion to suspend the counting of votes and canvassing of
election returns.
Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory power of the COMELEC En
Banc when he issued the 10 May 2004 memorandum. Lanot asserts that the last sentence in the
dispositive portion of the COMELEC First Divisions 5 May 2004 Resolution, "[t]his Resolution is
immediately executory unless restrained by the Commission En Banc," should have prevented
Chairman Abalos from acting on his own.
Lanots claim has no basis, especially in light of the 11 May 2004 Resolution of the COMELEC En
Banc. The COMELEC En Bancs explanation is apt:
Suspension of these proceedings is tantamount to an implementation of the Resolution of the FIRST
DIVISION which had not yet become final and executory by reason of the timely filing of a Motion for
Reconsideration thereof. A disposition that has not yet attained finality cannot be implemented even
through indirect means.31
Moreover, Chairman Abalos 10 May 2004 memorandum is merely an advisory required by the
circumstances at the time. Eusebio filed a motion for reconsideration on 9 May 2004, and there was not
enough time to resolve the motion for reconsideration before the elections. Therefore, Eusebio was not
yet disqualified by final judgment at the time of the elections. Section 6 of the Electoral Reforms Law

of 1987 provides that "[a] 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." Under Section 13 of the COMELEC Rules of Procedure, a
decision or resolution of a Division in a special action becomes final and executory after the lapse of
fifteen days following its promulgation while a decision or resolution of the COMELEC En Banc
becomes final and executory after five days from its promulgation unless restrained by this Court.
Propriety of the Lifting of the Suspension of Eusebios Proclamation
In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the suspension of Eusebios
proclamation in the event he would receive the winning number of votes. Ten days later, the
COMELEC En Banc set aside the 11 May 2004 order and directed the Pasig City Board of Canvassers
to proclaim Eusebio as the winning candidate for Pasig City Mayor. The COMELEC relied on
Resolutions 7128 and 712932 to justify the counting of Eusebios votes and quoted from the
Resolutions as follows:
Resolution No. 7128 xxxx
NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES, to adopt certain policies
and to direct all Board of Canvassers, as follows:
1. to speed up its canvass and proclamation of all winning candidates except under the following
circumstances:
a. issuance of an order or resolution suspending the proclamation;
b. valid appeal[s] from the rulings of the board in cases where appeal is allowed and the subject appeal
will affect the results of the elections;
x x x x.
Resolution No. 7129
xxxx

NOW THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the
Constitution, the Omnibus Election Code and other elections laws, has RESOLVED, as it hereby
RESOLVES, to refrain from granting motions and petitions seeking to postpone proclamations by the
Board of Canvassers and other pleadings with similar purpose unless they are grounded on compelling
reasons, supported by convincing evidence and/or violative of the canvassing procedure outlined in
Resolution No. 6669.
We agree with Eusebio that the COMELEC En Banc did not commit grave abuse of discretion in
issuing its 21 May 2004 order. The COMELEC has the discretion to suspend the proclamation of the
winning candidate during the pendency of a disqualification case when evidence of his guilt is
strong.33 However, an order suspending the proclamation of a winning candidate against whom a
disqualification case is filed is merely provisional in nature and can be lifted when warranted by the
evidence.34
Propriety of the Dismissal of the
Disqualification Case and of the
Referral to the COMELEC
Law Department
Lanot filed the petition for disqualification on 19 March 2004, a little less than two months before the
10 May 2004 elections. Director Ladra conducted hearings on the petition for disqualification on 2, 5
and 7 April 2004. Director Ladra submitted her findings and recommendations to the COMELEC on 4
May 2004. The COMELEC First Division issued a resolution adopting Director Ladras
recommendations on 5 May 2004. Chairman Abalos informed the pertinent election officers of the
COMELEC First Divisions resolution through an Advisory dated 8 May 2004. Eusebio filed a Motion
for Reconsideration on 9 May 2004. Chairman Abalos issued a memorandum to Director Ladra on
election day, 10 May 2004, and enjoined her from implementing the 5 May 2004 COMELEC First
Division resolution. The petition for disqualification was not yet finally resolved at the time of the
elections. Eusebios votes were counted and canvassed, after which Eusebio was proclaimed as the
winning candidate for Pasig City Mayor. On 20 August 2004, the COMELEC En Banc set aside the
COMELEC First Divisions order and referred the case to the COMELEC Law Department.
In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on the timing of the filing of
the petition. The COMELEC En Banc invoked Section 1 of Resolution No. 2050, which states:
1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds
specifically enumerated under Section 68 of the Omnibus Election Code, filed directly with the
Commission before an election in which the respondent is a candidate, shall be inquired into by the
Commission for the purpose of determining whether the acts complained of have in fact been
committed. Where the inquiry by the Commission results in a finding before election, that the
respondent candidate did in fact commit the acts complained, the Commission shall order the
disqualification of the respondent candidate from continuing as such candidate.

In case such complaint was not resolved before the election, the Commission may motu proprio, or on
motion of any of the parties, refer the complaint to the Law Department of the Commission as the
instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of
all cases involving criminal infractions of the election laws. Such recourse may be availed of
irrespective of whether the respondent has been elected or has lost in the election. (Emphasis added)
The COMELEC also quoted from Sunga v. COMELEC to justify its referral of the disqualification case
to its Law Department.
x x x We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the
dismissal of a disqualification case filed before the election but which remained unresolved after the
election. What the Resolution mandates in such a case is for the Commission to refer the complaint to
its Law Department for investigation to determine whether the acts complained of have in fact been
committed by the candidate sought to be disqualified. The findings of the Law Department then
become the basis for disqualifying the erring candidate. This is totally different from the other two
situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but
before the proclamation of winners and that filed after the election and the proclamation of winners,
wherein it was specifically directed by the same Resolution to be dismissed as a disqualification
case.35
For his part, Eusebio asserts that the COMELEC has the prerogative to refer the disqualification case to
its Law Department. Thus, no grave abuse of discretion can be imputed to the COMELEC. Moreover,
the pendency of a case before the Law Department for purposes of preliminary investigation should be
considered as continuation of the COMELECs deliberations.
However, contrary to the COMELEC En Bancs reliance on Resolution No. 2050 in its 20 August 2004
resolution, the prevailing law on the matter is Section 6 of the Electoral Reforms Law of 1987. Any
rule or action by the COMELEC should be in accordance with the prevailing law. Section 6 of the
Electoral Reforms Law of 1987 provides:
Section 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment
to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant
or any intervenor, may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong. (Emphasis added)
Moreover, this Courts ruling in Sunga was further explained in Bagatsing v. COMELEC,36 thus:
The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the disqualification
case therein simply because it remained unresolved before the election and, in lieu thereof, referring it
to its Law Department for possible criminal prosecution of the respondent for violation of the election

laws. Notably, there is nothing in paragraph 1 of Resolution No. 2050 which directs the dismissal of the
disqualification case not resolved before the election. It says the COMELEC "may motu prop[r]io or on
motion of any of the parties, refer the complaint to the Law Department of the Commission as an
instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of
all cases involving criminal infractions of the election laws." The referral to the Law Department is
discretionary on the part of the COMELEC and in no way may it be interpreted that the COMELEC
will dismiss the disqualification case or will no longer continue with the hearing of the same. The
reason for this is that a disqualification case may have two (2) aspects, the administrative, which
requires only a preponderance of evidence to prove disqualification, and the criminal, which
necessitates proof beyond reasonable doubt to convict. Where in the opinion of the COMELEC, the
acts which are grounds for disqualification also constitute a criminal offense or offenses, referral of the
case to the Law Department is proper.
xxxx
It bears stressing that the Court in Sunga recognized the difference between a disqualification case filed
before and after an election when, as earlier mentioned, it stated that the referral of the complaint for
disqualification where the case is filed before election "is totally different from the other two situations
contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the
proclamation of winners and that filed after the election and the proclamation of winners, wherein it
was specifically directed by the same Resolution to be dismissed as a disqualification case."
Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed its misunderstanding of the
two aspects of a disqualification case. The electoral aspect of a disqualification case determines
whether the offender should be disqualified from being a candidate or from holding office. Proceedings
are summary in character and require only clear preponderance of evidence. An erring candidate may
be disqualified even without prior determination of probable cause in a preliminary investigation. The
electoral aspect may proceed independently of the criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable cause to charge a
candidate for an election offense. The prosecutor is the COMELEC, through its Law Department,
which determines whether probable cause exists.37 If there is probable cause, the COMELEC, through
its Law Department, files the criminal information before the proper court. Proceedings before the
proper court demand a full-blown hearing and require proof beyond reasonable doubt to convict.38 A
criminal conviction shall result in the disqualification of the offender, which may even include
disqualification from holding a future public office.39
The two aspects account for the variance of the rules on disposition and resolution of disqualification
cases filed before or after an election. When the disqualification case is filed before the elections, the
question of disqualification is raised before the voting public. If the candidate is disqualified after the
election, those who voted for him assume the risk that their votes may be declared stray or invalid.
There is no such risk if the petition is filed after the elections.40 The COMELEC En Banc erred when
it ignored the electoral aspect of the disqualification case by setting aside the COMELEC First
Divisions resolution and referring the entire case to the COMELEC Law Department for the criminal

aspect.
Moreover, the COMELEC En Bancs act and Eusebios assertions lose sight of the provisions of
Resolution No. 6452 ("Resolution 6452"), "Rules Delegating to COMELEC Field Officials the Hearing
and Reception of Evidence of Disqualification Cases Filed in Connection with the May 10, 2004
National and Local Elections; Motu Proprio Actions and Disposition of Disqualification Cases,"
promulgated on 10 December 2003. The pertinent portions of Resolution 6452 provide:
Section 1. Delegation of reception of evidence. The Commission hereby designates its field officials
who are members of the Philippine Bar to hear and receive evidence in the following petitions:
xxx
c. Petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and disqualify a
candidate for lack of qualifications or possessing same grounds for disqualification;
xxx
Sec. 2. Suspension of the Comelec Rules of Procedure. In the interest of justice and in order to attain
speedy disposition of cases, the Comelec Rules of Procedure or any portion thereof inconsistent
herewith is hereby suspended.
Sec. 3. Where to file petitions. The petitions shall be filed with the following offices of the
Commission:
xxx
b. For x x x local positions including highly-urbanized cities, in the National Capital Region, with the
Regional Election Director of said region;
xxx
PROVIDED, in cases of highly-urbanized cities the filing of petitions for disqualification shall be with
the Office of the Regional Election Directors. x x x
xxxx

The Regional Election Directors concerned shall hear and receive evidence strictly in accordance with
the procedure and timeliness herein provided.
Sec. 5. Procedure in filing petitions. For purposes of the preceding section, the following procedure
shall be observed:
xxxx
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS
ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR
POSSESSING SAME GROUNDS FOR DISQUALIFICATION
1. The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code x x
x may be filed any day after the last day [of] filing of certificates of candidacy but not later than the
date of proclamation.
2. The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code shall be
filed in ten (10) legible copies with the concerned office mentioned in Sec. 3 personally or through a
duly authorized representative by any citizen of voting age, or duly registered political party,
organization or coalition of political parties against any candidate who, in an action or protest in which
he is a party, is declared by final decision of a competent court guilty of, or found by the Commission
of:
2.a having given money or other material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; or
xxx
2.d having solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and
104 of the Omnibus Elections Code; or
2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v and cc sub-paragraph 6
of the Omnibus Election Code, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office.
xxxx
Indeed, what the COMELEC did in its 20 August 2004 resolution was contrary to "the interest of
justice and x x x speedy disposition of cases." Resolution No. 2050 referring the electoral aspect to the

Law Department is procedurally inconsistent with Resolution 6452 delegating reception of evidence of
the electoral aspect to the Regional Election Director. The investigation by the Law Department under
Resolution No. 2050 produces the same result as the investigation under Resolution 6452 by the
Regional Election Director. Commissioner Tuasons dissent underscored the inconsistency between the
avowed purpose of Resolution 6452 and the COMELEC En Bancs 20 August 2004 resolution:
x x x [T]he preliminary investigation for purposes of finding sufficient ground for [Eusebios]
disqualification, has already been accomplished by the RED-NCR prior to the election. There also
appears no doubt in my mind, that such recommendation of the investigating officer, RED-NCR, was
substantive and legally sound. The First Division agreed with the result of the
investigation/recommendation, with the facts of the case clearly distilled in the assailed resolution.
This, I likewise found to be in accord with our very own rules and the jurisprudential doctrines
aforestated. There could be no rhyme and reason then to dismiss the electoral aspect of the case (i.e.,
disqualification) and refer the same to the Law Department for preliminary investigation. As held in
Sunga, clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the
disqualification case to its conclusion, i.e., until judgment is rendered thereon. The criminal aspect of
the case is an altogether different issue.
Sunga said the reason is obvious: A candidate guilty of election offenses would be undeservedly
rewarded, instead of punished, by the dismissal of the disqualification case against him simply because
the investigating body was unable, for any reason caused upon it, to determine before the election if the
offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant
would need to do is to employ delaying tactics so that the disqualification case based on the
commission of election offenses would not be decided before the election. This scenario is productive
of more fraud which certainly is not the main intent and purpose of the law.41
We agree with Lanot that the COMELEC committed grave abuse of discretion when it ordered the
dismissal of the disqualification case pending preliminary investigation of the COMELEC Law
Department. A review of the COMELEC First Divisions 5 May 2004 resolution on Eusebios
disqualification is in order, in view of the grave abuse of discretion committed by the COMELEC En
Banc in its 20 August 2004 resolution.
Rightful Pasig City Mayor
Eusebios Questioned Acts
We quote the findings and recommendations of Director Ladra as adopted by the COMELEC First
Division:
The questioned acts of [Eusebio] are as follows:
1) The speech uttered on February 14, 2004 during the meeting dubbed as "Lingap sa Barangay" in

Barangay San Miguel, Pasig City wherein [Eusebio] allegedly asked the people to vote for him and
solicited for their support x x x:
xxxx
2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City wherein [Eusebio] again
allegedly uttered defamatory statements against co-[candidate] Lanot and campaigned for his
(respondents) and his groups candidacy.
xxxx
3) He caused to be published in leading newspapers about a survey allegedly done by Survey
Specialist, Inc. showing him to be leading in the mayoralty race in Pasig City.
xxxx
4) He paid a political advertisement in the Philippine Free Press in the amount of P193,660.00 as
published in its issue dated February 7, 2004.
xxxx
5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means
"Serbisyong Totoo" before the start of the campaign period.
xxxx
6) Posters showing the respondent and his running mate Yoyong Martirez as well those showing the
name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the dengue project were
posted everywhere even before the start of the campaign period.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the two letters
"E" prominently written.
xxxx

8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the parents that
by way of gratitude, they should vote for him.
x x x x (Emphasis in the original)42
Eusebio argues that: (1) Lanot is in estoppel for participating in the proceedings before the COMELEC
Law Department; (2) Lanot abandoned the present petition also because of his participation in the
proceedings before the COMELEC Law Department; and (3) Lanot is guilty of forum-shopping. These
arguments fail for lack of understanding of the two aspects of disqualification cases. The proceedings
before the COMELEC Law Department concern the criminal aspect, while the proceedings before this
Court concern the electoral aspect, of disqualification cases. The proceedings in one may proceed
independently of the other.
Eusebio is correct when he asserts that this Court is not a trier of facts. What he overlooks, however, is
that this Court may review the factual findings of the COMELEC when there is grave abuse of
discretion and a showing of arbitrariness in the COMELECs decision, order or resolution.43 We find
that the COMELEC committed grave abuse of discretion in issuing its 20 August 2004 resolution.
Our review of the factual findings of the COMELEC, as well as the law applicable to this case, shows
that there is no basis to disqualify Eusebio. Director Ladra recommended the disqualification of
Eusebio "for violation of Section 80 of the Omnibus Election Code." The COMELEC First Division
approved Director Ladras recommendation and disqualified Eusebio. Section 80 of the Omnibus
Election Code provides:
SECTION 80. Election campaign or partisan political activity outside campaign period. It shall be
unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons,
to engage in an election campaign or partisan political activity except during the campaign period:
Provided, That political parties may hold political conventions or meetings to nominate their official
candidates within thirty days before the commencement of the campaign period and forty-five days for
Presidential and Vice-Presidential election. (Emphasis supplied)
What Section 80 of the Omnibus Election Code prohibits is "an election campaign or partisan political
activity" by a "candidate" "outside" of the campaign period. Section 79 of the same Code defines
"candidate," "election campaign" and "partisan political activity" as follows:
SECTION 79. Definitions. As used in this Code:

(a) The term "candidate" refers to any person aspiring for or seeking an elective public office, who has
filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or
coalition of parties;
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the
election or defeat of a particular candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose
of soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for
the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a
candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against the election
of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose the
election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for
nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties
shall not be considered as election campaign or partisan election activity.
Public expressions or opinions or discussions of probable issues in a forthcoming election or on
attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming
political party convention shall not be construed as part of any election campaign or partisan political
activity contemplated under this Article.
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person
engages in an election campaign or partisan political activity; (2) the act is designed to promote the
election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign
period.
The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one
who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his
certificate of candidacy, he is not a "candidate." The third element requires that the campaign period

has not started when the election campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on the last day, which
under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then
no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such
last day, there is no "particular candidate or candidates" to campaign for or against. On the day
immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since
Section 80 covers only acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to
acts done on such last day, which is before the start of the campaign period and after at least one
candidate has filed his certificate of candidacy. This is perhaps the reason why those running for
elective public office usually file their certificates of candidacy on the last day or close to the last day.
There is no dispute that Eusebios acts of election campaigning or partisan political activities were
committed outside of the campaign period. The only question is whether Eusebio, who filed his
certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts before
the start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of
candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004
to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing
the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004
immediately liable for violation of Section 80 if he engaged in election campaign or partisan political
activities prior to the start of the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. The Commission shall prescribe the size and form of the official ballot
which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an
initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed using the same type size. A fixed space where the
chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official
ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one hundred twenty (120)
days before the elections: Provided, That, any elective official, whether national or local, running for
any office other than the one which he/she is holding in a permanent capacity, except for president and
vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to

the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable
to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That,
for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the
positions of President, Vice-President, Senators and candidates under the party-list system as well as
petitions for registration and/or manifestation to participate in the party-list system shall be on February
9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on
March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private printers under proper security measures which the
Commission shall adopt. The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized citizens arms of the Commission may assign
watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial
number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive
hardware and shall be impossible to reproduce on a photocopying machine, and that identification
marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot
for every registered voter with a provision of additional four (4) ballots per precinct.44 (Emphasis
added)
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to
give ample time for the printing of official ballots. This is clear from the following deliberations of the
Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform
for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present
periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a candidate,
and there are many prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet began [sic].

THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not
bring about ones being a candidate.
SENATOR GONZALES. If thats a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of
candidacy will not result in that official vacating his position, we can also provide that insofar he is
concerned, election period or his being a candidate will not yet commence. Because here, the reason
why we are doing an early filing is to afford enough time to prepare this machine readable ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will
withdraw its proposal and will agree to the 120-day period provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxxx
SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which
apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford
the Comelec enough time to print the ballots, this provision does not intend to change the campaign
periods as presently, or rather election periods as presently fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). Thats right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore
because we are talking about the 120-day period before election as the last day of filing a certificate of
candidacy, election period starts 120 days also. So that is election period already. But he will still not be
considered as a candidate.45 (Emphasis added)

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots,
Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the
filing of a certificate of candidacy before 2 January 2004 to make the person filing to become
immediately a "candidate" for purposes other than the printing of ballots. This legislative intent
prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet
the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed
by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be
considered as a candidate."
Under Section 3(b) of the Omnibus Election Code, the applicable law prior to RA 8436, the campaign
period for local officials commences 45 days before election day. For the 2004 local elections, this puts
the start of the campaign period on 24 March 2004. This also puts the last day for the filing of
certificate of candidacy, under the law prior to RA 8436, on 23 March 2004. Eusebio is deemed to have
filed his certificate of candidacy on
this date for purposes other than the printing of ballots because this is the interpretation of Section 80 of
the Omnibus Election Code most favorable to one charged of its violation. Since Section 80 defines a
criminal offense,46 its provisions must be construed liberally in favor of one charged of its violation.
Thus, Eusebio became a "candidate" only on 23 March 2004 for purposes other than the printing of
ballots.
Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004, even if constituting
election campaigning or partisan political activities, are not punishable under Section 80 of the
Omnibus Election Code. Such acts are protected as part of freedom of expression of a citizen before he
becomes a candidate for elective public office. Acts committed by Eusebio on or after 24 March 2004,
or during the campaign period, are not covered by Section 80 which punishes only acts outside the
campaign period.
We now examine the specific questioned acts of Eusebio whether they violate Section 80 of the
Omnibus Election Code.
We begin with the 14 February 2004 and the 17 March 2004 speeches of Eusebio:
1) The speech uttered on February 14, 2004 during the meeting dubbed as "Lingap sa Barangay" in
Barangay San Miguel, Pasig City wherein [Eusebio] allegedly asked the people to vote for him and
solicited for their support x x x:
2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City wherein [Eusebio] again
allegedly uttered defamatory statements against co-[candidate] Lanot and campaigned for his
(respondents) and his groups candidacy.47 (Emphasis in the original)
The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebio is deemed to

have filed his certificate of candidacy on 23 March 2004 for purposes other than the printing of ballots.
Eusebio, not being a candidate then, is not liable for speeches on 14 February 2004 and 17 March 2004
asking the people to vote for him.
The survey showing Eusebio leading in the mayoralty race was published before Eusebio was deemed
to have filed his certificate of candidacy on 23 March 2004. Thus:
3) He caused to be published in leading newspapers about a survey allegedly done by Survey
Specialist, Inc. showing him to be leading in the mayoralty race in Pasig City.
xxxx
They also presented Certification issued by Mr. Diego Cagahastian, News Editor of Manila Bulletin
dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of Philippine Star dated March 2,
2004 to the effect that the articles in question came from the camp of [Eusebio].48 (Emphasis in the
original)
Eusebio is not liable for this publication which was made before he became a candidate on 23 March
2004.
The political advertisement in the Philippine Free Press issue of 7 February 2004 was also made before
Eusebio became a candidate on 23 March 2004. Thus:
4) He paid a political advertisement in the Philippine Free Press in the amount of P193,660.00 as
published in its issue dated February 7, 2004.49 (Emphasis in the original)
The display of Eusebios billboards, posters, stickers, and streamers, as well as his distribution of free
shoes, all happened also before Eusebio became a candidate on 23 March 2004. Thus:
5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means
"Serbisyong Totoo" before the start of the campaign period.
xxxx
6) Posters showing the respondent and his running mate Yoyong Martinez as well those showing the
name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the dengue project were
posted everywhere even before the start of the campaign period.

xxxx
Petitioners witnesses Alfonso Cordova and Alfredo Lacsamana as well as Hermogenes Garcia stated in
their respective affidavits marked as Exhs. "L" and "L-1" that the pictures were taken on March 3, 7 &
8, 2004.
xxxx
7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the two letters
"E" prominently written.
xxxx
Said streamers were among those captured by the camera of the petitioners witnesses Hermogenes
Garcia and Nelia Sarmiento before the start of the campaign period.
8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the campaign period.
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the parents that
by way of gratitude, they should vote for him.
The affidavits of Ceferino Tantay marked as Exh. "M" and Flor Montefalcon, Norie Altiche and Myrna
Verdillo marked as Exh. "O" are uncontroverted. Their statement that free shoes were given to the
students of Rizal High School was corroborated by the Manila Bulletin issue of February 6, 2004
which showed the picture of the respondent delivering his speech before a group of students.
x x x x50 (Emphasis in the original)
Based on the findings of Director Ladra, the questioned acts attributed to Eusebio all occurred before
the start of the campaign period on 24 March 2004. Indeed, Director Ladra applied Section 80 of the
Omnibus Election Code against Eusebio precisely because Eusebio committed these acts "outside" of
the campaign period. However, Director Ladra erroneously assumed that Eusebio became a
"candidate," for purposes of Section 80, when Eusebio filed his certificate of candidacy on 29
December 2003.
Under Section 11 of RA 8436, Eusebio became a "candidate," for purposes of Section 80 of the

Omnibus Election Code, only on 23 March 2004, the last day for filing certificates of candidacy.
Applying the facts - as found by Director Ladra and affirmed by the COMELEC First Division - to
Section 11 of RA 8436, Eusebio clearly did not violate Section 80 of the Omnibus Election Code which
requires the existence of a "candidate," one who has filed his certificate of candidacy, during the
commission of the questioned acts.
Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability for the questioned
acts.1wphi1 Eusebio points out that Section 11 contains the following proviso:
Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the
start of the aforesaid campaign period: x x x
Eusebio theorizes that since the questioned acts admittedly took place before the start of the campaign
period, such acts are not "unlawful acts or omissions applicable to a candidate."
We find no necessity to apply in the present case this proviso in Section 11 of RA 8436. Eusebios
theory legalizes election campaigning or partisan political activities before the campaign period even if
a person has already filed his certificate of candidacy based on the election periods under existing laws
prior to RA 8436. Under Eusebios theory, Section 11 of RA 8436 punishes unlawful acts applicable to
a candidate only if committed during the campaign period.
By definition, the election offense in Section 80 of the Omnibus Election Code cannot be committed
during the campaign period. On the other hand, under Eusebios theory, unlawful acts applicable to a
candidate cannot be committed outside of the campaign period. The net result is to make the election
offense in Section 80 physically impossible to commit at any time. We shall leave this issue for some
other case in the future since the present case can be resolved without applying the proviso in Section
11 of RA 8436.
Effect of Eusebios Possible
Disqualification
As second placer, Lanot prayed that he be proclaimed as the rightful Pasig City Mayor in the event of
Eusebios disqualification. As third placer, Benavides, on the other hand, prays that she be proclaimed
as the rightful Pasig City Mayor in the event of Eusebios disqualification and in view of Lanots death.
Even if we assume Eusebios disqualification as fact, we cannot grant either prayer.
The disqualification of the elected candidate does not entitle the candidate who obtained the second
highest number of votes to occupy the office vacated because of the disqualification.51 Votes cast in
favor of a candidate who obtained the highest number of votes, against whom a petition for
disqualification was filed before the election, are presumed to have been cast in the belief that he was
qualified. For this reason, the second placer cannot be declared elected.52

The exception to this rule rests on two assumptions. First, the one who obtained the highest number of
votes is disqualified. Second, the voters are so fully aware in fact and in law of a candidates
disqualification to bring such awareness within the realm of notoriety but nonetheless the voters still
cast their votes in favor of the ineligible candidate.53 Lanot and Benavides failed to prove that the
exception applies in the present case. Thus, assuming for the sake of argument that Eusebio is
disqualified, the rule on succession provides that the duly elected Vice-Mayor of Pasig City shall
succeed in Eusebios place.54
WHEREFORE, we DISMISS the petition. We find no grave abuse of discretion in the 10 May 2004
Advisory of Chairman Benjamin S. Abalos and in the 21 May 2004 Order of the Commission on
Elections En Banc. We SET ASIDE the 20 August 2004 Resolution of the Commission En Banc since
respondent Vicente P. Eusebio did not commit any act which would disqualify him as a candidate in the
10 May 2004 elections.
SO ORDERED.

HENRY P. LANOT, SUBSTITUTED BY MARIO S. RAYMUNDO,

PETITIONER,
CHARMIE Q. BENAVIDES,
PETITIONER-INTERVENOR,
VS.
COMMISSION ON ELECTIONS AND VICENTE P. EUSEBIO, RESPONDENTS.
FACTS:
On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"), Roberto Peralta ("Peralta"),
Reynaldo dela Paz ("dela Paz"), Edilberto Yamat ("Yamat"), and Ram Alan Cruz ("Cruz") (collectively,
"petitioners"), filed a petition for disqualification under Sections 68 and 80 of the Omnibus Election
Code against Eusebio before the COMELEC. Lanot, Obispo, and Eusebio were candidates for Pasig
City Mayor, while Peralta, dela Paz, Yamat, and Cruz were candidates for Pasig City Councilor in the
10 May 2004 elections. The case was docketed as SPA (NCR-RED) No. C04-008.
Petitioners alleged that Eusebio engaged in an election campaign in various forms on various occasions
outside of the designated campaign period, such as (1) addressing a large group of people during a
medical mission sponsored by the Pasig City government; (2) uttering defamatory statements against
Lanot; (3) causing the publication of a press release predicting his victory; (4) installing billboards,
streamers, posters, and stickers printed with his surname across Pasig City; and (5) distributing shoes to
schoolchildren in Pasig public schools to induce their parents to vote for him. Eusebio denied
petitioners' allegations and branded the petition as a harassment case. Eusebio further stated that
petitioners' evidence are merely fabricated.
The ruling of the regional director on May 2004, recommends that the instant petition be granted,
pursuant to section 68 (a) and (e) of the omnibus election code, the respondent Vicente p. Eusebio is
disqualified to run for the position of mayor, Pasig city for violation of section 80 of the omnibus
election code.

the COMELEC ruled and orders on 5 may 2004, five days before the elections, the disqualification of
respondent Vicente p. Eusebio from being a candidate for mayor of Pasig city in the May 10, 2004
elections; the election officers of district i and district ii of Pasig city to delete and cancel the name of
respondent Vicente p. Eusebio from the certified list of candidates for the city offices of Pasig city for
the May 10, 2004 elections; the board of election inspectors of all the precincts comprising the city of
Pasig not to count the votes cast for respondent Vicente Eusebio, the same being cast for a disqualified
candidate and therefore must be considered stray; the city board of canvassers of Pasig city not to
canvass the votes erroneously cast for the disqualified candidate respondent Vicente p. Eusebio, in the
event that such votes were recorded in the election returns; the regional director of NCR, and the
election officers of Pasig city to immediately implement the foregoing directives; the law department
through its director iv, atty. alioden Dalaig to file the necessary information against Vicente p. Eusebio

before the appropriate court.

ISSUES:
Whether Eusebio actually committed the acts subject of the petition for disqualification.
What could be the effect if Eusebio will be disqualified from the election.
RULING:
There is no basis to disqualify Eusebio. Director Ladra recommended the disqualification of Eusebio
"for violation of Section 80 of the Omnibus Election Code." The COMELEC First Division approved
Director Ladra's recommendation and disqualified Eusebio
Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004, even if constituting
election campaigning or partisan political activities, are not punishable under Section 80 of the
Omnibus Election Code. Such acts are protected as part of freedom of expression of a citizen before he
becomes a candidate for elective public office. Acts committed by Eusebio on or after 24 March 2004,
or during the campaign period, are not covered by Section 80 which punishes only acts outside the
campaign period.
The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebio is deemed to
have filed his certificate of candidacy on 23 March 2004 for purposes other than the printing of ballots.
Eusebio, not being a candidate then, is not liable for speeches on 14 February 2004 and 17 March 2004
asking the people to vote for him.
They also presented Certification issued by Mr. Diego Cagahastian, News Editor of Manila Bulletin
dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of Philippine Star dated March 2,
2004 to the effect that the articles in question came from the camp of [Eusebio].
Eusebio is not liable for this publication which was made before he became a candidate on 23 March
2004.
Eusebio became a "candidate," for purposes of Section 80 of the Omnibus Election Code, only on 23
March 2004, the last day for filing certificates of candidacy. Applying the facts - as found by Director
Ladra and affirmed by the COMELEC First Division - to Section 11 of RA 8436, Eusebio clearly did
not violate Section 80 of the Omnibus Election Code which requires the existence of a "candidate," one
who has filed his certificate of candidacy, during the commission of the questioned acts.
By definition, the election offense in Section 80 of the Omnibus Election Code cannot be committed
during the campaign period. On the other hand, under Eusebio's theory, unlawful acts applicable to a
candidate cannot be committed outside of the campaign period. The net result is to make the election
offense in Section 80 physically impossible to commit at any time. We shall leave this issue for some
other case in the future since the present case can be resolved without applying the proviso in Section
11 of RA 8436.

As second placer, Lanot prayed that he be proclaimed as the rightful Pasig City Mayor in the event of
Eusebio's disqualification. As third placer, Benavides, on the other hand, prays that she be proclaimed
as the rightful Pasig City Mayor in the event of Eusebio's disqualification and in view of Lanot's death.
Even if we assume Eusebio's disqualification as fact, we cannot grant either prayer.
The disqualification of the elected candidate does not entitle the candidate who obtained the second
highest number of votes to occupy the office vacated because of the disqualification. Votes cast in favor
of a candidate who obtained the highest number of votes, against whom a petition for disqualification
was filed before the election, are presumed to have been cast in the belief that he was qualified. For this
reason, the second placer cannot be declared elected.
The exception to this rule rests on two assumptions. First, the one who obtained the highest number of
votes is disqualified. Second, the voters are so fully aware in fact and in law of a candidate's
disqualification to bring such awareness within the realm of notoriety but nonetheless the voters still
cast their votes in favor of the ineligible candidate. Lanot and Benavides failed to prove that the
exception applies in the present case. Thus, assuming for the sake of argument that Eusebio is
disqualified, the rule on succession provides that the duly elected Vice-Mayor of Pasig City shall
succeed in Eusebio's place.
The court dismissed the petition, finding no grave abuse of discretion in the 10 May 2004 Advisory of
Chairman Benjamin S. Abalos and in the 21 May 2004 Order of the Commission on Elections En Banc.
It has been set aside the 20 August 2004 Resolution of the Commission En Banc since respondent
Vicente P. Eusebio did not commit any act which would disqualify him as a candidate in the 10 May
2004 elections.

EN BANC
[G.R. No. 134047. December 15, 1999]
AMADO S. BAGATSING, ERNESTO M. MACEDA, and JAIME LOPEZ, petitioners, vs.
COMMISSION ON ELECTIONS and JOSE L. ATIENZA, respondents.
AMENDED DE CISION
KAPUNAN, J.:
In this petition for certiorari petitioners seek to annul and set aside the Resolution dated June 4, 1998 of
the Commission on Elections (COMELEC) First Division directing the proclamation of private
respondent as Mayor of the City of Manila for having been issued with grave abuse of discretion
amounting to lack, or excess, of jurisdiction.
The backdrop of the instant case reveals the following antecedent facts:
Petitioners Amado S. Bagatsing, Ernesto M. Maceda and Jaime Lopez and herein private respondent
Jose L. Atienza were candidates for the position of Mayor of Manila in the May 11, 1998 elections.
On May 18, 1998, seven (7) days after the elections, petitioners filed with the COMELEC a complaint
for disqualification against private respondent, docketed as SPA No. 98-319, on the ground that the
latter allegedly caused the disbursement of public funds in the amount of Three Million Three Hundred
Seventy-Five Thousand (P3,375,000.00) Pesos, more or less, within the prohibited forty-five-day
period before the elections in violation of Article 22, Section 261 (g) (2)[1] of Batas Pambansa Blg.
881, otherwise known as the Omnibus Election Code of the Philippines. The alleged disbursement was
intended to be distributed in the form of financial assistance to the public school teachers of the City of
Manila who manned the precinct polls in that city during the elections.
On May 20, 1998, the COMELEC (First Division)* issued an order suspending the proclamation of
private respondent, the dispositive portion of which reads:
PREMISES CONSIDERED, it appearing that the evidence presented consisting of disbursement
voucher and the general payroll evidencing payment to the teachers in the form of financial assistance
dated May 5, 1998, in violation of Section 68 of the Omnibus Election Code, which provides:
SEC. 68 Disqualifications. - Any candidate who in an action or protest in which he is a party is
declared by final decision of a competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy, (c)
spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received
or made any contribution prohibited under Section 89, 95, 96, 97 and 104; or (e) violated any Section

80, 83, 85, 86 and 261, paragraphs d, e, k, v and cc, sub-paragraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived hi (sic) statues (sic) as permanent resident or
immigrant of a foreign country in accordance with the residence requirement provided for in the
election laws (Sec. 25, 1971 EC) (underscoring ours).
show a probable cause of commission of election offenses which are grounds for disqualification, and
the evidence in support of disqualification is strong, the City Board of Canvassers of Manila is hereby
directed to complete the canvassing of election returns of the City of Manila, but to suspend
proclamation of respondent Jose L. Atienza, Jr. should he obtain the winning number of votes for the
position of City Mayor of Manila, until such time when the petition for disqualification against him
shall have been resolved.
The Executive Director of this Commission is directed to cause the immediate implementation of this
Order.
SO ORDERED.[2]
On May 21, 1998, private respondent filed a Motion for Reconsideration and sought to set aside the
afore-quoted order directing the suspension of his proclamation as mayor.
On June 4, 1998, the COMELEC (First Division)* handed down a resolution granting the motion for
reconsideration, ratiocinating thusly:
The Commission En Banc finds correct respondent's reliance on COMELEC Resolution No. 2050 for
his cause. The Resolution, promulgated by the Commission in order to formulate the rules governing
the disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus Election Code
in relation to Section 6 of Republic Act 6646 otherwise known as the Electoral Reform Law of 1987,
pertinently provides:
2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code, filed after
the elections against a candidate who has already been proclaimed as winner shall be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary investigation to the
Law Department of the Commission.
Where a similar complaint is filed after the elections but before proclamation of the respondent
candidate, the complaint shall nevertheless, be dismissed as a disqualification case. However, the
complaint shall be referred for preliminary investigation to the Law Department. If, before
proclamation, the Law Department makes a prima facie finding of guilt and the corresponding
information has been filed with the appropriate trial court, the complainant may file a petition for
suspension of the proclamation of the respondent with the Court before which the criminal case is

pending and the said Court may order the suspension of the proclamation, if the evidence of guilt is
strong.
The applicability of COMELEC Resolution No. 2050 on cases of such nature as the one at bench, had
been upheld by the Supreme Court in Lozano vs. Commission on Elections, G.R. 94628, October 28,
1991, when it declared:
Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification cases.
The COMELEC Rules of Procedure speak of special actions, which include disqualification cases, in
general. Hence, as between a specific and a general rule, the former shall necessarily prevail.
It is thus, a good law which could govern this case.
Considering therefore, that the petition for disqualification was filed after the election but before
respondent's proclamation, the Commission En Banc, conformably with Resolution No. 2050, hereby
dismisses the same as a disqualification case but refers Petitioners' charges of election offense against
respondent to the Law Department for appropriate action.[3]
The decretal portion of the resolution reads:
WHEREFORE, in view of the foregoing, the Commission FIRST DIVISION hereby GRANTS the
Motion to lift the order of suspension of respondent's proclamation. The Order of the First Division
suspending respondent's proclamation as City Mayor of Manila is SET ASIDE. The City Board of
Canvassers of Manila is hereby DIRECTED to CONVENE, COMPLETE the CANVASS and
PROCLAIM the candidate obtaining the highest number of votes for said position. Petitioners'
complaints against respondent for violation of the Omnibus Election Code is hereby referred to the
Law Department for preliminary investigation.
SO ORDERED.[4]
That same day at around eleven oclock in the morning, petitioners filed a Motion to Suspend
Immediate Intended Proclamation of Respondent. In the afternoon of the same day, petitioners
likewise filed a Motion for Reconsideration and a Second Motion to Suspend Immediate Intended
Proclamation of Respondent before COMELEC en banc.
Meanwhile, the City Board of Canvassers of Manila reconvened at three oclock in the afternoon of
the same day, June 4, 1998, and proclaimed private respondent as the duly elected Mayor of the City of
Manila.[5]
On June 25, 1999, without waiting for the resolution of their motion for reconsideration pending before

the COMELEC en banc, petitioners filed the instant petition to set aside the June 4, 1998 resolution of
the COMELEC's First Division.
Records reveal, however, that said motion for reconsideration pending before the COMELEC en banc
was denied in its Order of July 2, 1998 at the instance of herein petitioners themselves for the reason
that they had already filed a petition before this Court docketed as G.R. No. 134047.[6]
The instant petition seeks to strike down as having been issued with grave abuse of discretion
COMELEC First Division Resolution dated June 4, 1998 dismissing the petition for disqualification
and referring the case to the COMELECs Law Department for preliminary investigation, based on
COMELEC Resolution No. 2050. Petitioners contend that Resolution No. 2050 had already been
nullified by the decision of this Court in Sunga vs. Comelec.[7] Such being the case, petitioners argue
that the COMELEC should be compelled by mandamus to assume jurisdiction and continue to hear and
decide the disqualification case.
COMELEC Resolution No. 2050, adopted on November 3, 1988, reads:
WHEREAS, there remain pending before the Commission, a number of cases of disqualification filed
by virtue of the provisions of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A.
6646, otherwise known as the Electoral Reforms Law of 1987;
WHEREAS, opinions of the members of the Commission on matters of procedure in dealing with cases
of this nature and the manner of disposing of the same have not been uniform;
WHEREAS, in order to avoid conflicts of opinion in the disposition or disqualification cases
contemplated under Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act 6646,
there is a strongly felt need to lay down a definite policy in the disposition of this specific class of
disqualification cases;
NOW, THEREFORE, on motion duly seconded, the Commission en banc:
RESOLVED, as it hereby resolves, to formulate the following rules governing the disposition of cases
of disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6
of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987:
1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds
specifically enumerated under Section 68 of the Omnibus Election Code, filed directly with the
Commission before an election in which the respondent is a candidate, shall be inquired into by the
Commission for the purpose of determining whether the acts complained of have in fact been
committed. Where the inquiry by the Commission results in a finding before election, that the
respondent candidate did in fact commit the acts complained, the Commission shall order the

disqualification of the respondent candidate from continuing as such candidate.

In case such complaint was not resolved before the election, the Commission may motu proprio, or an
(sic) motion of any of the parties, refer the complaint to the law Department of the Commission as the
instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of
all cases involving criminal infractions of the election laws. Such recourse may be availed of
irrespective of whether the respondent has been elected or has lost in the election.
2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to
Section 6 of Rep. Act No. 6646 filed after the election against a candidate who has already been
proclaimed as winner shall be dismissed as a disqualification case. However, the complaint shall be
referred for preliminary investigation to the Law Department of the Commission.
Where a similar complaint is filed after election but before proclamation of the respondent candidate,
the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall
be referred for preliminary investigation to the Law Department. If, before proclamation, the Law
Department makes a prima facie finding of guilt and the corresponding information has been filed with
the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the
respondent with the court before which the criminal case is pending and the said court may order the
suspension of the proclamation if the evidence of guilt is strong.
3. The Law Department shall terminate the preliminary investigation within thirty (30) days from
receipt of the referral and shall submit its study, report and recommendation to the Commission en banc
within five (5) days from the conclusion of the preliminary investigation. If it makes a prima facie
finding of guilt, it shall submit with such study the Information for filing with the appropriate court.
The above-quoted resolution covers two (2) different aspects:
First, as contemplated in paragraph 1, a complaint for disqualification filed before the election which
must be inquired into by the COMELEC for the purpose of determining whether the acts complained of
have in fact been committed. Where the inquiry results in a finding before the election, the
COMELEC shall order the candidate's disqualification. In case the complaint was not resolved before
the election, the COMELEC may motu propio or on motion of any of the parties, refer the said
complaint to the Law Department of the COMELEC for preliminary investigation.
Second, as laid down in paragraph 2, a complaint for disqualification filed after the election against a
candidate (a) who has not yet been proclaimed as winner, or (b) who has already been proclaimed as
winner. In both cases, the complaint shall be dismissed as a disqualification case but shall be referred
to the Law Department of the COMELEC for preliminary investigation. However, if before
proclamation, the Law Department makes a prima facie finding of guilt and the corresponding
information has been filed with the appropriate trial court, the complainant may file a petition for
suspension of the proclamation of the respondent with the court before which the criminal case is
pending and the said court may order the suspension of the proclamation if the evidence of guilt is

strong.
Petitioners contend that Resolution No. 2050, upon which the COMELEC anchored its dismissal of the
disqualification case, is no longer a good law since it has been nullified in toto by this Court in Sunga v.
COMELEC.[8]
Contrary to petitioners' contention, nowhere did the Court strike down COMELEC Resolution No.
2050 in Sunga. There, we held that:
xxx We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the
dismissal of a disqualification case filed before the election but which remained unresolved after the
election. What the Resolution mandates in such a case is for the Commission to refer the complaint to
its Law Department for investigation to determine whether the acts complained of have in fact been
committed by the candidate sought to be disqualified. The findings of the Law Department then
become the basis for disqualifying the erring candidate. This is totally different from the other two
situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but
before the proclamation of winners and that filed after the election and the proclamation of winners,
wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case.
Moreover, Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No.
6646, which provides:
SEC. 6. Effects of Disqualification Case.--Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason
a candidate is not declared by final judgment before an election to be disqualified and he is voted for
and receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or 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 (italics supplied).
Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the
disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word 'shall'
signifies that this requirement of the law is mandatory, operating to impose a positive duty which must
be enforced. The implication is that the COMELEC is left with no discretion but to proceed with the
disqualification case even after the election. Thus, in providing for the outright dismissal of the
disqualification case which remains unresolved after the election, Silvestre v. Duavit in effect disallows
what RA No. 6646 imperatively requires. xxx[9]
The ruling in Sunga is not applicable to the case at bar. There, the complaint for disqualification was
filed prior to the May 8, 1995 elections. Under Section 6 of R.A. 6646, where the complaint was filed
before the election but for any reason, a candidate is not declared by final judgment before the election
to be disqualified and he is voted for and receives the winning number of votes in such election, the
COMELEC shall continue with the trial and hearing of the case. Thus, the facts in Sunga fall under the

contemplation of Section 6, namely: (1) the complaint for disqualification was filed before the
election; (2) for any reason, the issue of disqualification was not finally resolved before the election;
and (3) the candidate sought to be disqualified is voted for and received the winning number of votes.
Consequently, the COMELEC should have continued with the hearing and decided the case on the
merits. Instead, COMELEC erroneously dismissed the disqualification case and referred the matter to
the Law Department for preliminary investigation of the criminal aspect of the case. The deleterious
effect of the premature and precipitate dismissal was pointed out by this Court, thus:
xxx A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by
the dismissal of the disqualification case against him simply because the investigating body was
unable, for any reason caused upon it, to determine before the election if the offenses were indeed
committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is
to employ delaying tactics so that the disqualification case based on the commission of election
offenses would not be decided before the election. This scenario is productive of more fraud which
certainly is not the main intent and purpose of the law.[10]
In sharp contrast, the complaint for disqualification against private respondent in the case at bar was
lodged on May 18, 1998 or seven (7) days after the 1998 elections. Pursuant to paragraph 2 of
Resolution No. 2050, the complaint shall be dismissed as a disqualification case and shall be referred
for preliminary investigation to the Law Department of the COMELEC. Under this scenario, the
complaint for disqualification is filed after the election which may be either before or after the
proclamation of the respondent candidate.
The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the disqualification
case therein simply because it remained unresolved before the election and, in lieu thereof, referring it
to its Law Department for possible criminal prosecution of the respondent for violation of the election
laws. Notably, there is nothing in paragraph 1 of Resolution No. 2050 which directs the dismissal of
the disqualification case not resolved before the election. It says the COMELEC may motu propio or
on motion of any of the parties, refer the complaint to the Law Department of the Commission as an
instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of
all cases involving criminal infractions of the election laws. The referral to the Law Department is
discretionary on the part of the COMELEC and in no way may it be interpreted that the COMELEC
will dismiss the disqualification case or will no longer continue with the hearing of the same. The
reason for this is that a disqualification case may have two (2) aspects, the administrative, which
requires only a preponderance of evidence to prove disqualification, and the criminal, which
necessitates proof beyond reasonable doubt to convict. Where in the opinion of the COMELEC, the
acts which are grounds for disqualification also constitute a criminal offense or offenses, referral of the
case to the Law Department is proper.
Petitioners argue that the COMELEC should have proceeded and continued with the trial of SPA No.
98-319 and rendered judgment as the law and evidence would warrant, invoking Section 6 of R.A.
6646.
We do not agree. Section 6 explicitly applies only to any candidate who has been declared by final

judgment to be disqualified before an election. The section provides further that 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 xxx. There is no provision in R.A. 6646 that treats of
a situation where the complaint for disqualification is filed after the election. If the intention of the law
is for the COMELEC to hear and decide disqualification cases filed after the election, it would not have
made a distinction between cases filed before and after the election. Section 6 would not have used the
word before preceding an election. Thus, the need for implementing rules as embodied in Comelec
Resolution No. 2050 which provide that any complaint for disqualification based on Section 6 of R.A.
6646 is filed after the election against a candidate who has already been proclaimed as winner shall be
dismissed as a disqualification case, but the complaint shall be referred for preliminary investigation to
the Law Department of COMELEC.
The applicability of Resolution No. 2050 on disqualification cases was in fact upheld by this Court in
Lozano vs. Yorac,[11] the Court said:
xxx Resolution No. 2050 was passed by reason of the variance in opinions of the members of
respondent commission on matters of procedure in dealing with cases of disqualification filed pursuant
to Section 68 of the Omnibus Election code in relation to Section 6 of Republic Act No. 6646, or the
Electoral Reforms Law of 1987, and the manner of disposing of the same had not been uniform.
Hence, the COMELEC decided to lay down a definite policy in the disposition of these disqualification
cases. With this purpose in mind, the commission en banc adopted Resolution No. 2050. xxx
xxx
xxx Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification
cases. The COMELEC Rules of Procedure speak of special actions, which include disqualification
cases, in general. Hence, as between a specific and a general rule, the former shall necessarily prevail.
xxx[12]
It bears stressing that the Court in Sunga recognized the difference between a disqualification case filed
before and after an election when, as earlier mentioned, it stated that the referral of the complaint for
disqualification where the case is filed before election is totally different from the other two situations
contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the
proclamation of winners and that filed after the election and the proclamation winners, wherein it was
specifically directed by the same Resolution to be dismissed as a disqualification case.
Why there is a difference between a petition for disqualification filed before and after the election
proceeds from the fact that before the election, the question of disqualification is raised as an issue
before the electorate and those who vote for the candidate assume the risk that should said candidate be
disqualified after the election, their votes would be declared stray or invalid votes. Such would not be
true in the case of one filed after the electorate has already voted.[13]

Petitioners further postulate that the proclamation of private respondent on June 4, 1998 is void because
it was made without awaiting for the lapse of the five-day period for the finality of decisions rendered
by a division in special actions," citing Sec. 13 (c) Rule 18 of the COMELEC Rules of procedure
providing that unless a motion for reconsideration is seasonably filed, a decision or resolution of a
Division shall become final and executory after the lapse of five (5) days in Special actions and Special
cases. xxx
We find this contention without merit.
The mere filing of a petition for disqualification is not a ground to suspend the proclamation of the
winning candidate. In the absence of an order suspending proclamation, the winning candidate who is
sought to be disqualified is entitled to be proclaimed as a matter of law. This is clear from Section 6 of
R.A. 6646 providing that the proclamation of the candidate sought to be disqualified is suspended only
if there is an order of the COMELEC suspending proclamation. Here, there was no order suspending
private respondents proclamation. Consequently, private respondent was legally proclaimed on June
4, 1998.
Neither did the COMELEC err in not ordering the suspension of private respondent's proclamation.
The second paragraph of paragraph 2 of Resolution No. 2050 provides that where a complaint is filed
after the elections but before proclamation, as in this case, the complaint must be dismissed as a
disqualification case but shall be referred to the Law Department for preliminary investigation. If
before the proclamation, the Law Department makes a prima facie finding of guilt and the
corresponding information has been filed with the appropriate trial court, the complainant may file a
petition for suspension of the proclamation of respondent with the court before which the criminal case
is pending and that court may order the suspension of the proclamation if the evidence of guilt is
strong.[14] It appearing that none of the foregoing circumstances obtain herein as there is no prima
facie finding of guilt yet, a suspension of private respondent's proclamation is not warranted. The mere
pendency of a disqualification case against a candidate, and a winning candidate at that, does not justify
the suspension of his proclamation after winning in the election. To hold otherwise would unduly
encourage the filing of baseless and malicious petitions for disqualification if only to effect the
suspension of the proclamation of the winning candidate, not only to his damage and prejudice but also
to the defeat of the sovereign will of the electorate, and for the undue benefit of undeserving third
parties.[15]
Before we end, we take note that when petitioners filed the instant petition on June 25, 1999, they had
before the COMELEC en banc a pending motion for reconsideration of the June 4, 1998 resolution of
the First Division. The Court does not look with favor the practice of seeking remedy from this Court
without waiting for the resolution of the pending action before the tribunal below, absent extraordinary
circumstances warranting appropriate action by this Court. This makes a short shrift of established
rules of procedure intended for orderly administration of justice.
The COMELEC (First Division) in its June 4, 1998 resolution correctly referred petitioners complaint
for disqualification to its Law Division for appropriate action. There being no temporary restraining

order from this Court, that body as an instrument of the COMELEC should have continued with its
task of determining whether or not there exists probable cause to warrant the criminal prosecution of
those who may be liable for the alleged election offenses.
WHEREFORE, the instant petition is hereby DISMISSED. The respondent Commission on Elections
is hereby directed to RESOLVE with great dispatch the pending incident relative to the preliminary
investigation being conducted by its Law Department.
SO ORDERED.
[G.R. No. 134047. July 4, 2000]
AMADO S. BAGATSING, et al. vs. COMELEC, et al.
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUL 4 2000.
G.R. No. 134047 (Amado S. Bagatsing, Ernesto M. Maceda and Jaime Lopez vs. Commission on
Elections and Jose L. Atienza.)
On December 15, 1999, the court rendered a decision in this case which dispositively reads as follows:
WHEREFORE, the instant petition is hereby DISMISSED. The respondent Commission on Elections
is hereby directed to RESOLVE with great dispatch the pending incident relative to the preliminary
investigation being conducted by its Law Department.
SO ORDERED.
On January 3, 2000, petitioners filed a motion for reconsideration predicated on the following grounds,
viz (a) section 3, rule 25 of the 1993 COMELEC Rules of Procedure repealed COMELEC Resolution
No. 2050; (b) Said Section 3, rule 25, is separate and distinct from Section 3 of Republic Act No. 6646
and can stand on its own; (c) the suspension of proclamation of a winner is not applicable exclusively
in criminal cases as it may also be issued in disqualification cases; (d) an order of suspension was
issued by the COMELEC rendering the premature proclamation of respondent void ab inito for having
been made before the finality of the questioned resolution; and (e) the circumstances surrounding this

case justify the filing of the instant petition directly with this Court without waiting for the resolution of
the motion for reconsideration before the COMELEC en banc. 1 Rollo, pp. 326, 330, 335, 337 and 340.
Contrary to petitioners contention, it cannot be said that Section 3, Rule 25 of the 1993 COMELEC
Rules of Procedure repealed COMELEC Resolution No. 2050. In fact, these two provisions are
corollary, rather than contradictory to each other. While Section 3 of Rule 25 prescribes the period to
file a petition for disqualification, Resolution No. 2050 provides for the disposition of disqualification
1999 citing Lazaro vs. Yorac:
xxx resolution No. 2050 was passed by reason of the variance in opinions of the members of
respondent commission on matters of procedure in dealing with cases of disqualification filed pursuant
to Section 68 of the Omnibus Election Code in relation to Section 6 of Republic Act No. 6646, or the
Electoral Reforms Law of 1987, and the manner of disposing of the same had not been uniform. Hence,
the COMELEC decided to lay down a definite policy in the disposition of these disqualification cases.
With this purpose in mind, the commission en banc adopted Resolution No. 2050. xxx
xxx
xxx Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification
cases. The COMELEC Rules of Procedure speak of special actions, which include disqualification
cases, in general. Hence, as between a specific and a general rule, the former shall necessarily prevail.
xxx. 2 203 SCRA 256, 265-267 (1991).
As similarly maintained by the Solicitor General:
Rule 25, particularly Section 3 thereof, provides the period as to when disqualification cases, in
general, may be filed. This contemplates of an administrative summary proceeding. On the other hand,
Resolution No. 2050 provides the specific procedure as to how disqualification cases filed by virtue of
Section 68 of the COMELEC once they are filed before it.
Differently put, Rule 25 (Section 3) provides the permissive period within which disqualification cases,
in general, may be filed, that is, after the last day for filing certificates of candidacy and not later than
the date of proclamation.
Resolution No. 2050 provides how disqualification cases particularly those filed under Section 68 of
the Election Code would be handled by the COMELEC. That is, it provides the particular manner such
cases are to be treated, depending on whether they were filed before an election or after the election. 3
Comment on the Motion for Reconsideration by the Office of the Solicitor General, p. 10.

In further arguing that the Rules of Procedure repealed Resolution No. 2050, petitioners suggest that by
simply looking at the chronological dates of their issuance, it is apparent that the "new" Rules issued in
1993 superseded the "old" and "ancient" Resolution promulgated in 1988. The contention is without
merit.
The Solicitor General was correct to observe that at the time of the promulgation of Resolution No.
2050 on November 3, 1988, the governing Rules of Procedure were then Rules of Procedure were the
then Rules of Procedure of June 20, 1988which Rule 25 has identical provisions with the present Rules
save only for Section 1 thereof which was slightly modified and which section is not disputed in their
case. This means that despite the existence of the identical provisions in the 1988 Rules, the
COMELEC still found it apt and necessary to adopt and promulgate a definite policy and a specific
procedure to handle and dispose of the numerous disqualification cases filed before it. Clearly then, the
1993 Rules were not intended to repeal or abolish Resolution No. 2050.
Petitioners, likewise, maintain that private respondent's proclamation on June 4, 1998 was "premature"
and void ab initio because the COMELEC issued an order of suspension of proclamation in its Order
dated May 20, 1998. While it may be true that it's the COMELEC directed the suspension of the
proclamation of private respondent in its Order dated May 20, 1998, 4 Signed by Presiding
Commissioner Manolo B. Gorospe and Commissioner Evalyn I. Fetalino with Commissioner Teresita
Dy-Liacco Flores dissenting, as members of the COMELEC First Division. the said order was set aside
and the motion of herein private respondent to lift the order was set aside and the motion of herein
private respondent to lift the order of suspension of his proclamation was granted in the unanimous
Resolution dated June 4, 1998 5 Signed by COMELEC Chairman Bernardo P. Pardo and
Commissioner Manolo B. Gorospe and Teresita Dy-Liacco Flores, as members of the COMELEC First
Division).Consequently, there was no order of suspension to speak of at the time of private respondent's
proclamation.
We find no reason to discuss the other issues raised as they were already resolved in our Decision dated
December 15, 1999.
ACCORDINGLY, the motion for reconsideration is hereby DENIED with finality.

EN BANC
[G.R. No. 130681. July 29, 1999]
JOSE V. LORETO, in representation of his minor child JOSE P. LORETO III, petitioners, vs. RENATO
BRION, RODOLFO BUTALID and REYNALDO ATIENZA, in their capacity as Chairman and
Members respectively of the Board of Election Supervisors, respondents.
DECISION
GONZAGA-REYES, J.:
In this petition for review on certiorari Jose V. Loreto, III questions the decision of the Regional Trial
Court, Branch 14, Baybay, Leyte in Special Civil Action No.B-1302 dismissing his petition for
mandamus to compel the chairman and members of the Board of Election Supervisors of the
Pambansang Pederasyon Ng Mga Sangguniang Kabataan of Baybay, Leyte Chapter to proclaim him as
the winner in the elections of July 5, 1996 for President of the Pambayang Federasyon Ng Mga
Sangguniang Kabataan, Baybay, Leyte Chapter.
Jose Loreto III ran for president of the Pambayang Federasyon Ng Mga Sangguniang Kabataan,
Baybay, Leyte Chapter in the July 5, 1996 elections. The other candidates were Paul Ian Veloso and
Ruphil Baoc.
On July 3, 1996, a pre-election protest against Paul Ian Veloso was lodged before the Board of Election
Supervisors composed of respondents herein for violation of DILG Memorandum Circular No. 96-115,
and COMELEC Resolution No. 2834, prohibiting certain acts of campaigning in the Sangguniang
Kabataan Pederasyon elections.
In the July 5, 1996 elections, Paul Ian Veloso obtained the highest number of votes but his
proclamation as winner was suspended as the evidence of his guilt in the pre-election protest was
strong. Jose Loreto, III garnered the second highest number of votes.
On August 6, 1996, the Board of Election Supervisors promulgated a Resolution disqualifying
candidate Paul Ian Veloso and ruled that the elected Vice President of the chapter should assume the
office of President. The resolution became final and executory.
Petitioner Loreto took his oath of office and discharged the duties and functions of President of the SK
Municipal Federation but was unable to collect the salaries pertaining to the office on account of the
absence of the required proclamation papers.
Hence, petitioner filed a petition for mandamus in the Regional Trial Court to compel the Board of
Election Supervisors to direct the local election committee to proclaim him.

The Court a quo dismissed the petition on the ground that petitioner Loreto had lost in the SK
Pederasyon elections and the fact that the winning candidate was later on disqualified and his being a
second placer did not entitle him to be proclaimed as President.
Petitioner Loreto filed this petition for review on certiorari on an alleged pure question of law. The
lone issue is as follows:
Whether or not the trial court was correct in declaring that petitioner was not qualified to assume the
presidency of the Sangguniang Kabataan Chapter of Baybay, Leyte in lieu of a disqualified candidate
since the petitioner is a mere second placer to the deposed winner.
Petitioner relies on Section 6 of Republic Act No. 6646 which provides that 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, and claims that in view of the final judgment declaring Paul Ian Velosos
disqualification, the votes that were obtained by Veloso fall in the category of stray or invalid votes.
When he was disqualified, it was as if he was no candidate at all in the eyes of the law and the effects
of the final judgment of disqualification retroacts to the time the case was filed.
In its Comment, public respondent cites the doctrine laid down in a long line of cases that a second
placer cannot be considered the winner in place of a disqualified winning candidate.
In his reply, petitioner stresses that nowhere in Section 6 of R.A. 6646 is it mandated that the protestee
be disqualified by final judgment prior to or before the date of election. On the contrary, the fact that
the provision mandates that votes cast for a candidate disqualified by final judgment be not counted
presupposes that an election has already been held.
Public respondent counterargues in its rejoinder that it is immaterial whether the petition for
disqualification against a candidate was filed before the elections or after the elections as the
subsequent finding that a candidate is disqualified cannot retroact to the date of the elections so as to
invalidate the votes cast for him. Hence, the votes cast in favor of the disqualified winning candidate
will still be valid and the second placer does not become the automatic winner.
The question raised in the instant petition is not new. As early as Geronimo vs. Ramos,[1] this Court
has held that:
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 policies 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[2]
The doctrine was reiterated in Labo, Jr. vs. COMELEC,[3] (which reversed the earlier ruling in Santos
vs. COMELEC, 137 SCRA 140) and in the cases of Abella vs. COMELEC,[4] and Labo, Jr. vs.
COMELEC.[5] The Court in the first cited case succinctly restated the principle as follows:
The rule therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the
eligible candidate receiving the highest number of votes to be declared elected. A minority or defeated
candidate cannot be deemed elected to the office.[6]
The rationale for the rule is explained in Benito vs. COMELEC[7] as follows:
For to allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by
the electorate is to disenfranchise the electorate without any fault on their part and to undermine the
importance and meaning of democracy and the peoples right to elect officials of their choice.[8]
and more emphatically in Aquino vs. COMELEC,[9] thus:
x x x We cannot, in another shift of the pendulum subscribe to the contention that the runner-up in an
election in which the winner has been disqualified is actually the winner among the remaining qualified
candidates because this clearly represents a minority view supported only by a scattered number of
obscure American state and English court decisions. These decisions neglect the possibility that the
runner-up though obviously qualified, could receive votes so measly and insignificant in number that
the votes they receive would be tantamount to rejection. Theoretically, the second placer could
receive just one vote. In such a case, it is absurd to proclaim the totally repudiated candidate as the
voters choice. Moreover, even in instances where the votes received by the second placer may not be
considered numerically insignificant voters preferences are nonetheless so volatile and unpredictable
that the result among qualified candidates, should the equation change because of the disqualification
of an ineligible candidate, would not be self-evident. Absence of the apparent though ineligible winner
among no choices could lead to a shifting of votes to candidates other than the second placer. By any
mathematical formulation, the runner-up in an election cannot be construed to have obtained the
majority or plurality of votes cast where an ineligible candidate has garnered either a majority or
plurality of the votes.
The doctrine was last reiterated in the recent case of Reyes vs. COMELEC.[10]
We find no cogent reason to reexamine or disturb the rule already firmly settled in the above-cited
jurisprudence which rejected the contention of petitioner herein that he should be considered the first
among qualified candidates. The court a quo correctly held that the second placer lost the elections and
was repudiated by either a majority or plurality of voters. To rule otherwise is to impose what is an
unclear expression of the voters will.

As regards the contentions of petitioner that the votes cast in favor of Paul Ian Veloso should be treated
as stray, void or meaningless, and that the subsequent finding that he is disqualified should retroact to
the date of the elections so as to invalidate the votes cast for him, these were squarely rejected in Reyes
vs. COMELEC,[11] wherein it was pointed out that the votes cast for the disqualified candidate are
presumed to have been cast in the belief that he is qualified.
We find that the court a quo did not err in relying on the doctrine enunciated in the cases cited to
support the dismissal of this petition for mandamus and its refusal to declare that petitioner is the
winning candidate in the Sangguniang Kabataan elections in Baybay, Leyte.
WHEREFORE, the petition is dismissed for lack of merit.
SO ORDERED.

EN BANC
[G.R. No. 152163. November 18, 2002]
SABDULLAH T. MACABAGO, petitioner, vs. COMMISSION ON ELECTIONS and JAMAEL M.
SALACOP, respondents.
DECISION
CALLEJO, SR., J.:
On May 22, 2001, petitioner Sabdullah T. Macabago was proclaimed by the Municipal Board of
Canvassers as the winning candidate for the position of Municipal Mayor of Saguiran, Lanao del Sur.
Petitioner had a lead of 198 votes over his adversary, private respondent Jamael M. Salacop.
On June 1, 2001, private respondent filed a petition with the Commission on Elections (COMELEC)
against petitioner and the proclaimed Vice-Mayor and Municipal Councilors, as well as the members of
the Municipal Board of Canvassers, docketed as SPC-01-234, to annul the elections and the
proclamation of candidates in the Municipality of Saguiaran, Lanao del Sur. Private respondent alleged
that there was a massive substitution of voters, rampant and pervasive irregularities in voting
procedures in Precincts Nos. 19, 20, 28 and 29, and a failure of the Board of Election Inspectors (BEI)
to comply with Sections 28 and 29 of Comelec Resolution No. 3743 and Section 193 of the Omnibus
Election Code, thus rendering the election process in those precincts a sham and a mockery and the
proclamation of the winning candidates a nullity. Private respondent further averred that if his petition
were to be given due course, he would win by a margin of one hundred ninety-four (194) votes over the
votes of petitioner. He thus prayed:
WHEREFORE, foregoing premises considered, it is most respectfully prayed of this Honorable
Commission that the election results in Precincts 19, 20, 28 and 29 be ordered set aside and considered
excluded and the proclamation of the winning candidates in the said municipality be ANNULLED to
reflect the genuine desire of the majority of the people.
All other reliefs, deemed just and equitable under the circumstances are likewise prayed for.[1]
In support of his petition, private respondent appended thereto photocopies of random Voters
Registration Records (VRRs) evidencing the fraud and deceit that allegedly permeated the electoral
process, as well as affidavits tending to prove that serious irregularities were committed in the conduct
of the elections in the subject precincts.[2]
In his answer, petitioner denied the truth of the material allegations in the petition and averred that it
raised a pre-proclamation controversy. He further alleged that the grounds relied upon by private
respondent would be proper in an election protest but not in a pre-proclamation controversy.[3]

The COMELEC En Banc took cognizance of the petition and on February 11, 2002, issued an order
directing the Election Officer of Saguiran, Lanao del Sur, to bring to and produce before the
COMELEC Office in Manila the original VRRs of the questioned precincts for technical examination:
WHEREFORE, premises considered, the Commission hereby RESOLVES to direct Mr. Ibrahim M.
Macadato, the Election Officer of Saguiran, Lanao del Sur to produce the subject original VRRs of the
questioned precincts here in Manila for the appertaining technical examination.
SO ORDERED.[4]
In the same order, the COMELEC declared that contrary to petitioners claims, the petition did not
allege a pre-proclamation controversy. The Commission characterized the petition as one for the
annulment of the election or declaration of failure of election in the municipality, a special action
covered by Rule 26 of the COMELEC Rules of Procedure. Accordingly, the COMELEC set aside the
docketing of the petition as a Special Case (SPC) and ordered the redocketing thereof as a Special
Action (SPA). After its examination of the evidence submitted by petitioner, the COMELEC concluded
that there was convincing proof of massive fraud in the conduct of the elections in the four (4) precincts
that necessitated a technical examination of the original copies of the VRRs and their comparison with
the voters signatures and fingerprints. The COMELEC further noted that since the lead of Macabago
was only 124 votes vis--vis the 474 voters of the contested precincts, the outcome of the petition
would adversely affect the result of the elections in the Municipality. In issuing said Order, the
COMELEC relied on its broad powers under the 1987 Constitution and the pronouncement of this
Court in Pantaleon Pacis vs. Commission on Elections,[5] and Tupay Loong vs. Commission on
Elections, et al.[6]
Forthwith, petitioner filed with this Court the instant special civil action for certiorari under Rule 65 of
the 1997 Rules of Civil Procedure, as amended, praying for the reversal of the February 11, 2002 order
of the COMELEC En Banc. Petitioner alleged that:
6.1.
PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT TOOK
COGNIZANCE OF AND PASSED UPON THE PETITION IN SPC NO. 01-234 IN VIOLATION OF
SECTION 3, RULE 3 OF THE COMELEC RULES OF PROCEDURE.
6.2.
PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED ITS ORDER

ON FEBRUARY 11, 2002 FOR THE TECHNICAL EXAMINATION OF THE VOTERS

REGISTRATION RECORDS OF THE REGISTERED VOTERS OF PRECINCT NOS. 19, 20, 28 &
29 OF THE MUNICIPALITY OF SAGUIARAN, LANAO DEL SUR.[7]
The kernel issues posed in the case at bar are (a) whether petitioners recourse to this Court under Rule
65 of the 1997 Rules of Civil Procedure, as amended, is in order; and (b) whether the COMELEC
acted without jurisdiction or committed a grave abuse of its discretion amounting to excess or lack of
jurisdiction in taking cognizance of the petition of private respondent and in issuing the assailed Order.
On the first issue, petitioner avers that he was impelled to file the instant petition without first filing
with the COMELEC a motion for a reconsideration of its order because under the COMELEC Rules of
Procedure, a motion for a reconsideration of an interlocutory order of the COMELEC En Banc is a
prohibited pleading, and that the COMELEC acted with grave abuse of discretion amounting to excess
or lack of jurisdiction in issuing the assailed order. Private respondent on the other hand insists that
under Rule 64 of the 1997 Rules of Civil Procedure, a special civil action for certiorari filed with this
Court is proper only for the nullification of a final order or resolution of the COMELEC and not of its
interlocutory order or resolution such as the assailed order in this case.
Section 1, Rule 64, as amended, reads:
SECTION 1. Scope. This Rule shall govern the review of judgments and final orders or resolutions
of the Commission on Elections and the Commission on Audit.[8]
Under Section 2 of the same Rule, a judgment or final order or resolution of the COMELEC may be
brought by the aggrieved party to this Court on certiorari under Rule 65, as amended, except as therein
provided. We ruled in Elpidio M. Salva, et al. vs. Hon. Roberto L. Makalintal, et al.[9] that Rule 64 of
the Rules applies only to judgments or final orders of the COMELEC in the exercise of its quasijudicial functions. The rule does not apply to interlocutory orders of the COMELEC in the exercise of
its quasi-judicial functions or to its administrative orders. In this case, the assailed order of the
COMELEC declaring private respondents petition to be one for annulment of the elections or for a
declaration of a failure of elections in the municipality and ordering the production of the original
copies of the VRRs for the technical examination is administrative in nature.[10] Rule 64, a procedural
device for the review of final orders, resolutions or decision of the COMELEC, does not foreclose
recourse to this Court under Rule 65 from administrative orders of said Commission issued in the
exercise of its administrative function.[11]
It bears stressing that under Article VIII, Section 1 of the Constitution, judicial power is vested in the
courts. Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. Judicial power is an antidote to and a safety net against whimsical,
despotic and oppressive exercise of governmental power. The aggrieved party may seek redress
therefrom through the appropriate special civil action provided by the Rules of Court. As to acts of the

COMELEC, the special civil action may be one for certiorari pursuant to Article IX(A), Section 7 of
the Constitution.
As a general rule, an administrative order of the COMELEC is not a proper subject of a special civil
action for certiorari.[12] But when the COMELEC acts capriciously or whimsically, with grave abuse
of discretion amounting to lack or excess of jurisdiction in issuing such an order, the aggrieved party
may seek redress from this Court via a special civil action for certiorari under Rule 65 of the Rules.[13]
Private respondent cannot find solace in the pronouncement in Ruperto Ambil, Jr. vs. Commission on
Elections, et al.[14] because the subject matter of the petition therein was an interlocutory order of a
Division of the COMELEC. This Court held that the remedy of the aggrieved party was first to file a
motion for a reconsideration of the order with the COMELEC En Banc. The raison detre therefor is
that under Rule 3, Section 6(c) of the COMELEC Rules of Procedure, any motion for a reconsideration
of a decision, resolution, order or ruling of a Division of the COMELEC has to be referred to and
resolved by the Commission sitting En Banc. A motion for reconsideration filed with the COMELEC
En Banc of an order, ruling or resolution of a Division thereof is a plain, speedy and adequate remedy
therefrom.
We now resolve the second issue. Irrefragably, the petition before the COMELEC does not pose a preproclamation controversy as defined in Article XX, Section 241 of Republic Act No. 7166, thus:
SEC. 241. Definition. A pre-proclamation controversy refers to any question pertaining to or
affecting the proceedings of the board of canvassers which may be raised by any candidate or by any
registered political party or coalition of political parties before the board or directly with the
Commission.[15]
Pre-proclamation controversies are properly limited to challenges directed against the Board of
Canvassers and proceedings before said Board relating to particular election returns to which private
respondent should have made specific verbal objections subsequently reduced to writing. The
proceedings are summary in nature; thus, the reception of evidence aliunde, e.g. the original copies of
the VRRs, is proscribed. In fine, in pre-proclamation proceedings, the COMELEC is not to look
beyond or behind election returns which are on their face regular and authentic returns.[16] Issues such
as fraud or terrorism attendant to the election process, the resolution of which would compel or
necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular,
on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and
resolved in a regular election protest.[17]
In his petition with the COMELEC, private respondent alleged that fraud and irregularities allegedly
perpetrated by unscrupulous individuals who substituted for the registered voters and voted for the
latter in the subject precincts, in conspiracy with the Board of Election Inspectors, or abetted by the
members thereof, attended the electoral process in the subject precincts. The fraud and the
irregularities catalogued by private respondent required the reception of evidence aliunde. As stated
earlier, such grounds are not proper bases for a pre-proclamation controversy but are appropriate for a

regular election contest within the original jurisdiction of the Regional Trial Court. Indeed, the Court
held in Dimangadap Dipatuan vs. Commission on Elections, et al.:[18]
That the padding of the List of Voters may constitute fraud, or that the Board of Election Inspectors
may have fraudulently conspired in its preparation, would not be a valid basis for a pre-proclamation
controversy either. For, whenever irregularities, such as fraud, are asserted, the proper course of action
is an election protest.
Such irregularities as fraud, vote-buying and terrorism are proper grounds in an election contest but
may not as a rule be invoked to declare a failure of election and to disenfranchise the greater number of
the electorate through the misdeeds, precisely, of only a relative few. Otherwise, elections will never
be carried out with the resultant disenfranchisement of the innocent voters, for the losers will always
cry fraud and terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665).
Neither is private respondents petition before the COMELEC one for declaration of a failure of
elections in Saguiran, Lanao del Sur. Section 6, Article 1 of R.A. No. 7166 provides when a failure of
election occurs
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 the law for the closing of the voting, or after the voting and during
the preparation and the transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or suspension of election would
affect the result of the election, the Commission shall, on the basis of verified petition by any interested
party and after due notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date of the election
not held, suspended or which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or failure to elect (Sec. 7,
1978 EC).[19]
Under Section 5, Article 1 of the aforementioned law, the matter of the postponement or declaration of
failure of election and the calling of a special election as provided for in Section 6, shall be decided by
the COMELEC sitting En Banc by a majority of its members:
SEC. 5. Postponement of election. 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. (Sec. 4, p. 1, RA 7166).[20]
Before the COMELEC can grant a verified petition seeking to declare a failure of election, the
concurrence of two (2) conditions must be established, namely: (a) no voting has taken place in the
precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless

resulted in a failure to elect; (b) the votes cast would affect the result of the election. The Court
declared in Ricardo Canicosa vs. Commission on Elections, et al.,[21] that there are only three (3)
instances where a failure of election may be declared, namely:
x x x (a) the election in any polling place has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had
been suspended before the hour fixed by law for the closing of the voting on account of force majeure,
violence, terrorism, fraud, or other analogous causes; (c) after the voting and during the preparation
and transmission of the election returns or in the custody or canvass thereof, such election results in a
failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes.[22]
While fraud is a ground to declare a failure of election, such fraud must be one that prevents or
suspends the holding of an election, including the preparation and transmission of the election returns.
Failure to elect must be understood in its literal sensewhich is, nobody emerges as a winner.[23]
The barefaced fact that a candidate has been proclaimed and has assumed office does not deprive the
COMELEC of its authority to annul any canvass and illegal proclamation.[24] A petition for the
annulment of election is not the same as one involving a pre-proclamation controversy. In the fairly
recent case of Tomas T. Banaga, Jr. vs. Commission on Elections, et al.[25] with a factual backdrop
similar to this case, the Court held:
We have painstakingly examined the petition filed by petitioner Banaga before the COMELEC. But
we found that petitioner did not allege at all that elections were either not held or suspended. Neither
did he aver that although there was voting, nobody was elected. On the contrary, he conceded that an
election took place for the office of vice-mayor of Paraaque City, and that private respondent was, in
fact, proclaimed elected to that post. While petitioner contends that the election was tainted with
widespread anomalies, it must be noted that to warrant a declaration of failure of election the
commission of fraud must be such that it prevented or suspended the holding of an election, or marred
fatally the preparation and transmission, custody and canvass of the election returns. These essential
facts ought to have been alleged clearly by the petitioner below, but he did not.
Private respondent alleged in his petition with the COMELEC En Banc that the elections ensued in the
subject precincts and that petitioner herein emerged as the winner and was in fact proclaimed as such
by the Board of Election Inspectors.
In sum then, the grounds alleged by private respondent in his petition before the COMELEC are those
for a regular election protest and are not proper in a pre-proclamation controversy; nor is such petition
one for annulment of the elections or for a declaration of failure of elections in the municipality of
Saguiran, Lanao del Sur. The COMELEC should have ordered the dismissal of the petition instead of
issuing the assailed order. The COMELEC thus committed a grave abuse of its discretion amounting to
excess or lack of jurisdiction in issuing the same. The error is correctible by the special civil action for
certiorari.
PREMISES CONSIDERED, the petition is GRANTED. The assailed order is SET ASIDE. The

petition of herein private respondent with the public respondent is DISMISSED, without prejudice to
the filing of a regular election protest, the period for the filing of which is deemed suspended by the
filing of the petition before the Commission on Elections which gave rise to the petition at bar.
SO ORDERED.

EN BANC
[G. R. No. 150312. July 18, 2002]
BAGO P. PASANDALAN, petitioner, vs. COMMISSION ON ELECTIONS and BAI SALAMONA L.
ASUM, respondents.
DECISION
CARPIO, J.:
A petition for declaration of failure of election must specifically allege the essential grounds that would
justify the exercise of this extraordinary remedy. Otherwise, the Comelec can dismiss outright the
petition for lack of merit. No grave abuse of discretion can be attributed to the Comelec in such a
case because the Comelec must exercise with utmost circumspection the power to declare a failure of
election to prevent disenfranchising voters and frustrating the electorates will.
The Case
Before us is a petition for review on certiorari of the Resolution[1] of the Commission on Elections en
banc dated October 12, 2001 dismissing petitioner Bago P. Pasandalans (Pasandalan for brevity)
petition to declare a failure of election.
Pasandalan and private respondent Bai Salamona L. Asum (Asum for brevity) were candidates for
mayor in the Municipality of Lumbayanague, Lanao del Sur during the May 14, 2001 elections.
On May 23, 2001, Pasandalan filed a petition[2] before public respondent Commission on Elections
(Comelec for brevity) seeking to nullify the election results in Barangay Cabasaran (Precinct Nos.
9A, 10A, 11A and 12A), Barangay Deromoyod (Precinct Nos. 24A, 25A and 26A), Lamin (Precinct
Nos. 29A and 30A), Barangay Wago (Precinct Nos. 46A, 47A and 48A), Barangay Meniros (Precinct
Nos. 32A, 33A and 34A), Barangay Bualan (Precinct Nos. 6A, 7A and 8A) and Barangay Pantaon
(Precinct Nos. 38A and 39A), all of Lumbayanague, Lanao del Sur.
Petitioner alleged that on May 14, 2001, while voting was going on, some Cafgus stationed near
Sultan Gunting Elementary School indiscriminately fired their firearms causing the voters to panic and
leave the polling center without casting their votes. Taking advantage of the confusion, supporters of
Asum allegedly took the official ballots, filled them up with the name of Asum and placed them inside
the ballot boxes. The incident allegedly marred the election results in Precinct Nos. 9A-12A, 24A-26A
and 29A-30A.
In Precinct Nos. 46A, 47 and 48A, the members of the Board of Election Inspectors (BEI for brevity)
allegedly failed to sign their initials at the back of several official ballots and to remove the detachable
coupons. The BEI members allegedly affixed their initials only during the counting of votes.

In Precinct Nos. 6A-8A, 32A-34A and 38A-39A, Pasandalan claims that Asums supporters, taking
advantage of the fistfight between Asums nephew and the supporters of candidate Norania Salo,
grabbed the official ballots and filled them up with the name of Asum.
Pasandalan contends that a technical examination of several official ballots from the contested precincts
would show that only a few persons wrote the entries.
On June 26, 2001, Asum filed an Answer denying Pasandalans allegation that the volley of shots fired
on May 14, 2001 disrupted the voting. Private respondent countered that the gunshots were heard
around 2:35 p.m. and not at the start of the voting. On June 30, 2001, Asum was sworn into office and
assumed the position of municipal mayor of the Lumbayanague, Lanao del Sur.
On October 12, 2001, the Comelec issued a Resolution dismissing the petition for lack of merit.[3]
Hence, this petition.
The Comelecs Ruling
The Comelec ruled that the power to declare a failure of election, being an extraordinary remedy, could
be exercised only in three instances: (1) the election is not held; (2) the election is suspended; or (3) the
election results in a failure to elect. The third instance is understood in its literal sense, that is, nobody
was elected.
The Comelec dismissed the petition because none of the grounds relied upon by Pasandalan falls under
any of the three instances justifying a declaration of failure of election. First, the elections in the
questioned precincts were held as scheduled. Second, the gunshots heard during the casting of votes
did not suspend the election as the voting continued normally. Third, Asum was elected by a plurality
of votes.
The authenticity and integrity of the election returns were left undisturbed throughout the preparation,
transmission, custody and canvass of the returns. Pasandalan alleges fraud and terrorism, in that there
was massive substitution of voters, firing of guns to frighten the voters, and failure of the BEI members
to sign at the back of some official ballots and to remove the detachable coupons. The Comelec ruled
that these allegations are better ventilated in an election contest.
The Comelec did not give credence to Pasandalans evidence in support of his allegations of terrorism
and fraud since the evidence consisted only of affidavits executed by Pasandalans own poll watchers.
The Comelec considered these affidavits self-serving and insufficient to annul the results of the
election. Thus, the Comelec dismissed the petition for lack of merit.

The Issues
Pasandalan now assails the Comelecs dismissal of his petition, raising the following issues:
1. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DISMISSING THE PETITION IN
SPA NO. 01-305 FOR ALLEGED LACK OF MERIT;
2. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION IN NOT ANNULING THE
ELECTION OR DECLARING A FAILURE OF ELECTION IN THE SIXTEEN (16) QUESTIONED
PRECINCTS;
3. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN NOT DECLARING AS
ILLEGAL, NULL AND VOID AB INITIO THE PROCLAMATION OF THE PRIVATE
RESPONDENT AS THE DULY ELECTED MAYOR OF LUMBAYANAGUE, LANAO DEL SUR IN
THE LAST MAY 14, 2001 REGULAR ELECTIONS AND MAY 30, 2001 SPECIAL
ELECTIONS.[4]
The Courts Ruling
We rule that the petition is without merit. The Comelec correctly dismissed the petition for declaration
of failure of election because the irregularities alleged in the petition should have been raised in an
election protest, not in a petition to declare a failure of election.
Under Republic Act No. 7166, otherwise known as The Synchronized Elections Law of 1991,[5] the
Comelec en banc is empowered to declare a failure of election under Section 6 of the Omnibus Election
Code (B.P. Blg. 881). Section 6 of the Code prescribes the conditions for the exercise of this power,
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 closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or suspension of election would
affect the result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of
the cause of such postponement or suspension of the election or failure to elect.

Based on the foregoing provision, three instances justify a declaration of failure of election. These are:
(a) the election in any polling place has not been held on the date fixed on account of force majeure,
violence, terrorism, fraud or other analogous causes;
(b) the election in any polling place has been suspended before the hour fixed by law for the closing of
the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or
(c) after the voting and during the preparation and transmission of the election returns or in the custody
or canvass thereof, such election results in a failure to elect on account of force majeure, violence,
terrorism, fraud or other analogous causes.[6]
What is common in these three instances is the resulting failure to elect.[7] In the first instance, no
election is held while in the second, the election is suspended.[8] In the third instance, circumstances
attending the preparation, transmission, custody or canvas of the election returns cause a failure to
elect. The term failure to elect means nobody emerged as a winner. [9]
Pasandalan asserts that the conditions for the declaration of failure of election are present in this case.
The volley of shots from high-powered firearms allegedly forced the voters to scamper away from the
polling place, paving the way for Asums supporters to write the name of Asum on the ballots. The
gunfire also frightened Pasandalans poll watchers. The heavy firing allegedly suspended or prevented
the holding of elections in the contested precincts, resulting in failure to elect. The victory of Asum is
thus put in serious doubt.
We do not agree. Pasandalans allegations do not fall under any of the instances that would justify the
declaration of failure of election. The election was held in the 16 protested precincts as scheduled. At
no point was the election in any of the precincts suspended. Nor was there a failure to elect because of
force majeure, violence, terrorism, fraud or other analogous causes during the preparation,
transmission, custody and canvass of the election returns. The alleged terrorism was not of such scale
and prevalence to prevent the holding of the election or to cause its suspension. In fact, the casting and
counting of votes, the preparation, transmission and canvassing of election returns and the
proclamation of the winning candidate took place in due course.
Courts exercise the power to declare a failure of election with deliberate caution so as not to
disenfranchise the electorate.[10] The fact alone that actual voting took place already militates against
Pasandalans cause. Also, Pasandalans allegations of terrorism and fraud are not sufficient to warrant
a nullification of the election in the absence of any of the three instances justifying a declaration of
failure of election. Terrorism may not be invoked to declare a failure of election and to disenfranchise
the greater number of the electorate through the misdeeds of only a few,[11] absent any of the three
instances specified by law.

To warrant a declaration of failure of election on the ground of fraud, the fraud must prevent or suspend
the holding of an election, or mar fatally the preparation, transmission, custody and canvass of the
election returns.[12] The conditions for the declaration of failure of election are stringent. Otherwise,
elections will never end for losers will always cry fraud and terrorism.[13]
The allegations of massive substitution of voters, multiple voting, and other electoral anomalies should
be resolved in a proper election protest[14] in the absence of any of the three instances justifying a
declaration of failure of election. In an election protest, the election is not set aside, and there is only a
revision or recount of the ballots cast to determine the real winner.[15]
The nullification of elections or declaration of failure of elections is an extraordinary remedy.[16] The
party who seeks the nullification of an election has the burden of proving entitlement to this remedy. It
is not enough that a verified petition is filed. The allegations in the petition must make out a prima
facie case for the declaration of failure of election, and convincing evidence must substantiate the
allegations.[17]
In the instant case, it is apparent that the allegations do not constitute sufficient grounds for the
nullification of the election. Pasandalan even failed to substantiate his allegations of terrorism and
irregularities. His evidence consisted only of affidavits. Mere affidavits are insufficient,[18] more so
in this case since the affidavits were all executed by Pasandalans own poll watchers. Factual findings
of the Comelec are binding on this Court.[19] Accordingly, the following findings of the Comelec in
the instant case must be respected:
xxx There was an allegation in the amended petition that while voting was taking place in Sultan
Gunting Elementary School, gunshots were heard causing the voters to scamper for safety and leave the
polling center without having cast their votes. However, other than his bare allegation and the pretyped affidavits of his watchers, petitioner did not present substantial and convincing evidence to
support his claim. On the other hand, 1 Lt. Frederick Galang Pa of the 29th Infantry Battalion assigned
in Lumbayanague categorically declared in his affidavit that despite the gunshots which were heard at
around 2:35 PM when the polls were about to close, the voting continued normally. This statement
was bolstered by the narrative report of Urangutan Mamailao, Election Officer of Lumbayanague, on
the conduct of the election in said municipality. The report was spontaneously prepared when the
incident happened. Taken in the light of the presumption of regularity in the performance of official
functions, these two affidavits carry great weight. Third, the authenticity and integrity of the election
returns are left undisturbed throughout the preparation, transmission, custody and canvass thereof.
There was no allegation, much less proof that the sanctity of the election returns was defiled.
xxx
A thorough examination of the affidavits reveals that they suffer from both extrinsic and intrinsic
invalidity. The form and the contents of the affidavits were pre-typed, and all the affiants had to do was
to fill-up the blank spaces for their names and precinct assignments. This clearly shows that some
other person prepared the affidavits and it is doubtful whether the affiants understood the contents

thereof before they signed them.

Also worth noting is the fact that the contents of the affidavits are identical. It is highly questionable
why different persons have exactly the same observation of different incidents. Even persons
confronted with the same occurrence would have different observations of the same incident because
human perception is essentially affected by several factors like the senses, mental condition, personal
disposition, environment, etc.
Moreover, the affidavits contain inconsistent statements and incredible allegations which bolster the
conclusion that they were tailored to suit the needs of the petitioner. For example, the joint-affidavit of
Badjomura Calauto and Macaruog Ampuan states that they were in Barangay Cabasaran during the
May 14 election when they saw the men of respondent fill-up the ballots in Precinct Nos. 29A-30A of
Barangay Lamin. The venue of voting for Barangay Cabasaran was Sultan Gunting Central
Elementary School while that of Barangay Lamin was Lamin Primary School. How they were able to
witness said incident when they were miles away from where it happened is mystifying. Besides, this
is not the proper forum to challenge illegal voters. Even at the precinct level, petitioners watchers are
empowered to question any irregularity which they think may have been committed by any person or to
challenge the capacity of any person offering to vote. Failing to avail himself of this remedy, petitioner
cannot now pass the burden to innocent voters by calling for the annulment of the results of a validly
held election.[20]
Pasandalan bewails the Comelecs dismissal of his petition without first conducting a technical
examination of the questioned precincts. Pasandalan claims that had the Comelec made a technical
examination of the questioned precincts, the Comelec would have discovered massive substitution of
voters, terrorism, violence, threats, coercion, intimidation and other electoral frauds, resulting in a
failure of election. Pasandalan insists that a technical examination in this case would have been proper
as in Typoco, Jr. v. Commission on Elections,[21] which is also a case of failure of election.
The Comelec is not mandated to conduct a technical examination before it dismisses a petition for
nullification of election when the petition is, on its face, without merit. In Typoco, petitioner Typoco
buttressed his petition with independent evidence that compelled the Comelec to conduct a technical
examination of the questioned returns. Typoco filed a Motion to Admit Evidence to prove that a
substantial number of election returns were manufactured. Typoco claimed that the returns were
prepared by only one person based on the report of Francisco S. Cruz, a licensed examiner of
questioned documents, who examined copies of the election returns of Lakas-NUCD. In the present
case, Pasandalan failed to attach independent and objective evidence other than the self-serving
affidavits of his own poll watchers.
In Mitmug v. Commission on Elections,[22] we ruled that the Comelec could dismiss outright a
petition for nullification of election if it is plainly groundless and the allegations therein could be better
ventilated in an election protest. In Banaga, Jr. v. Commission on Elections,[23] we reiterated this
doctrine, thus -

Finally, petitioner claims that public respondent gravely abused its discretion when it dismissed his
petition motu propio. However, the fact that a verified petition has been filed does not mean that a
hearing on the case should first be held before Comelec can act on it. The petition to declare a failure
of election and/or to annul election results must show on its face that the conditions necessary to
declare a failure to elect are present. In their absence, the petition must be denied outright. Public
respondent had no recourse but to dismiss the petition. Nor may petitioner now complain of denial of
due process, on this score, for his failure to properly file an election protest. The Comelec can only
rule on what was filed before it. It committed no grave abuse of discretion in dismissing his petition to
declare failure of elections and/or for annulment of elections for being groundless, hence without
merit.
Clearly, the fact that a verified petition is filed with the Comelec does not necessarily mean that a
technical examination or a hearing on the case should be conducted first before the Comelec can act on
the petition. There is no grave abuse of discretion if the Comelec dismisses the petition even without a
technical examination or hearing if the petition fails to show on its face the existence of any of the three
instances required by law to declare a failure of election. The Comelec in this case correctly dismissed
the petition.
Pasandalan believes that notwithstanding the fact that actual voting took place in the questioned
precincts, the election in this case, just like in Basher v. Commission on Elections,[24] was illegal,
irregular, and void.[25] Citing Basher, Pasandalan argues that the peculiar set of facts in this case do
not merely show a failure of election but the absence of a valid electoral exercise.[26]
The fact that an election is actually held prevents as a rule a declaration of failure of election. It is only
when the election is attended by patent and massive irregularities and illegalities that this Court will
annul the election. Basher is an example of such a case.
In Basher, after a series of failed elections in Barangay Maidan, Municipality of Tugaya, Lanao del Sur
during the 1997 barangay elections, the election was reset to August 30, 1997. Due to the prevailing
tension in the locality, the voting started only at around 9 p.m. and lasted until the early morning of the
following day. Basher filed a petition for the nullification of election. The Comelec ruled against a
failure of election because actual voting had taken place. However, we overturned the Comelec ruling
because the election was unauthorized and invalid. The electorate was not given sufficient notice that
the election would push through after 9 p.m. of the same day. Moreover, the voting did not comply
with the procedure laid down by law and by Comelec rules as to the time and place of voting. Thus,
we held that the election was illegal, irregular and void. Consequently, we annulled the proclamation
of the winning candidate and ordered a special election.
Basher does not apply to this case. Unlike in Basher, the election in this case proceeded as scheduled,
in accordance with law and Comelec rules. None of the extreme circumstances that marred the election
in Basher is present in this case. We have ruled that there is failure of election only if the will of the
electorate is muted and cannot be ascertained.[27] If the will of the people is determinable, the same
must be respected as much as possible.[28] In this case, the will of the electorate is readily discernible.
Pasandalan should have filed an election protest to substantiate his allegations of electoral anomalies,

not a petition to declare a failure of election.

WHEREFORE, the instant petition is DISMISSED. The assailed Resolution of public respondent
Comelec is AFFIRMED. Costs against petitioner.
SO ORDERED.

Election Laws
VILLAROYA vs. COMELEC ( 155 SCRA 633 )
Pre-Proclamation Controversy, D. ProcedureFacts: Petitioner Villaroya and private respondent Roa
were among thecongressional candidates in Cagayan de Oro City. Villaroya garnered 38,222
votes,while respondent Roa got a total of 38,196 votes, with a plurality of 6 votes, in favor of petitioner
Villaroya. Due to the protest of the lawyers of Roa, Villaroya was notproclaimed by the Board of
Canvassers. Roa filed a petition in the COMELECcontesting the election claiming fraud, duress,
falsification and other grounds. Upon aformal request made by Roa, the Board of Canvassers furnished
her a copy of theStatement of Votes. Roa filed with the Board of Canvassers a protest for the error or
mistake in the tabulation of the election returns based on such copy. COMELECdirected the Board of
Canvassers to reconvene to verify the election.After the verification of the election returns Roa was
proclaimed. Petitioner filed inthis Court a petition for certiorari, prohibition and mandamus with prayer
for theissuance of a temporary restraining order or writ of preliminary injunction alleging thatRoa not
having filed an objection with the Board of Canvassers during thecanvassing, deprived the COMELEC
of appellate jurisdiction to entertain Roaspetition for the verification of the election return in question
and that the question wasnot proper for a pre-proclamation controversy but in an election contest that
shouldbe brought before the house electoral tribunal. Villaroya further alleged that the directfiling of
the protest with the COMELEC did not make it a pre-proclamationcontroversy; that the decision of the
COMELEC authorizing such verification by theBoard of Canvassers was illegal, arbitrary and was
issued without jurisdiction or withgrave abuse of discretion.Issue: Whether or not the COMELEC
committed a grave abuse of discretion inordering the City Board of Canvassers to verify the election
returns and that thesubject protest must be filed with the electoral tribunal.Held: No. It must be
observed further, that there is no plausible reason to prohibit anaggrieved candidate from filing an
objection regarding the election returns directlybefore the Comelec itself if the election irregularities
that vitiate the integrity of theelection returns are not apparent upon their faces. What is therefore
involved is theoriginal jurisdiction of the Comelec rather than its appellate jurisdiction for preciselythe
objection is filed not before the Board of Canvassers because the irregularitiesare not apparent upon the
face of the election returns. The Commission en bancrules, therefore, that the protest or objection filed
by Petitioner Bernardita Roa after discovery of the discrepancy in the Statement of Votes was filed
seasonably

TAJANLANGIT vs. CAZEAS Case Digest

TAJANLANGIT vs. CAZEAS
5 SCRA 567, 1962
Facts: Petitioner Tajanlangit and respondent Cazeas were among the candidates for the position of
mayor of Dao,Antique, in the elections held on November 10, 1959. The municipal board of canvassers
declared that Tajanlangit won over Cazeas by three votes. Cazeas filed an election protest before the
CFI of Antique contesting the result of the elections. Tajanlangit also filed a counter-protest. The lower
court ruled in favor of Cazeas, but his winning margin was reduced to two votes. The Court of
Appeals affirmed the decision, but reduced respondents lead by just one vote. Tajanlangit filed this
appeal to contest the ruling made by the appellate court with regards to sixteen ballots.
Issue: Whether or not the appellate court erred in its appreciation of the ballots.
Held: The use of two kinds of writing appearing in the ballot is a good example of the exemption
provided in paragraph 18, section 149 of the Election Code, which provides that unless it should clearly
appear that it has been deliberately put by the voter to serve as identification mark, the use of two or
more kinds of writing shall be considered innocent and shall not invalidate the ballot.
In the absence of evidence aliunde that names of non-candidates were intended for purposes of
identification, the same shall be considered as stray votes which shall not invalidate the whole ballot.
It is a well-settled rule in election contest that the marks which shall be considered sufficient to
invalidate the ballot are those which the votes himself deliberately placed in his ballot for the purpose
of identifying it thereafter.

QUISUMBING, J.:
This petition for certiorari and prohibition with application for the issuance of a
temporary restraining order and/or preliminary prohibitory injunction or status quo order
assails the Order[1] dated of the Commission on Elections (COMELEC) in SPC No.
04-247. The COMELEC denied petitioners motions to suspend the reconvening of the
Special Board of Canvassers (SBOC) and the proclamation of winning candidates for
South Upi, Maguindanao.
The facts are undisputed.
Petitioner Datu Israel C. Sinsuat () was a mayoralty candidate in the May 2004
Local Elections in South Upi, Maguindanao, while petitioner Datu Jaberael R. Sinsuat
(Jaberael), a vice mayoralty candidate. Before the elections, filed a complaint docketed
as SPA No. 04-202 for the cancellation of the certificate of candidacy for mayor of
Antonio B. Gunsi, Sr. (Gunsi).
Upon canvassing of votes, the Municipal Board of Canvassers proclaimed as
winners, on different dates, three candidates for mayor, two candidates for vice-mayor
and different sets of members of the Sangguniang Bayan.
Atty. Clarita Callar, Regional Election Director, Region XII, , filed a report on the
multiple proclamations in South Upi. In a Resolution[2]dated , the COMELEC First
Division, finding that all proclamations were based on incomplete canvass, annulled the
proclamations. The COMELEC en banc, in a Resolution[3] dated , denied s motion for
reconsideration[4] and ordered the appointment of the SBOC. The SBOC was directed
to convene and re-canvass all election returns from all 35 precincts of South Upi, and
proclaim the winners for mayor, vice-mayor and members of the Sangguniang
Bayan. However, the SBOC was unable to canvass votes from four of the 35
precincts. Thus, in a resolution dated , the SBOC was also directed to act as Special
Board of Election Inspectors for Precincts Nos. 3A,[5] 10A, 15A and 17A, count the
ballots therein, and proceed with the canvassing.
Meanwhile, the COMELEC Second Division, in SPA No. 04-202, disqualified
Gunsi to run for mayor for not being a registered resident of South Upi.[6] On , the
COMELEC en banc denied Gunsis motion for reconsideration.[7]
The SBOC, on the other hand, submitted its report[8] dated with the following
results:
[For Mayor]
Antonio B. Gunsi
Jovito B. Martin
Israel C. Sinsuat

1,954
1,617
1,643

387
872

For Vice-Mayor
Catalino M. Ariston
Ricardo F. Betita

Abdullah A. Campong
Roland B. Moendeg
Jaberael R. Sinsuat

1,352
1,296
1,229

1,307
653

For Councilors
Jose N. Alvarez
Doming L. Angit
Lencio A. Arig
Lydia B. Aron
Armando S. Babas
Antonio B. Batitao
Rene T. Batitao
Vicente F. Betita
Manuel L. Compleza
Abogado K. Dida
Mohamad D. Diocolano
Francilino B. Dizon
Alimudin S. Edzil
Linda L. Erese
Florentino M. Fantingan
Leo T. Galangan
Manuel B. Gunsi
Joselito C. Insoy
Amil B. Kamid
Adnan K. Karim
Gems S. Kudteg
Ronnie K. Omar
Sanny M. Piang
Warlito D. Pinuela
Raymundo L. Quinlat, Jr.
Calbeno P. Rawadin
Maria A. Sargan
Manuel B. Gunsi
Alfredo A. Tenorio
Rodrigo S. Toriales
Zainal S. Tumambiling Armando B. Untal
Jaime T. Usman
Bienvenido W. Yap, Sr.

859
1,652
214
623
447
1,384
839
1,105
761
508
1,166
2,061
19
1,002
1,026
968
308
1,290
902
1,284
1,155
1,477
1,356
1,041
1,868
1,026
1,046
1,481
23
747
1,364
1,609[9]

Jaberael questioned 95 ballots from Precincts Nos. 15A and 17A which would
affect the results of the election. It appeared that in 48 ballots from Precinct No. 15A
and 47 ballots from Precinct No. 17A, the name Jay or Sinsuat written on the space
for vice-mayor was erased by a single line and beside it was the name Campong or
Beds which is the nickname of respondent Abdullah Campong (Campong). In view of

this, the SBOC suggested that the commission check these ballots which it counted in
favor of Campong. It wanted the commission to ascertain whether or not the Boards
determination of the integrity and validity of the ballots from said precincts must be
reversed and set aside.[10]
In an Order[11] dated July 26, 2005, the COMELEC en banc ordered the SBOC to
reconvene and proclaim Campong for vice-mayor, and Erlinda L. Erese, Maria A.
Sargan, Lydia B. Aron, Bienvenido W. Yap, Sr., Rodrigo S. Toriales, Warlito D. Pinuela,
Vicente B. Betita and Jaime T. Usman, for councilors. It also held that no candidate
shall be proclaimed mayor due to the disqualification of Gunsi, the winning candidate
for mayor. Instead, it referred the matter to the Department of Interior and Local
Government ARMM for the implementation of the rules on succession.
Consequently, petitioners filed the following: (1) Motion to suspend
implementation of order promulgated on July 26, 2005; (2) Very urgent motion to
suspend reconvening of the SBOC; and (3) Very urgent motion to recall notice to
reconvene issued by the SBOC. On August 2, 2005, the COMELEC suspended the
reconvening of the SBOC and required the other parties to comment.
In its assailed order dated August 16, 2005, the COMELEC denied the cited
motions holding that they were actually motions for reconsideration of an en
banc resolution which is not allowed in special cases under Section 1, Rule 13 of the
1993 COMELEC Rules of Procedure. It added that the SBOC had already considered
the contested ballots from Precincts Nos. 15A and 17A as valid, and counted them in
favor of Campong. It ratiocinated that the case before it was not an election protest
where election documents may be examined and evidence aliunde may be presented to
prove that the contested ballots were written by two persons.
Hence, this petition where petitioners raise the following issues:
1.
WHETHER OR NOT THE NINETY-FIVE (95) VOTES ORIGINALLY AND
OBVIOUSLY CAST FOR DATU JABERAEL SINSUAT, VICE MAYORALTY
CANDIDATE, BUT WAS ILLEGALLY ERASED AND TAMPERED IN FAVOR OF
ABDULLAH BEDS CAMPONG SHOULD BE COUNTED IN FAVOR OF DATU
JABERAEL SINSUAT;
2.
WHETHER OR NOT DATU ISRAEL SINSUAT, MAYORALTY CANDIDATE,
AS THE CANDIDATE WHO RECEIVED THE NEXT HIGHEST NUMBER OF
VOTES, [SHOULD] BE PROCLAIMED AS THE DULY ELECTED MUNICIPAL
MAYOR OF SOUTH UPI, MAGUINDANAO CONSIDERING THAT THE
DISQUALIFICATION OF THE CANDIDATE WHO RECEIVED THE HIGHEST
NUMBER OF VOTES, ANTONIO GUNSI, SR., BECAME FINAL AND

EXECUTORY PRIOR TO THE PROCLAMATION OF ANY WINNING

CANDIDATE;
3.
THE PRIMORDIAL CONSIDERATION IS WHETHER OR NOT THE AUGUST
16, 200[5] ORDER IS PROPER OR REVERSIBLE.[12]

Simply, the issues in this case are: (1) Did the COMELEC gravely abuse its
discretion when it did not count the contested ballots in favor of Jaberael? (2) Should
petitioner Israel be proclaimed mayor?
On the first issue, petitioners contend that the COMELEC gravely abused its
discretion when it did not consider the contested ballots as votes for Jaberael despite the
SBOCs recommendation. They aver that had the 95 contested ballots been counted in
favor of Jaberael, the latter would have won the elections with 1,324 votes since
Campong would only have 1,257 votes. They also maintain that the COMELEC should
have inspected and examined the contested ballots and made a definite ruling
thereon. On the second issue, petitioners claim that the COMELEC should have
proclaimed Israel as the duly elected mayor since Gunsis votes should have been
considered stray votes. They also aver that Gunsis disqualification became final and
executory before the proclamation of any winning candidate.
Respondent Campong claims that the case is now moot and academic as the order
sought to be annulled had become final and executory. Further, he argues that he
already took his oath as vice-mayor and assumed his office on August 25,
2005. Thereafter, he succeeded as mayor in view of Gunsis disqualification.
He also contends that petitioners are guilty of forum-shopping considering Jaberael
also filed an election protest, docketed as Case No. 2005-19, now pending in
the Regional Trial Court of Cotabato City, Branch XIV.[13] He argues that the
appreciation of the contested ballots and election documents is best left to the trial court
hearing the election protest.
Considering the circumstances in this case, we find that no grave abuse of
discretion was committed by the respondent COMELEC.
Note that this petition stemmed from a pre-proclamation controversy where the
proclamations of Israel and Jaberael were annulled due to an incomplete canvass.[14] A
pre-proclamation controversy refers to any question pertaining to or affecting the
proceedings of the board of canvassers which may be raised by any candidate or by any
registered political party or coalition of political parties before the board or directly with

the Commission, or any matter raised under Sections 233, 234, 235, and 236 of the
Omnibus Election Code in relation to the preparation, transmission, receipt, custody and
appreciation of election returns.[15] The proceedings are summary in nature in
that there is no room for the presentation of evidence aliunde, the inspection of
voluminous documents, and for meticulous technical examinations which take up
considerable time.[16]
In this case, Jaberael challenged, not the election returns, but the 95 ballots
reflected in the returns of Precincts Nos. 15A and 17A. Well-settled is the rule that
issues relative to the appreciation of ballots cannot be raised in a pre-proclamation
controversy.[17] Appreciation of ballots is the task of the board of election inspectors,
not the board of canvassers, and questions related thereto are proper only in election
protests.[18] In a regular election protest, the parties may litigate all the legal and
factual issues raised by them in as much detail as they may deem necessary or
appropriate.[19]
Moreover, the COMELEC en bancs decision directing the proclamation of the
winning candidates becomes final and executory after five days from promulgation
unless restrained by the Supreme Court.[20] Since this Court did not issue a restraining
order, the winning candidates must be proclaimed. Upon such proclamation, the action
ceases to be a pre-proclamation controversy. But the losing party may still file an
election contest within ten (10) days following the date of proclamation.[21]
As a rule, the filing of an election protest (1) precludes the subsequent filing of a
pre-proclamation controversy or (2) amounts to the abandonment of one earlier filed,
thus depriving the COMELEC of the authority to inquire into and pass upon the title of
the protestee or the validity of his proclamation. The reason for this rule is that once the
competent tribunal has acquired jurisdiction of an election protest, all questions relative
thereto will have to be decided in the case itself and not in another proceeding to prevent
confusion and conflict of authority.[22]
While this rule admits exceptions, circumstances of this case do not warrant their
application. Records reveal that, indeed, Jaberael filed an election protest[23] with the
trial court assailing the results in all 35 precincts of South Upi including the 95 contested
ballots from Precincts Nos. 15A and 17A. Hence, such election protest amounts to his
abandonment of the pre-proclamation controversy.

On the second issue, should petitioner Israel be proclaimed mayor?

It is now settled doctrine that the COMELEC cannot proclaim as winner the
candidate who obtains the second highest number of votes in case the winning candidate
is ineligible or disqualified.[24] This rule admits an exception. But this exception is
predicated on the concurrence of two requisites, namely: (1) the one who obtained the
highest number of votes is disqualified; and (2) the electorate is fully aware in fact and
in law of a candidates disqualification so as to bring such awareness within the realm of
notoriety but would nonetheless cast their votes in favor of the ineligible candidate.
[25] The facts warranting the exception do not obtain in this case.
The complaint for disqualification of Gunsi was filed before the elections but the
COMELEC en banc disqualified him subsequent to the election. Thus, when the
electorate voted Gunsi for mayor on May 10, 2004, it was under the belief that he was
qualified. There is no presumption that the electorate agreed to the invalidation of their
votes as stray votes in case of Gunsis disqualification. The Court cannot adhere to
petitioner Israels contention that the votes cast in favor of Gunsi are stray votes. The
subsequent finding of the COMELEC en banc that Gunsi is ineligible cannot retroact to
the date of elections so as to invalidate the votes cast for him.[26] At the time, he was
not notoriously known by the public to be ineligible to run for mayor.[27]
Conformably then, the rules on succession under the Local Government Code shall
apply, thus,
SECTION 44. Permanent Vacancies in the Office of the Governor, ViceGovernor, Mayor, and Vice-Mayor.If a permanent vacancy occurs in the office of the
governor or mayor, the vice-governor or vice-mayor concerned shall become
the governor or mayor. . . .
xxxx
For purposes of this Chapter, a permanent vacancy arises when an elective
local official fills a higher vacant office, refuses to assume office, fails to qualify, dies,
is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to
discharge the functions of his office.
x x x x[28] (Emphasis added)

Considering Gunsi failed to qualify as mayor of South Upi, the proclaimed vicemayor shall then succeed him as mayor.
WHEREFORE, the petition is DISMISSED for lack of merit, without

prejudice to the election protest filed in the Regional Trial Court of Cotabato City,
Branch XIV. The order dated of the Commission on Elections in SPC No. 04-247 is
hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.